Study Finds That 68% of Guilty Verdicts in Capital Cases Have Mistakes
The unreliability of guilty verdicts and sentences in capital cases has been revealed by what may be the most important study in the history of American jurisprudence. This is a statistical study of capital cases funded by the Columbia University School of Law. Released to the public on June 12, 2000, the 9-year study of capital cases 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 study examined every capital conviction and appeal in the United States between 1973 and 1995.
Professor Liebman is an eminent legal scholar who, among his extensive writings, coauthored a leading American treatise on habeas corpus, the two-volume “Federal Habeas Corpus Practice and Procedure” (3rd ed. 1998). He has argued four major habeas corpus or capital cases in the U.S. Supreme Court.
The study, begun in 1991 at the request of the Chair of the U.S. Senate Judiciary Committee, was coauthored by Jeffrey Fagan and Valerie West.
NEARLY 1 in 10 CAPITAL CASES THAT WERE REVERSED RESULTED IN ACQUITTAL
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
- 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.
“…one in ten of those who have their cases overturned at the second stage of review…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…risk.”
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.
One noteworthy finding of the study is that at least 68% of all the thousands of capital convictions in this country finalized during the study’s 23-year period were reversed on appeal.
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.
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;
(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.
PROPER REVIEW TAKES LONGER THAN STATES WANT TO ALLOW
The capital review procedure took a national average of 9 years from death sentence to the last inspection and execution. The average time needed to make sure death verdicts were free of serious error [is] 11 years.
DEATH SENTENCE ERRORS SHOULD BE UNACCEPTABLE
Over 90% of American death-sentencing states have overall error rates of 52% or higher. Three-fifths have error rates of 70% or higher. The national average is 68%.
PERCENTAGE (PER STATE) OF OVERALL ERROR IN CAPITAL CASES (HIGHEST TO LOWEST)
[NOTE: States with fewer than 5 cases reviewed at the federal habeas corpus stage, I excluded from the list: Kentucky, Maryland, and Tennessee.]
- Mississippi – 91%
- Wyoming – 89%
- California – 87%
- Montana – 87%
- Idaho – 82%
- Georgia – 80%
- Arizona – 79%
- Alabama – 77%
- Indiana – 75%
- Oklahoma – 75%
- Florida – 73%
- North Carolina – 71%
- Arkansas – 70%
- Nevada – 68%
- South Carolina – 67%
- Utah – 67%
- Illinois – 66%
- Nebraska – 65%
- Louisiana – 64%
- Washington – 63% (only includes state direct appeal and federal habeas corpus rates)
- Pennsylvania – 57%
- Texas – 52%
- Missouri – 32%
- Delaware – 26% (only includes state direct appeal and federal habeas corpus rates)
- Virginia – 18%
CONCLUSIONS — HUGE EXPENSE, POOR RESULTS
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 many 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, as well as their families. It also renders justice unattainable.
“…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.”
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.
“…[State] judges are under political pressure [primarily through elections] 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.”
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.
[NOTE: There was a counter-analysis of the study’s findings by Joseph Hoffman, a Professor of Law at Indiana University (Bloomington). He states that his calculations showed a 40% reversal rate. Personally, to me, the lower figure makes it no better. The fact is our system makes huge mistakes in both the process of capital cases and the application of sentences. We should not be satisfied with the system that we have, it is too important (literally life or death). We may never get the system perfect, but the least that we can do for those people who are innocent or too harshly and inappropriately sentenced for their crimes is try as hard as we can to fix the system. You can read the responses back and forth between Hoffman and the authors below.]
- Innocence and the Death Penalty: The Increasing Danger of Executing the Innocent
- Authors Defense of Their Study (Response to Joseph Hoffman’s Reanalysis of Figures) – Look Who’s Extrapolating
- Joseph Hoffman’s Response to the Authors Defense of Their Study
- Article by Hans Sherrer in The Independent Review — The Inhumanity of Government Bureaucracies, by Hans Sherrer, is in the Fall 2000 issue of The Independent Review. Mr. Sherrer is a regular contributor to Justice: Denied Magazine.
Mr. Sherrer’s article presents the idea that the structure of government bureaucracies, worldwide and throughout the 20th century, is the fundamental reason they function inhumanely. This thesis runs counter to the popular belief that all that is needed to clean up a corrupt government organization, agency or legislature is to replace the “bad people.” History has repeatedly shown that “good people” commit the most horrific acts imaginable under the color of authority…there are at least 10 reasons that past and present government bureaucracies will continue to act inhumanely in the future…a solution to the pervasive problem depends on accepting the depth and causes of bureaucratic inhumanity.