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March 17, 2015

Notable empirical review of what happens to most death sentences

This new Washington Post piece by two researchers provides an interesting review of the state and fate of most modern death sentences. The piece is headlined "Most death penalty sentences are overturned. Here’s why that matters," and here are excerpts:

If a person is given a death sentence, what is his or her chance of actually being executed? Based on a review of every death sentence in the United States since 1973, the beginning of the modern era of the death penalty, we have found that the most likely outcome isn’t being executed or even remaining on death row as an appeal makes its way through the courts.  In fact, the most common circumstance is that the death sentence will be overturned....

From 1973 to 2013, 8,466 sentences of death were handed down by U.S. courts, and 1,359 individuals were executed — only 16 percent.  Even excluding those who remained on death row as of 2013, only about 24 percent of condemned inmates have been executed. Those sentenced to death are almost three times as likely to see their death sentence overturned on appeal and to be resentenced to a lesser penalty than they are to be executed.  Here is a summary of the outcomes:

  • 8,466 death sentences were imposed across the United States from 1973 through 2013.
  • 3,194 were overturned on appeal, composed as follows. For 523, the underlying statute was declared unconstitutional. For 890, the conviction was overturned. For 1,781, the death penalty was overturned, but guilt was sustained.
  • 2,979 remain on death row as of Dec. 31, 2013.
  • 1,359 were executed.
  • 509 died on death row from suicide or natural causes.
  • 392 had their sentence commuted by the governor to life in prison.
  • 33 had some other outcome or a miscellaneous reason for being removed from death row.

Execution is in fact the third most likely outcome following a death sentence. Much more likely is the inmate to have their sentence reversed, or to remain for decades on death row....

In the early years of the modern death penalty, many were removed from death row because the underlying statute under which they were condemned was ruled unconstitutional. In fact, of 721 individuals sentenced between 1973 and 1976, just 33 were eventually executed.  Other reversals have come because inmates’ individual convictions were overturned, and some were exonerated entirely.

But by far the most likely outcome of a U.S. death sentence is that it will eventually be reversed and the inmate will remain in prison with a different form of death sentence: life without the possibility of parole.

Why would reversal of the sentence be the single most common outcome of a death sentence? Capital trials have many unusual characteristics, but a key one is that there is an automatic (or “direct”) appeal through the state appellate courts and, if the death sentence is not overturned by the state appellate or supreme court, a review by a federal judge....

States differ greatly in the degree to which they carry out their legal promise of death, but most operate systems consistent with the trends above: They sentence far more inmates to death than they actually execute....

The average state has a 13 percent likelihood of carrying out a death sentence. Some states — such as Texas, South Dakota, Missouri, and Oklahoma — significantly higher rates, though none of these states reaches a level of 50 percent. In fact, only one state, Virginia, has executed more than half of the inmates it has condemned....

Texas, Florida, and California have all condemned more than 1,000 individuals to death in the modern period. However, the numbers of executions in these states are 508, 81, and 13, respectively. Virginia has sentenced 152 individuals to die, and 110 have been put to death.

I find these numbers notable and interesting, but I find not at all compelling the reasons stated in this commentary (and left out of the excerpt above) for why we should find these numbers troubling. If lawmakers and voters want to have a death penalty system that works very hard to ensure only the worst of the worst get executed after providing the accused with a form of super due process, it makes sense that the system will, through checking and double checking of every death verdict, screen out any and all suspect cases. This is a costly and time-consuming process for all involved, but so is every aspect of American government if and when we devote extraordinary resources to making sure everything has been done just right.

In addition, it bears noting that there were roughly 800,000 murders in the United States from 1973 to 2013.  Thus, arguably far more remarkable than the relatively few executed from among those given a death sentence is the amazingly few murderers given a death sentence during this period.  Because only a little over 1% of all murderers were given death sentences, I am not sure why I should be especially troubled that only a portion of these condemned actual were executed.

March 17, 2015 at 07:40 PM | Permalink


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"Because only a little over 1% of all murderers were given death sentences, I am not sure why I should be especially troubled that only a portion of these condemned actual were executed."

Two issues were flagged.

1) The wide differences across states in the odds of carrying out a death sentence are potentially troubling from an equal protection standpoint.

2) The "the remote possibility of death" provides less of a grounds for the death penalty even beyond a tiny fraction of death sentences at the first instance.

The large number of non-executions suggest the sentences in the first instance are flawed & only (much criticized, many want less) extensive safeguards result in many of non-executions. Both provide evidence of the death penalty actually being applied in an arbitrary way that particularly concerned Stewart and White in Furman.

Four justices wasn't impressed there either. shrugs

Posted by: Joe | Mar 17, 2015 8:16:30 PM

Joe needs to disclose the fraction of his income that comes from government. We may then discount the same fraction of the credibility of his remarks. He would be arguing his own economic interests and failing to disclose that conflict of interest.

Posted by: Supremacy Claus | Mar 17, 2015 10:05:58 PM

Now that Bill was driven out by all the relentless personal attacks, all the lawyers here are 100% tax sucking parasites. They do not have to disclose their conflict of interest since it 100%, and the credibility of their remarks is reduced by the same fraction, 100%. They are rent seekers running their con, allowed to do so by their hierarchy of the greatest, wealthiest, most powerful criminal cult enterprise in the world. Outside of the FBI Index felonies listing 8 common law traditional crimes, the rest are money making schemes, bunko operations, in the Inquisition Gotcha Game 2.0. Come the next major terror attack on our shores, all scores get settled with these criminals.

Posted by: Supremacy Claus | Mar 17, 2015 10:12:29 PM

"In addition, it bears noting that there were roughly 800,000 murders in the United States from 1973 to 2013."

My compliments to Prof. Berman. He supplies the single most important fact in this story, missing from the lawyer propaganda.

May I add, 300000 were black. Thanks to the vile feminist lawyer not protecting black people, that is 100 times more lethal than the KKK. We talk about Rwanda, when the lawyer is conducting a Rwanda in slow motion inside our shores. When will this vile feminist lawyer be stopped, along with its male running dogs?

Posted by: Supremacy Claus | Mar 17, 2015 11:37:35 PM

S.C. you write, "Now that Bill was driven out by all the relentless personal attacks, all the lawyers here are 100% tax sucking parasites."

Did you know that you can refill your prescriptions now over the phone?

Posted by: very conservative | Mar 17, 2015 11:58:43 PM

Very. Find me an exception to that fraction.

Posted by: Supremacy Claus | Mar 18, 2015 2:04:39 AM


First, the equal protection claim makes no sense: is it an equal protection problem that zero killers get the death penalty in Michigan (which does not have capital punishment) and that a few get it across the border in Ohio? States have different punishment schemes throughout the nation, and this is not an equal protection problem, it is a federalism feature.

Second, lots of the death sentences may not have been flawed from a moral perspective, but only from a legal perspective because the Supreme Court keeps changing the rules -- e.g., some of these overturned death sentences were for horrible 17-year-old killers who SCOTUS first said could be sentenced to death and then later said could not. This is not proof of an arbitrary process, but proof of a careful one. Do you say the fact that a lot of cars get recalled for safety concerns shows that car manufacturers make cars in an arbitrary way?

Posted by: Doug B. | Mar 18, 2015 6:45:14 AM

[1] It's a "federalism feature" that Texas (or rather a few counties) do a worse job in carrying out the death penalty (if they had as adequate safeguards as some states, the numbers would be less)? This "worse job" argument I think is shown by the facts, but let's say it is merely (as noted) "potentially" a problem.

[2] First, there is already a tiny number of people selected to die & there are many arbitrary ways this occur. This is the nature of the criminal justice system as a whole, but it's more of a concern when taking a life via the state.

Second, we can play with numbers all day -- "some" are a result of changing rules; some rules were weakened with changes in habeas including by legislation that limited federal review. Other changes in effect caught people that arguably 'should have' been caught all along. Overall, it just adds to the conclusion that those who are executed are in part unlucky -- the courts etc. aren't going to catch all the problems & those who are executed are not merely executed because of guilt reasons.

I'd need to see the car example -- were 3/8 of them recalled? Also, I'm sure that in the business world, there is various types of arbitrariness, including in employment, which also is subject to various safeguards. But, "death is different," and the arbitrariness here is more troubling than cars and jobs.

Bill Otis was a government worker. SC should be happy he's gone.

Posted by: Joe | Mar 18, 2015 9:05:51 AM

Bill returned value for his salary. One example was his promotion of the waiver of appeal in a plea agreement. That saved the taxpayer $billions, as that contract term was adopted around the country. So his salary returned many orders of magnitude back on investment to the nation. That is called a profit, and in Bill's case, a massive profit.

I hope Prof. Berman understands the dollar value of this achievement, gets competitive, and will not let a Stanford Law grad outperform him in legal history.

In the rent, the taxpayer pays at the point of a gun and gets nothing of value back. Rent seeking is a synonym for armed robbery. This is a nice introduction to a theory that explains lawyer intentional failure. You do not need to understand any of the math, just the core ideas.


Posted by: Supremacy Claus | Mar 18, 2015 10:22:33 AM

The Fourteenth Amendment uses the word, person, for its Equal Protection clause. The Supreme Court did a mind reading number. They argued the Congress meant for it to apply only to freed slaves (Minor v. Happersett, 88 U.S. 162 (1875)). Women had to wait 45 more years to get the vote, after they passed their own Amendment. It won by one vote in the last legislature to approve it. That one vote should be credited to the lawyer's mother. She said, she would disown and shun her son if he voted against it. Is that any way to run a legal system? (Nothing in comparison to the first instance of judicial review, the lawyer caused catastrophic Dred Scot decision that set off the Civil War.)

In a civil code system, person is a person, and one must obey the law. Women get the vote in 1875, not in 1920. In a civil code system,a baby is a person, as well. If you do not want babies to vote then write a more specific law and take responsibility for it at the polls. What we have now are 9 unelected, know nothing Ivy indoctrinated assholes, bookworms who study 80 hours a week, imposing their sicko subjective feelings on the nation. Their bias, no matter the political affiliation, is always in favor of the writer of their paychecks, the government. Government does nothing well due to politics, not due to their workers. The Supreme Court does nothing well.

In praise of government workers, Mrs, Minor read the Fourteenth Amendment to the poll official and he let her vote. Not a lawyer. Later, she was prosecuted by a lawyer for violating a law prohibiting women from voting (a statute passed under pressure from the liquor industry fearing women).

"Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Posted by: Supremacy Claus | Mar 18, 2015 10:51:42 AM

To reverse a coin. All murder victims under the same circumstances deserve equal protection, despite being deceased. Their estates remain. So if an aggravating factor exists, the death penalty should become mandatory. The judges owe their jobs to the criminal, and do not want any harm for them. The death penalty should become mandatory, and automatic once a jury finds an aggravating fact.

That interpretation would end the racial disparity of the death penalty for the murderers of whites, and a few years in stir, to relax, and be taken care of, for the murderers of black victims. Take GED classes, do Yoga, network with organized crime members, get your dental work, lift weights.

The estates of all murder victims should have the right to file a wrongful death suit against all entities of government, including the asshole Supreme Court if they had knowledge about the murderer and deviated from professional standards of due care. The practices of these idiots qualify them for strict liability, being an extreme danger danger in their ordinary course of business. However, that would bankrupt the tortfeasing, careless government in days. Professional standards of due care means they police themselves.

Posted by: Supremacy Claus | Mar 18, 2015 11:04:12 AM

Since Bill is long gone (thank goodness) I assume the claus feels its now his cross to bear to be the asshole commentator for the site. Congratulations, your doing a great job. Bill would be proud that someone has picked up his standard and proceeded to stick it up their ass. Bon apetit mein kapitan.

Posted by: Dismayed Reader | Mar 18, 2015 7:13:35 PM

Dismayed. Unlike Bill, I do not care about your name. But tell us if you are lawyer. I assume, you are not, from your personal remarks. If you are not, I have no dispute with you. I respect the difference in our opinions. I understand your frustration with the facts and the threat to your big government dependency. Tell us the fraction of your income that comes from government.

Bill was the sole licensed lawyer advocating on behalf of crime victims, not phony crybaby rights as Trojan Horse for more lawyer representation in court, but the substantive right to not be a victim.

He was a good playmate for Prof. Berman. I am not. I still have my high school education intact and there would be no contest between us. His high school and freshman college educations are gone, since we know he passed 1L, especially at the treason indoctrination, Hate America Camp he attended. He is goners, indoctrinated into supernatural doctrines, and intimidated from ever questioning their idiocy or their 13th Century origins. It is a waste of time for Prof. Berman to defend the indefensible.

But I still enjoy their repartee at C & C, where I am not welcome by Kent, unless I change my tone. That will happen after the lawyer profession, now in utter and total failure, has been fixed.

Posted by: Supremacy Claus | Mar 18, 2015 10:03:33 PM


I think it is debatable to say the least to suggest that this massive reversal rate is a symbol of "super due process" and signifies that the results in the non-reversed cases are extra reliable. If you found out that a factory making widgets rejected 30 or 40 percent of the widgets before shipping as defective and dangerous, would you feel extra safe about using the widgets that *were* shipped and sold? Maybe, if you felt confident that the high rejection rate was merely evidence of the company's exacting standards. Or maybe not, if you felt that the high rejection rate instead indicated extremely poor quality control, and that whether a widget was rejected or shipped had as much to do with which inspector was on duty on a given day and other arbitrary factors as it did with the quality of the widget.

I would submit that our death penalty system skews much more toward the latter concern. Two cases could be tried with nearly identical flaws in terms of the adjudicative process and the reliability of the fact-finding and sentencing determinations, yet whether or not a reversal ensued would depend on dozens of factors of which the merits and impact of these trial errors would be well down the list. (Of the top of my head: whether or not the trial attorney preserved the error(s); whether the trial attorney did enough work to demonstrate that the case was not unwinnable, thus avoiding a harmless error determination on appeal; whether the appellate attorneys were competent; the composition of the state appellate court; whether the State aggressively invoked procedural defenses; whether post-conviction attorneys were competent and preserved the clients rights; whether those attorneys were willing and able to investigate factual claims that went uninvestigated by trial counsel; whether the case drew a state post-conviction judge who is inclined to grant hearings or one who is inclined to deny every petition on procedural grounds; whether an ambiguous summary order is interpreted as a merits ruling invoking 2254 deference; in innocence cases, whether or not the case involved testable body fluids; etc. etc.)

Posted by: anon | Mar 19, 2015 11:50:42 AM

Since it is ok for The People of The Great State of Texas to kill a person then perhaps the individual who decides to kill a person decides that he can be part of the Y'all Can Exception to the Sixth Commandment.

Posted by: Liberty1st | Mar 19, 2015 7:49:40 PM

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