Death penalty critics got new ammunition last year with a highly publicized academic study concluding that courts are twice as likely to reverse as to uphold death sentences on appeal. But death penalty supporters began attacking the study as soon as it was published and continue to describe it as methodologically flawed and ideologically biased.
The nine-year study by Columbia University Law School researchers bore a somewhat academic title: “A Broken System: Error Rates in Capital Cases, 1973-1995.” From the opening paragraphs, however, the authors bluntly described the death penalty system as marred by “serious error” in “epidemic proportions.”
The study, based on an examination of some 4,700 death penalty cases reviewed by state or federal courts over a 23-year period, found that sentences were reversed in 68 percent of the cases. Only 18 percent of defendants were sentenced to death on retrial, the researchers found. The overwhelming majority — 75 percent — received a lesser sentence, and 7 percent were found not guilty.
The most frequent reasons for reversals, the study found, were “egregiously incompetent defense lawyers” who failed to look for evidence favorable to the defendant or “police or prosecutors who did discover that kind of evidence but suppressed it.”
James Liebman, the Columbia professor who led the study, likens the courts' handling of capital cases to a “seriously flawed” manufacturing process. “Any given death sentence is much more likely — twice as likely — to get overturned, sent back and have to be redone or scrapped entirely than every one that is approved by the system's own inspectors,” Liebman says.
“That's a system that appears to be costing a lot of money, producing a lot of faulty products, requiring a huge inspection system and in the end producing cases with not the results that are intended,” he continues. “You not only waste a lot of time and money and frustrate the expectations of those who support the system, but you also run the huge risk that some of the errors that are being made will not be caught.”
The study drew attention immediately, thanks in part to a front-page story in The New York Times. It also promptly drew sharp attacks from death penalty supporters. In a three-page riposte, the Criminal Justice Legal Foundation termed the study “a political document, timed to impact congressional hearings” and depicted the large number of reversals in capital cases as evidence that the system had been “successfully obstructed by opponents of capital punishment.”
More than a year later, critics continue to discount the significance of the reversals. Barry Latzer, a professor at John Jay College of Criminal Justice, City University of New York, says the study merely demonstrates the “hypersensitivity of appellate courts” in reviewing death penalty cases. “When you have an appellate reversal, it has nothing to do with innocence or guilt,” Latzer says. “An appellate reversal is about procedural errors at trial.”
In addition, Latzer and a colleague — Assistant Professor James Cauthen — argued strenuously in a leading journal on judicial affairs that Liebman's study was misleading because it failed to separate cases in which appellate courts reversed a death sentence and those in which convictions themselves were reversed. “Once the distinction between guilt and sentence is taken into account,” Latzer and Cauthen wrote, “only about 27 percent of capital convictions — not two-thirds — are set aside.”
In fact, the debate over the study got off on the wrong foot in part because of an error in the lead paragraph of the Times' story, which described the study as showing reversals of “convictions” in two-thirds of death penalty cases studied. Liebman says he called the error to the Times' attention, which published a correction the next day.
The continuing debate between Liebman, who worked for the anti-death penalty NAACP Legal Defense and Educational Fund before joining the Columbia faculty, and Latzer, who was an assistant district attorney in Brooklyn for two years, is both ideological and statistical.
Liebman says Latzer's estimate for the rate of conviction reversals in death cases — 27 percent — is low because of a flawed methodology in analyzing a sample of state appellate decisions. While his initial study did not separate sentence and conviction reversals, Liebman says a study to be published soon will show that guilt reversals are more numerous than sentence reversals.
Whatever the exact number, Latzer and Cauthen say that counting sentence reversals along with conviction reversals overstates the charge of “systemic failure.” “Judges and jurors disagree about the appropriateness of death sentences,” they write.
Replying in the same publication, Liebman says that minimizing the importance of erroneous death sentences is “out of line with American criminal and constitutional law.”