X.   Conclusion: A Broken System; the Need for Research into Causes

Over the course of the 23-year study period, a large majority of death sentences subjected to judicial inspection nationally and in nearly all death-sentencing states were found to be seriously flawed and were reversed by the courts. The 60% and 70% rates of serious error that have existed nationally and in the vast majority of states have obliged courts to provide, and have obliged taxpayers to foot the bill for, a elaborate and lengthy judicial inspection process-one that, even so, almost inevitably must fail to catch and correct some amount of the error that has flooded the system. As an inevitable result of so many serious errors and the multi-tiered process needed to catch them, it has taken nearly a decade-more recently, it has taken over a decade-for the small number of death sentences that pass inspection to be carried out.

Very few death sentences succeed, and it takes years to cull out the majority of failures.

So far we have used the rate of serious error detected by state and federal courts as the measure of the success or failure of our capital punishment system. But there is another important measure that bears consideration. Presumably, the most immediate goal of a system of capital punishment is the execution of capital sentences. In this light, the most obvious measure of the "success" of our death penalty system-indeed, the most obvious measure of the system's sheer rationality-is its capacity to translate the death sentences it imposes into executions.

By this measure, the capital punishment system revealed by our 23-year study is not a success, and is not even minimally rational. Figure 35 below plots the proportion of the death sentences imposed at some point during the 23-year study period that had been carried out by the end of that period-comparing the 28-state cohort of capital-sentencing jurisdictions and the national average.²³⁷

Figure 35

As Figure 35 reveals:

• Nationally, during the study period, the proportion of death sentences actually carried out was a meager 5.4%, one in nineteen.
  
  
• Given high error rates, and the painstaking review needed to catch it, well over half of all American death-sentencing states that have been in the business the longest failed to carry out 95% or more of their death sentences. Nearly half failed to convert more than 1 in 30 death sentences into executions. Three-quarters carried out fewer than 7% of their death sentences. The vast majority (86%) carried out 15% or fewer.
  
  
• Only 1 state, Virginia, managed to carry out more that a quarter of the death sentences it imposed over the 23-year study period-and there is serious question whether it did so only by dint of inferior error detection.²³⁸
  
  

* * * * *

Through a variety of measures, our 23 years worth of findings reveal a capital punishment system collapsing under the weight of its own mistakes. In so doing, they pose three principal questions (and a host of subsidiary ones) that will be the subject of a second report later this year:

• What has remained the same, and what has changed, since 1995? By all indications examined here, the error-proneness and irrationality documented by our study of thousands of cases reviewed by hundreds of state and federal judges, in three separate review processes, in 34 states across the nation over the course of nearly a quarter century has not somehow evaporated in the succeeding four years.²³⁹ In none of those four years, for example, as in none of the preceding 23, has the nation managed to execute even 3% of its death row inmates-and in 1996 and 1998, it executed fewer than 2% (about the same proportion as it had executed in, e.g., 1984, 1987, 1993 and 1995).²⁴⁰ Indeed, if the recent findings of a variety of media investigations across the nation are any indication, error rates and the consequent confounding of the death penalty system may be getting worse.²⁴¹ In this regard, we hope to explore whether the surge of state and federal court reversals in the last study year (1995) was a harbinger,²⁴² and any other patterns that may appear.
  
  
• What accounts for the generally high rates of serious error that state and federal courts have detected in American capital judgments? In this Report, we have briefly examined the types of errors that predominate (incompetent lawyering and prosecutorial misconduct leading the way²⁴³); identified differences among the respective states and federal courts-for example, disproportionately low error-detection by the Virginia courts and the U.S. Court of Appeals for the Fourth Circuit; noted the relationship between high error rates and low execution rates (especially rates of death sentences carried out); discovered some potentially suggestive evidence that low execution rates (especially, low rates of death sentences carried out) are associated with high death-sentencing rates; and considered the effect on death-sentencing and execution rates of (1) some demographic factors (finding that homicide rates seem to have no effect on death-sentencing and execution rates, and that the size of nonwhite populations may be inversely related to death-sentencing rates but directly related to execution rates) and (2) judicial-contextual factors (finding that political pressure on state judges and that state expenditures on courts may be positively correlated with death-sentencing rates but negatively correlated with the rate at which death sentences are carried out). These analyses represent our first steps towards the main goal or our next research phase: Identifying the causes of the huge amounts of serious error infecting American capital convictions and sentences.
  
  
• What policy responses are called for? In advance of these additional efforts to explore the causes of our capital system's error-proneness and irrationality, we have the least to say here about the policy implications of our findings. That, however, will be a third important focus of our next phase of research.