A Broken System, Part II:
Why There Is So Much Error in Capital Cases,
and What Can Be Done About It

James S. Liebman
Simon H. Rifkind Professor of Law
Columbia Law School

Jeffrey Fagan
Columbia Law School & Joseph
Mailman School of Public Health

Andrew Gelman
Professor of Statistics
Columbia University

Valerie West
Research Associate, Columbia Law School
Doctoral Candidate, Dep't of Sociology
New York University

Garth Davies
Doctoral Candidate, School of Criminal Justice, Rutgers University

Alexander Kiss
Doctoral Candidate, Dep't of Biostatistics
Columbia University

February 11, 2002

(c)2002 James S. Liebman, Jeffrey Fagan, Andrew Gelman, Valerie West, Garth Davies, Alexander Kiss

Table of Contents

Executive Summary
Guide to the Report

Flow Chart: The Capital Criminal Process: Trial Through State Post-Conviction and Federal Habeas


  1. Introduction: Rising Doubts About the Administration of the Death Penalty
    1. The Recent Wave of Rethinking and Reform
    2. Error and the Risk of Executing the Innocent as the Spur to Reform
    3. The Disturbing Amount of Error, Unreliability and Risk Revealed by our June 2000 Report, A Broken System
  2. Why it Is Important to Study the Causes of Reversible Error in Death Cases
    1. A System Overwhelmed by Error
    2. A System that May Be Fraught with Even More Error than Our Cautious Methods Counted
    3. A System Fraught with Serious Error
    4. A System that Does Not Work, and Is Fraught with Costly and Serious Error
    5. A Research Imperative: Seeking the Causes of Reversible Error in Death Cases
  3. Research Questions, Methods, Data Sources and Format for Reporting Results
    1. Research Question: What Accounts for Variation in the Amount of Serious, Reversible Capital Error from One State, County, Year and Case to the Next?
    2. Why it Is Helpful to Use Regression and Other Analyses to Identify Statistically Significant Relationships Between Changes in Potentially Explanatory Conditions and Changes in Capital Reversal Rates
    3. Study Methods
    4. Stages of Analysis and Factors Considered
    5. Sources of Data
    6. Format for Reporting Results
  4. State-Level Factors Related to Serious, Reversible Error in Capital Trials and Verdicts: Aggressive Use of the Death Penalty, Ineffective Law Enforcement, Politics and Race
    1. Differences in How States Use the Death Penalty and How Often Their Verdicts Are Reversed
    2. Results of Main Analysis 1 and Analysis 2 of Reversal Rates at All Review Stages Combined: Aggressive Death Sentencing, Ineffective Law Enforcement, Politics and Race
    3. Results of Analyses 3-6 of Single Stages of Review: More Evidence of the Effects of Race, Politics, Frequent Use of the Death Penalty and Weak Law Enforcement
    4. Results of Analyses 14 and 15 of the States' 23-Year Capital Experiences: the Role of Race, Politics, Zeal for the Death Penalty and Weak Law Enforcement Confirmed
    5. The Reliability and Robustness of the Results of the Eight State Analyses
  5. The Role of County-Level Conditions as Explanations for Serious Capital Error
    1. The Potential Important of County-Level Conditions
    2. Results of County-Only Analysis 7: Importance of County-Level Factors Similar to Those Identified by the State Analyses
    3. Results of County-State Analyses 8, 9 and 10: Additional Evidence of Role of Factors Identified by State Analyses
    4. Results of County-State Analyses 11-13, 16 and 17: Further Confirmation of State-Level Analyses and Results
    5. Results of Analysis 18: County-Only Analysis of Florida, Georgia and Texas
    6. Principal Findings of County Analyses: The Influence of Previously Identified State-Level Explanations for Capital Reversal Rates, Plus County Death-Sentencing Rates and Population Structure
    7. One Implication and One Illustration of the Relationship Between High County Capital-Error Rates and High County Death-Sentencing Rates
  6. Results of a Case-Level Study (Analysis 19) of Factors Related to Federal Habeas Reversal: Weak Case for Death, Low Quality State Court Procedures, High Quality Federal Lawyer and Politics
    1. Reasons for Doing Case-Level Analysis of Capital Federal Habeas Outcomes
    2. The Study
    3. Factors Related to High Probability of Federal Habeas Reversal: Low Quality State Court Proceedings, High Quality Lawyers, Weak Case for Death, Timing and Politics
    4. Conclusion: Support for Prior Results Linking Reversals to Broad Use of the Death Penalty, Low Quality State Court Proceedings and Politics
  7. Summary and Interpretation of Results: The Strongest Predictor of Serious Capital Error Is Aggressive Use of the Death Penalty, Extending to Weakly Aggravated Homicides, in Response to Political, Race-Related and Law-Enforcement-Related Fears and Pressures
    1. Summary of Methods
    2. Principal Conclusion: Heavy Use of the Death Penalty Extending Beyond Highly Aggravated Homicides Substantially Increases the Risk of Serious Capital Error
    3. Supporting Conclusions
    4. Higher-Risk and Lower-Risk States, Given this Analysis
  8. Policy Options
    1. Attacking the Problem by Severely Curtailing the Death Penalty
    2. Moderating the Problem Through Targeted Changes in Capital Policy and Practice
    3. Changes Likely to Magnify the Problem of Serious Capital Error
  9. Conclusion