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II.   Summary of Central Findings

In Furman v. Georgia27 in 1972, the Supreme Court reversed all existing capital statutes and death sentences. The modern death-sentencing era began the next year with the implementation of new capital statutes designed to satisfy Furman. Unfortunately, no central repository of detailed information on post-Furman death sentences exists.28 In order to collect that information, we undertook a painstaking search, beginning in 1991 and accelerating in 1995, of all published state and federal judicial opinions in the U.S. conducting direct and habeas review of state capital judgments, and many of the available opinions conducting state post-conviction review of those judgments. We then (1) checked and catalogued all the cases the opinions revealed, and (2) collected hundreds of items of information about each case from the published decisions and the NAACP Legal Defense Fund's quarterly death row census, and (3) tabulated the results.29

Nine years in the making, our central findings thus far are these:

  • Between 1973 and 1995, approximately 5,760 death sentences were imposed in the U.S.30 Only 313 (5.4%; one in 19) of those resulted in an execution during the period.31

  • Of the 5,760 death sentences imposed in the study period, 4,578 (79%) were finally reviewed on "direct appeal" by a state high court.32 Of those, 1,885 (41%; over two out of five) were thrown out because of "serious error," i.e., error that the reviewing court concludes has seriously undermined the reliability of the outcome or otherwise "harmed" the defendant.33

  • Nearly all of the remaining death sentences were then inspected by state post-conviction courts.34 Our data reveal that state post-conviction review is an important source of review in states such as Florida, Georgia, Indiana, Maryland, Mississippi, North Carolina, and Tennessee.35 In Maryland, at least 52% of capital judgments reviewed on state post-conviction during the study period were overturned due to serious error; the same was true of at least 25% of the capital judgments that were similarly reviewed in Indiana, and at least 20% of those reviewed in Mississippi.36

  • Of the death sentences that survived state direct and post-conviction review, 599 were finally reviewed in a first habeas corpus petition during the 23-year study period.37 Of those 599, 237 (40%; two out of five) were overturned due to serious error.38

  • The "overall success rate" of capital judgments undergoing judicial inspection, and its converse, the "overall error-rate," are crucial factors in assessing the effectiveness of the capital punishment system. The "overall success rate" is the proportion of capital judgments that underwent, and passed, the three-stage judicial inspection process during the study period. The "overall error rate" is the reverse: the proportion of fully reviewed capital judgments that were overturned at one of the three stages due to serious error.39 Nationally, over the entire 1973-1995 period, the overall error-rate in our capital punishment system was 68%.40

  • "Serious error" is error that substantially undermines the reliability of the guilt finding or death sentence imposed at trial.41 Each instance of that error warrants public concern. The most common errors are (1) egregiously incompetent defense lawyering (accounting for 37% of the state post-conviction reversals), and (2) prosecutorial suppression of evidence that the defendant is innocent or does not deserve the death penalty (accounting for another 16%-19%, when all forms of law enforcement misconduct are considered).42 As is true of other violations, these two count as "serious" and warrant reversal only when there is a reasonable probability that, but for the responsible actor's miscues, the outcome of the trial would have been different.43

  • The seriousness of these errors is also revealed by what happens on retrial, when the errors are cured. In our state post-conviction study, an astonishing 82% (247 out of 301) of the capital judgments that were reversed were replaced on retrial with a sentence less than death, or no sentence at all.44 In the latter regard, 7% (22/301) of the reversals for serious error resulted in a determination on retrial that the defendant was not guilty of the capital offense.45

  • The result of very high rates of serious, reversible error among capital convictions and sentences, and very low rates of capital reconviction and resentencing, is the severe attrition of capital judgments. As is illustrated by the flow chart below:

    1. For every 100 death sentences imposed and reviewed during the study period, 41 were turned back at the state direct appeal phase because of serious error. Of the 59 that got through that phase to the second, state post-conviction stage, at least46 10%-meaning 6 more of the original 100-were turned back due to serious flaws. And, of the 53 that got through that stage to the third, federal habeas checkpoint, 40%-an additional 21 of the original 100-were turned back because of serious error. All told, at least 68 of the original 100 were thrown out because of serious flaws, compared to only 32 (or less) that were found to have passed muster-after an average of 9-10 years had passed.

    2. And among the individuals whose death sentences were overturned for serious error, 82% (56 in our example) were found on retrial not to have deserved the death penalty, including 7% (5) who were found innocent of the offense.

    "Attrition" Flow Chart

  • High error rates pervade American capital-sentencing jurisdictions, and are geographically dispersed. Among the 26 death-sentencing jurisdictions with at least one case reviewed in both the state and federal courts and as to which information about all three judicial inspection stages is available:

    1. 24 (92%) have overall error rates of 52% or higher;

    2. 22 (85%) have overall errors rates of 60% or higher;

    3. 15 (61%) have overall error rates of 70% or higher.

    4. Among other states, Maryland, Georgia, Alabama, Mississippi, Indiana, Oklahoma, Wyoming, Montana, Arizona, and California have overall error rates of 75% or higher.47

  • It sometimes is suggested that Illinois, whose governor declared a moratorium on executions in January 2000 because of a spate of death row exonerations there,48 generates "uniquely" flawed death sentences.49 Our data dispute this suggestion: The overall rate of serious error found to infect Illinois capital sentences (66%) actually is slightly lower than the nationwide average (68%).50

  • High error rates have persisted for decades. A majority of all cases reviewed in 20 of the 23 study years-including in 17 of the last 19 years-were found seriously flawed. In half of the years studied, the error rate was over 60%. Although error rates detected on state direct appeal and federal habeas corpus dropped some in the early 1990s, they went back up in 199551. The amount of error detected on state post-conviction has apparently risen throughout the 1990s.52

  • The 68% rate of capital error found by the three stage inspection process is much higher than the error rate of less than 15% found by those same three inspections in noncapital criminal cases.53

  • Appointed federal judges are sometimes thought to be more likely to overturn capital sentences than state judges, who almost always are elected in capital-sentencing states.54 In fact, state judges are the first and most important line of defense against erroneous death sentences. They found serious error in and reversed 90% (2,133 of the 2,370) capital sentences that were overturned during the study period.55

  • Under current state and federal law, capital prisoners have a legal right to one round of direct appellate, state post-conviction and federal habeas corpus review.56 The high rates of error found at each stage-including even at the last stage-and the persistence of high error rates over time and across the nation, confirm the need for multiple judicial inspections. Without compensating changes at the front-end of the process, the contrary policy of cutting back on judicial inspection makes no more sense than responding to the insolvency of the Social Security System by forbidding it to be audited.

  • Finding all this error takes time. Calculating the amount of time using information in published decisions is difficult. Only a small percentage of direct appeals decisions report the sentence date. By the end of the habeas stage, however, a larger proportion of sentencing dates is reported in one or another decision in the case. Accordingly, it is possible to get a good sense of timing for only the 599 cases that were finally reviewed on habeas corpus. Among those cases:

    1. It took an average of 7.6 years after the defendant was sentenced to die to complete federal habeas consideration in the 40% of habeas cases in which reversible error was found.

    2. In the cases in which no error was detected at the third inspection stage and an execution occurred, the average time between sentence and execution was 9 years. Matters did not improve over time. In the last 7 study years (1989-95), the average time between sentence and execution rose to 10.6 years.57

  • High rates of error, and the time consequently needed to filter out all that error, frustrate the goals of the death penalty system. Figure 1 below compares the overall rate of error detected during the state direct appeal, state post-conviction, and federal inspection process in the 28 states with at least one capital case in which both inspections have been completed (the orange line), to the percentage of death sentences imposed by each state that it has carried out by execution (the red line).58 In general, where the rate of serious reversible error in a state's capital judgments reaches 55% or above (as is true for the vast majority of states), the state's capital punishment system is effectively stymied-with its proportion of death sentences carried out falling below 7%.

Figure 1

The recent rise in the number of executions59 is not inconsistent with these findings. Instead of reflecting improvement in the quality of death sentences under review, the rising number of executions may simply reflect how many more sentences have piled up for review. If the error-induced pile-up of cases is the cause of rising executions, their rise provides no proof that a cure has been found for disturbingly high error rates. To see why, consider a factory that produces 100 toasters, only 32 of which work. The factory's problem would not be solved if the next year it made 200 toasters (or added 100 new toasters to 100 old ones previously backlogged at the inspection stage), thus doubling its output of working products to 64. With, now, 136 duds to go with the 64 keepers, the increase in the latter would simply mask the persistence of crushing error rates.

The decisive question, therefore, is not the number of death sentences carried out each year, but the proportion. And as Figure 2 below shows:60

  • In contrast to the annual number of executions (the middle line in the chart), the proportion of death row inmates executed each year (the bottom line) has remained remarkably stable-and extremely low. Since post-Furman executions began in earnest in 1984, the nation has executed an average of about 1.3% of its death row inmates each year; in no year has it ever carried out more than 2.6 percent-or 1 in 39-of those on death row.61

  • Figure 1 thus suggests that executions are increasing, not because of improvements in the quality of capital judgments, but instead because so many more people have piled up on death row that, even consistently tiny proportions of people being executed-because of consistently prodigious error and reversal rates-are prompting the number of executions to rise.62 As in our factory example, rising output does not indicate better products, and instead seems to mask the opposite.

Figure 2

Figure 1, p. 11 above, illustrates another finding of interest that recurs throughout this Report: The pattern of capital outcomes for the State of Virginia is highly anomalous, given the State's high execution rate (nearly double that of the next nearest state, and 5 times the national average) and its low rate of capital reversals (nearly half that of the next nearest state, and less than one-fourth the national average). The discrepancy between Virginia and other capital-sentencing states on this and other measures63 presents an important question for further study: Are Virginia capital judgments in fact half as prone to serious error as the next nearest state and 4 times better than the national average?64 Or, on the other hand, are its courts more tolerant of serious error? We will address this issue below and in a subsequent report.65

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