Rates of Reversible Error and the Risk of Wrongful Execution

• NCJ Number: 197798
• Journal: Judicature Volume: 86 Issue: 2 Dated: September-October 2002 Pages: 78-82
• Author(s): James S. Liebman
• Date Published: September 2002
• Length: 5 pages
• Publication Format: Article
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

This article profiles a method for assessing the risk of flaws in a jurisdiction's death penalty system, which can have fatal consequences for innocent defendants.

Abstract

The method was developed by a multidisciplinary team of researchers at Columbia University. The team concluded that information of significant value to the relevant actors, regulators, and the public can be extracted from a systematic analysis of the results of capital appeals. Chief among this information is evidence that the risk of executing an innocent person is well above the "extremely" low level that is widely acknowledged to be necessary if the death penalty's integrity and penological value is to be maintained. The team's study reviewed the outcomes on judicial review of the more than 5,800 death verdicts that were imposed by the 34 active death-sentencing States and 1,004 active death-sentencing counties between 1973 and 1995. During that period, more than 4,500 of the verdicts were finally reviewed on direct appeal, of which 41 percent had reversible flaws. An additional 10 percent of the verdicts that survived direct review were reversed on State post-conviction review. Forty-one percent of the death verdicts that survived State court review and were fully inspected by Federal courts were overturned. The conclusion of this analysis was that for any given 100 fully reviewed verdicts, an average of 47 were reversed by the State courts, and 68 of the 100 were reversed by either the State or Federal courts. Reforms that can limit the risk of capital error and execution of the innocent include a systematic assessment of the risk of such outcomes, using all available evidence. Second, all participants in the death penalty system should be under a strong obligation to make public all evidence in their control regarding the reliability of their operations. Third, the amount and pattern of reversible error provide important evidence of the risk of unreliability in capital verdicts, and such data should be regularly collected and analyzed by the justice system. There is no more important enterprise for which quality-control efforts must be regularly and thoroughly applied and assessed. 19 notes