A Broken System: Error Rates in Capital Cases,
1973-1995 ^*

by James S. Liebman, Jeffrey Fagan & Valerie West
June 12, 2000

I.   Introduction

Americans seem to be of two minds about the death penalty.³ In the last several years, executions have risen steeply, reaching a 50-year high.⁴ Two-thirds of the public support the penalty.⁵

Two-thirds support, however, represents a steady decline from the four-fifths of the population that supported the penalty only six years ago, leaving support for capital punishment at a 20-year low.⁶ When life without parole is proposed as an alternative, support for the penalty drops even more-often below a majority.⁷ Grants of executive clemency reached a 20-year high in 1999.⁸

In 1999 and 2000, Governors, attorneys general and legislators in Alabama, Arizona, Florida, and Tennessee have fought high-profile campaigns to speed up and increase the number of executions.⁹

In the same period, however:

• The Republican Governor of Illinois, with support from a majority of the electorate, declared a moratorium on executions in the state.¹⁰
  
  
• The Nebraska Legislature did the same. Although the governor vetoed the legislation, the Legislature appropriated money for a comprehensive study of the even-handedness of the state's exercise of capital punishment.¹¹ Similar studies have since been ordered by the Chief Justice, task forces of both houses of the state legislature and the Governor of Illinois,¹² and also the Governors of Indiana and Maryland and the Attorney General of the United States.¹³
  
  
• Serious campaigns to abolish the death penalty are under way in New Hampshire¹⁶ and (with the support of the Governor and a popular former Republican Senator) in Oregon.¹⁷
  
  
• The Florida Supreme Court and Mississippi Legislature have recently acted to improve the quality of counsel in capital cases,¹⁸ and bills aiming to do the same and to improve capital prisoners' access to DNA evidence have been introduced in both houses of the United States Congress, with bipartisan sponsorship.¹⁹
  
  
• Observers in the Wall Street Journal, New York Times Magazine, and Salon and on ABC This Week see "a tectonic shift in the politics of the death penalty ."²⁰ In April 2000 alone, George Will²¹ and Rev. Pat Robertson-both strong death penalty supporters-expressed doubts about the manner in which government officials carry out the penalty in the United States, and Robertson advocated a moratorium on Meet the Press.²²
  
  

Fueling these competing initiatives are two beliefs about the death penalty. One is that death sentences move too slowly from imposition to execution, undermining deterrence and retribution, subjecting our criminal laws and courts to ridicule, and increasing the agony of victims.²³ The other is that death sentences are fraught with error, causing justice too often to miscarry, and subjecting innocent and other undeserving defendants-mainly, the poor and racial minorities- to execution.²⁴

Some observers attribute these seemingly conflicting events and opinions to "America's schizophrenia-we believe in the death penalty, but shrink from it as applied."²⁵ These views may not conflict, however, and Americans who hold both may not be irrational. It may be that capital sentences spend too much time under review and that they are fraught with disturbing amounts of error. Indeed, it may be that capital sentences spend so much time under and awaiting judicial review precisely because they are so persistently and systematically fraught with alarming amounts of error. That is the conclusion to which we are led by a study of all 4,578 capital sentences that were finally reviewed by state direct appeal courts, 248 state post-conviction reversals of capital judgments, and all 599 capital sentences that were finally reviewed by federal habeas corpus courts between 1973 and 1995.²⁶