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August 4, 2007

The SCOTUS distortion of state sentencing realities

Reflecting on the numbers and many comments from my post on state sentencing realities, it dawned on me that the US Supreme Court perhaps merits the most blame for the undue modern obsession with the death penalty.  Even though only roughly 1 in every 10,000 state felony sentences is a death sentence, the Supreme Court this past term had at least eight cases on its ever-shrinking docket focused on a state death sentence (see DPIC list here) and only one case focused on a state non-capital sentence (Cunningham).

Though I have not (yet) gone back and done an exact count, I know that over the past few decades the Supreme Court has reviewed hundreds of state death sentences (includes a couple it has reviewed more than once), but it has only reviewed a handful of state non-capital sentences.  With the High Court setting the pace and the tone for state sentencing litigation, I suppose it is ultimately not surprising that lower courts and advocactes and the media share with the Justices an unhealthy and costly obsession with the death penalty.

Some recent related posts:

August 4, 2007 at 02:21 PM | Permalink


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Isn't the probability that a significant federal question, which almost certainly means a difficult federal constitutional question, will be raised in a state capital sentencing proceeding, as compared with a noncapital state felony sentencing proceeding, much more than 8 times greater? Moreover, most state capital cases that you are counting come before the Supreme Court on review of a federal court habeas corpus proceeding, and involve problems in the interpretation and application of one of the most poorly drafted (and constitutionally dubious) federal statutes of recent years: AEDPA. How does any of this suggest that capital cases are overrepresented on the docket of the Supreme Court of the United States, which has jurisdiction, with respect to cases arising in state courts, only over federal questions?

Posted by: Peter G | Aug 4, 2007 5:06:06 PM

"Isn't the probability that a significant federal question, which almost certainly means a difficult federal constitutional question, will be raised in a state capital sentencing proceeding, as compared with a noncapital state felony sentencing proceeding, much more than 8 times greater?"

Yes, under the present state of the law, because the Eighth Amendment has been misconstrued to included a detailed code of sentencing procedure in capital cases. The responsibility for that situation lies squarely at the doorstep of the Supreme Court. An obvious solution is to say that if the state's capital sentencing system on the whole conforms to the requirements of Furman and Gregg, the operation of that system in individual cases is a matter of state law to the same extent that it is in noncapital cases.

With regard to the "poorly drafted" AEDPA, bear in mind that this statute is not what any one person wanted it to be, but rather a compromise hammered out in long, difficult negotiations. Hammering leaves dents.

Posted by: Kent Scheidegger | Aug 4, 2007 5:14:54 PM

Typo: should read "misconstrued to include"....

Posted by: Kent Scheidegger | Aug 4, 2007 5:16:10 PM

I think that is a new good rationale to end the death penalty.
Dott. Claudio Giusti
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Claudio Giusti had the privilege and the honour to participate in the first congress of the Italian Section of Amnesty International: later he was one of the founders of the World Coalition Against The Death Penalty. He is a member of the Scientific Committee of Osservatorio sulla LegalitĂ  e i Diritti.

Posted by: claudio giusti | Aug 5, 2007 6:54:27 AM

While AEDPA and also Texas' sorry high criminal court (overturning TX CCA rulings cases account for a disproportionate share of capital cases heard by the Supremes) may explain WHY the Supreme Court hears more DP cases, I think you're right, Doc, that the fact that that's mostly what they hear helps frame the sentencing debate in problematic ways.

Most courts get zero publicity for anything they do except trial courts in high-profile, often heinous crimes. The public never hears anything about appellate courts except one - the US Supreme Court. So if the Supremes disproportionately hear capital cases and they all get publicity, perhaps the public gets a skewed perspective that the death penalty is operable and functioning, even though most states don't really use it and it's massively expensive and arbitrary.

Also, Peter may be right that it's more likely a constitutional question will be raised in capital cases. But I'd note as an aside that doesn't mean constitutional questions don't exist in other state cases, they just aren't "raised" as often in court because the stakes are considered lower. IMO criminal defense lawyers too often let a lot of stuff slide on the way to the seemingly inevitable plea. It's ultimately a disservice that so many constitutional questions only get answered on the outlier cases that make it all the way up, because it means everyday constitutional violations in criminal law aren't addressed at the highest levels. best,

Posted by: Gritsforbreakfast | Aug 5, 2007 8:25:15 AM

Grits, pretty weak.

1) Texas'/Fifth Circuit's position always gets votes.

2) With such a record, Texas has managed to execute a ton of prisoners, so the success rate is pretty good.

3) The Supreme Court is responsible for a lot of the confusion as to the interplay between the 8th Amendment and Texas capital sentencing schemes.

Posted by: federalist | Aug 5, 2007 1:33:48 PM

Texas also has one of the highest exoneration rates.

New York Times article on the Innocence Project of Texas' review of Dallas DNA cases

Source: New York Times

June 3, 2007

For Dallas, New Prosecutor Means an End to the Old Ways


DALLAS'Craig Watkins calls himself a different kind of prosecutor.

"I lock them up if they're guilty," said Mr. Watkins, the new Dallas
County district attorney.

That distinction has sometimes been lost here in the nation's
highest-crime big city. Since 2001, 13 prisoners were found
through DNA evidence to have been wrongfully convicted in Dallas
County after serving a total of 185 years behind bars. Only
Illinois and New York, besides Texas, have had more convictions
overturned by genetic testing than Dallas County, a fact attributable
in part to evidence retained to assure reconviction in the event
of a successful appeal.

Now, many more DNA exonerations could be in store under a
review of more than 400 other cases ordered by Mr. Watkins, 39,
who made history last November by eking out a second-try
victory in a Democratic landslide to become Texas's first
black district attorney.

So how can the deterrent argument prevail when "nation's highest-crime big city" is also one of the toughest on crime?

Posted by: George | Aug 5, 2007 4:07:38 PM

If my count is correct, I believe the US Supreme Court has issued opinions in 196 death penalty cases since 1972. I have been in the process of preparing materials for my law students on the issue of whether some states receive disproportionate review of their capital cases by the US Supreme Court. My data is preliminary, but I've posted it on my blog as it seems timely to do so in light of this discussion. From this data, it appears that the Court has considered a death penalty case for every 5.4 executions and that one out of every 22.5 inmates on death row receives review by the Court. In raw numbers, Texas has received the most review (26 cases), followed by Florida (22), Georgia (20), California (16), Virginia (16) and Arizona (15).

Per execution, Tennessee receives the most review with 5 cases and only 2 executions (.4), followed by Idaho (.5), Pennsylvania (.6), California (.8) and Kentucky (1 case per execution). Per inmate, Maryland receives the most review with 1 case per every 4.3 inmates, followed by Washington (6.5), Georgia (7.3), Virginia (7.4), and Illinois (7.7). It appears that either they don't file certiorari petitions in North Carolina or the Court has some kind of issue over granting review in North Carolina cases as the state averages 114 inmates per case - about 2.5 times greater than any other state.

I'm uncertain as to how to post links here, but here goes: http://www.harmfulerror.com/2007/08/nevada_rankings_on_us_supreme.html

Posted by: jonell | Aug 5, 2007 6:08:45 PM

Federalist, Texas' position always gets Clarence Thomas' and often Scalia's vote, but very few courts have had a case remanded to them by the USSC then declared their concerns "harmless error" the way the Texas CCA has. This NYT piece makes the case better than I could in this space:


Jonell's per execution figure on appeals is an interesting calculation I've not seen before, but I'm not sure how to interpret it. Texas deals in volume (I think we have about ten scheduled between now and the end of September), so typically every USSC decision for us impacts many similar cases. In states with very few executions, obviously any appeals boost their ratio up pretty high by comparison.

In any event, federalist, what you labeled "weak" was an aside, not the point of my comment, which was to agree with Doc Berman that the Supreme Court's focus on the death penalty influences the public debate negatively by its overemphasis compared to the death penalty's actual (rare) role in the criminal justice system.

Posted by: Gritsforbreakfast | Aug 6, 2007 9:23:25 AM


Try explaining that to people like Greg Wright on Texas Death Row - fighting for his life on a claim of innocence. As his latest Press Release today shows, at virtually the end of the Appeals process, he now has DNA evidence and a successful polygraph to back his claims (not to mention a whole host of Constitutional and procedural errors dating back to the trial in 1997). The Press Release is on PRWeb:

Posted by: peter | Aug 6, 2007 2:05:14 PM

FWIW, "peter" is not "Peter G."

Posted by: Peter G | Aug 6, 2007 8:45:58 PM

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