December 2000/
January 2001

Views expressed are those of the authors, not necessarily of the AFSC.

A Broken System: Error Rates in Capital Cases, 1973-1995

James S. Liebman, Simon H. Rifkind Professor of Law, Columbia University School of Law; Jeffrey Fagan, Joseph Mailman School of Public Health; and Valerie West, doctoral candidate, Department of Sociology, New York University are authors of this report which was released in the spring of 2000. In 1991 the Chair of the US Senate Committee on the Judiciary asked Professor Liebman to calculate the frequency of relief in habeas corpus cases. In late 1995, the study was expanded from a single count of cases and their outcomes to a search for infomation that might help explain why relief is granted in so many capital cases. The complete report may be found at http://justice.policy.net/proactive/newsroom/release.vtml?id=18200

Executive Summary

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 (4578 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.

"Death Gurney" © Clifford Bogges, a self-taught artist, who spent ten years on death row in Texas before his execution in 1998

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 seven 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 2370 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 nine 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.

Federal Executions Action Alert

While the nation focuses on the Presidential election, plans are quietly being made by the U.S. government to carry out the first federal execution in nearly 40 years. On December 12, Juan Garza is scheduled to be executed even though the Department of Justice itself has raised serious questions about the racial and geographic bias in the federal death penalty system. In fact, the Justice Department has acknowledged that at the time Garza was sentenced in Texas, U.S. attorneys there brought death penalty cases only against Hispanic Americans.

The relationship between race and the death penalty is well documented. Hispanics and African American defendants make up 70% to 80% of the group of defendants recommended for the federal death penalty. Geographical disparities also exist, and almost 30% of inmates currently sitting on federal death row were prosecuted in a single state --Texas. Both the Attorney General and the President have expressed concerns about these studies, and Attorney General Janet Reno has stated that "an even broader analysis must be undertaken to determine if bias plays a role in the federal death system." These questions of unfairness must be resolved before the federal government decides to begin executing individuals for the first time since the 1960's.

Take Action! You can urge President Clinton to declare a moratorium on federal executions before the end of his term by sending a FREE FAX from our action alert at:
www.aclu.org/action/clintonmoratorium107.html

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