There is a growing bipartisan consensus that flaws in America’s death-penalty system have reached crisis proportions. Many fear that capital trials put people on death row who don’t belong there. Others say capital appeals take too long. This report—the first statistical study ever undertaken of modern American capital appeals (4,578 of them in state capital cases between 1973 and 1995)—suggests that both claims are correct.

Capital sentences do spend a long time under judicial review. As this study documents, however, judicial review takes so long precisely because American capital sentences are so persistently and systematically fraught with error that seriously undermines their reliability.

Our 23 years worth of results reveal a death penalty system collapsing under the weight of its own mistakes. They reveal a system in which lives and public order are at stake, yet for decades has made more mistakes than we would tolerate in far less important activities. They reveal a system that is wasteful and broken and needs to be addressed.

Our central findings are as follows:

* Nationally, during the 23-year study period, the overall rate of prejudicial error in the American capital punishment system was 68%. In other words, courts found serious, reversible error in nearly 7 of every 10 of the thousands of capital sentences that were fully reviewed during the period.

* Capital trials produce so many mistakes that it takes three judicial inspections to catch them—leaving grave 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.

* Because state courts come first and see all the cases, they do most the work of correcting erroneous death 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; nearly all of whom were directly beholden to the electorate; and none of whom, consequently, were disposed to overturn death sentences except for very good reason. This does not mean that federal review is unnecessary. Precisely because of the huge amounts of serious capital error that state appellate judges are called upon to catch, it is not surprising that a substantial number of the capital judgments they let through to the federal stage are still seriously flawed.

* To lead to reversal, error must be serious, indeed. The most common errors—prompting a majority of reversals at the state post-conviction stage—are (1) egregiously incompetent defense lawyers who didn’t even look for—and demonstrably missed—important evidence that the defendant was innocent or did not deserve to die; and (2) police or prosecutors who did discover that kind of evidence but suppressed it, again keeping it from the jury. [Hundreds of examples of these and other serious errors are collected in Appendix C and D to this Report.]

* High error rates put many individuals 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.

* High error rates persist over time. More than 50% of all cases reviewed were found seriously flawed in 20 of the 23 study years, including 17 of the last 19. In half the years, including the most recent one, the error rate was over 60%.

* High error rates exist across the country. Over 90% of American death-sentencing states have overall error rates of 52% or higher. 85% have error rates of 60% or higher. Three-fifths have error rates of 70% or higher.

* Illinois (whose governor recently declared a moratorium on executions after a spate of death-row exonerations) does not produce atypically faulty death sentences. The overall rate of serious error found in Illinois capital sentences (66%) is very close to—and slightly lower than—the national average (68%).

* Catching so much error takes time-a national average of 9 years from death sentence to the last inspection and execution. By the end of the study period, that average had risen to 10.6 years. In most cases, death row inmates wait for years for the lengthy review procedures needed to uncover all this error. Then, their death sentences are reversed.

* This much error, and the time needed to cure it, impose terrible costs on taxpayers, victims’ families, the judicial system, and the wrongly condemned. And it renders unattainable the finality, retribution and deterrence that are the reasons usually given for having a death penalty.

Erroneously trying capital defendants the first time around, operating the multi-tiered inspection process needed to catch the mistakes, warehousing thousands under costly death row conditions in the meantime, and having to try two out of three cases again is irrational.

This report describes the extent of the problem. A subsequent report will examine its causes and their implications for resolving the death penalty crisis.

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Executive Summary

Acknowledgements

1. Introduction

2. Summary of Central Findings

3. Confirmation from a Parallel Study

4. Implications of Central Findings

5. The Capital Review Process

1. First Inspection: State Direct Appeal

2. Second Inspection: State Post-Conviction

3. Third Inspection: Federal Habeas Corpus

6. The Study

7. The National Capital Punishment Report Card

1. Capital-Sentencing History

2. Sentences and Executions

3. Error and Success Rates

4. Length of Time of Review

5. Capital-Sentencing and Execution Rates

6. Demographic Factors

7. Court Factors: The Context of State Court Decision Making

8. State Comparisons

1. Rates of Serious Error Found on State Direct Appeal

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

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

4. Rates of Serious Error Found on Federal Habeas Corpus

5. Rates of Serious Error Found by State Versus Federal Courts

6. Overall Rates of Error Found on State Direct Appeal, State Post-Conviction and Federal Habeas Corpus

7. Length of Time of Review

8. Capital-Sentencing and Execution Rates, and the Two Compared

9. Demographic Factors

10. Court Factors

9. Federal Circuit Court and Regional Comparisons

10. Conclusion: A Broken System; the Need for Research into Causes

End Notes

Appendices

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I. Introduction

A new debate over the death penalty is raging in the United States.1 Until now, the focus of that debate has been the fairness of particular capital convictions and sentences. This Report addresses a different and broader question: the reliability-indeed, the bare rationality-of the death penalty system as a whole. It asks whether the mistakes and miscarriages of justice known to have been made in individual capital cases2 are isolated, or common? The answer provided by our study of 5,760 capital sentences and 4,578 appeals is that serious error-error substantially undermining the reliability of capital verdicts- has reached epidemic proportions throughout our death penalty system. 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.

Americans seem to be of two minds about the death penalty.3 In the last several years, executions have risen steeply, reaching a 50-year high.4 Two-thirds of the public support the penalty.5

Two-thirds support, however, represents a steady decline from the four-fifths of the population that supported the penalty only six years ago, leaving support for capital punishment at a 20-year low.6 When life without parole is proposed as an alternative, support for the penalty drops even more-often below a majority.7 Grants of executive clemency reached a 20-year high in 1999.8

In 1999 and 2000, Governors, attorneys general and legislators in Alabama, Arizona, Florida, and Tennessee have fought high-profile campaigns to speed up and increase the number of executions.9

In the same period, however:

* The Republican Governor of Illinois, with support from a majority of the electorate, declared a moratorium on executions in the state.10

* The Nebraska Legislature did the same. Although the governor vetoed the legislation, the Legislature appropriated money for a comprehensive study of the even-handedness of the state’s exercise of capital punishment.11 Similar studies have since been ordered by the Chief Justice, task forces of both houses of the state legislature and the Governor of Illinois,12 and also the Governors of Indiana and Maryland and the Attorney General of the United States.13

* Serious campaigns to abolish the death penalty are under way in New Hampshire16 and (with the support of the Governor and a popular former Republican Senator) in Oregon.17

* The Florida Supreme Court and Mississippi Legislature have recently acted to improve the quality of counsel in capital cases,18 and bills aiming to do the same and to improve capital prisoners’ access to DNA evidence have been introduced in both houses of the United States Congress, with bipartisan sponsorship.19

* Observers in the Wall Street Journal, New York Times Magazine, and Salon and on ABC This Week see “a tectonic shift in the politics of the death penalty .”20 In April 2000 alone, George Will21 and Rev. Pat Robertson-both strong death penalty supporters-expressed doubts about the manner in which government officials carry out the penalty in the United States, and Robertson advocated a moratorium on Meet the Press.22

Fueling these competing initiatives are two beliefs about the death penalty. One is that death sentences move too slowly from imposition to execution, undermining deterrence and retribution, subjecting our criminal laws and courts to ridicule, and increasing the agony of victims.23 The other is that death sentences are fraught with error, causing justice too often to miscarry, and subjecting innocent and other undeserving defendants-mainly, the poor and racial minorities- to execution.24

Some observers attribute these seemingly conflicting events and opinions to “America’s schizophrenia-we believe in the death penalty, but shrink from it as applied.”25 These views may not conflict, however, and Americans who hold both may not be irrational. It may be that capital sentences spend too much time under review and that they are fraught with disturbing amounts of error. Indeed, it may be that capital sentences spend so much time under and awaiting judicial review precisely because they are so persistently and systematically fraught with alarming amounts of error. That is the conclusion to which we are led by a study of all 4,578 capital sentences that were finally reviewed by state direct appeal courts, 248 state post-conviction reversals of capital judgments, and all 599 capital sentences that were finally reviewed by federal habeas corpus courts between 1973 and 1995.26

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II. Summary of Central Findings

In Furman v. Georgia27 in 1972, the Supreme Court reversed all existing capital statutes and death sentences. The modern death-sentencing era began the next year with the implementation of new capital statutes designed to satisfy Furman. Unfortunately, no central repository of detailed information on post-Furman death sentences exists.28 In order to collect that information, we undertook a painstaking search, beginning in 1991 and accelerating in 1995, of all published state and federal judicial opinions in the U.S. conducting direct and habeas review of state capital judgments, and many of the available opinions conducting state post-conviction review of those judgments. We then (1) checked and catalogued all the cases the opinions revealed, and (2) collected hundreds of items of information about each case from the published decisions and the NAACP Legal Defense Fund’s quarterly death row census, and (3) tabulated the results.29

Nine years in the making, our central findings thus far are these:

* Between 1973 and 1995, approximately 5,760 death sentences were imposed in the U.S.30 Only 313 (5.4%; one in 19) of those resulted in an execution during the period.31

* Of the 5,760 death sentences imposed in the study period, 4,578 (79%) were finally reviewed on “direct appeal” by a state high court.32 Of those, 1,885 (41%; over two out of five) were thrown out because of “serious error,” i.e., error that the reviewing court concludes has seriously undermined the reliability of the outcome or otherwise “harmed” the defendant.33

* Nearly all of the remaining death sentences were then inspected by state post-conviction courts.34 Our data reveal that state post-conviction review is an important source of review in states such as Florida, Georgia, Indiana, Maryland, Mississippi, North Carolina, and Tennessee.35 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.36

* Of the death sentences that survived state direct and post-conviction review, 599 were finally reviewed in a first habeas corpus petition during the 23-year study period.37 Of those 599, 237 (40%; two out of five) were overturned due to serious error.38

* The “overall success rate” of capital judgments undergoing judicial inspection, and its converse, the “overall error-rate,” are crucial factors in assessing the effectiveness of the capital punishment system. The “overall success rate” is the proportion of capital judgments that underwent, and passed, the three-stage judicial inspection process during the study period. The “overall error rate” is the reverse: the proportion of fully reviewed capital judgments that were overturned at one of the three stages due to serious error.39 Nationally, over the entire 1973-1995 period, the overall error-rate in our capital punishment system was 68%.40

* “Serious error” is error that substantially undermines the reliability of the guilt finding or death sentence imposed at trial.41 Each instance of that error warrants public concern. The most common errors are (1) egregiously incompetent defense lawyering (accounting for 37% of the state post-conviction reversals), and (2) prosecutorial suppression of evidence that the defendant is innocent or does not deserve the death penalty (accounting for another 16%-19%, when all forms of law enforcement misconduct are considered).42 As is true of other violations, these two count as “serious” and warrant reversal only when there is a reasonable probability that, but for the responsible actor’s miscues, the outcome of the trial would have been different.43

* The seriousness of these errors is also revealed by what happens on retrial, when the errors are cured. In our state post-conviction study, an astonishing 82% (247 out of 301) of the capital judgments that were reversed were replaced on retrial with a sentence less than death, or no sentence at all.44 In the latter regard, 7% (22/301) of the reversals for serious error resulted in a determination on retrial that the defendant was not guilty of the capital offense.45

* The result of very high rates of serious, reversible error among capital convictions and sentences, and very low rates of capital reconviction and resentencing, is the severe attrition of capital judgments. As is illustrated by the flow chart below:

1. For every 100 death sentences imposed and reviewed during the study period, 41 were turned back at the state direct appeal phase because of serious error. Of the 59 that got through that phase to the second, state post-conviction stage, at least46 10%-meaning 6 more of the original 100-were turned back due to serious flaws. And, of the 53 that got through that stage to the third, federal habeas checkpoint, 40%-an additional 21 of the original 100-were turned back because of serious error. All told, at least 68 of the original 100 were thrown out because of serious flaws, compared to only 32 (or less) that were found to have passed muster-after an average of 9-10 years had passed.

2. And among the individuals whose death sentences were overturned for serious error, 82% (56 in our example) were found on retrial not to have deserved the death penalty, including 7% (5) who were found innocent of the offense.

“Attrition” Flow Chart

* High error rates pervade American capital-sentencing jurisdictions, and are geographically dispersed. Among the 26 death-sentencing jurisdictions with at least one case reviewed in both the state and federal courts and as to which information about all three judicial inspection stages is available:

1. 24 (92%) have overall error rates of 52% or higher;

2. 22 (85%) have overall errors rates of 60% or higher;

3. 15 (61%) have overall error rates of 70% or higher.

4. Among other states, Maryland, Georgia, Alabama, Mississippi, Indiana, Oklahoma, Wyoming, Montana, Arizona, and California have overall error rates of 75% or higher.47

* It sometimes is suggested that Illinois, whose governor declared a moratorium on executions in January 2000 because of a spate of death row exonerations there,48 generates “uniquely” flawed death sentences.49 Our data dispute this suggestion: The overall rate of serious error found to infect Illinois capital sentences (66%) actually is slightly lower than the nationwide average (68%).50

* High error rates have persisted for decades. A majority of all cases reviewed in 20 of the 23 study years-including in 17 of the last 19 years-were found seriously flawed. In half of the years studied, the error rate was over 60%. Although error rates detected on state direct appeal and federal habeas corpus dropped some in the early 1990s, they went back up in 199551. The amount of error detected on state post-conviction has apparently risen throughout the 1990s.52

* The 68% rate of capital error found by the three stage inspection process is much higher than the error rate of less than 15% found by those same three inspections in noncapital criminal cases.53

* Appointed federal judges are sometimes thought to be more likely to overturn capital sentences than state judges, who almost always are elected in capital-sentencing states.54 In fact, state judges are the first and most important line of defense against erroneous death sentences. They found serious error in and reversed 90% (2,133 of the 2,370) capital sentences that were overturned during the study period.55

* Under current state and federal law, capital prisoners have a legal right to one round of direct appellate, state post-conviction and federal habeas corpus review.56 The high rates of error found at each stage-including even at the last stage-and the persistence of high error rates over time and across the nation, confirm the need for multiple judicial inspections. Without compensating changes at the front-end of the process, the contrary policy of cutting back on judicial inspection makes no more sense than responding to the insolvency of the Social Security System by forbidding it to be audited.

* Finding all this error takes time. Calculating the amount of time using information in published decisions is difficult. Only a small percentage of direct appeals decisions report the sentence date. By the end of the habeas stage, however, a larger proportion of sentencing dates is reported in one or another decision in the case. Accordingly, it is possible to get a good sense of timing for only the 599 cases that were finally reviewed on habeas corpus. Among those cases:

1. It took an average of 7.6 years after the defendant was sentenced to die to complete federal habeas consideration in the 40% of habeas cases in which reversible error was found.

2. In the cases in which no error was detected at the third inspection stage and an execution occurred, the average time between sentence and execution was 9 years. Matters did not improve over time. In the last 7 study years (1989-95), the average time between sentence and execution rose to 10.6 years.57

* High rates of error, and the time consequently needed to filter out all that error, frustrate the goals of the death penalty system. Figure 1 below compares the overall rate of error detected during the state direct appeal, state post-conviction, and federal inspection process in the 28 states with at least one capital case in which both inspections have been completed (the orange line), to the percentage of death sentences imposed by each state that it has carried out by execution (the red line).58 In general, where the rate of serious reversible error in a state’s capital judgments reaches 55% or above (as is true for the vast majority of states), the state’s capital punishment system is effectively stymied-with its proportion of death sentences carried out falling below 7%.

Figure 1

The recent rise in the number of executions59 is not inconsistent with these findings. Instead of reflecting improvement in the quality of death sentences under review, the rising number of executions may simply reflect how many more sentences have piled up for review. If the error-induced pile-up of cases is the cause of rising executions, their rise provides no proof that a cure has been found for disturbingly high error rates. To see why, consider a factory that produces 100 toasters, only 32 of which work. The factory’s problem would not be solved if the next year it made 200 toasters (or added 100 new toasters to 100 old ones previously backlogged at the inspection stage), thus doubling its output of working products to 64. With, now, 136 duds to go with the 64 keepers, the increase in the latter would simply mask the persistence of crushing error rates.

The decisive question, therefore, is not the number of death sentences carried out each year, but the proportion. And as Figure 2 below shows:60

* In contrast to the annual number of executions (the middle line in the chart), the proportion of death row inmates executed each year (the bottom line) has remained remarkably stable-and extremely low. Since post-Furman executions began in earnest in 1984, the nation has executed an average of about 1.3% of its death row inmates each year; in no year has it ever carried out more than 2.6 percent-or 1 in 39-of those on death row.61

* Figure 1 thus suggests that executions are increasing, not because of improvements in the quality of capital judgments, but instead because so many more people have piled up on death row that, even consistently tiny proportions of people being executed-because of consistently prodigious error and reversal rates-are prompting the number of executions to rise.62 As in our factory example, rising output does not indicate better products, and instead seems to mask the opposite.

Figure 2

Figure 1, p. 11 above, illustrates another finding of interest that recurs throughout this Report: The pattern of capital outcomes for the State of Virginia is highly anomalous, given the State’s high execution rate (nearly double that of the next nearest state, and 5 times the national average) and its low rate of capital reversals (nearly half that of the next nearest state, and less than one-fourth the national average). The discrepancy between Virginia and other capital-sentencing states on this and other measures63 presents an important question for further study: Are Virginia capital judgments in fact half as prone to serious error as the next nearest state and 4 times better than the national average?64 Or, on the other hand, are its courts more tolerant of serious error? We will address this issue below and in a subsequent report.65

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III. Confirmation from a Parallel Study

Results from a parallel study by the U.S. Department of Justice suggest that our 32%, or one-in-three, figure for valid death sentences actually overstates the chance of execution:

* Included in the Justice Department study is a report of the outcome as of the end of 1998 of the 263 death sentences imposed in 1989.66 A final disposition of only 103 of the 263 death sentences had been reached nine years later.67 Of those 103, 78 (76%) had been overturned by a state or federal court. Only 13 death sentences had been carried out.68 So, for every one member of the death row class of 1989 whose case was finally reviewed and who was executed as of 1998, six members of the class had their cases overturned in the courts.

* Because of the intensive review needed to catch so much error, 160 (61%) of the 263 death sentences imposed in 1989 were still under scrutiny nine years later.69

* The approximately 3,600 people on death row today have been waiting an average of 7.4 years for a final declaration that their capital verdict is error-free-or, far more probably, that it has to be scrapped because of serious error.70

* Of the approximately 6,700 people sentenced to die between 1973 and 1999, only 598-less than one in eleven-were executed.71 About four times as many had their capital judgments overturned or gained clemency.72

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IV. Implications of Central Findings

To help appreciate these findings, consider a scenario that might unfold immediately after any death sentence is imposed in the U.S. Suppose the defendant, or a relative of the victim, asks a lawyer or the judge, “What now?”

Based on almost a quarter century of experience in thousands of cases in 28 death-sentencing states in the U.S. between 1973 and 1995, a responsible answer would be: “The capital conviction or sentence will probably be overturned due to serious error. It’ll take nine or ten years to find out, given how many other capital cases being reviewed for likely error are lined up ahead of this one. If the judgment is overturned, a lesser conviction or sentence will probably be imposed.”73

As anyone hearing this answer would probably conclude as a matter of sheer common sense, all this error, and all the time needed to expose it, are extremely burdensome and costly:

* Capital trials and sentences cost more than noncapital ones.74 Each time they have to be done over-as happens 68% of the time-that difference grows exponentially.

* The error-detection system all this capital error requires is itself a huge expense-apparently millions of dollars per case.75

* Many of the resources currently consumed by the capital system are not helping the public, or victims,76 obtain the valid death sentences for egregious offenses that a majority support. Given that nearly 7 in 10 capital judgments have proven to be seriously flawed, and given that 4 out of 5 capital cases in which serious error is found turn out on retrial to be more appropriately handled as non-capital cases (and in a sizeable number of instances, as non-murder or even non-criminal cases),77 it is hard to escape the conclusion that large amounts of resources are being wasted on cases that should never have been capital in the first place.

* Public faith in the courts and the criminal justice system is another casualty of high capital error rates.78 When most capital-sentencing jurisdictions carry out fewer than 6% of the death sentences they impose,79 and when the nation as a whole never executes more than 2.6% of its death population in a year,80 the retributive and deterrent credibility of the death penalty is low.

* When condemned inmates turn out to be innocent81 —an error that is different in its consequences, but is not evidently different in its causes, from the other serious error discussed here82 —there is no accounting for the cost: to the wrongly convicted;83 to the family of the victim, whose search for justice and closure has been in vain; to later victims whose lives are threatened-and even taken-because the real killers remain at large;84 to the public’s confidence in law and legal institutions; and to the wrongly executed, should justice miscarry at trial, and should reviewing judges, harried by the amount of error they are asked to catch, miss one.85

If what were at issue here was the fabrication of toasters (to return to our prior example), or the processing of social security claims, or the pre-takeoff inspection of commercial aircraft-or the conduct of any other private- or public-sector activity-neither the consuming and the taxpaying public, nor managers and investors, would for a moment tolerate the error-rates and attendant costs that dozens of states and the nation as a whole have tolerated in their capital punishment system for decades. Any system with this much error and expense would be halted immediately, examined, and either reformed or scrapped.

The question this Report poses to taxpayers, public managers and policymakers, is whether that same response is warranted here, when what is at issue is not the content and quality of tomorrow’s breakfast, but whether society has a swift and sure response to murder, and whether thousands of men and women condemned for that crime in fact deserve to die.

* * * * *

The remainder of this Report more fully describes our findings. Part V describes the review process for capital sentences. Part VI describes our study methodology. Parts VII, VIII and IX more thoroughly document and display our findings about the frequency with which reversible error is found in capital judgments in the United States between 1973 and 1995, and the time taken to find those errors. Part VII examines relevant factors at the national level. Part VIII does so using comparative analyses of the 28 capital-sentencing states in which at least one case had advanced through the entire post-sentence inspection process. And Part IX does the same thing, comparing the 8 federal judicial circuits and corresponding regions into which they are divided. After presenting a variety of information, Parts VII, VIII and IX preliminarily address the potential causes of so much error in capital sentencing. Finally, Part X briefly describes the more sophisticated analyses we will undertake in the next phase of our study (to be published in the Fall) to set the stage for proposed reforms.

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VII. The National Capital Punishment Report Card

In this Part, we present a “national composite capital-sentencing report card.” The report card describes a variety of information, including the error rates found to characterize, and the time needed to review, death sentences in capital states during the study period. This Part also explains the two-page report card format that we use to report state, federal judicial circuit and regional as well as national data. (In Part VIII below, we present state-by-state comparisons of the information on state report cards for the 28 death-sentencing states in which at least one final direct appeal and federal habeas decision occurred during the 1993-1995 period.133 In Part IX below, we present similar comparisons of information on the federal judicial circuit court/regional report cards.134)

The national capital-sentencing report card is set out below. It combines information about the rates of error detected on direct appeal of capital judgments imposed in all 34 death-sentencing states in which at least one state capital direct appeal was completed during the 1973-1995 study period. Our 34-state cohort is: Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, Washington and Wyoming. Because capital cases in six states (Colorado, Connecticut, New Jersey, New Mexico, Ohio and Oregon) had not advanced far, or at all, into the state post-conviction stage of review, and no case from those states had completed federal habeas review, the bulk of the composite data-those covering the state post-conviction and federal habeas stages and the “overall rates”-omit these states and focus on what we call our 28-state cohort.

The National Composite Capital Punishment Report Card contains six categories of information for either the 34 capital-sentencing states in which at least one capital judgment had been finally reviewed on state direct appeal during the study period, or for the 28 of those states in which at least one capital judgment was finally reviewed on federal habeas during the study period. Because the same six categories appear on all of the succeeding report cards-along with a seventh category in the state report cards-this section describes the types of information that all seven categories contain, then discusses the actual national composite results for each category.

A. Capital-Sentencing History

In the “History” category of each report card is information about the years in which four important capital-sentencing events occurred in the jurisdiction or set of jurisdictions in question following the Supreme Court’s invalidation of all preexisting capital statutes and sentences in Furman v. Georgia.135 The requisite information for the nation as whole (in this case comprised of the 34-state cohort of capital-sentencing jurisdictions) as revealed by the top category in the National Report Card is as follows:

* The first post-Furman death sentences were meted out in 1973.136

* The first post-Furman state direct appeal decision finally determining the legality of a post-Furman death sentence also occurred in 1973.137

* The first post-Furman execution of any sort (Gary Gilmore’s consented-to execution by the State of Utah) was in 1977.138

* The first “non-consensual” execution after Furman-i.e., the first time an American jurisdiction carried out a post-Furman capital judgment that had passed inspection by all available levels of judicial review-was in 1979, when Florida executed John Spenkelink.139

We focus on non-consensual, as well as all, executions because we are interested in error rates, and only non-consensual executions reveal the inspection system’s conclusion that the death sentence is free of “serious error” as defined above.140

B. Sentences and Executions

This section reports the number of death sentences imposed, the number of executions carried out, and executions as a proportion of death sentences in each jurisdiction or group of jurisdictions. Nationally, during the years 1973-1995, 34 American jurisdictions imposed 5,760 death sentences141 and carried out 313 executions.142 In other words, only 5% of the death sentences imposed were carried out.

C. Error and Success Rates

The third section of the report cards identifies (1) the rates of serious, reversible error discovered at each level of judicial inspection,143 (2) the overall error rate, meaning the proportion of capital judgments undergoing judicial inspection that were thrown out before reaching the end of the inspection process,144 and, conversely, (3) the overall success rate, meaning the proportion of capital judgments found after full review to be free of serious error. In the “overall rates” category, we give the error and success rates considering all three judicial inspections and also, in brackets, the rates considering only the direct appeal and federal habeas inspections. Nationally, our data reveal that:

* Direct appeal. State courts in 34 capital-sentencing jurisdictions finally reviewed 4,578 death sentences on direct appeal during 1973-1995.145 Because 5,760 death sentences were imposed during that period, this figure reveals that 1,182-or 21%-of the death sentences were awaiting direct appellate review at the end of the study period.146 Of the 4,578 capital judgments finally reviewed on direct appeal, 1,885-or 41%-were overturned based on serious error.1 This means that 2,693 death sentences148 from 34 jurisdictions passed the first judicial inspection and were available to be reviewed at the second, state post-conviction stage of review.149 Many of our subsequent analyses focus on the 28 capital-sentencing jurisdictions in which a full complement of review procedures took place in at least one capital case between 1973 and 1995. On the national report card, therefore, we calculate the direct appeal error rates a second time for just the 28 states. That analysis reveals the same 41% rate of serious error detected at that stage (1,782 capital judgments overturned due to serious error, out of 4,364 reviewed at that stage), and shows that 2,582 capital judgments from the 28-state cohort passed the first judicial checkpoint and were available for state post-conviction review.150

* State post-conviction. As is discussed above and in Appendix C, our state post-conviction data include only known state post-conviction reversals during the 23-year study period; it does not contain information about the number of state post-conviction proceedings that actually were completed during that period.151 For that reason, each report card lists as “Unknown” both the “Number Reviewed on Post-Conviction” (i.e., the number of capital judgments that went forward to state post-conviction review and were finally reviewed there), and also the “Number Forward [from State Post-Conviction] to Federal Habeas Corpus.” What we are able to calculate is the known reversals152 as a proportion of the number of capital judgments moving forward from state direct appeal to state post-conviction in our 28-state cohort of capital-sentencing jurisdictions.153 Although we report this calculation as the rate of error discovered on state post-conviction-i.e., as the “Percentage Reversed on [State] Post-Conviction”-we in fact underestimate that error rate by a substantial amount, because we take the known reversals as a percentage of the cases available for review, rather than as a proportion of the cases actually reviewed, during the study period.154 That underestimation accounts for our use of the “>“ symbol in this row of each report card and our use of the phrase “at least” in discussing that row. Nationally, for the relevant 28 study states, there were at least 248 state post-conviction reversals due to serious error during the study period, so that serious error was found in more than- probably significantly more than-10% of the cases reviewed at that stage.155 Although state post-conviction proceedings are not generally thought to be major sources of post-sentencing reversals of seriously flawed capital judgments, in fact there were more state post-conviction findings of reversible error infecting American capital judgments (248) than there were analogous federal habeas findings (237).

* State direct appeal and state post-conviction combined. This item in the national report card indicates the combined rates of error found at the two state court checkpoints. Nationally, state courts as a whole found 47%-nearly one out of every two-capital judgments they reviewed to be infected with serious error.156

* Federal habeas corpus. Between 1973 and 1995,157 federal habeas courts with jurisdiction over prisoners in capital-sentencing states around the nation finally reviewed158 599 death sentences. They overturned 237-or 40%-of those sentences based on serious error.159

* Overall rates: This portion of the report card gives the overall error (and success) rates, meaning the proportion of capital judgments from the relevant jurisdiction or set of jurisdictions that underwent full judicial inspection and were found to have (and to be free of) serious error.160 Overall, between 1973 and 1995, less than one-third-32%-of all death sentences passing through the nation’s state and federal judicial inspection system were cleared of serious error. Conversely, over two-thirds-68%-were thrown out because of serious error.161

The information presented thus far make this a useful place to discuss error rates over time. Earlier, in discussing Figure 2, pp. 12-13 above, we touched on patterns of capital error and success rates over time. There, we noted that, although executions have been on the rise since 1988, the principal cause of that rise seems to be the steady increase in the number of individuals piled up on death row who are potentially available to be executed, and not any sharp increase in the success rate of capital judgments. Figures 3 and 4 below look at patterns over a longer period of time, beginning in 1973.

Figure 3 below depicts the rates of error detected on state direct appeal, federal habeas corpus, and in those two stages combined, by year, from 1973 to 1995.162 (The first two years for which we plot the rate of error found on federal habeas review are 1978 and 1980, because no capital habeas proceedings were completed before 1978 or during 1979.) Figure 3 reveals the following about error rates detected over time during the first (state direct appeal) and third (federal habeas) inspection stages:

* From the 1970s through 1982, when relatively few cases were under review, rates of error detected on state direct appeal and federal habeas review were extremely volatile and high.

* As of 1983, as larger numbers of capital judgments came under review at both stages, error rates stabilized, and they remained relatively stable throughout the remainder of the period. Thus, during the final 13 study years (1983-1995):

1. Capital-sentencing error rates found on state direct appeal across the nation consistently remained within the 30% to 45% range.

2. With the exception of three years (two with a lower rate; one with a higher rate), capital error rates found on federal habeas review stayed within that same 15-point range.

3. With one exception, the combined error rates detected at those two stages stayed consistently within the 54% to 69% range.

4. Broadly speaking: while the error rate found on federal habeas modestly dipped during the 1987-1991 period, the error rate found on state direct appeal (affecting a much larger pool of cases) modestly rose during that same period. Both rates dipped some during the years 1992 through 1994, then rose sharply in 1995.

Figure 3 is incomplete because it does not contain rates of serious error found, by year, at the state post-conviction stage, nor thus any overall reversal rate, by year, for the three inspection stages as a whole. Rates of serious error detected during state post-conviction review cannot be calculated because only data on the number of reversals-but not on the total number of cases decided, and thus the reversal rate-are available by year for the state post-conviction stage.163 The next chart, however -Figure 4-provides some information about state post-conviction error rates over time, revealing that in the same years when a modest downward trend in federal habeas reversal rates was occurring (1987-1994), a marked increase in state post-conviction reversals occurred.164 If we assume (though we can’t know for certain) that the number of capital state post-conviction cases finally decided during the 1985-1994 period was fairly steady, then an increase in the error rate detected at the state post-conviction stage would have occurred and offset the decrease in the federal habeas reversal rate. Making that assumption leads to an estimate of the overall rate of error detected by all three judicial inspections during the 1988-1994 period of roughly 60-65%.

Figure 3

Figure 4

D. Length of Time of Review

This section of each report card provides information for the relevant jurisdiction or set of jurisdictions on (1) the number of years that elapsed between the state’s first death sentence and its first non-consensual execution (not necessarily in the same case); (2) the average number of years it took death sentences to proceed through the three-stage inspection process to execution in the small proportion of cases in which an execution took place; and (3) the average time from death sentence to federal habeas reversal in the 10% of cases in which reversal occurred at the third (federal habeas) checkpoint, as opposed to taking place at one of the earlier (state court) checkpoints. The national report card reveals the following about the length of time required to identify the high amounts of error described above:

* Nationally, 6 years passed between the imposition of the first death sentence and the first non-consensual execution.165

* We don’t know how much time was required for judicial inspection of death sentences at the direct appeal and state post-conviction stages. One of the report-card categories discussed above-the percentage of death sentences awaiting direct appellate review as of the end of 1995-does, however, suggest the extent to which the direct appeal stage is a bottleneck in the review process. Nationally, 21% of all death sentences imposed between 1973 and 1995 were still awaiting a state direct appeal decision as of 1995.166 That 21% (1,182 death sentences) represents close to five years’ worth of death sentences backed up at the direct appeal stage as of the end of 1995, at the average annual rate of 250 death sentences imposed per year.167 This suggests that, as of 1995, an average of about 5 years was elapsing between imposition of a death sentence and the end of state direct appeal-and thus that about half of the time required for the entire review process was being consumed by the first, state direct appeal inspection.

* In the minority of cases in which death sentences passed the three-stage inspection and were carried out by execution, the average time, nationally, from sentence to execution was 9 years. In the last 9 study years (1987-1995), by which point the pile-up on death row was substantial (see Figure 2, p.12 above), the average time from sentence to execution had increased to 10.6 years.168

* In cases in which serious error was detected during the third, federal habeas review, the average time from sentence to federal reversal was 7.6 years.169

E. Capital-Sentencing and Execution Rates

The report cards next answer two questions. (1) How often does the relevant jurisdiction or set of jurisdictions impose death sentences? To answer this question, we consider death sentences as a proportion of three populations: per 1,000 homicides, per 100,000 population, and (in the state report cards, but not the national one) per 1,000 incarcerated inmates in the jurisdiction. (2) How often (relative to homicides, population and prison population) does the jurisdiction execute offenders? Because we are interested in success rates, we consider only “non-consensual” executions, i.e., ones based on capital judgments that have been fully reviewed and found to be free of serious error.170 Because not all states have the death penalty, our national report card computes these figures for the nation as a whole and for our 34-state cohort.

These numbers are most useful for the comparative purposes to which we put them below.171 Providing a national baseline for those comparisons, the capital-sentencing and execution rates for the nation as a whole, and for the 34 death-sentencing states that decided at least one direct appeal during the study period, are as follows:

* For the 34 capital-sentencing states, an average of 14.9 death sentences were imposed for every 1,000 homicides during the study period. For the same states, an average of 3.9 death sentences were imposed for every 100,000 people during the same period.172

* Because so few death sentences actually result in executions, the execution rates determined by each of these population categories are much lower. During the study period, death-sentencing states carried out an average of: .68 executions for every 1,000 homicides; and .15 executions for per 100,000 persons.173

* Comparing the last two points reveals that during the study period, death states capitally sentenced 22 times more defendants per 1,000 homicides than they executed. And they sentenced 26 times more defendants per 100,000 population, than they executed.

* For the whole nation during the study period, an average of: (1) 12 death sentences were imposed for every 1,000 homicides; (2) 2.46 death sentences were imposed for every 100,000 people; and (3) .54 non-consensual executions were carried out for every 1,000 homicides.174

F. Demographic Factors

The demographic information reported in the sixth report card category reveals the population pools against which each jurisdiction’s number of death sentences and executions are compared to determine sentencing and execution rates. They also provide bases for distinguishing among states and thus, potentially, for explaining variations among states in terms of the capital error rates detected on direct appeal and habeas corpus inspection. At the national level we again report data for the 34 death states as well as for the nation at large.

“Average population” is the relevant jurisdiction’s yearly average population from 1973-1995. For the whole nation, the average population during the study period was 237,905,964. For the 34 death states, it was 181,374,347.175

“Average homicides” are the total number of homicides from 1973-1995 divided by 23, the number of years in our study . For the whole nation, the average number of homicides each year during the study period was 21,197. For the 34 death penalty states, it was 16,860.176 Comparing this and the last category reveals that death-sentencing states account for about 76% of the nation’s population and about 80% of its homicides.

Homicides per population establishes a jurisdiction’s homicide rate. By “average homicides/average population,” we mean the number of homicides per year for every 100,000 persons in the jurisdiction, averaged over the population during the study period. For the whole nation, average homicides/average population during the study period was 9. For the 34 death sentencing states, it was 9.3.177 This again reveals that homicide rates are slightly higher in death-sentencing than in nondeath-sentencing states.

“Average prison admissions” means the average number of persons admitted each year to the state’s prisons during the study period.178

“Average prison population” means the jurisdiction’s average population over study period.179

We also report here the percentage of each jurisdiction’s population during the study period that was nonwhite, which for the nation as a whole was 20% and for the 28 study states was 19%.180

G. Court Factors: The Context of State Court Decision Making

In the state (but not the national and circuit/regional) report cards, we report four measures of the social and political contexts in which judges make decisions. Contextual measures such as those analyzed here have been shown in empirical studies to help explain variation in sentencing from county to county within states and across states.181 We consider them here to see whether they can help explain state variations in capital-sentencing error rates, and also in capital-sentencing and execution rates themselves.

The “political pressure” index measures the extent to which state judges are subject to electoral scrutiny and discipline. Although nearly all the state judges in our study are subject to election at some point if they wish to remain in office, the forms and frequency of elections differ in ways that are likely to increase or decrease the extent to which judges are put at political risk because of the capital outcomes produced in their courts (meaning, at the trial level, whether the verdict was death or life and, at the appellate level, whether a death sentence under review was affirmed or reversed). The index considers whether judges initially are elected or appointed, whether judicial elections are partisan, the length of judges’ terms of office, and whether judges’ continuation in office is determined by contested or retention elections.182

The “party competition index” is a composite of the vote share of each party in state gubernatorial elections from 1968-1996.183

Our penultimate (“state court criminal caseload”) item reports the yearly average number of criminal case filings in each jurisdiction from 1985-1994 per 1,000 people in the population.184 We include this figure to test the hypothesis that high criminal caseloads may in some way affect the quality of state-court capital judgments.

Finally, aiming to test a similar hypothesis having to do with available judicial resources, we report each state’s average annual court-related expenditures during the fiscal years 1982-1992.185

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X. Conclusion: A Broken System; the Need for Research into Causes

Over the course of the 23-year study period, a large majority of death sentences subjected to judicial inspection nationally and in nearly all death-sentencing states were found to be seriously flawed and were reversed by the courts. The 60% and 70% rates of serious error that have existed nationally and in the vast majority of states have obliged courts to provide, and have obliged taxpayers to foot the bill for, a elaborate and lengthy judicial inspection process-one that, even so, almost inevitably must fail to catch and correct some amount of the error that has flooded the system. As an inevitable result of so many serious errors and the multi-tiered process needed to catch them, it has taken nearly a decade-more recently, it has taken over a decade-for the small number of death sentences that pass inspection to be carried out.

Very few death sentences succeed, and it takes years to cull out the majority of failures.

So far we have used the rate of serious error detected by state and federal courts as the measure of the success or failure of our capital punishment system. But there is another important measure that bears consideration. Presumably, the most immediate goal of a system of capital punishment is the execution of capital sentences. In this light, the most obvious measure of the “success” of our death penalty system-indeed, the most obvious measure of the system’s sheer rationality-is its capacity to translate the death sentences it imposes into executions.

By this measure, the capital punishment system revealed by our 23-year study is not a success, and is not even minimally rational. Figure 35 below plots the proportion of the death sentences imposed at some point during the 23-year study period that had been carried out by the end of that period-comparing the 28-state cohort of capital-sentencing jurisdictions and the national average.237

As Figure 35 reveals:

* Nationally, during the study period, the proportion of death sentences actually carried out was a meager 5.4%, one in nineteen.

* Given high error rates, and the painstaking review needed to catch it, well over half of all American death-sentencing states that have been in the business the longest failed to carry out 95% or more of their death sentences. Nearly half failed to convert more than 1 in 30 death sentences into executions. Three-quarters carried out fewer than 7% of their death sentences. The vast majority (86%) carried out 15% or fewer.

* Only 1 state, Virginia, managed to carry out more that a quarter of the death sentences it imposed over the 23-year study period-and there is serious question whether it did so only by dint of inferior error detection.238

* * * * *

Through a variety of measures, our 23 years worth of findings reveal a capital punishment system collapsing under the weight of its own mistakes. In so doing, they pose three principal questions (and a host of subsidiary ones) that will be the subject of a second report later this year:

* What has remained the same, and what has changed, since 1995? By all indications examined here, the error-proneness and irrationality documented by our study of thousands of cases reviewed by hundreds of state and federal judges, in three separate review processes, in 34 states across the nation over the course of nearly a quarter century has not somehow evaporated in the succeeding four years.239 In none of those four years, for example, as in none of the preceding 23, has the nation managed to execute even 3% of its death row inmates-and in 1996 and 1998, it executed fewer than 2% (about the same proportion as it had executed in, e.g., 1984, 1987, 1993 and 1995).240 Indeed, if the recent findings of a variety of media investigations across the nation are any indication, error rates and the consequent confounding of the death penalty system may be getting worse.241 In this regard, we hope to explore whether the surge of state and federal court reversals in the last study year (1995) was a harbinger,242 and any other patterns that may appear.

* What accounts for the generally high rates of serious error that state and federal courts have detected in American capital judgments? In this Report, we have briefly examined the types of errors that predominate (incompetent lawyering and prosecutorial misconduct leading the way243); identified differences among the respective states and federal courts-for example, disproportionately low error-detection by the Virginia courts and the U.S. Court of Appeals for the Fourth Circuit; noted the relationship between high error rates and low execution rates (especially rates of death sentences carried out); discovered some potentially suggestive evidence that low execution rates (especially, low rates of death sentences carried out) are associated with high death-sentencing rates; and considered the effect on death-sentencing and execution rates of (1) some demographic factors (finding that homicide rates seem to have no effect on death-sentencing and execution rates, and that the size of nonwhite populations may be inversely related to death-sentencing rates but directly related to execution rates) and (2) judicial-contextual factors (finding that political pressure on state judges and that state expenditures on courts may be positively correlated with death-sentencing rates but negatively correlated with the rate at which death sentences are carried out). These analyses represent our first steps towards the main goal or our next research phase: Identifying the causes of the huge amounts of serious error infecting American capital convictions and sentences.

* What policy responses are called for? In advance of these additional efforts to explore the causes of our capital system’s error-proneness and irrationality, we have the least to say here about the policy implications of our findings. That, however, will be a third important focus of our next phase of research.

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