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VI.   The Study

This study began in 1991 when the Chair of the Senate Judiciary Committee asked the lead author of this Report to calculate the frequency of relief in capital habeas corpus cases.122 Simply identifying the relevant cases turned out to be a monumental task, because there is no single repository of capital habeas corpus decisions either nationally or even (especially at the time) in most death-sentencing states, and key-word searches of reported cases are substantially under-inclusive (because some decisions that are capital are not identified as such) and over-inclusive (because many cases in which a death sentence was not imposed either began as capital cases or refer to capital cases). Working with volunteer law student assistants, therefore, the senior author undertook a painstaking search for capital habeas cases relying on (1) the NAACP Legal Defense Fund's (LDF's) quarterly death row census,123 (2) computerized and book research, and (3) a series of conversations with staff members of state death penalty resource centers and other local death penalty lawyers who were familiar with some of the cases and death row inmates in their states.

In late 1995, the study was expanded from a simple count of cases and their outcomes to a search for information that might help explain why relief is granted in so many capital habeas cases. In that year, a team with social scientific expertise was assembled, and began collecting approximately 1300 items of information about each case-relating to defendants, victims, offenses, evidence, lawyers, judges, timing, claims, defenses, court procedures, and the like. We soon determined that the only reasonably accessible source of this kind of information was published judicial decisions of federal habeas courts themselves and of state courts when they denied relief at earlier inspection stages.124

During 1996, 1997 and 1998, the senior authors developed, tested and revised a study instrument, developed and fine-tuned a set of research protocols, assembled and trained a series of law student researchers to collect the information called for by the study information, periodically checked and rechecked their completed forms, and in this way collected data on 599 initial federal habeas corpus cases and 173 second or successive federal habeas corpus cases. The research protocol called for researchers first to identify the "final federal habeas corpus decision" (the decision of the last and highest federal court to finally resolve the merits of the habeas application), then to identify all other available state and federal decisions addressing the same capital judgment (i.e., either the capital conviction, sentence or both), and then to extract from each of those decisions a variety of information that was then coded onto the research instrument. Beginning in 1997 and continuing through 1999, the information on the study instrument in each case was entered into a data base and again checked and rechecked.

We collected the results of all federal habeas corpus decisions that became "final" between January 1, 1973 and October 2, 1995.125 By "final," we mean that (1) the highest federal court to which the case has been timely brought either by the filing of a petition or an appeal has finally ruled on the validity of the capital judgment (meaning both the conviction and death sentence), (2) the time for reconsideration or rehearing by that court has passed, and (3) the time for U.S. Supreme Court review has passed without that Court's choosing to review the decision or, if it did choose to review it, with its own final merits decision having been rendered. Here again, a finding of "serious error" is made only if the capital conviction, the capital sentence, or both were overturned due to prejudicial, reversible error.126

Early on, it appeared that a major factor in determining outcomes in federal habeas cases was the state that imposed the capital judgment under review. For example, although judges of the same (Eleventh) federal circuit court reached nearly all of the final federal habeas decisions in cases from Florida, Alabama and Georgia, their reversal rates in cases emanating from each of those three states were quite different (respectively, 37%, 45%, and 65%), suggesting that there was something about each particular state's death sentences that made them more or less error-prone.127 To study this possibility, we collected information (in 1997 through 1999) about how states differ in regard to their demography, law, politics, judicial organization and funding, death-sentencing history and the like.

An early hypothesis in this regard was that the rate of error found by federal habeas proceedings might be related to the rate of error found in state direct appeals-either because lax state inspections might impose extra work on later federal ones (suggesting an inverse relationship between error rates found at the two stages), or because excessive amounts of error might overwhelm judges at the first checkpoint, permitting considerable remaining error to slip through and be caught (if at all) by judges at a later checkpoint (suggesting a more direct relationship between error rates found at the two stages).128 To test this hypothesis, we collected information about each state's capital direct appeal outcomes-prompting our second major study, covering the approximately 4,600 state direct appeal decisions during the 1973-1995 study period. Working back and forth from the LDF death row census and computerized legal research data bases, we compiled a list of all capital direct appeal decisions in the study period, then collected a small set of information about each case from published opinions that our search identified.

We collected the results of all direct appeal decisions that became "final" between January 1, 1973 and December 31, 1995. By "final," we mean that (1) the highest state court with jurisdiction over the appeal had finally ruled on the validity of the judgment (meaning both the conviction and death sentence), (2) the time for reconsideration by that court had passed, and (3) the U.S. Supreme Court did not review the decision or, if it did review it, had rendered a final merits decision by the end of 1995.129 A finding of "serious error" was made if reversible error was found and the capital conviction, sentence or both were overturned.130

Substantially later in the process, we began collecting data on state post-conviction outcomes. Those data are especially hard to find. Unlike state direct appeal decisions and appellate-level federal habeas decisions, which almost always are published in capital cases, state post-conviction decisions often are not published, even in capital cases. This is particularly so because state post-conviction review often begins-and when it leads to reversal, ends-in trial courts that almost never publish their decisions.131 Nor is there any central repository of information about when and where capital state post-conviction petitions are pending, making it difficult to ascertain (1) the number of state post-conviction cases that actually were decided at that stage during the study period (as opposed to the number that were available for resolution at that stage, because they had "cleared" state direct appeal) and, thus, (2) the proportion of actually decided cases in which "serious error" was found.

For these reasons, as is more fully described in the introduction to Appendix C, we limited our collection of state post-conviction data to a list of known state post-conviction reversals of capital judgments in the study states in which capital cases had progressed significantly beyond the direct appeal stage by the end of 1995. This list, set out in full in Appendix C, enables us to derive an interesting, though incomplete, picture of the rates of error detected by state post-conviction courts in reviewing death sentences. To do so, we make three obviously inaccurate, but reliably conservative, assumptions: First we assume that we have a complete list of capital state post-conviction reversals due to serious error that occurred during the study period. In fact, our list is incomplete, although it probably contains most such reversals. Second, we assume that every capital case that was available for state post-conviction review because it had "cleared" direct appeal during the 1973-1995 study period was finally decided on state post-conviction during that period. In fact, many of the "available" cases were not finally decided and were still being litigated on state post-conviction as of the end of 1995. Taken together, these two assumptions lead to a third assumption -that every capital judgment that was available for state post-conviction review and is not known to have been reversed due to serious error during the study period was affirmed. Calculating error rates in this manner systematically underestimates those rates (and overstates success rates) by (1) underestimating the numerator (the number of serious errors found, which we have undercounted) and (2) overstating the denominator (the number of cases finally reviewed for serious error, for which we have substituted the obviously larger number of cases available for review).132 Accordingly, our estimates of the rate of serious error found on state post-conviction review are understated and conservative.

Analysis of the data collected in our habeas corpus and direct appeal studies began in earnest in mid-1999 and continues at this writing, along with analyses of our newer, state post-conviction data. This Report presents the findings of our initial analyses. These focus on the basic operation and outcomes of the post-trial system for reviewing capital judgments: How many and what proportion of death sentences were reviewed at each of the three inspection stages during the study period-nationally, in each capital-sentencing state, and in each federal judicial circuit and corresponding geographic region? How much error was found, and by whom? How long did the process take? How do states compare in their sentencing and execution rates and along other dimensions that might help explain differences in the frequency of capital-sentencing error?

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