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Excerpts from the Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System

The following excerpts are from the death penalty chapter of the Final Report of the Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System. The blue-ribbon Committee, appointed in 1999, used a wide variety of sources to draw its conclusions and formulate the recommendations found in its report.


KEY RECOMMENDATIONS
CONCLUSIONS
OTHER ITEMS

KEY RECOMMENDATIONS

The Committee made a series of 23 recommendations to the Pennsylvania Supreme Court, to the Legislature, to the state's Attorney General and District Attorneys, and to Governor Ed Rendell. Among the key recommendations were a call for a moratorium on executions until the state can further analyze the impact of race on the death penalty, passage of a Racial Justice Act, statewide standards for prosecutorial discretion, and statewide standards for both trial and appellate lawyers in capital cases. (The complete list of recommendations may be found on Pages 219-221 of the report.)


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Illinois Commission on Capital Punishment

Read the Illinois Commission on Capital Punishment Report

DPIC Press Release: ILLINOIS COMMISSION ANNOUNCES NATION'S MOST COMPREHENSIVE DEATH PENALTY REVIEW; RECOMMENDS SWEEPING CHANGES TO PROTECT INNOCENT, ENSURE FAIRNESS

BACKGROUND MATERIALS

ADDITIONAL LINKS

The Death Penalty Information Center has assembled the following press materials and Web links to provide easy access to information regarding the work of the Illinois Commission on Capital Punishment, a blue-ribbon panel that has recently completed the nation's most comprehensive state review of the death penalty. The Commission's findings and recommendations will surely capture the attention of lawmakers and legal experts throughout the nation who are watching closely to track the impact of this review beyond Illinois. The Commission's recommendations aim to address problems Illinois Governor George Ryan identified two years ago, including potential safeguards to prevent the possible conviction and execution of innocent inmates.

BACKGROUND MATERIALS

Two years ago, Illinois Governor George Ryan appointed a 14-member Commission on Capital Punishment to closely examine Illinois's death penalty, and he declared the nation's first moratorium on executions until the review was completed. A milestone moment in America's quest for a fairer justice system, Ryan's step helped spark an unprecedented series of events throughout the country. Prior to forming this commission, the Governor declared that his state's death penalty was fraught with error, noting: "[The Illinois capital punishment system is] so fraught with error and has come so close to the ultimate nightmare, the state's taking of innocent life."

Since Ryan's call for a review of the death penalty in Illinois, many governors from coast to coast have voiced concerns about the fairness of their states' systems, and nine states have launched comparable studies of capital punishment policies. In addition, legislatures in nearly every state retaining the death penalty considered reform legislation, and an escalating number of communities and organizations are calling for a halt to executions until capital punishment concerns are addressed.

TIME LINE (pdf)

INNOCENT IN ILLINOIS (pdf)

NEW VOICES (pdf)

ADDITIONAL LINKS

Northwestern University's Center on Wrongful Convictions

The Illinois Death Penalty Education Project

American Bar Association's Death Penalty Representation Project


Illinois Coalition Against the Death Penalty

DPIC's Innocence Page


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The Overproduction of Death Executive Summary

By Professor James S. Liebman

There is growing evidence that more people are being sentenced to death than deserve to die under existing laws. The judicial system is, in other words, "overproducing" death. This conclusion is underscored by the findings of "A Broken System: Error Rates in Capital Cases, 1973 -1995" in which Professor Liebman and colleagues at Columbia University reported that the overall rate of prejudicial error in the American capital system was 68%. On retrial, where results are known, 82% of those reversals resulted in sentences less than death; 7% resulted in acquittals.

More recently, a Department of Justice study showed that even as laws meant to speed the time from conviction to execution have gone into effect, the amount of time prisoners are spending on death row has increased - to 12 years on average.

Our capital punishment system is sending more people to death row. More of those people are later being removed from death row. And those still on death row are there for longer than ever before.

In addition, even as the number of people sent to death row is rising, and the number of executions climbs, the percentage of those being executed remains minuscule, and about what it's been for decades. More executions, in other words, do not mean we're "getting it right" more often. Instead, many of the states that send the most people to death row execute the lowest proportion of those waiting to die; the more death sentences, the more mistakes, the more reversals, and the more broken the system.

Professor Liebman's landmark work, "A Broken System," and other studies and reports have documented the profound flaws in the means by which people are sentenced to death. "The Overproduction of Death" tries to explain why this is so.

"The Overproduction of Death" develops a rational explanation for the pervasive and persistent irrationality of the system, a system in which the checks and balances of justice have broken down.

A number of factors work in favor of death sentences that often will not be carried out, and in favor of executing people who may not deserve to die. These factors include prosecutorial overcharging and overreaching, chronically incompetent defense counsel, weak supervision by trial judges, mis-instructed jurors, and expensive appeals by an overburdened review system that does a poor job of finding defendants who are innocent of a capital crime, and of disciplining faulty trial actors. Laws intended to decrease appeals and speed executions are unlikely to solve the problem, because overburdened courts and slow-moving appeals are only a symptom of the problem, not the problem itself.

The article suggests two key factors are at work:

  • Prosecutors and lower courts have large incentives to seek and impose the death penalty, even when it's not appropriate - and few reasons not to seek the death penalty. They therefore generate more death sentences than are warranted by the nature of the crimes and the evidence of who is at fault.
  • The relatively small handful of committed capital defense attorneys shy away from trials, keeping them from deterring ill-advised and faulty death sentences. They focus instead on the latter stages of a relatively small number of death penalty appeals. Because so many death verdicts are flawed, their appeals often succeed, creating procedural blocks to an effective death penalty system.


The first factor stems from unchecked zeal to put egregious offenders away for good. The desire of police and prosecutors to stop heinous criminals from offending again is understandably strong - as it should be - assuming checks and balances keep the impulse focused on real offenders. Many involved in death penalty cases have political and professional ambitions - prosecutors want to become district attorneys, who want to become judges or attorneys general, all of whom want to get re-elected. Having "tough on crime" credentials, including death penalties one has secured, helps. Because faulty sentences are overturned later - often much, much later - those securing death sentences rarely have to face the consequences of an excess of zeal or a poorly conceived or carried-out conviction and sentence.

The second factor aggravates and helps explain the first. Our adversarial system assumes that zealous prosecutions are checked by zealous defense lawyers. By instead focusing litigation and attention on the appellate level of death penalty cases, death penalty opponents have helped create a system in which the real testing of capital charges takes place after the trial. This decreases the incentives for those at trial to get it right. Like the spell-check function on our computers, the strategy decreases the need to hit the right keys initially. This second factor is also aggravated and explained by the first: The more capital charges prosecutors bring, the harder it is for the small number of committed opponents to intervene in every case. Other qualified defense lawyers simply cannot afford to get involved, given how little states pay them for the work. And the more errors police and prosecutors make in securing death sentences in weak or close cases, the greater the inducement for death penalty opponents to attack the resulting verdicts in appeals.

The result is a system that is perverse. It is immensely expensive because it requires multiple layers of repetitive substantive deliberation, it is bad crime control because it garbles the deterrent and retributive message of a death sentence, it paralyzes the courts because of the number of cases they are forced to review and repeat, it forces victims' families to relive the horrors of brutal crimes and prevents the closure they seek, and it inevitably imprisons the innocent and leaves the guilty on the streets.

Whatever one thinks of the death penalty, any system that generates two duds for every keeper - and requires over a decade to find it - is irrational.

Later this spring, Professor Liebman and his colleagues will release the second part of "A Broken System" in which these and other hypothesis are tested using multi-variate regressions and other statistical tools. # # #

You can order a coplete copy of "The Overproduction of Death" from the Columbia Law Review web site - http://www.columbialawreview.org/information/backissues.cfm


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A Summary of the Columbia University Study by Prof. James S. Liebman

A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES 1973-1995

A Summary of the Columbia University Study by Prof. James S. Liebman
by the Death Penalty Information Center

The Study:

This is a statistical study of capital cases funded by the Columbia University School of Law. The study was conducted by Professor James S. Liebman of Columbia University School of Law, Professor Jeffrey Fagan of Joseph Mailman School of Public Health and Valerie West, a Doctoral Candidate in the Department of Sociology, New York University.

The report examined 5,760 capital cases between 1973 and 1995 and concludes that American capital sentences are persistently and systematically fraught with error that seriously undermines their reliability. The report reveals that serious error has reached epidemic proportions in capital cases. More than two out of every three capital judgments reviewed by the courts during the 23 year study period were found to be seriously flawed.

Central Findings:

- Nationally the overall rate of prejudicial error in capital cases was 68% - i.e., courts found serious reversible error in nearly 7 out of 10 capital cases that were fully reviewed during the study period.

- Capital trials produce so many mistakes that it takes three judicial inspections to catch them, leaving doubt whether we do catch them all. After state courts threw out 47% of death sentences due to serious flaws, a later federal review found "serious error" (error undermining the reliability of the outcome) in 40% of the remaining sentences.

- Of the 2,370 death sentences thrown out due to serious error, 90% were overturned by state judges, many of whom were the very judges who imposed the death sentence in the first place. However, a substantial number of the capital judgments they let through to the federal stage were still seriously flawed.

- The most common errors (prompting a majority of reversals at the state post-conviction stage) were (a) incompetent defense lawyers who failed to look for or recognize important evidence of innocence or mitigating factors; and (b) police or prosecutors who suppressed evidence.

- High error rates put people at risk of wrongful execution. 82% of the people whose capital judgments were overturned by state post-conviction courts due to serious error were found to deserve a sentence less than death when the errors were cured on retrial. 7% were found to be innocent of the capital crime.

- The capital review procedure took a national average of 9 years from death sentence to the last inspection and execution. By the end of the study period, the average time needed to make sure death verdicts were free of serious error had risen to 11 years.

- As a result of high error rates, and resulting high reversal rates and lengthy review of procedures, fewer than 5% of all death sentences imposed during the 23-year period between 1973 and 1995 were carried out in that period.

- High error rates exist across the country. Over 90% of American death-sentencing states have overall error rates of 52% or higher. Three-fifths have error rates of 70% or higher.

- Illinois (which announced a moratorium on all executions) does not produce an unusual number of faulty death sentences. The overall rate of serious error found in Illinois capital sentences (66%) is slightly lower than the national average (68%).

Implications of Central Findings

- Capital trials and sentences cost more than non-capital ones. The error detection system all this capital error requires is itself a huge expense, apparently millions of dollars per case.

- Many of the resources consumed by the capital system do not help to obtain the valid death sentences that the majority support. Large amounts of resources are being wasted on cases that should never have been capital in the first place.

- This much error and the time taken to cure it impose terrible costs on taxpayers, victims' families, the judicial system and the wrongly condemned. It also renders unattainable the finality, retribution and deterrence that are the reasons often given for having a death penalty.

- When the condemned person turns out to be innocent the costs are immeasurable; to the wrongly convicted person and his or her family; to the family of the victim whose search for justice and closure has been in vain; to later victims whose lives are threatened or taken because the real killer is still at large; to the public whose confidence in the legal system is shaken; and to the wrongly executed, should the mistake not be caught in time.

Conclusion

The study shows a capital punishment system collapsing under the weight of its own mistakes. If one measures the "success" of the death penalty system by the amount of capital sentences which result in executions then this 23-year-study shows that the system is not a success, and is not even minimally rational.

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Race and the Death Penalty in North Carolina

Race and the Death Penalty in North Carolina
An Empirical Analysis: 1993-1997

Principal Investigator
Dr. Isaac Unah

Principal Collaborator
Prof. Jack Boger Presented by The Common Sense Foundation North Carolina Council of Churches
April 16, 2001


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A Broken System II: Why There Is So Much Error in Capital Cases, Questions and Answers

A Broken System II:
Why There Is So Much Error in Capital Cases

Questions and Answers


Professor James Liebman and colleagues at Columbia University recently released "A Broken System II: Why There Is So Much Error in Capital Cases," the follow-up to their groundbreaking, "A Broken System: Error Rates in Capital Cases 1973 - 1995."

Professor Liebman and the other members of the Columbia team of researchers have made themselves available to answer press inquiries about their study. According to the Columbia web site, such inquiries should be directed to Hayley Miller, 212-854-2604.

Answers to frequently asked questions about the study are provided below.

Q: How is this study different from the previous study?
A: The previous study, "A Broken System: Error Rates in Capital Cases 1973 - 1995" determined the numbers and types of errors made in death penalty trials while this study, "A Broken System Part II: Why There Is So Much Error in Capital Cases, and What Can Be Done About It" identifies those factors that lead to the high error rates.

The first study, "A Broken System I," simply counted the number of death penalty appeals and the number of reversals, and divided to determine the error rate. The study also looked at the reason the court gave for those reversals, and added them up.

This second study, "A Broken System II" has more to say about what kind of mistakes get made and explores why those mistakes get made - what conditions exist to create these errors? The study uses a number of statistical tests to identify those factors that lead to high error rates in capital cases. It also explores some potential solutions to those problems.

Q: What was the goal of this study?
A: The goal of the study was to identify factors that lead to the high error rate in death penalty trials and appeals.

The study found 76% of the state and federal reversals at the two appeal stages where data are available were because of egregiously incompetent defense lawyers, police or prosecutor misconduct, or misinformed and biased judges or juries. 82% of those retried after their death verdicts were reversed at the second of three appeals (or, during the state post-conviction appeal) were given a sentence less than death, and 9% of those retried - nearly one in ten - were found innocent.

This study tried to find out why. What is it about some states or counties that lead them to have higher error rates than others? Why do some areas have better lawyers, judges and juries than others? This study attempts to answer those questions, and to identify what - if anything - can be done to solve those problems.

Q: What was the main finding of this study?
A: The more often states and counties sentence people to death, the more often they get it wrong.

This study uncovered a number of conditions related to error in capital cases, including politics, race, crime control and the courts. But running through all the data was a simple finding - the more a state or county sentences people to death, the more often they make mistakes. This isn't just a matter of numbers, this is about percentages. Everything else being equal, when death sentencing increases from the lowest to the highest rate in the study, the reversal rate increases six-fold, to about 80%. The more often states and counties use the death penalty for every, say 10 or 100 homicides, the more likely it is that any death verdict they impose will later be found to be seriously flawed, and the more likely it is that the defendant who was found guilty and sentenced to die will turn out to be not guilty.

Q What are the factors that lead to these errors?
A: In addition to aggressive death sentencing, there are four key factors which lead to errors: homicide risk to whites and blacks; the size of the black population; the rate at which police catch and punish criminals; and politically motivated judges. There are three additional important findings: heavy use of the death penalty not only leads to errors but drives up costs and slows down all courts; shoddy work at the initial trial leads to mistakes; and the problem isn't getting better over time.

Everything else being equal, when the risk of a white person getting murdered is high relative to the risk of an African-American getting murdered, twice as many appeals are reversed than where that risk is low. The study's best explanation of why this occurs is that when whites and other influential citizens feel threatened by homicide, they put pressure on officials to punish to punish as many criminals as severely as possible - with the result that mistakes are made, and a lot of people are initially sentenced to death who are later found to have committed a lesser crime, or no crime at all.

The more African-Americans there are in a state, the more likely it is that serious mistakes will be made in death penalty trials. This could be because of fears of crime driven by racial stereotypes and economic factors.

It is disturbing that race plays a role in the outcome of death penalty cases, whatever the reasons.

The lower the rate at which states catch, convict and punish serious criminals, the higher the error rates. Everything else being equal, states that put one offender in prison for every 100 serious crimes (100 FBI Index Crimes) committed in the state have about 75% of their death sentences reversed. But states that put four offenders in prison for every 100 serious crimes only have an error rate of about 36%, and those states that catch and punish the most criminals only make mistakes in death penalty trials about 13% of the time. States that do a bad job of catching and convicting criminals also make a lot of mistakes at death penalty trials. This may be because if a state doesn't catch many criminals, officials are under pressure to prove they are tough on crime by trying to punish those they do catch as severely as possible. When this leads to additional death sentences, many of which are flawed, the overall result is that no more criminals are caught, crime remains high, and the person they attempted to sentence to death almost always winds up with a lesser more appropriate sentence, or is later found to be innocent.

The more often, and more directly, state trial judges are subject to popular election, and the more partisan those elections are, the higher the rate of serious error. Judges who face elections keep one eye on justice and one on the polls - and when push comes to shove, the polls often win.

There are several other key findings.

Heavy use of the death penalty prevents the entire criminal justice system from doing its job. Death penalty trials are long and complex, and as already indicated, having many death penalty trials leads to many errors and more trials. These trials upon trials drive up costs, divert resources and prevent the courts from doing their job as effectively and efficiently. In states with more than 20 verdicts under review, the appellate process often comes almost entirely to a halt.

Bad trials lead to mistakes. This seems obvious - without the resources to do it right the first time, courts must try and get it right the second or third time. In the meantime, all trials are slowed, victims are left in limbo, and tax dollars keep getting spent.

The problem isn't getting better over time. After considering the influence of all the other factors discussed above, direct appeal reversal rates increased 9% a year during the study period. This means that reforms based on the factors known to lead to capital error may not work because other factors that are not as easy to pinpoint and fix may continue to push capital error rates substantially higher.

Q: How did the researchers select the appeals they examined?
A: The researchers did not select appeals - they examined the outcome of every death penalty appeal from 1973 - 1995, more than 5,400 state and federal appeals.

Rather than attempt to sample death penalty appeals, which would invariably lead to bias or error, the authors examined every single death penalty appeal over a 23-year period and reported the decision reached by the state or federal court that reviewed the death penalty for serious error.

Q: Why did the study only look at completed trials and appeals?
A: By looking at completed trials and appeals, the study eliminated guess-work and bias.

By looking only at those trials and appeals that have been completed, the study avoids speculation, guess work and bias. Only by examining a job after it's done can one determine how well or badly the job was done - which is why batting titles are only given after the baseball season is over. A lot of players hit .500 on opening day, only to end the season with a far lower average. By looking only at those cases that are closed, the study looked only at batters who had completed the season. If the study had guessed what the appeals under review will look like, they would be declaring a lucky player a star, and miss the truly great ball player. Court decisions are all subject to review and reconsideration and only by looking at completed appeals can the outcome of the painstaking process of court review be known.

Q: How did the researchers select the variables to test in their analysis?
A: A careful survey of legal, criminological and sociological research identified conditions that might conceivably be associated with capital error rates. The authors went through a careful process of testing each condition separately and in conjunction with others to see if they were in fact related to capital error rates.

Those who study crime, punishment and public safety have explored a host of factors that may lead to violence and violence prevention. Rather than reinvent the wheel, or try to independently determine what may or may not impact trials, the authors used the variables experts in the field use. The authors then tested each condition separately, and also in conjunction with other factors, through a statistical technique called regression analysis, to determine which variables had an impact on error rates, and how strong or weak that impact was.

Q: What is a "serious and reversible error"?
A: A mistake that was prejudicial, was brought up in a timely manner and was discovered.

The legal reasons that permit death verdicts to be overturned set a high burden of proof for prisoners to meet, and assure that reversals occur because the death sentence is demonstrably unreliable. First, it is not enough that even a blatant legal error has occurred. In addition, the error must be prejudicial, which in most cases means the defendant must show that the error likely affected the outcome of the trial, or that similar errors often affect outcomes of death penalty trials. Second, the error must be brought up in a timely manner and in accordance with rules of the court - an error, regardless of the severity of the mistake, was not counted if it wasn't brought up under the rules of the court or if it wasn't actually overturned by the court. Finally, of course, the error must be discovered, not rumored or alluded to. By sticking to such a strict definition of "serious and reversible" the authors excluded trivial and technical mistakes.

In addition, the authors included four case studies in the report of people who were innocent but were approved for execution at all three appeals. In each of these cases, the courts found errors that in fact had led innocent people to be convicted, but the courts nonetheless let the conviction and death sentence stand because the defendants were unable to prove themselves innocent, and as a result the courts were not permitted to overturn the verdict. It was left to reporters, students, film makers and others to prove the innocence of those four men on death row.

Q: How have recent changes to rules about appeals effected the quality of trials? In other words, is the problem getting better or worse?
A: The problem is not getting better as a result of changes to the law.

The more people we try to execute, and the faster we try to execute them, the more mistakes we make. These mistakes lead to longer delays, and more innocent people on death row - all at taxpayer expense.

In 1996, Congress passed laws designed to decrease the number of death penalty appeals and speed the process from conviction to execution. Texas and other states passed similar laws at about the same time, further cutting back on review in the state courts. In addition, states passed laws both adding crimes for which someone could be sentenced to death and elements of crimes that could lead to a death sentence. The result was not fewer appeals, more efficient trials, or an increase in the percent of people being executed (executions have decreased over the past two years but the numbers of people on death row continues to grow).

The result of these changes was actually to make the system worse. Courts are now trying to do more with less, with predictable results. Rather than reserve the death penalty for the worst of the worst, and spend time making sure trials are conducted fairly and completely, courts rush through trials, handing down death sentences when they are not clearly called for, as a result of overlong lists of overbroad aggravating circumstances, hoping mistakes get caught further down the line. The appeals courts are therefore faced with a barrage of questionable death penalty convictions, through which they must sort. The greater the backlog, the less careful the review - faced with the same problem as the trial courts, the appeals courts rush the job and get it wrong. This, of course, leads to more appeals, which puts even more cases before the courts, which they rush through and more often than not get wrong. Recent changes in the rules that control appeals make matters worse by requiring courts to work even faster than before and by adding obstacles that keep them from overturning verdicts that are flawed and unreliable.

Q: Can you explain the methodology?
A: The authors used 19 different statistical tools, called regression analysis, to figure out why so many mistakes are made in death penalty trials.

Regression analysis is a statistical method for explaining the relationship between something you want to explain and things that might explain it. It allows you to look at the effect of individual factors while holding other factors constant. For example, a lot happens in a baseball game - running, hitting, pitching, defense, home field advantage, and so on. Which of those things has the most impact? All other factors held constant, how much difference does good pitching make?

The best way to answer these kinds of questions is to take all of the variables, all of the things that happen, and put them into a computer program that performs a series of calculations to determine which things can be said with confidence to matter, and how much they matter. There are a number of these models or programs, each with its own strengths and weaknesses. In this study, the authors use what they thought was the best model and then used 18 additional different models to test the data (for a total of 19 different tests) looking at the question of why there are so many mistakes from a number of different angles. This way the authors get the best and most complete view of the problem.

Q: What types of finding and conclusions does the study reach?
A: The study identifies a number of facts about how the death penalty system operates - for example, what conditions usually are present in states, counties and years in which above average numbers of errors are committed in capital cases. The study also offers some explanations for why these conditions might lead to high rates of error in capital cases.

The study's findings reveal the number of reversals of capital verdicts in different times and the conditions that tend to be present in places where, and at times when, rates of capital error are high. Those are the facts of the matter. Explanations provide reasons why reversals may occur, and why particular conditions may lead errors and reversals to occur. For example, the study find states where judges are elected tend to have more of their death penalties reversed because of serious errors. That's a fact. Other facts are that when the proportion of African-Americans in a state goes up, or when the number of times a state imposes a death sentence per homicide goes up, error rates also go up.

The best explanation for this is that elected judges face pressures to impose death sentences to calm crime fears, even if that punishment is not legally appropriate or if corners have to be cut during trial in order to obtain a death sentence. Judges, that is, feel the need to keep one eye on justice and one eye on politics, and may find it to be better politically to sentence a lot of people to death in the short run and have a lot of those sentences reversed many years down the road than it is to use the punishment more sparingly and have fewer mistakes discovered later on. Whether this explanation or another one applies, the main point is that politics interferes with the reliability of death verdicts.

In listing policy options, the authors were careful to rely on the facts of the matter as reasons for needing reform and for identifying the most beneficial reforms.

Q: Don't courts that are biased against the death penalty make it look like there are more errors than there really are?
A: The opposite very often is true - judges are under political pressure to approve death penalties that are flawed, and do so. And the standards they apply are so strict that they sometimes are forced to approve unreliable verdicts, including where the defendant is innocent of the crime.

One of the findings of the study is that judges who feel political pressure, primarily through elections, uphold questionable death sentences that higher courts have to overturn because they are unreliable.

While some accuse some of courts having an anti-death penalty bias others point to courts that have a pro-death penalty bias. An important reason for using statistical analysis is that it looks for patterns that are bigger and more powerful than the actions of particular judges. In this study, the authors reviewed over 5,000 decisions made by several thousand state and federal judges in three sets of appeals in 34 states and across 23 years. When high error rates are found by all these judges in all these appeals in all these states and years, it is impossible to blame the problem on particular individual judges. It is the system as a whole that is generating the problem, and it is the public, taxpayers and victims across the country and across decades who are suffering the consequences.

The authors checked to see if the judges who issue most of the reversals are likely to have views about the death penalty that are out of line with the views of the public and are biased against capital punishment. They found the opposite was the case: 90% of the reversals were by judges elected by the public. In more than half of the remaining cases that were reversed, a majority of the non-elected judges who found serious error and overturned the verdicts were appointed by Republican Presidents, further arguing against anti-death penalty bias.

As the four cases in the report reveal, judges must find that strict tests are satisfied before they may reverse. In close cases, they usually are not permitted to reverse, and reversal usually requires defendants to prove not only that errors occurred in their cases but also that those errors probably caused the jury to reach the wrong outcome. Because that is so hard to prove, courts often end up approving unreliable death verdicts - including verdicts that sent innocent people to death row. Only the intervention of those not associated with the court system saved the lives of these innocent people.

Q: Aren't most of the people who have their cases overturned guilty?
A: Not of a capital crime.

About one in ten of those who have their cases overturned at the second stage of review (which was the focus of this part of the study) and are sent back for retrial are found innocent. Imagine if one in ten medications killed the patient, or one of every ten school buses exploded - we simply would not accept that level of avoidable risk.

More than eight of ten reversals following the second stage of review result in a sentence less than death - which means that courts initially sentenced someone to die where that penalty was not legally appropriate. A premise of our system is that the punishment should fit the crime. Our most severe punishment must be reserved for the worst of the worst. When that is the case, there are few errors and few reversals. The problem comes when courts try to violate the basic premise that crime and punishment must be aligned.

Q: Based on this study, should we abolish the death penalty?
A: That is a question voters and their elected officials have to decide. If they decide to keep the death penalty, they should take steps to fix the mistakes.

If a mechanic tells us our car is broken, we choose to either fix the car or get rid of it. One of our public policies, the death penalty, is broken. Voters and their elected officials must decide to either fix it or abandon it. If the decision is to fix the system, the study identifies ten steps that can be taken to decrease the amount of errors, increase the fairness of the punishment, and decrease the chances we will execute an innocent person.

Q: Aren't a lot of these reversals just because the rules of the game change?
A: No. Most reversals are for violating rules that date back hundreds of years.

The study analyzed the reasons for about 500 of the reversals - all those occurring at the second and third stages of review. Far and away the most common reason a court reversed a death penalty at those two stages was because of incompetent counsel. The right to adequate counsel has been in the US Constitution since 1792, and the obligation to provide a qualified and competent attorney has been recognized at least since the 1930s. The second most common reason for reversal is prosecutors suppressing evidence of innocence or mitigation. The rules violated in these cases also date back several decades. The right to a properly informed jury - the right violated third most often - is as old as the nation.

Q: The study says one solution is reserving the death penalty for the worst of the worst. What is the worst of the worst?
A: The worst of the worst are those crimes with a high concentration of aggravating factors.

There is no such thing as a "good" murder. But the laws of states with the death penalty list factors that make murders more "aggravated" because they make the crime more serious or the offender more deserving of punishment. The study finds that death verdicts imposed where not just one, but several, of these factors are present are substantially less likely to be overturned due to serious error. Everything else equal, the addition of each additional aggravating circumstance made reversal 15% less likely at the third stage of review.

Q: Doesn't the high reversal rate really prove the system is working because it catches mistakes?
A: No. Evidence that a lot of mistakes are made is evidence that the system is broken.

It may be tempting to think that a high error rate demonstrates that the system is catching all of its mistakes, but that itself would be a mistake. It's like saying, "the fact that we get it wrong most of the time proves we get it right most of the time" - clearly a nonsensical proposition. That we catch so many errors is evidence that we make a lot of mistakes. It also implies that there are probably a lot of errors we don't catch.

Suggesting that the number if serious errors the courts find is proof that the system works is like suggesting that the more time your car spends at the garage the better it works - that the higher the bills you have to pay to fix your car, the better it runs. Clearly such claims are absurd.

Q: What's the bottom line?
A If a state is going to have the death penalty, it should be saved for the worst of the worst, time and effort should be put into the first trial, and those making life and death decisions shouldn't be subject to the whims of politics. In short, if you're going to use the death penalty, do it sparingly and do it right.

(Source: The Justice Project)

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A State of Denial: Texas Justice and the Death Penalty

A State of Denial: Texas Justice and the Death Penalty Texas Defender Service*

A STATE OF DENIAL:
TEXAS JUSTICE AND THE DEATH PENALTY

Executive Summary

The nation is embroiled in a debate over the death penalty. Each day brings fresh accounts of racial bias, incompetent counsel, and misconduct committed by police officers or prosecutors in capital cases. The public increasingly questions whether the ultimate penalty can be administered fairly - free from the taint of racism; free from the disgrace of counsel sleeping through a client's trial; free from the risk of executing an innocent person. Support for the death penalty is falling, and across the country, momentum gathers for a moratorium. Even death penalty supporters - such as Illinois Governor George Ryan - have acknowledged the need for fundamental reform.


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Studies and Additional Resources

Studies - Current Year

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Research on the Death Penalty - A collection of research that has been done on capital punishment, sorted by category.


State Studies


The following list is a sample of recent state studies focusing on issues of the death penalty.

Alabama

The Death Penalty in Alabama: Judge Override (2011)
Study by the Equal Justice Initiative in Alabama exposing the practice of state judges imposing death sentences by overriding a jury's recommendation for life.

Alabama Death Penalty Assessment (2006)
Study by the American Bar Association's Death Penalty Moratorium Implementation Project found that Alabama's death penalty failed to meet fundamental ABA standards of fairness and accuracy.

 

Broken Justice: The Death Penalty in Alabama (2005)
Study by the American Civil Liberties Union (ACLU), showing how structural and procedural flaws in Alabama’s criminal justice system stack the deck against fair trials and appropriate sentencing for those facing the death penalty.

Arkansas

Racial Sentencing Patterns in Arkansas (2008)
A study by University of Iowa law professor David Baldus of the death penalty in Arkansas showing racial patterns in sentencing.

Arizona

Arizona Death Penalty Assessment (2006)
Study by the American Bar Association's (ABA) Death Penalty Moratorium Implementation Project determining that Arizona's capital punishment laws are plagued with serious problems.

California

California Cost Study 2011
DPIC summary of "A roadmap to mend or end the California legislature's multi-billion dollar death penalty debacle" from Loyola of Los Angeles Law Review by Judge Arthur L. Alarcon & Paula M. Mitchell.

California's Death Penalty is Dead (2011)
Study by the ACLU of Northern California catalogs numerous intractable problems and waning public support which may lead to the end of capital punishment in the state. 

Death in Decline '09 (2009)
A study by the ACLU of Northern California revealing that only three counties (Los Angeles, Orange, and Riverside) accounted for 83% of the state's death sentences in 2009.

The Hidden Death Tax (2009)
A study by the ACLU of Northern California on the costs of the death penalty found additional expenses due to a net increase in the size of death row.

Death by Geography (2008)
A study by the ACLU of Northern California examining the variation among California counties in seeking the death penalty.

The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999 (2005)
A study by G. Pierce & M. Radelet published in the Santa Clara Law Review finding that the race of the victim in the underlying murder greatly affected whether a defendant would be sentenced to death.

Colorado

Colorado Capital Punishment: An Empirical Study (2013)
Conducted by law professors Justin Marceau and Sam Kamin of the University of Denver and Wanda Foglia of Rowan University found that the death penalty in Colorado is applied so rarely as to render the system unconstitutional.  The authors concluded that Colorado's death penalty law is applicable to almost all first-degree murders, but is imposed so infrequently that it fails to provide the kind of careful narrowing of cases required by the Supreme Court in Furman v. Georgia (1972).  In this groundbreaking study, the researchers reviewed all first-degree murder cases in the state between 1999 and 2010. They found that 92 percent of the 544 first-degree murder cases in that time span contained at least one aggravating factor that made the defendant eligible for the death penalty. However, prosecutors filed notices of intent to seek the death penalty in only 15 murder cases and pursued the death penalty at trial in only five of those cases — a 1% rate among death-eligible cases. The authors wrote, “Under the Colorado capital sentencing system, many defendants are eligible but almost none are actually sentenced to death. Because Colorado's aggravating factors so rarely result in actual death sentences, their use in any given case is a violation of the Eighth Amendment.”

Connecticut

Arbitrariness in Death Cases (2011)
Study by Professor John Donohue of Yale University's School of Law of death sentences in Connecticut finding that seeking the death penalty often correlated with the race of the victim and the defendant, and not necessarily with the severity of the crimes.

Delaware

The Delaware Death Penalty: An Empirical Study (2012)
A five-year study of the operation of Delaware’s death penalty by Cornell law school.

Florida

The Death Penalty in Florida (2009)
An evaluation of Florida's death penalty by Christopher Slobogin, Professor of Law and Psychiatry at Vanderbilt University.

Florida Death Penalty Assessment (2006)
Study by the American Bar Association of Florida's death penalty system.

 

Georgia

A Matter of Life and Death (2007)
Study by the Atlanta Journal-Constitution of Georgia's use of the death penalty finding that "getting the death penalty in Georgia is as predictable as a lightning strike."

Georgia Eyewitness Identification Procedures (2007)
Study by the Georgia Innocence Project revealing that 83% of Georgia police agencies have no written rules on handling eyewitness identifications.

Georgia Death Penalty Assessment Report (2006)
Study by the American Bar Association Death Penalty Moratorium Implementation Project found that Georgia's death penalty fails to meet 43 ABA standards for improving the fairness and accuracy of the death penalty.

Thirty Years Analysis of Death Penalty Cases in Georgia (2005)
Study by the Georgia Public Defender Standards Council analyzing death penalty cases in the state from 1973 - 2003.

Illinois

Illinois Capital Reform Study Committee Final Report (2010)
Sixth and final report of the committee created by the state legislature in 2003 and headed by Thomas P. Sullivan, a former U.S. Attorney.

Illinois Commission on Capital Punishment (2005)
Study by the Commission, aiming to address problems Illinois Governor George Ryan identified two years prior, including potential safeguards to prevent the possible conviction and execution of innocent inmates. 

Indiana

Indiana Death Penalty Cost Study (2010)
A state analysis of the costs of the death penalty in Indiana finding the average cost to a county for a trial and direct appeal in a capital case to be over ten times more than a life-without-parole case.

Indiana Death Penalty Assessment (2007)
Study by the American Bar Association calling for a halt to executions in the state because of concerns about the arbitrariness of the state's death penalty.

Kansas

Kansas Judicial Council Death Penalty Advisory Committee Report (2014)
Study by the committee examining the state's application of capital punishment and the hefty price tag of seeking the death penalty.

Kansas Cost Study (2003)
Study by the Kansas government detailing the disparity in cost between death penalty cases and non-death penalty cases in Kansas.

Kentucky

Kentucky Assessment on the Death Penalty (2011)
ABA study analyzing various laws, rules, procedures, standards, and guidelines relating to the administration of capital punishment in Kentucky.

Louisiana

Diminishing All of Us: The Death Penalty in Louisiana (2012)
A recent study published by the Jesuit Social Research Institute of Loyola University pointed to numerous problems with Louisiana’s death penalty.

Death Sentencing in East Baton Rouge Parish, 1990-2008 (2011)
A study conducted by Professors Glenn Pierce and Michael Radelet published in the Lousiana Law Review showing that the odds of a death sentence in parts of Louisiana were 2.6 times higher for those charged with killing a white victim than for those charged with killing a black victim. 

Maryland

Maryland Commission on Capital Punishment Report (2008)
Study by the legislative commission established to examine the death penalty in Maryland recommending abolition of the punishment.

Maryland Cost Study (2008)
Study by the Urban Institute detailing the disparity in cost between death penalty cases and non-death penalty cases in Maryland.

Missouri

Missouri Death Penalty Assessment (2012)
Study by the American Bar Association's (ABA) Death Penalty Moratorium Implementation Project determining that Missouri's capital punishment laws are plagued with serious problems.

Missouri Death Penalty and Geography (2008)
Study by Prof. David Sloss of the St. Louis University School of Law showing that the chance of a death sentence appears to rest on what part of the state the crime was committed in.

Life and Death Decisions: Prosecutorial Discretion and Capital Punishment in Missouri (2008)
A study by Katherine Barnes of Arizona University Law School, and David Sloss and Stephen Thaman of St. Louis Univeristy Law School, studying 1046 cases of intentional homicide in Missouri to determine geographical and racial effects in the rates at which prosecutors seek the death penalty.

Nevada

Nevada Cost Study 2012
A study by Dr. Terance Miethe of the Department of Criminal Justice at the University of Nevada on the costs of the death penalty in Nevada.

New Hampshire

Majority Report of the Commission to Study the Death Penalty in New Hampshire (2010)
A study by a New Hampshire commission evaluating the use of the death penalty within the state.

New Mexico

The Application of the Death Penalty in New Mexico, July 1979 through December 2007: An Empirical Analysis (2008)
A study by attorney Marcia Wilson revealing information on how the death penalty was applied in New Mexico after its reinstatement.

North Carolina

Race Discrimination in Jury Selection and Non-Enforcement of Batson in North Carolina (2016) 
A study by appellate lawyers Daniel R. Pollitt and Brittany P. Warren found that, despite pervasive evidence that North Carolina prosecutors disproportionately employed peremptory strikes to exclude black jurors, the state's courts have persistently refused to enforce the constitutional prohibition against race-based jury strikes. In 114 cases in which Batson issues were decided on the merits, North Carolina appeals courts never found any substantive Batson violation where a prosecutor had articulated a reason for the peremptory challenge of a minority juror. In the 74 cases in which it had decided Batson claims on the merits, the Supreme Court of North Carolina had never once found a substantive Batson violation.

The Death Penalty in North Carolina: A Summary of the Data and Scientific Studies (2011)
A comprehensive review of studies on the death penalty by Matthew Robinson, Professor of Government and Justice Studies at Appalachian State University.

Excessive Sentencing in North Carolina (2010)
A study by Professor Frank Baumgartner showed that most of those originally condemned to death in North Carolina eventually received lesser sentences when their cases were concluded.

Racial Bias Study (2010)
A study by Professors Michael Radelet and Glenn Pierce found that the odds of a defendant receiving a death sentence in North Carolina were three times higher if the person was convicted of killing a white person than if he had  killed a black person.

Potential Savings from Abolition of the Death Penalty in North Carolina (2009)
A study published by a Duke University economist revealing that North Carolina could save $11 million annually if it dropped the death penalty.

The High Cost of the Death Penalty (2009)
A study by the Independent Weekly showing that North Carolina conservatively spent at least $36 million dollars by seeking the death penalty instead of life in prison without parole over a seven year span.

Mental Illness and the Death Penalty in North Carolina: A Diagnostic Approach (2007)
Study by the Charlotte School of Law revealing that obstacles entrenched within the criminal justice system impede efforts to identify those with severe mental illness and treat them fairly.

Death Row Injustices (2006)
Study by the Common Sense Foundation of North Carolina finding that at least 37 people on death row had trial lawyers who would not have met minimum standards of qualification at the time of the study.

Race and the Death Penalty in North Carolina An Empirical Analysis: 1993-1997 (2001)
A study by Professor Jack Boger and presented by The Common Sense Foundation North Carolina Council of Churches.

Ohio

Report of Task Force Appointed by the Chief Justice of the Ohio Supreme Court (2014)
The Task Force announced 56 recommendations for changing the death penalty, including:

► Require higher standards for proving guilt if a death sentence is sought (such as DNA evidence)
► Bar the death penalty for those who suffer from “serious mental illness”
► Lessen the number of crimes eligible for the death penalty
► Create a Death Penalty Charging Committee at the Attorney General’s Office to approve capital prosecutions
► Adopt a Racial Justice Act to facilitate inequality claims in Ohio courts.

 

Ohio Death Penalty Assessment Report (2007)
Study by the American Bar Association stating that Ohio's capital punishment system is so flawed that it should be suspended while the state conducts a thorough review of its fairness and accuracy.

AP Ohio Study (2005)
Study by the Associated Press of 1,936 indictments reported to the Ohio Supreme Court by Ohio counties with capital cases from October 1981 through 2002 finding that capital punishment has been applied in an uneven and often arbitrary fashion.

Oregon

Fair Punishment Project (2016)
Analysis of case records, media reports, and opinions of Oregon legal experts by Harvard University's Fair Punishment Project ofinding that two-thirds of the 35 people on Oregon's death row have serious mental illness or intellectual impairment, experienced severe childhood trauma, or were under age 21 at the time of the offense.

Oregon's Death Penalty: A Cost Analysis (2016)
Study by Lewis & Clark Law School Prof. Aliza B. Kaplan, Seattle University criminal justice Prof. Peter Collins, and Lewis & Clark law candidate Venetia L. Mayhew examined the costs of hundreds of aggravated murder and murder cases in Oregon finding that the average trial and incarceration costs of an Oregon murder case that results in a death penalty are almost double those of a murder case that results in a sentence of life imprisonment or a term of years, and that, excluding state prison costs, cases that result in death sentences may be three to four times more expensive.

Pennsylvania

In Life and Death, Costly Mistakes (2011)
Study by the Philadelphia Inquirer of death penalty appeals in Pennsylvania spanning three decades, finding a pattern of ineffective assistance by defense attorneys.

Report of the Advisory Committee on Wrongful Convictions (2011)
A study by the Pennsylvania Advisory Committee on Wrongful Convictions identifying the most common causes of wrongful convictions and any current laws and procedures implicated in each type of causation.

Facts about Pennsylvania's Death Penalty (2009)
Study by the Associated Press showing the state goes through the expensive and time-consuming process of trying many death penalty cases and fighting appeals, but almost all cases end with a life sentence.

Pennsylvania Death Penalty Assessment Report (2007)
Study by the American Bar Association (ABA) showing that flaws in Pennsylvania's death penalty system are so pervasive that the state risks executing an innocent person.

Pennsylvania Supreme Court Committee on Racial and Gender Bias in the Justice System (1999)
Study by the Committee, making a series of 23 recommendations to the Pennsylvania Supreme Court, to the Legislature, to the state's Attorney General and District Attorneys, and to Governor Ed Rendell.

South Carolina

Removal of African Americans and Women in Jury Selection in South Carolina Capital Cases, 1977-2012 (2016)
Study by Professor Ann M. Eisenberg of the University of South Carolina of jury selection in 35 South Carolina homicide cases between 1997 and 2012 that resulted in death sentences, reviewing the strikes or acceptance of more than 3,000 venire members for gender and more than 1,000 veniremenbers for race. The study found that prosecutors exercised their peremptory strikes at nearly triple the rate against African-American prospective jurors than against white prospective jurors and that the death-qualification process further impeded a substantial number of African-American jurors from serving, contributing to an overrepresentation of whites on death penalty juries. The gender study showed that, while men and women were excused for cause at comparable rates, both were struck more for views against the death the death penalty than for pro-death penalty views and women were 3.8 times more likely to be excluded for opposing the death penalty than for pro-death penalty views. Women were 1.4 times more likely to be struck for cause for opposing the death penalty than men and men were 2.3 times more likely to be struck than women for being unable to consider a life sentence. Prosecutors were 1.4 times more likely to peremptorily strike a woman than a man, and defense lawyers were 1.4 times more likely to peremptorily strike a man than a woman.

The Effect of Race, Gender, and Location on Prosecutorial Decision to Seek the Death Penalty in South Carolina (2006)
Study of homicide cases in South Carolina by Professor Isaac Unah of the University of North Carolina-Chapel Hill and attorney Michael Songer finding that prosecutors were more likely to seek the death penalty when the victim in the underlying murder was white, if the victim was female, and when the crime occurred in a rural area of the state.

Tennessee

Tennessee Legislative Study Committee Recommendations (2009)
A 16-month analysis of the state’s capital punishment process by the committee with recommendations for achieving a more fair and accurate system

Tennessee Death Penalty Assessment (2007)
Study by the ABA detailing racial and geographic disparities in capital cases, poorly trained defense attorneys, heavy caseloads for those representing defedants, and inadequate procedures to address innocence claims.

Texas

Texas Death Penalty Assessment Report (2013)
Study by the ABA focusing on the fairness and accuracy of the death penalty system in Texas.
 

Regulating Death in the Lone Star State (2011)
A study by the ACLU of Texas and Northwestern University's Center for International Human Rights revealing that procedures for euthanizing animals in the state are more carefully regulated than the protocol for executing death row inmates.

What's Messing with Texas Death Sentences? (2011)
Study analyzing the decline of death sentencing in Texas by David McCord

Convicting the Innocent: Texas Justice Derailed (2009)
A study by The Justice Project analyzing the cases of 39 innocent Texans who collectively spent more than 500 years in prison for crimes they did not commit.

Too Much Cruelty, Too Little Clemency (2009)
A study by Amnesty International examining many of the nearly 200 executions that have occurred during Governor Rick Perry’s term in office.

Legal Disparities in the Capital of Capital Punishment (2009)
A study that reveals disparities in who receives the death penalty in Texas by Scott Phillips, a professor at the Department of Sociology and Criminology at the University of Denver.

Status Disparities in the Capital of Capital Punishment (2009)
A study by Scott Phillips, a sociology and criminology professor at the University of Denver, published in the Law & Society Review focusing on the imposition of death sentences in relation to the victim's social status.

Racial Disparities in the Capital of Capital Punishment (2008)
A study by Prof. Scott Phillips of the University of Denver exploring the relationship of race to death sentencing in Harris County (Houston), Texas.

A New Look at Race When Death Is Sought (2008)
A study by Professor Scott Phillips of the Univeristy of Denver found that black defendants in Houston, Texas, are more likely to be sentenced to death than white defendants, even when other variables are accounted for.

Eyewitness Identification Procedure in Texas (2008)
A study by the Justice Project concerning criminal justice procedures in Texas.

Mental Illness and Executions in Texas (2007)
Study conducted by the National Alliance on Mental Illness (NAMI) has revealing that Texas is almost last among states in spending on mental health services and performs poorly in other mental health areas, while executing many inmates with serious mental illness.

Minimizing Risk, A Blueprint for Death Penalty Reform in Texas (2005)
Study by the Texas Defender Service calling for substantial changes in the way Texas handles capital murder cases.

A State of Denial: Texas Justice and the Death Penalty (2000)
A study by the Texas Defender Service.

Virginia

Virginia Death Penalty Assessment Report (2013)
Study by the ABA focusing on the fairness and accuracy of Virginia's death penalty system.
 

A Vision for Justice (2005)
Study by the Innocence Commission for Virginia of 11 wrongful conviction cases in Virginia finding that mistaken eyewitness identification is the major reason innocent people have been convicted in the state.

Virginia Crime Lab Audit (2005)
Study by the American Society of Crime Laboratory Directors finding that the Virginia lab's internal review process was flawed and that labs had botched DNA tests.

Washington

Washington State Bar Report (2006)
Study by the Death Penalty Subcommittee of the Committee on Public Defense of the Washington State Bar on the state's death penalty.


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