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

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Liebman, James Steven, Fagan, Jeffrey, West, Valerie·2000·SSRN Electronic Journal

Abstract

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 (4,578 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. 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 7 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 2,370 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 9 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.

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Research works printed but not linked: 150

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  46. * In, 1996, conviction and sentence overturned due to ineffective assistance of counsel, Cal.4th, 552
  47. Oscar Morris, 1988, Morris had his capital conviction overturned by the L.A. Superior Court in a state post-conviction proceeding
  48. In re Sixto, 48 Cal.3d 1247 (1989) (conviction overturned based on ineffective assistance of counsel; lesser sentence imposed on retrial
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  57. ) (on remand for evidentiary hearing on ineffective assistance of counsel claims, as ordered by Vaughts v. State, 442 So.2d 217 (Fla. 1985), state agreed to a sentence less than death
  58. 522 So.2d 341 (Fla. 1988) (same as Combs; resentenced to death) [I, D] Way v. Dugger, 568 So.2d 1263 (Fla. 1990) (same as Combs
  59. 1985, ) (upon suggestion of Florida Supreme Court in denying direct appeal in State v. Williams, 438 So.2d 781 (Fla. 1983) that post-conviction relief might be appropriate in regard to claim of ineffective assistance of counsel due to trial court's denial of continuance, Williams files petition for post-conviction relief and state immediately agreed to a sentence less than death
  60. Wilson V Wainwright, 474 So.2d 1162 (Fla. 1985) (conviction overturned due to egregious ineffective assistance of
  61. Wilson's appellate attorney; on reappeal, the Florida Supreme Court determined that the evidence did not support a death sentence, and ordered that a life sentence be imposed
  62. Young V State, 739 So.2d 553 (Fla. 1999) (death sentence overturned due to state's suppression of eyewitness statements to police supporting Young's defense that he fired his weapon in self-defense only after the victim had first fired a shot at Young
  63. Zeigler V Dugger, 524 So.2d 419 (Fla.1988) (same as Combs
  64. Basis for Relief: IAC = 30
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  66. as having led to a death sentence on retrial after state post-conviction relief, it is interesting to note that the state supreme court subsequently overturned Hudson's death sentence a second time, on direct review of the new death sentence (see Hudson v. State, 708 So, Although we report Hudson v. State, 614 So.2d 482 (Fla. 1993), 2
  67. 1998, Likewise, we report Stevens v. State, 552 So, after which Hudson was resentenced to life on Nov, 9
  68. App. 1989) (conviction overturned and prisoner released as innocent due to prosecution's (1) intentional failure to disclose crime witness' prior inconsistent statement, which was diametrically opposed to her material trial testimony; (2) failure to correct witness's perjurious testimony that she had identified defendant in a lineup; and (3) failure to disclose misidentification and improper coaching of witness by police
  69. Ex Parte, 1992, ) (overturning conviction and sentence due to ineffective assistance of appellate counsel, Tex. Crim. App. Writ No, 21, 327
  70. 1991, ) (death sentence overturned due to improper instruction forbidding jury to consider defendant's mental retardation as a mitigating circumstance; unpublished opinion reported as appendix to dissenting opinion in Ex Parte Tennard, S.W, 946
  71. App. 1989) (conviction overturned because that prosecution suppressed evidence placing other suspects at scene of crime near time the crime was perpetrated, its suggestive conduct of investigation so as to create false testimony
  72. Brandley was released in lieu of retrial
  73. App. 1982) (death sentence overturned because the trial court excluded impartial jurors due to their doubts about the death penalty; 99-year sentenced imposed on retrial see <www
  74. App. 1984) (death sentence overturned because state psychiatrist interviewed petitioner without informing him that his statements could be used as a basis for sentencing him to die
  75. Ex Parte Demouchette, 633 S.W.2d 879 (Tex. Crim. App. 1982) (same)
  76. App. 1980) (conviction and death sentence overturned due to ineffective assistance of counsel
  77. Edwin Ex Parte, 1992, Corley's [death] sentence was reversed in December 1992, after the Court of Criminal Appeals found that two state psychiatrists failed to warn Corley before they examined him that they could testify against him
  78. App. 1991) (death sentence overturned due to improper instruction forbidding jury to consider defendant's mental retardation as a mitigating circumstance
  79. App. 1987) (death sentence overturned because trial court excluded impartial jurors due to their doubts about the death penalty
  80. Jordan Ex Parte, 1988, Tex. Crim. App
  81. App. 1983) (conviction overturned due to capital attorney's conflict of interest in representing two criminal defendant's with conflicting defenses; McCormick was resentenced to life and has since been paroled
  82. App. 1991) (death sentence overturned due to improper instruction forbidding jury to consider defendant's mental retardation as a mitigating circumstance
  83. App. 1991) (death sentence overturned due to trial court's improper limitation of counsel's ability to question prospective jurors on whether they would feel compelled to condemn the defendant in the event that they convicted him
  84. App. 1983) (conviction overturned due to capital attorney's conflict of interest in representing two criminal defendant's with conflicting defenses; McMahon was resentenced to life and has been released on parole
  85. 1998, App. 1993) (conviction overturned due to prosecutorial suppression of exculpatory evidence showing that victim was alive after last time when Mitchell could have killed him, Crim. App
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  87. Purtell Ex Parte, 1994, ) (death sentence overturned because state psychiatrist interviewed petitioner without informing him that his statements could be used as a basis for sentencing him to die, 515
  88. 1992, ) (death sentence overturned due to improper instruction forbidding jury to consider defendant's mental retardation and brain damage as a mitigating circumstance, as reported in Austin American-Statesman, WL, 12
  89. 1990, the Texas governor commuted Tomkins' death sentence at the request of the D.A., after Tompkins' volunteer state post-conviction lawyers developed evidence that the prosecution's star witness at the penalty phase-purportedly a clinical psychologist who had "examined" and "treated" Phil during a prior stint in prison-was not a psychologist at all but an imposter whose only post-high, Texas Cause No. 329,004A) (on July 7
  90. App. 1992) (death sentence overturned due to improper instruction forbidding jury to consider defendant's mental retardation as a mitigating circumstance
  91. 1998, ) (death sentence overturned due to improper instruction forbidding jury to consider defendant's mental retardation as a mitigating circumstance, as reported in Austin American-Statesman, WL, 915
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  96. Irvin Dunsdon v. Morris (see Codianna, supra)
  97. Morris (see Codianna, supra)
  98. App. C-44
  99. Wilbert Evans (death sentence overturned by trial court after state "confessed error" based on its reliance to secure a death sentence on "'seriously misleading'" or "'otherwise defective'" prior convictions (reversal noted in decision reviewing death sentence imposed on retrial Evans v
  100. Joseph Giarratano, 1991, Virginia governor accepted prisoner's request that he impose a quasi-judicial judgment by way of "conditional pardon" (setting aside the conviction on condition that the prisoner waive double jeopardy and submit to reprosecution) to enable the prisoner to secure a new trial that several judicial doctrines of issue-preclusion had barred him from getting in either the Virginia state courts or the federal courts; on retrial, Giarratano was sentenced to life; see Greg Schneider, 2 Years After Escaping Execution, Giarratano's Stature Still Grows, The Virginian-Pilot & Ledger Star
  101. Jackson V *chauncey, 2000, ) (conviction overturned because court that convicted defendant did not have jurisdiction over him
  102. Earl Washington, 1991, Virginia governor commuted capital conviction and death sentence to life imprisonment based on DNA evidence showing that Washington, who was retarded, had been compelled to confessed to a rapemurder that he did not commit; see Robert Perske, 54
  103. Joe Jackson, 1994, Sentenced To Die Without Fair Trials, Virginian-Pilot & Ledger Star
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  107. 1988, Georgia) (prosecutor unconstitutionally instructed jury commissioner to under-represent African-Americans on the jury venire)
  108. Banks V, Oklahoma) (prosecution suppressed evidence that at least three other men were previously arrested for the crime with which petitioner was charged, that two of them had been positively identified by eyewitnesses, and that the cell-mate of one of the previously arrested suspects claimed that THE
  109. 1994, Idaho) (death sentence premised in part on trial judge's distaste for petitioner's prior history of nonviolent "abnormal sexual relationships, Paskett, 3 F.3d 1301 (9th Cir. 1993)
  110. Bowen V Maynard, 1986, Oklahoma) (prosecutors suppressed a sheaf of investigative reports that a suspect other than the capitally sentenced petitioner had murdered the victim and that an investigating officer with a grudge against the petitioner had maliciously framed him, 799 F.2d 593 (10th Cir.), cert denied
  111. Brown V, 785 F.2d 1457 (11th Cir. 1986) (Florida) (state deliberately withheld fact that chief witness against Brown lied on the stand about not having been granted leniency in return for testifying against Brown
  112. N D Ga, 1989, Georgia) (prosecutor unconstitutionally secured death sentence based on a plethora of errors, including (1) insisting on going to trial before a jury saturated with prejudicial pretrial publicity; (2) employing a private psychiatrist to testify against Buttrum but insisting that she be limited to the services of a psychiatrist employed by and beholden to the state, rather than the independent expert the Constitution requires; (3) blatantly and unconstitutionally inviting the jurors to use against Buttrum the fact that she had exercised her right not to testify; (4) urging the jury, whatever its qualms about a death sentence might be, to impose that punishment because the decision would later be reviewed by appellate courts that would bear the real responsibility for Buttrum's fate; (5) urging the jury to ignore factors warranting mercy, notwithstanding that the Constitution makes those very factors the crux of the sentencing decision, Buttrum v. Black, 908 F.2d 965 (11th Cir. 1990) and 721 F. Supp. 1261
  113. Carriger V Stewart, 1998, Arizona) (prosecutor failed to disclose information in state's files showing that prosecution's central witness-who later confessed to the murder he theretofore had successfully pinned on petitioner at trial-had a "long history" of prior crimes and assaultive acts and, 132 F.3d 463 (9th Cir. 1997) (en banc)
  114. 1998, Carriger subsequently pled guilty to a lesser offense in return for the state's agreement that he be immediately released, see generally Samuel R. Gross, Lost Lives: Miscarriages of Justice in Capital Cases, CONTEMP. PROB, 61, 139
  115. App, 10.1007/springerreference_34376 · DOI
  116. Arkansas) (conviction and death sentence overturned because of "overwhelming record evidence . . . that the prosecutor routinely attempted to pervert the peremptory challenge system by using it to exclude black venirepersons for reasons wholly unrelated to the trial" and did so at Ford's trial, striking every potential black juror, and giving an explanation in each case that was blatantly pretextual because it was either a false statement of the facts regarding the prospective juror or, if true, would have required the prosecutor to strike white jurors whom he left on the jury
  117. 1985, Georgia) (trial judge instructed jury to "presume" that defendant was guilty of murder unless defendant proved otherwise)
  118. 1998, Tennessee) (counsel failed to develop defense theory and "to conduct any meaningful adversarial challenge, as shown by his failure to cross-examine more than half of the prosecutions' witnesses, to object to any evidence, to put on any defense witnesses, to make a closing argument, and, at sentencing, to put only any meaningful mitigation evidence, Groseclose v. Bell, 130 F.3d 1161 (6th Cir. 1997), cert. denied
  119. 1995, intimidated" numerous eyewitnesses, who initially said that petitioner's companion fired the fatal shots, into corroborating the prosecution's theory that Guerra had fired the shots-in the process coercing witnesses into giving testimony and into signing affidavits that the police and witnesses knew were false; police told one witness that her common-law husband was at risk of parole revocation if she did not cooperate and told another witness that her infant daughter could be taken from her if she refused to cooperate; district judge concluded that the defendant would surely have been acquitted if he had received a fair trial, aff'd, 90 F.3d 1075 (5th Cir. 1996) (Texas) (police and prosecutors, among other things
  120. Harris V Wood, Although we have tried to update the information about lawyers' phone numbers and locations, some of it is outdated. Examples of Serious Error Warranting State Post-Conviction or Federal Habeas Corpus Relief
  121. with Contact Information * Arranged by State Index: Innocence cases, 10.4324/9781315574103-1 · DOI
  122. / Jimerson, 10.1037/e537362009-012 · DOI
  123. / Bowen, 10.1177/155924722901500303 · DOI
  124. / Munson, 10.15763/dbs.mesonet.standard · DOI
  125. / Brandley, MartinezMacias/Texas Cases with multiple serious error: Gunsby/Florida
  126. / Smith, 10.3133/mf2301 · DOI
  127. / Christy, Very recent cases: Young/Florida; Collins and Bracy/Illinois; Crivens/Illinois
  128. / Parker, 10.2307/2394834 · DOI
  129. / Wilkins, 10.1353/mis.2007.0119 · DOI
  130. / Mazzan, 10.2172/840507 · DOI
  131. Munsey/North, 10.5962/bhl.title.18118 · DOI
  132. Brimmer/Tennessee, 10.1093/benz/9780199773787.article.b00026621 · DOI
  133. / Taylor, Pattern of wrongful convictions (often due to prosecutorial suppression of evidence): See Arizona cases; Oklahoma cases Chronic incompetent lawyering: See Missouri cases
  134. Chronic prosecutorial suppression of evidence of innocence and other prosecutorial misconduct: See Florida cases
  135. Oklahoma cases; also Alabama and Arizona cases States with error running the gamut and large numbers of serious errors found: See Florida cases; Georgia cases; Illinois cases; Texas cases Racial discrimination in selecting jurors: Floyd/Alabama; Ford/Arkansas, Amadeo/Georgia Lawyers with multiple cases on the list, 803
  136. C Spann/South Carolina Professor John, No. Car. L. School, 919, 10.3133/gf147 · DOI
  137. Esq Laura Wightman Fitzsimmons, 702, 10.2172/33135 · DOI
  138. Miranda/Nevada Professor Eric Freedman, Hofstra Law School, 212
  139. /Texas; Earl Washington/Virginia George Mccormick, 212, 10.1787/c3087ca0-en · DOI
  140. /Tennessee Mark Houston, 850, 10.2172/5988864 · DOI
  141. / Troedel, 334, 10.1017/cbo9781316151594.097 · DOI
  142. James C Lohman, 850, 10.1007/978-3-642-11274-4_2642 · DOI
  143. State V John Michael, 1987) (death sentence overturned due to penalty-phase lawyer's ineffective assistance in failing to investigate and secure expert support for defendant's mental condition as basis for mitigation, 530, 850
  144. 723 So.2d 191 (Fla. 1998) (death sentence overturned because sentencing judge was manifestly and admittedly biased against Porter on the issue of KENTUCKY Kordenbrock v. Scroggy, 919 F.2d 1091 (6th Cir. 1990) (en banc)
  145. 1991, ) threatening to arrest petitioner's girlfriend (against whom they had no evidence) and (3) threatening to send petitioner to Ohio, where, police said, he could be held incommunicado and put through "an ordeal [he] may not forget for a long time
  146. 1995, New Orleans police (1) accepted the word of a long-time criminal and police informant Beanie, whom police found in possession of the victim's car, that Curtis Kyles had sold him the car, while suppressing a variety of statements by Beanie that (a) were inculpatory, self-contradictory and inconsistent with Beanie's trial testimony, (b) suggested that Beanie (in his own words) had "'set up'" Kyles, and (c) revealed a course of dealings between Beanie and the police that strongly impugned the investigation, then (2) manipulated eyewitnesses into identifying Kyles at trial, inconsistently with their initial but thereafter suppressed descriptions that much more closely matched Beanie; a majority of jurors in three successive retrials voted to acquit Kyles, investigating robbery-murder of supermarket customer in store's parking lot, 212
  147. Monroe V Blackburn, 1985, Louisiana) (state failed to disclose that police obtained information after trial that someone other than petitioner may have committed the murder) CONTACT: Prof. Eric Freedman, 748 F.2d 958 (5th Cir. 1984), cert. denied, 476 U.S. 1145, 212
  148. conviction overturned based on variety of incompetent errors that trial counsel committed-including in failing to show that reported to prosecutor the substance of defense counsel's jailhouse conversations with the client, in blatant violation of the Sixth Amendment right to counsel) CONTACT: Professor Emeritus Gerald Gallivan, 307
  149. 1998, Study (death row pop.; 1999 is est.); Death Row, Cap. Pun
  150. Source: CtCaLd App. E, 10.2172/10184278 · DOI

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Metadata

Authors
Liebman, J. S., Fagan, J., & West, V.
Affiliations
  • Columbia University (US)
  • John Jay College of Criminal Justice (US)
Corresponding author
Liebman, James Steven
Venue
SSRN Electronic Journal
Publisher
Elsevier BV
Published
2000
ISSN
1556-5068 (ISSN-L)
OpenAlex
W1488020340
Cited by
116
References
0
Citations by year
2025: 14 · 2023: 2 · 2021: 4 · 2020: 3 · 2019: 2 · 2017: 2 · 2016: 1 · 2015: 3 · 2014: 4 · 2013: 2 · 2012: 5
Type
posted content
Language
en
Open access
Locations
  • SSRN Electronic Journal (acceptedVersion)
  • eYLS (Yale Law School) (submittedVersion)
Topics
  • Social Sciences › Law › Legal processes and jurisprudence
  • Social Sciences › Law › Criminal Law and Evidence
  • Social Sciences › Law › Criminal Law and Policy
Keywords
death penalty, error rate, wrongful convictions, post-conviction review, state appellate courts, capital trials, judicial review, death row

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Cite CoChat for the checks on this page, and the paper for its own findings.

This page
CoChat. (2026). Citation check: A Broken System: Error Rates in Capital Cases, 1973-1995. https://app.cochat.ai/papers/10.2139/ssrn.232712
The paper
Liebman, J. S., Fagan, J., & West, V. (2000). A Broken System: Error Rates in Capital Cases, 1973-1995. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.232712