A Broken System,
Part II: Why There Is So Much Error in Capital Cases,
and What Can Be Done About It
There is growing awareness
that serious, reversible error permeates America's death penalty system,
putting innocent lives at risk, heightening the suffering of victims,
leaving killers at large, wasting tax dollars, and failing citizens, the
courts and the justice system.
Our June 2000 Report
shows how often mistakes occur and how serious it is: 68% of all death
verdicts imposed and fully reviewed during the 1973-1995 study period
were reversed by courts due to serious errors.
for the first time here reveal that 76% of the reversals at the two appeal
stages where data are available for study were because defense lawyers
had been egregiously incompetent, police and prosecutors had suppressed
exculpatory evidence or committed other professional misconduct, jurors
had been misinformed about the law, or judges and jurors had been biased.
Half of those reversals tainted the verdict finding the defendant guilty
of a capital crime as well as the verdict imposing the death penalty.
82% of the cases sent back for retrial at the second appeal phase ended
in sentences less than death, including 9% that ended in not guilty verdicts.
Part II of our study
addresses two critical questions: Why does our death penalty system make
so many mistakes? How can these mistakes be prevented, if at all? Our
findings are based on the most comprehensive set of data ever assembled
on factors related to capital error-or other trial error.
Our main finding
indicates that if we are going to have the death penalty, it should be
reserved for the worst of the worst: Heavy and indiscriminate use of
the death penalty creates a high risk that mistakes will occur. The
more often officials use the death penalty, the wider the range of crimes
to which it is applied, and the more it is imposed for offenses that are
not highly aggravated, the greater the risk that capital convictions and
sentences will be seriously flawed.
Most disturbing of
all, we find that the conditions evidently pressuring counties and
states to overuse the death penalty and thus increase the risk of unreliability
and error include race, politics and poorly performing
law enforcement systems. Error also is linked to overburdened
and underfunded state courts.
The higher the
rate at which a state or county imposes death verdicts, the greater the
probability that each death verdict will have to be reversed because of
- The overproduction
of death penalty verdicts has a powerful effect in increasing the risk
of error. Our best analysis predicts that:
- Capital error
rates more than triple when the death-sentencing rate increases
from a quarter of the national average to the national average,
holding other factors constant.
- When death
sentencing increases from a quarter of the national average to the
highest rate for a state in our study, the predicted increase in
reversal rates is six-fold-to about 80%.
the more often states impose death sentences in cases that are not highly
aggravated, the higher the risk of serious error.
- At the federal
habeas stage, the probability of reversal grows substantially as the
crimes resulting in capital verdicts are less aggravated. For each additional
aggravating factor, the probability of reversal drops by about 15%,
when other conditions are held constant at their averages. Imposing
the death penalty in cases that are not the worst of the worst is a
recipe for unreliability and error.
particular counties' and states' capital-sentencing and capital-error
rates illustrate the strong relationship between frequent death sentencing
and error. For example:
- Among counties
with 600 or more homicides and five or more death sentences during the
study period, ten had the highest death-sentencing rates: Pima County
(Tucson), Arizona; suburban Baltimore County, Maryland; Clark County
(Las Vegas), Nevada; Pinellas County (St. Petersburg), Florida; Oklahoma
(City), Oklahoma; Maricopa County (Phoenix), Arizona; Hamilton County
(Cincinnati), Ohio; Hillsborough County (Tampa), Florida; Polk County,
Florida; and Muscogee County, Georgia. These counties had an average
capital error rate of 71% at the first and last appeal stages, and eight
of them put a total of 16 people on death row who were later found not
guilty. The ten comparable capital counties with the lowest death-sentencing
rates are San Francisco, California; Richmond, Virginia; Fulton County
(Atlanta), Georgia; Essex County (Newark), New Jersey; St. Louis City,
Missouri; Pulaski County (Little Rock), Arkansas; Bernalillo County
(Albuquerque), New Mexico; Davidson County (Nashville), Tennessee; Jackson
County (Kansas City), Missouri; and Prince George's County (suburban
Washington), Maryland. These counties had an average error rate of 41%,
and none sentenced anyone to death during the study period or since
who was later found not guilty.(Table 16)
- All but one of
the 10 states with the highest death-sentencing rates during the 23-year
study period had overall capital reversal rates at or above the average
rate of 68%.
WITH OVERUSE OF THE DEATH PENALTY
Four disturbing conditions
are strongly associated with high rates of serious capital error. Their
common capacity to pressure officials to use the death penalty aggressively
in response to fears about crime and regardless of how weak any particular
case for a death verdict is, may explain their relationship to high capital
- The closer the
homicide risk to whites in a state comes to equaling or surpassing the
risk to blacks, the higher the error rate. Other things equal, reversal
rates are twice as high where homicides are most heavily concentrated
on whites compared to blacks, than where they are the most heavily concentrated
- The higher the
proportion of African-Americans in a state-and in one analysis, the
more welfare recipients in a state-the higher the rate of serious capital
error. Because this effect has to do with traits of the population
at large, not those of particular trial participants, it appears to
be an indicator of crime fears driven by racial and economic conditions.
- The lower the
rate at which states apprehend, convict and imprison serious criminals,
the higher their capital error rates. Predicted capital error rates
for states with only 1 prisoner per 100 FBI Index Crimes are about 75%,
holding other factors constant. Error rates drop to 36% for states with
4 prisoners per 100 crimes, and to 13% for those with the highest rate
of prisoners to crimes. Evidently, officials who do a poor job fighting
crime also conduct poor capital investigations and trials. Well-founded
doubts about a state's ability to catch criminals may lead officials
to extend the death penalty to a wider array of weaker cases-at huge
cost in error and delay.
- The more often
and directly state trial judges are subject to popular election, and
the more partisan those elections are, the higher the state's rate of
serious capital error.
Heavy use of the
death penalty causes delay, increases cost, and keeps the system from
doing its job. High numbers of death verdicts waiting to be reviewed
paralyze appeals. Holding other factors constant, the process of moving
capital verdicts from trial to a final result seems to come to a halt
in states with more than 20 verdicts under review at one time.
Poor quality trial
proceedings increase the risk of serious, reversible error. Poorly
funded courts, high capital and non-capital caseloads, and unreliable
procedures for finding the facts all increase the chance that serious
error will be found. In contrast, high quality, well-funded private lawyers
from out of state significantly increase a defendant's chance of showing
a federal court that his death verdict is seriously flawed and has to
error rates have persisted over time. Overall reversal rates were
high and fairly steady throughout the second half of the 23-year study
period, averaging 60%. When all significant factors are considered, state
high courts on direct appeal-where 79% of the 2349 reversals occurred-found
significantly more reversible error in recent death verdicts than in verdicts
imposed earlier in the study period. Other things equal, direct appeal
reversal rates were increasing 9% a year during the study period.
State and federal
appeals judges cannot be relied upon to catch all serious trial errors
in capital cases. Like trial judges, appeals judges are susceptible
to political pressure and make mistakes. And the rules appeals judges
use to decide whether errors are serious enough to require death verdicts
to be reversed are so strict that egregious errors slip through. We study
four illustrative cases in which the courts approved the convictions
and death sentences of innocent men despite a full set of appeals.*
These case studies show that judges repeatedly recognized that the proceedings
were marred by error but affirmed anyway because of stringent rules limiting
The lower the rate
at which a state imposes death sentences-and the more it confines those
verdicts to the worst of the worst-the less likely it is that serious
error will be found. The fewer death verdicts a state imposes, the less
overburdened its capital appeal system is, and the more likely it is to
carry out the verdicts it imposes. The more often states succumb to pressures
to inflict capital sentences in marginal cases, the higher is the risk
of error and delay, the lower is the chance verdicts will be carried out,
and the greater is the temptation to approve flawed verdicts on appeal.
Among the disturbing sources of pressure to overuse the death penalty
are political pressures on elected judges, well-founded doubts about the
state's ability to convict serious criminals, and the race of the state's
residents and homicide victims.
We employ an array
of statistical methods to identify factors that predict where and when
death verdicts are more likely to be found to be seriously flawed, and
to assure that the analyses are comprehensive, conservative and reliable:
We use several statistical methods with different assumptions about the
arrangement of capital reversals and reversal rates to ensure that results
are driven by relationships in the data, not statistical methods. We analyze
reversals at each separate review stage and at all three stages combined.
We use multiple regression to analyze the simultaneous effect on reversal
rates of important general factors (state, county, year and time trend)
and specific conditions that may explain error rates. We examine factors
operating at the state, county and case level. And we check for consistency
of results across analyses to determine which factors and sets of significant
factors are the most robust and warrant the most confidence.
The harms resulting
from chronic capital error are costly. Many of its evident causes are
not easily addressed head-on (e.g., the complex interaction of
a state's racial make-up, its welfare burden and the efficacy of its law
enforcement policies). And indirect remedies are unreliable because they
demand self-restraint by officials who in the past have succumbed to pressures
to extend the death penalty to cases that are not highly aggravated. As
a result, some states and counties may conclude that the only answer to
chronic capital error is to stop using the death penalty, or to limit
it to the very small number of prospective offenses where there is something
approaching a social consensus that only the death penalty will do.
In other states and
counties, a set of carefully targeted reforms based upon careful study
of local conditions might seek to achieve the central goal of limiting
the death penalty to "the worst of the worst"to defendants who can
be shown without doubt to have committed an egregiously aggravated murder
without extenuating factors. Ten reforms that might help accomplish this
- Requiring proof
beyond any doubt that the defendant committed the capital crime.
- Requiring that
aggravating factors substantially outweigh mitigating ones before a
death sentence may be imposed.
- Barring the death
penalty for defendants with inherently extenuating conditionsmentally
retarded persons, juveniles, severely mentally ill defendants.
- Making life imprisonment
without parole an alternative to the death penalty and clearly informing
juries of the option.
- Abolishing judge
overrides of jury verdicts imposing life sentences.
- Using comparative
review of murder sentences to identify what counts as "the worst of
the worst" in the state, and overturning outlying death verdicts.
- Basing charging
decisions in potentially capital cases on full and informed deliberations.
- Making all police
and prosecution evidence bearing on guilt vs. innocence, and on aggravation
vs. mitigation available to the jury at trial.
- Insulating capital-sentencing
and appellate judges from political pressure.
- Identifying, appointing
and compensating capital defense counsel in ways that attract an adequate
number of well-qualified lawyers to do the work.
Over decades and
across dozens of states, large numbers and proportions of capital verdicts
have been reversed because of serious error. The capital system is collapsing
under the weight of that error, and the risk of executing the innocent
is high. Now that explanations for the problem have been identified and
a range of options for responding to it are available, the time is ripe
to fix the death penalty, or if it can't be fixed, to end it.
We study the cases of Lloyd Schlup, Earl Washington, Anthony Porter and
Frank Lee Smith. See pp. 25-36.