Another Recount: Appeals in Capital Cases

• NCJ Number: 187435
• Journal: Prosecutor Volume: 35 Issue: 1 Dated: February 2001 Pages: 25-28
• Author(s): Barry Latzer; James N.G. Cauthen
• Date Published: February 2001
• Length: 4 pages
• Sale Source: NCJRS Photocopy Services
• Publication Format: Article
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

This article critiques the findings of the study of the outcomes of appeals in capital cases as reported in "A Broken System: Error Rates in Capital Cases, 1973-1995" (James Liebman, Jeffrey Fagan, and Valerie West).

Abstract

In this article, the authors compare their own research into 110 years of capital appeals in 26 States with those of the study under review. The authors note that the previous study failed to differentiate between conviction and sentence reversals, and they further argue that the "Broken System's" 68-percent reversal rate, along with many of the inferences that flow from it, are misleading. Based on their own study, the authors believe a more accurate capital reversal rate before retrials and rehearings is 52 percent. Moreover, after retrials and new sentencing hearings, 57 percent of the original death sentences (not 44 percent) still stand. The "Broken System's" method used to reach the 68-percent figure was faulty. By calculating the error rates based on cases actually reviewed at each of the three stages (direct appeal in the State courts, postconviction review in the State courts, and Federal habeas corpus) rather than on all cases available for review at each stage, the study significantly overstated the error rate. It is preferable to consider the finding of error relative to all cases available for review at each of the three stages. This article details such a calculation, which yielded a 52-percent error rate. The authors also argue that some of the inferences Liebman and colleagues draw from their findings are unsound. They conclude that if courts find error in 68 percent of the cases they review, then there is a 68-percent risk that those put to death are wrongfully executed. This conclusion falsely assumes that the capital cases reversed must be substantially similar to those capital cases not reversed. Any proper assessment of the capital adjudication process, conclude the authors, must be based on an accurate measure of the appellate reversal rate as well as a full account of the many idiosyncratic features of that process. 17 notes