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VIII.   State Comparisons

( Sections A - D )

Appendix A to this Report presents capital punishment report cards for each jurisdiction in our 28-state cohort, arranged alphabetically. Observers and policymakers in each state may find their state's report card to be interesting in and of itself. The report cards are especially informative, however, when used comparatively. With the help of a number of tables and figures, this section undertakes a variety of state-by-state comparisons.

A.   Rates of Serious Error Found on State Direct Appeal

Table 4 and Figure 5 below compare the rates of capital error discovered on direct appeal during the 23-year study period in each of the 28 study states to the rates in the other states and to the national composite of 41%. Table 4 and Figure 5 show that at the first state inspection stage, elected high court judges in a large majority (64%) of American capital-sentencing states found that over a third of their states' capital judgments were seriously flawed. In well over half the study states, state high court judges found serious error in 40% of more of their capital judgments. The error rate found on direct appeal was 50% or more in a quarter of American death-penalty jurisdictions.

Table 4: Percent of Capital Judgments Reviewed on Direct Appeal in Which Reversible Error Was Found, 1973-1995

State Percent Reversed
on Direct Appeal
 National Composite 41
1.  Wyoming 67
2.  Mississippi 61
2.  North Carolina 61
4.  Alabama 55
5.  South Carolina 54
6.  Maryland 53
7.  Kentucky 50
8.  Florida 49
9.  Oklahoma 48
10. Louisiana 46
11. Washington 45
12. Arizona 42
12. Idaho 42
12. Montana 42
15. Arkansas 40
16. Illinois 39
17. Georgia 35
17. Utah 35
19. Indiana 32
20. California 31
20. Texas 31
22. Nevada 30
23. Nebraska 29
23. Tennessee 29
25. Pennsylvania 28
26. Delaware 26
27. Missouri 17
28. Virginia 10

Source: DADB

Table 4 and Chart 5 identify two states whose records are so different from others as to raise questions about why: Missouri's high court finds error only 17% of the time-9 percentage points less often than the next lowest state (after which the distribution of states becomes more continuous). And the Virginia Supreme Court finds error only 10% of the time-7 percentage points below Missouri, 16 percentage points below where the distribution becomes continuous, and 31 percentage points below the national average. All other states range from two-thirds (67%) to just over 1.5 times the national average of 41%; by contrast, Missouri's rate is only 40%, and Virginia's is less than 25%, of the national average. A question for further study is whether the fact that all other state high courts discover serious error in anywhere from 26% to 67% of their capital judgments provides a reason to question the care with which the Missouri and Virginia high courts screen for such error, given that they find it only 17% and 10% of the time,186 or whether capital judgments in those states are substantially less prone to error than capital judgments everywhere else.187

B.   Rates of Serious Error Found on State Post-Conviction

Table 5 below reveals what we know about the comparative amounts and rates of serious capital error found during state post-conviction review proceedings. As we have noted, the available data do not permit an accurate determination of the rates of error actually found in decided cases, because there is no accurate count of those cases. The data do, however, enable us to derive a systematically underestimated proxy for that state post-conviction reversal rate by taking the (incomplete) number of state post-conviction reversals we have been able to identify as a proportion of the cases that were available for state post-conviction review (whether or not they actually completed that review) during the study period.188 Table 5 presents that (under)estimated rate of error found on state post-conviction in each state.

Table 5: Known State Post-Conviction
Reversals, 1973-1995, By State

State Known Number of State Post-Conviction Reversals Reversals as % of Cases Available for State Post-Conviction Review*
National Composite 248 10
1.  Maryland 14 52
2.  Wyoming 1 33
3.  Indiana 13 25
4.  Utah 3 23
5.  Mississippi 11 20
6.  South Carolina 10 13
7.  Florida 64 17
7.  Tennessee 13 17
9.  Nebraska 2 13
10. Georgia 24 12
11. Arizona 12 10
11. North Carolina 9 10
13. Alabama 11 9
13. Montana 1 9
15. Nevada 5 8
16. Illinois 10 7
16. Louisiana 4 7
18. Texas 22 6
19. Idaho 1 5
20. Arkansas 2 4
20. California 7 4
20. Missouri 3 4
23. Virginia 3 3
24. Oklahoma 2 2
25. Pennsylvania 1 1
26. Kentucky 0 0
Delaware unknown unknown
Washington unknown unknown

* This column does not report the proportion of capital judgments actually reviewed on state post-conviction that were reversed due to serious error, because that information is not available. It instead reports the reversals known to have occurred (despite the difficulty of collecting data) as a percentage of all of the capital judgments that were available to be reviewed (almost all of which eventually complete state post-conviction review, but many of which had not completed that review (i.e., they instead were awaiting final review) at the end of the study period. This table thus undercounts the actual number and rate of reversals on state-post conviction . See infra Appendix C, pp. C-1 to C-2.

Table 5 shows the following:

  • State post-conviction review is an important source of review in some states, including Florida, Georgia, Indiana, Maryland, Mississippi, North Carolina, and Tennessee. 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.

  • Table 5 is especially revealing when the post-conviction reversal-rate rankings it assigns to particular states are compared to their direct appeal reversal-rate rankings in Table 4 (p. 47). That comparison identifies a number of states in which high error rates are found at both state court review stages. Of particular interest are three southeastern states-South Carolina, North Carolina and Maryland, all of which fall within the jurisdiction of the United States Court of Appeals for the Fourth Circuit ("Fourth Circuit Court"), based in Richmond, Virginia. All three of those states (and, most especially Maryland and South Carolina) rank fairly high on both state direct appeal and state post-conviction reversal rates. In this regard, they contrast sharply with the one remaining state within the jurisdiction of the federal Fourth Circuit Court-Virginia-which falls in the very bottom cohort of states in regard to error detection at both state review stages.

  • Other states in which relatively high rates of error manifest themselves at both the state direct appeal and state post-conviction stage are Wyoming and Mississippi (both falling within the top fifth of states in terms of capital error rates found at both state court inspection stages) and Florida, which ranks seventh and eighth on the two error rates.

  • Falling in the bottom rank insofar as error detection by both sets of state courts is concerned, in addition to Virginia, are California, Missouri, and Pennsylvania.

  • By contrast, in some states, close scrutiny at one state-review stage seems to compensate for less exacting scrutiny at another. In Indiana and Tennessee, for example, relatively low error-detection rates on direct appeal (the states are ranked 19th and 23rd, respectively, in terms of their reversal rates at that stage) are partly offset by high error-detection rates on state post-conviction (where the states are ranked 3rd and 7th, respectively). Georgia, Nebraska and Utah also fit this pattern.

  • The inverse pattern-high direct appeal, but low state post-conviction, error-detection rates-characterizes states such as Kentucky and Oklahoma.

C.   Rates of Serious Error Found on State Direct Appeal and State Post-Conviction

Table 6 and Figure 6 below display the combined rates of error detected in the two state-court inspection phases.

Table 6: State-by-State Comparisons of
Rates of Error Detected by All State Courts
(State Direct Appeal and State Post-Conviction)

State Percent Reversed in
State Courts, Overall*
National Composite 47%
1.  Wyoming 78%
2.  Maryland 77%
3.  Mississippi 69%
4.  North Carolina 65%
5.  South Carolina 62%
6.  Alabama 59%
7.  Florida 58%
8.  Kentucky 50%
8.  Louisiana 50%
8.  Utah 50%
8.  Oklahoma 50%
12. Indiana 49%
13. Arizona 48%
13. Montana 47%
15. Idaho 44%
16. Arkansas 43%
16. Georgia 43%
16. Illinois 43%
19. Tennessee 41%
20. Nebraska 38%
21. Nevada 35%
21. Texas 35%
23. California 33%
24. Pennsylvania 29%
25. Missouri 20%
26. Virginia 13%
Delaware unknown
Washington unknown

*This column does not report the proportion of capital judgments actually reviewed in state court that were reversed due to serious error, because the post-conviction information needed to make that calculation is not known. Instead, it reports the reversals known to have occurred (despite the difficulty of collecting state post-conviction data) as a percentage of all of the capital judgments that were available to be reviewed on state direct appeal or state post-conviction (almost all of which were eventually reviewed on state post-conviction but many of which were not finally reviewed (i.e., they were as yet undecided and awaiting final review) at that stage at the end of the study period. The actual state court reversal rate thus is higher in most or all instances. See infra Appendix C, pp. C-1 to C-2.

Source: DADP; Appendix C; DRCen

Figure 6

Table 6 and Figure 6 reveal the extent of serious error detected by state courts as a whole. The results are remarkable:

  • Even before any federal courts become involved, state courts across the country find serious error in close to half (at least 47%) of the capital judgments that reach their two checkpoints.

  • State courts found capital error rates of 40% or more in five-sixths of the death-penalty states. They found serious error in 60% or more of the capital judgments in a fifth of those states.

  • A number of the states in the nation's "death belt" (where most American death sentences are imposed and the largest death rows exist) have some of the nation's highest rates of serious capital-sentencing error-by the lights of the states' own elected judges: Florida at 58%; Alabama at 59%; South Carolina at 62%; North Carolina at 65%; Mississippi at 69%; and Maryland at 77%.

  • As in other analyses, Virginia is a distinct anomaly. Its courts' capital error-detection rate during the study period was less than a third the national average, and 35% below the next nearest state, Missouri-which itself has an error-detection rate 31% below the next lowest state, after which the differences among states are small.

D.   Rates of Serious Error Found on Federal Habeas Review

Table 7 and Figure 7 below compare the rates of error detected on federal habeas corpus review of death sentences in the 28 capital-sentencing jurisdictions with at least one completed federal habeas proceeding during the study period. As discussed above, virtually all capital judgments reviewed on federal habeas had previously been given two state court inspections: one on state direct appeal (at which 41% of the judgments reviewed were thrown out) and a second on state post-conviction (after which, the state courts together had thrown out 47% of the capital judgments they reviewed).

Table 7: Percent of Capital Judgments Reviewed on Federal Habeas Corpus in Which Reversible Error Was Found, 1973-1995

State Percent Reversed
on Habeas Corpus
National Composite 40
Kentucky* 100
Maryland* 100
Tennessee* 100
California 80
Montana 75
Mississippi 71
Idaho* 67
Georgia 65
Arizona 60
Indiana 50
Nevada 50
Oklahoma 50
Wyoming* 50
Arkansas 48
Alabama 45
Nebraska 43
Illinois 40
Pennsylvania 40
Florida 37
Utah* 33
Washington* 33
Louisiana 27
Texas 26
North Carolina 18
Missouri 15
South Carolina 14
Virginia 6
Delaware* 0

* States with three or fewer completed federal habeas cases during the study period.
Source: HCDB

Figure 7

Although Table and Figure 7 include all 28 states, our narrative analysis here puts aside the states (indicated with an asterisk) with three or fewer federal habeas cases during the study period. Among the 20 capital-sentencing states that had a substantial number of their capital judgments reviewed on federal habeas during the study period:

  • Federal courts found serious error189 in 40% of the capital judgments they reviewed at this third inspection point.

  • In two-fifths of the study states, federal courts detected error rates of 50% or more at this third inspection.

  • Virginia is again an anomaly in this analysis. The 6% error-detection rate among Virginia capital habeas cases is well under half that of the next lowest state (South Carolina at 14%), and is exactly 15% of the national average.190

Table 7 and Figure 8 below reveal an important fact about federal habeas review, which undermines two frequent, but contradictory, criticisms of federal judges. According to one criticism, unelected federal judges tend to oppose the death penalty, prompting them to overturn capital judgments whenever they can.191 According to the opposed view, federal judges-especially since appointees of Presidents Reagan and Bush became a majority in the mid-1980s-are ideologically "conservative" and prone to uphold state-imposed death sentences at every turn.192 Our data suggest that federal judges are more discerning and sensitive to context than either view claims. Thus, the same judges on the same federal circuit court often find very different rates of reversible error in capital judgments they review depending on the state of origin of the judgments in question. This suggests that factors specific to each states' capital judgments have more of an effect of federal judges' behavior in capital habeas cases than the judges' ideological dispositions. Table 8 and Figure 8 below compare the rates of error that 4 federal circuit courts found in capital judgments imposed by states subject to their jurisdiction during the study period.

Table 8: Error Rates, by Selected States, Found by Federal Circuit Courts on Habeas Review, 1973-1995

% Capital Judgments
Reversed on Habeas
Fourth Circuit
North Carolina
South Carolina
Fifth Circuit
Eighth Circuit
Eleventh Circuit

Source: HCDB

Figure 8

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