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A Misleading Article on Reversal Rates

The Washington Post's Monkey Cage has this article by Frank Baumgartner and Anna Dietrich on the rates of reversal in capital cases.  The article leaves out essential facts, particularly how the picture has changed over time, to arrive at its Politically Correct conclusion.

Large numbers of capital sentences have, of course, been overturned, but the reasons have varied over time.  To simply state an overall rate from 1973 to the present is highly misleading.

In the early years, the primary reason for reversals was the Supreme Court's inability to agree with itself from one year to the next what the Constitution requires and what it forbids.  In 1972 it strongly implied that discretion in capital sentencing was forbidden and mandatory sentencing was required.  Congress and the legislatures of the two largest states at the time, California and New York, interpreted the decision that way and passed mandatory sentencing laws.  Four years later, without so much as an apology, the Supreme Court said no, discretion is required, not forbidden, but it must be guided discretion.  All the sentences in the mandatory jurisdictions were thrown out.

But the high court was not done with its "bait and switch."  It continued to conjure up new constitutional requirements, often contradicting what it said before.  In 1976 it approved Florida's system with its defined list of mitigating circumstances.  In 1987 it said, no, that is invalid because the jury was not instructed to consider circumstances not on the list. 

In Teague v. Lane in 1989, the Supreme Court, at the suggestion of yours truly, adopted a rule that new rules of constitutional criminal procedure would not be applied retroactively on habeas corpus.  The same year, I did a study of capital cases in the Eleventh Circuit and found that nearly half the reversals would not have been reversed if the Teague rule had been in effect and observed at the time of the decisions.
The Teague rule was bitterly resisted by many federal judges, and it took more years and more trips to the Supreme Court before the lower federal courts were brought into some semblance of compliance.  But the Supreme Court can't reverse them all, as one court of appeals judge bragged, and many wrong reversals went uncorrected.

In 1996, Congress went further and enacted a landmark habeas reform.  Again, there was "massive resistance" and many more trips to the Supreme Court.  Again, many judgments were wrongly overturned by lower federal courts and not corrected by the Supreme Court.

Eventually, though, these reforms did bring down the number of judgments wrongly overturned.  A study in 2007 found that only 12.4% of the federal habeas corpus petitions ended in a grant of relief, compared with the 40% found in a study done earlier under the prior law.

So what is the overall reversal rate in more recent cases?  If we look only at final dispositions, our numbers suffer from selection bias.  A judgment reversed in one of the early appeals will be final and included in the disposed-cases sample while one affirmed in the early stages will still be under review.  It is not an easy number to get a handle on.  One thing we can say for sure it that it is too many.  Cases where there is even a genuine question of innocence are rare.  Cases where, even though the defendant really did everything he was convicted of doing, it would still be a miscarriage of justice to execute him are close to nonexistent.  In almost every case where the sentencer has decided that death is the appropriate punishment, when you just look at the facts it really is.

Instead of condemning the "system" for not carrying out enough of its judgments, we need to pass reforms to get the reviews done more quickly and reliably.  Virginia has shown that can be done.  The fact that Virginia has been criticized by the ABA, as Baumgartner and Dietrich note, means nothing given the ABA's notorious anti-death-penalty, pro-defense bias.  There is no convincing evidence that Virginia has ever executed an innocent person.  The one-time poster boy for that claim, Roger Coleman, was later conclusively proved guilty by DNA.

One step we can take on the national level is to simply get the federal courts out of the business of reviewing discretionary sentencing decisions in state cases.  If the defendant was fairly tried in the guilt phase, has no compelling evidence of innocence, and received a sentence within the legal range for the crime he committed, there is no need to invoke the extraordinary process of federal habeas review of a state judgment.

State legislatures also need to pass reforms.  Similar to the proposal above, successive petitions should be limited to claims of true "got the wrong guy" innocence.  For everything else, one appeal and one habeas review are enough.

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