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Reversals of death sentences

Jim Liebman pointed me toward this news article that referred to our study of the death-penalty appeals process. I’ll briefly discuss our findings, then give the news article, then give my reactions to the news article.

Here’s the abstract of our paper, which appeared last year in the Journal of Empirical Legal Studies:

We collected data on the appeals process for all death sentences in
U.S. states between 1973 and 1995. The reversal rate was high, with
an estimated chance of at least two-thirds that any death sentence
would be overturned by a state or federal appeals court. Multilevel
regression models fit to the data by state and year indicate that high reversal rates are strongly associated with higher death-sentencing rates and lower rates of apprehending and imprisoning violent offenders. In light of our empirical findings, we discuss potential remedies including “streamlining” the appeals process and restricting the death penalty to the “worst of the worst” offenders.

“Frivolous” reversals?

Section III of our paper discusses reasons for reversal in detail. We found that most of the reversals at these two review stages occurred where the correct outcome of the trial was in doubt; the reversing courts found that, if it had not been for the error, there was a “reasonable probability” that the outcome would have been different.

More broadly, there is no evidence that judges are systematically disposed to ignore or frustrate the public will on the death penalty. About 90 percent of the reversals in our study were by elected state judges—-who generally need the support of a majority of the voters in order to take or remain in office. Most of the remaining reversals were by federal judges appointed by Republican presidents with strong law-and-order agendas.

The Reuters article

Republicans want to speed up death penalty
Wed Jul 6, 2005 10:25 AM ET

By Alan Elsner

WASHINGTON (Reuters) – Republicans in Congress have launched a new effort to speed up executions in the United States by limiting the ability of those sentenced to death to appeal to federal courts.

The “Streamlined Procedures Act of 2005,” introduced into the House of Representatives by California Rep. Dan Lungren and in the Senate by Arizona Sen. Jon Kyl, would limit the ability of defendants facing the death sentence to have their cases reviewed by federal courts in what are known as habeas corpus appeals.

“You see delays in death penalty cases where they are allowed to drag on for 15 or even 25 years. Defense attorneys have come to believe the longer they delay, the better it is for their clients,” Lungren said in an interview.

“We’re trying to ensure that habeas corpus is not used as a reason for interminable delays and that defendants get one bite of the apple and not multiple bites,” he said.

Virginia Rep. Bobby Scott, the ranking Democrat on the subcommittee considering the bill, conceded there was little chance of blocking it in the House.

“The House has been very supportive of anything that would strip the innocent of a fair hearing. This bill will ensure that more innocent people will be put to death,” he said in a telephone interview.

Death penalty opponents say the law would strip the ability of federal courts to review most claims in capital cases.

“It seeks a radical cutting and slashing of our existing process of habeas corpus reviews of state convictions,” University of Chicago law professor Bernard Harcourt said last week in a hearing before the House subcommittee reviewing the legislation. “This new bill would effectively gut habeas corpus review where states have imposed a sentence of death.”

Habeas corpus — the phrase in Latin for “you have the body” — has been a centerpiece of Anglo-American jurisprudence since it was first developed over 300 years ago in Britain. It gave a defendant the right to have their imprisonment reviewed by a court.

In U.S. death penalty cases, defense lawyers consider the right to have federal courts oversee state court decisions as a vital weapon in their armory.


“It is critical. Often, the defendant’s original lawyers are so poorly funded and so overworked that they cannot do the basic research that the case requires. That’s why the error level is so high in death penalty cases,” said one California defense lawyer, who asked not to be named.

A study headed by Columbia University statistician and political scientist Andrew Gelman of all 5,826 death sentences imposed in the United States between 1973 and 1995 found that 68 per cent were reversed on appeal.

The most common reasons were “egregiously incompetent lawyering, prosecutorial misconduct or suppression of evidence, misintruction of jurors or biased judges or jurors,” said the study published in the Journal of Empirical Legal Studies.

Federal courts examining habeas corpus appeals overturned 40 percent of the cases that had previously been upheld by state appeals courts — a fact the authors called worrisome.

The number of death sentences handed down in the United States has fallen to around 150 a year from around 300 a year in the late 1990s, according to figures compiled by the Death Penalty Information Center.

Last year, there were 58 executions in the United States and there have been 27 so far this year. The average time a person spends on death row before execution is 11-12 years.

Ronald Eisenberg, a deputy district attorney from Philadelphia, said federal judges often threw out death sentences for frivolous reasons. In Pennsylvania, they have overturned 19 of 20 habeas corpus cases litigated in the past 10 years.

“Whether or not they actually reverse a conviction, federal habeas corpus courts drag litigation out for years of utterly unjustifiable delay, creating exorbitant costs for the state and endless pain for the victims,” he told the House subcommittee last week.

My reactions to the news article

I don’t have any specific comments on the bill described in the article. As I understand it, the reversal rate was about 40% for the cases that reached the federal level of appeals (see Figure 3 of our paper), and I can’t imagine that even a “streamlined” appeals procedure will be able to go through all these backlogged cases quickly. As we discuss at the top of page 257 of our article, we suspect that simply removing this level of appeal will lead to the upholding of death verdicts with serious errors.

I don’t know Ronald Eisenberg, the deputy district attorney from Philadelphia, but if 19 out of 20 of his cases were really thrown out, I could see how he wouldn’t be happy with the current system. Without commenting on Philadelphia in particular, I can say that our study did not find that death sentences were reversed for frivolous reasons (see discussion near the beginning of this blog entry).

Also, although I’m the first author on the Journal of Empirical Legal Studies article, the project as a whole was headed by Jim Liebman of the Columbia Law School. Here are links to the first report (by Liebman, Fagan, and West) and the second report (by Liebman, Fagan, Gelman, West, Davies, and Kiss).

The death penalty is a complicated policy issue, and I can see the arguments on both sides (for example, here, here, and here). Our study addressed a specific issue and highlighted the difficulties of sentencing lots of people to death while trying to avoid making mistakes.

Finally, I’d be glad to answer any specific questions about our study.