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IX.   Federal Circuit Court and Regional Comparisons

Appendix B contains report cards for the nine federal judicial circuits that conducted federal habeas corpus review of state death sentences during the 1973-1995 study period.226 Those circuits reviewed between 2 (Sixth Circuit) and 215 (Eleventh Circuit) death sentences in that period

Referring to these tables as Federal Circuit report cards is at times misleading, because much of the information in them considers results generated by state courts or other state actors in the states (noted at the top of on each report card) that are grouped in that circuit. For purposes of the latter sorts of information, these are actually regional report cards, which aggregate the results of actions by a variety of state actors in multiple states in particular segments of the nation. Only the three items falling within the "Federal Habeas Corpus" category of each report (which we have marked with a number sign (#)) report the results of actions exclusively by the federal courts in the relevant circuit. An additional six rows of information (which we mark with a plus sign (+)) report on a mixture of actions by the relevant state courts and the federal courts in the circuit.

In this section, we focus on information generated either by the federal courts alone, or by them in conjunction with state courts.

Table 25 displays the rates of error detected on federal habeas review and overall (state and federal review) by circuit. Figure 33 below compares the circuits' error detection rates on habeas.

Table 25: Error Rates Detected on Habeas Review and Overall (State Direct Appeal and Federal Review Combined) by Federal Circuit/Multi-State Regions

Circuit Number Re- viewed on Habeas Number Re- versed on Habeas Error Rate Found on Habeas Overall Error Rate (Region)
Sixth 2 2 100% 100%
Ninth 34 21 62% 78%*
Eleventh 215 108 50% 77%
Tenth 17 8 47% 74%
Seventh 14 6 43% 68%
Fourth 52 8 15% 62%
Fifth 200 63 32% 61%
Third 7 2 29% 55%*
Eighth 58 19 33% 54%
National Composite 599 237 40% 68%

* Does not include state post-conviction information for Washington (9th Cir.) or Delaware (3d Cir.)
Source: HCDB; DADB; Appendix C; DPCen

Figure 33

Table 25 and Figure 33 reveal that:

  • During the 23-year study period, 7 of the 9 federal death-penalty circuit courts (including the three circuits with the most cases) found serious error in a third or more of the death sentences they reviewed at the final (federal habeas) inspection stage- notwithstanding that two state court inspections had already occurred.

  • Over half the circuits detected error 40% or more of the time.

  • The Eleventh Circuit-the nation's most active capital reviewing federal court (with jurisdiction over Alabama, Florida and Georgia capital judgments)-detected error in 50% of the death sentences it reviewed.

  • Even after excluding the Sixth Circuit (which only reviewed two capital judgments), there is much wider variation among the rates of serious error detected by the circuits on federal habeas review alone (ranging from 15% to 62%) than the rates of error detected overall by a combination of state and federal courts (which only range from 54% to 78%). This indicates, as we have already suggested,227 that state and federal court review may somewhat compensate for each other, tending to moderate variations that occur when the results of only state court or federal court inspection is considered.

  • Although there is substantial variation among circuits, there also-as we already have noted (see Table 8 and Figure 8, supra pp. 60, 61)-is substantial variation in federal habeas error detection within circuits. The Fifth Circuit, for example, finds error in 71% of the Mississippi death sentences it reviews but only 26% of the Texas death sentences it reviews-suggesting that more is at issue in determining error detection rates than a federal court's uniform disposition with regard to error affecting capital sentences.

As did Figure 8 (p. 61) above, Table 25 and Figure 33 identify the Fourth Circuit-with jurisdiction over Virginia, North Carolina, South Carolina and Maryland-as an outlier on the low end of federal habeas corpus error detection. The Fourth Circuit finds error only half as often as the next lowest circuit and just under a third as often as do the other circuits as a whole minus the Fourth.2288 Interestingly, though, as we already have noted (pp. 51, 65-66 above), state courts in three of the four states within the Fourth Circuit-all those save the Virginia courts229-largely compensate for the Fourth Circuit's low error detection rate with unusually high direct appeal and state post-conviction error detection rates of their own. Thus, although the Fourth Circuit is way below the other circuits in error detection on habeas, when state and federal error detection are combined, the overall rate of error detected in the Fourth Circuit region (62%) is higher than the overall rate of error detected in three other regions (the Fifth, Third and Eighth Circuit) and not much lower than the national average (68%). If Virginia (whose Supreme Court rarely detects error) is excluded, the overall error rate for capital judgments from the other three states in the Fourth Circuit region rises to 76%, significantly above the national average. The "double whammy" effect noted earlier (p. 66) of distinctly lower error detection rates at the checkpoints operated both by the Virginia Supreme Court and by the U.S. Court of Appeals for the Fourth Circuit thus is a unique feature of Virginia capital judgments.230

In considering whether Virginia capital judgments are substantially less error prone than all others in the nation or, on the other hand, whether laxer error detection takes place there, the death-sentencing states that surround Virginia and lie within its same federal judicial circuit-Maryland, North Carolina and South Carolina-may be treated as partial "natural controls."231 Insofar as philosophical, cultural or historical factors-which probably do not vary much between Virginia and its neighbors-are thought to be the main influences on the amount of expected error in capital judgments, the fact that high capital error rates are consistently found in states bordering Virginia casts doubt on the hypothesis that Virginia capital sentences are starkly less error-prone. For this analysis to show convincingly that Virginia courts are laxer detectors of serious capital error than courts in the surrounding states, there would have to be an explanation for that difference among presumably similar states. One such explanation is the unusual extent to which the Virginia courts limit review of capital judgments: (1) enforcing the region's (and nation's) strictest procedural default doctrine (the rule permitting even egregious error to be ignored on appeal if it was not objected to at trial); (2) often appointing substandard trial attorneys to represent the indigents who make up 97% of the state's death row, thus increasing the probability that necessary objections will not be made at trial, and thus that appellate review will be cut off; (3) applying a very strict test for reversing capital judgments based on incompetent lawyering (until the Supreme Court overturned Virginia's test earlier this year232); (4) limiting defendants' ability to petition for a new trial based on innocence to a 21-day period following conviction, the shortest such time-frame in the region (and nation); and (5) failing to provide legal assistance to indigent (meaning nearly all) capital prisoners or funds for it at the state post-conviction phase, thus limiting the capacity of that second inspection (which has proved so important in Maryland, North Carolina, and South Carolina) to detect and correct serious error.233 These questions bear further study.

We close this section with a circuit comparison documenting the actions of state officials within the states that are regionally grouped in the respective circuits. Figure 34 compares the circuits based on their component states' death sentencing rates (death sentences per 100,000 population) and execution rates (non-consensual executions234 per 100,000 population).235

Figure 34

Like their state counterparts,236 the regional comparisons in Figure 34 show that relatively high death-sentencing rates often go hand in hand with relatively low execution rates, and vice versa. For example:

  • Alabama, Florida and Georgia (the states in the Eleventh Circuit region) impose nearly 60% more death sentences per capita than Louisiana, Mississippi, and Texas (the states in the Fifth Circuit region), but carry out 60% fewer executions.

  • The states in the Eleventh Circuit (Alabama, Florida and Georgia) likewise sentence nearly three times as many people to death as Arkansas, Missouri, and Nebraska (in the Eighth Circuit region), but the two regions' execution rates are very similar.

As we already have suggested, the impulse to make frequent use of death sentences does not translate into, and may even interfere in some way with, the capacity to do so reliably enough to permit death sentences to pass judicial inspection for serious error and be carried out.

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