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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 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 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

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 Circuit State % Capital Judgments Reversed on Habeas Fourth Circuit North Carolina South Carolina Virginia 18 15   6 Fifth Circuit Mississippi Louisiana Texas 71 27 26 Eighth Circuit Arkansas Nebraska Missouri 48 43 15 Eleventh Circuit Georgia Alabama Florida 65 45 37 Source: HCDB