• The frequency of state court of last resort (“COLR”) decisions by year reflects national homicide trends. The number of capital appeals resolved annually rose steadily from 1992 to 1997 and declined thereafter.
• Three-quarters (.737) of the appeals upheld the capital conviction and sentence. The reversal rate was 26.3 percent. Six out of ten reversals overturned the sentence alone. In eleven percent of the cases the conviction was overturned. This is considerably at odds with the findings of Liebman, et al., in A Broken System (2000), which had reported a 41.2 percent reversal rate on direct appeal. The best explanation for the difference is that Liebman and associates adopted a time frame– 1973-1995 –dominated by early uncertainties in death penalty law. It is no surprise that in this period of legal turmoil there would be a high number of procedural errors in capital trials, and concomitantly, an increased number of reversals on appeal. Now, however, the law and the process have stabilized.
• Measuring from date of death sentence, it took a median 966 days to complete direct appeal. Petitioning the U.S. Supreme Court added 188 days where certiorari was denied, and a median 250 days where certiorari was granted and the issues were decided on the merits.
• Median time consumption of capital appeals from notice of appeal to COLR decision was 921 days, far in excess of American Bar Association guidelines, which call for 50 percent of all appeals to be completed in 290 days. The ABA benchmark for cases at the 90th percentile is one year; capital appeals at the 90th percentile require 4.26 years.
• Virginia is the most efficient of all states in the study, with a median processing time from sentence to COLR ruling of 295 days. Measuring from notice of appeal to COLR decision, Georgia, at 297 days, is the fastest court of last resort.
• Ohio, Tennessee, and Kentucky were the least efficient COLRs, consuming respectively, 1,388, 1,350 and 1,309 days. Ohio reduced its time consumption by 25 percent by eliminating intermediate appeals court review.
We also developed a multivariate model to determine the factors that most affect the processing time of capital appeals. We hypothesized that three broad categories were significant: 1. case characteristics, 2. institutional arrangements and resources, and 3. court attributes. Our results indicated that variation in processing times is driven by factors in all three categories, but is most significantly influenced by case attributes and institutional factors. Specifically, we found that:
• For each additional page of the majority opinion (our measure of case complexity) processing time increased by 1.3 percent.
• For each dissenting opinion filed in an appeal, processing time increased 7.1 percent.
• A reversal of the lower court decision increased processing time by about 7 percent.
• Prior review of an appeal by an intermediate appellate court had a major impact on processing time, adding about 43 percent to the time necessary to process an appeal through COLR review.
• The existence of a state law or rule specifically directed to expediting capital appeals decreased processing time by about 14 percent.
Ultimately, we recommended two general reforms to expedite the direct appeals process.
First, eliminate intermediate court review. Alabama and Tennessee are the only states that use a two-step capital appeals process: intermediate appellate review followed by high court review. While some judges on the courts of last resort said they appreciated the narrowing of the issues and the second opinion provided by the intermediate courts, the significant time increment far outweighs this benefit. Direct COLR review is much more efficient.
Second, the states should adopt rules or statutes that impose deadlines on actors in the capital appeals process. Such deadlines work. Those states with statutes or court rules that set reasonable but enforceable deadlines for crucial activities such as the preparation of the record, the perfecting of appellate briefs, and the resolution of the case by the appellate court, complete the direct appeals process more expeditiously.
Undoubtedly, some will defend the process as it currently exists, claiming that the additional time is needed to ensure that the sentence is legally justified. Others will say that the negative consequences of lengthy appeals can only be obviated by the abolition of capital punishment. In assessing whether or not efforts to shorten the process are advisable, the numerous disadvantages of current practice should be weighed against the need to ensure a full and fair review of claims of error appropriate to the seriousness of the sentence. By this standard, we believe that those sentenced to death can be afforded the extraordinary review to which they are entitled in a much more efficient manner. As this study shows, some states have established more efficient appellate procedures while still maintaining guarantees of fairness and “super due process.”