VII. The National Capital Punishment Report Card
In this Part, we present a "national composite capital-sentencing report card." The report card describes a variety of information, including the error rates found to characterize, and the time needed to review, death sentences in capital states during the study period. This Part also explains the two-page report card format that we use to report state, federal judicial circuit and regional as well as national data. (In Part VIII below, we present state-by-state comparisons of the information on state report cards for the 28 death-sentencing states in which at least one final direct appeal and federal habeas decision occurred during the 1993-1995 period.133 In Part IX below, we present similar comparisons of information on the federal judicial circuit court/regional report cards.134)
The national capital-sentencing report card is set out below. It combines information about the rates of error detected on direct appeal of capital judgments imposed in all 34 death-sentencing states in which at least one state capital direct appeal was completed during the 1973-1995 study period. Our 34-state cohort is: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Washington and Wyoming. Because capital cases in six states (Colorado, Connecticut, New Jersey, New Mexico, Ohio and Oregon) had not advanced far, or at all, into the state post-conviction stage of review, and no case from those states had completed federal habeas review, the bulk of the composite data-those covering the state post-conviction and federal habeas stages and the "overall rates"-omit these states and focus on what we call our 28-state cohort.
National Composite Capital Punishment Report Card, 1973-1995
History (34 States)
Sentences and Executions (34 States)
The National Composite Capital Punishment Report Card contains six categories of information for either the 34 capital-sentencing states in which at least one capital judgment had been finally reviewed on state direct appeal during the study period, or for the 28 of those states in which at least one capital judgment was finally reviewed on federal habeas during the study period. Because the same six categories appear on all of the succeeding report cards-along with a seventh category in the state report cards-this section describes the types of information that all seven categories contain, then discusses the actual national composite results for each category.
In the "History" category of each report card is information about the years in which four important capital-sentencing events occurred in the jurisdiction or set of jurisdictions in question following the Supreme Court's invalidation of all preexisting capital statutes and sentences in Furman v. Georgia.135 The requisite information for the nation as whole (in this case comprised of the 34-state cohort of capital-sentencing jurisdictions) as revealed by the top category in the National Report Card is as follows:
We focus on non-consensual, as well as all, executions because we are interested in error rates, and only non-consensual executions reveal the inspection system's conclusion that the death sentence is free of "serious error" as defined above.140
This section reports the number of death sentences imposed, the number of executions carried out, and executions as a proportion of death sentences in each jurisdiction or group of jurisdictions. Nationally, during the years 1973-1995, 34 American jurisdictions imposed 5,760 death sentences141 and carried out 313 executions.142 In other words, only 5% of the death sentences imposed were carried out.
The third section of the report cards identifies (1) the rates of serious, reversible error discovered at each level of judicial inspection,143 (2) the overall error rate, meaning the proportion of capital judgments undergoing judicial inspection that were thrown out before reaching the end of the inspection process,144 and, conversely, (3) the overall success rate, meaning the proportion of capital judgments found after full review to be free of serious error. In the "overall rates" category, we give the error and success rates considering all three judicial inspections and also, in brackets, the rates considering only the direct appeal and federal habeas inspections. Nationally, our data reveal that:
The information presented thus far make this a useful place to discuss error rates over time. Earlier, in discussing Figure 2, pp. 12-13 above, we touched on patterns of capital error and success rates over time. There, we noted that, although executions have been on the rise since 1988, the principal cause of that rise seems to be the steady increase in the number of individuals piled up on death row who are potentially available to be executed, and not any sharp increase in the success rate of capital judgments. Figures 3 and 4 below look at patterns over a longer period of time, beginning in 1973.
Figure 3 below depicts the rates of error detected on state direct appeal, federal habeas corpus, and in those two stages combined, by year, from 1973 to 1995.162 (The first two years for which we plot the rate of error found on federal habeas review are 1978 and 1980, because no capital habeas proceedings were completed before 1978 or during 1979.) Figure 3 reveals the following about error rates detected over time during the first (state direct appeal) and third (federal habeas) inspection stages:
Figure 3 is incomplete because it does not contain rates of serious error found, by year, at the state post-conviction stage, nor thus any overall reversal rate, by year, for the three inspection stages as a whole. Rates of serious error detected during state post-conviction review cannot be calculated because only data on the number of reversals-but not on the total number of cases decided, and thus the reversal rate-are available by year for the state post-conviction stage.163 The next chart, however -Figure 4-provides some information about state post-conviction error rates over time, revealing that in the same years when a modest downward trend in federal habeas reversal rates was occurring (1987-1994), a marked increase in state post-conviction reversals occurred.164 If we assume (though we can't know for certain) that the number of capital state post-conviction cases finally decided during the 1985-1994 period was fairly steady, then an increase in the error rate detected at the state post-conviction stage would have occurred and offset the decrease in the federal habeas reversal rate. Making that assumption leads to an estimate of the overall rate of error detected by all three judicial inspections during the 1988-1994 period of roughly 60-65%.
D. Length of Time of Review
This section of each report card provides information for the relevant jurisdiction or set of jurisdictions on (1) the number of years that elapsed between the state's first death sentence and its first non-consensual execution (not necessarily in the same case); (2) the average number of years it took death sentences to proceed through the three-stage inspection process to execution in the small proportion of cases in which an execution took place; and (3) the average time from death sentence to federal habeas reversal in the 10% of cases in which reversal occurred at the third (federal habeas) checkpoint, as opposed to taking place at one of the earlier (state court) checkpoints. The national report card reveals the following about the length of time required to identify the high amounts of error described above:
The report cards next answer two questions. (1) How often does the relevant jurisdiction or set of jurisdictions impose death sentences? To answer this question, we consider death sentences as a proportion of three populations: per 1,000 homicides, per 100,000 population, and (in the state report cards, but not the national one) per 1,000 incarcerated inmates in the jurisdiction. (2) How often (relative to homicides, population and prison population) does the jurisdiction execute offenders? Because we are interested in success rates, we consider only "non-consensual" executions, i.e., ones based on capital judgments that have been fully reviewed and found to be free of serious error.170 Because not all states have the death penalty, our national report card computes these figures for the nation as a whole and for our 34-state cohort.
These numbers are most useful for the comparative purposes to which we put them below.171 Providing a national baseline for those comparisons, the capital-sentencing and execution rates for the nation as a whole, and for the 34 death-sentencing states that decided at least one direct appeal during the study period, are as follows:
The demographic information reported in the sixth report card category reveals the population pools against which each jurisdiction's number of death sentences and executions are compared to determine sentencing and execution rates. They also provide bases for distinguishing among states and thus, potentially, for explaining variations among states in terms of the capital error rates detected on direct appeal and habeas corpus inspection. At the national level we again report data for the 34 death states as well as for the nation at large.
"Average population" is the relevant jurisdiction's yearly average population from 1973-1995. For the whole nation, the average population during the study period was 237,905,964. For the 34 death states, it was 181,374,347.175
"Average homicides" are the total number of homicides from 1973-1995 divided by 23, the number of years in our study . For the whole nation, the average number of homicides each year during the study period was 21,197. For the 34 death penalty states, it was 16,860.176 Comparing this and the last category reveals that death-sentencing states account for about 76% of the nation's population and about 80% of its homicides.
Homicides per population establishes a jurisdiction's homicide rate. By "average homicides/average population," we mean the number of homicides per year for every 100,000 persons in the jurisdiction, averaged over the population during the study period. For the whole nation, average homicides/average population during the study period was 9. For the 34 death sentencing states, it was 9.3.177 This again reveals that homicide rates are slightly higher in death-sentencing than in nondeath-sentencing states.
"Average prison admissions" means the average number of persons admitted each year to the state's prisons during the study period.178
"Average prison population" means the jurisdiction's average population over study period.179
We also report here the percentage of each jurisdiction's population during the study period that was nonwhite, which for the nation as a whole was 20% and for the 28 study states was 19%.180
In the state (but not the national and circuit/regional) report cards, we report four measures of the social and political contexts in which judges make decisions. Contextual measures such as those analyzed here have been shown in empirical studies to help explain variation in sentencing from county to county within states and across states.181 We consider them here to see whether they can help explain state variations in capital-sentencing error rates, and also in capital-sentencing and execution rates themselves.
The "political pressure" index measures the extent to which state judges are subject to electoral scrutiny and discipline. Although nearly all the state judges in our study are subject to election at some point if they wish to remain in office, the forms and frequency of elections differ in ways that are likely to increase or decrease the extent to which judges are put at political risk because of the capital outcomes produced in their courts (meaning, at the trial level, whether the verdict was death or life and, at the appellate level, whether a death sentence under review was affirmed or reversed). The index considers whether judges initially are elected or appointed, whether judicial elections are partisan, the length of judges' terms of office, and whether judges' continuation in office is determined by contested or retention elections.182
The "party competition index" is a composite of the vote share of each party in state gubernatorial elections from 1968-1996.183
Our penultimate ("state court criminal caseload") item reports the yearly average number of criminal case filings in each jurisdiction from 1985-1994 per 1,000 people in the population.184 We include this figure to test the hypothesis that high criminal caseloads may in some way affect the quality of state-court capital judgments.
Finally, aiming to test a similar hypothesis having to do with available judicial resources, we report each state's average annual court-related expenditures during the fiscal years 1982-1992.185