For the past few weeks, we’ve been looking further at the Court’s unanimity rate, dividing the Court’s docket into closely divided (2-3 dissenters) and lopsided decisions. This week, we’ll take a closer look at the Court’s criminal docket, dividing the Court’s decisions into the automatic death penalty appeals and criminal non-death decisions – in other words, everything else.

In Table 92, we report the unanimity rate for death penalty appeals and criminal non-death appeals between 2000 and 2007. For every year but one, we see that the Court was significantly more likely to reach a unanimous decision in a death penalty appeal than in the Court’s other criminal cases. In 2000, the difference was exactly fifteen points – 80% unanimity in death penalty appeals, 65% in everything else. In 2001, 90.91% of death penalty appeals were decided unanimously, but 80.85% of everything else was. The following year, both numbers fell – 69.23% of death penalty appeals were decided unanimously to 62.5% of non-death appeals. In 2003, unanimity was up to 84.21% on the death penalty side, while remaining flat on the non-death side – 62.79%. In 2004, unanimity was up to 90.48% on death penalty appeals, with 72.55% of the rest of the docket unanimous. The next year, unanimity was almost unchanged on the death docket at 88%, but for the following two years, unanimity in the non-death docket dropped sharply. In 2005, only 57.14% of the Court’s criminal non-death cases were decided unanimously. In 2006, 84.21% of the death penalty appeals were decided unanimously, but only 44.12% of the non-death cases were. But by 2007, everything was back even – 82.61% of death penalty appeals were decided unanimously, and fully 86.84% of criminal non-death cases were unanimous decisions.

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In Table 93 below, we report the lopsided rate for the same period (i.e., unanimous + 1 dissenter cases). We see that for these years, is was routine for nine out of every ten death penalty appeals to be decided unanimously or with only one dissenter. In 2000, 92.86% of the death penalty appeals were lopsided decided. In 2001 and 2005, they all were. In 2002, 92.31% were lopsided. In 2003, the figure dropped to 89.47%, remaining flat the next year at 90.48%. In 2006, the lopsided rate dropped to its lowest level of these eight years on the death penalty side, with only 84.21% of the Court’s death penalty appeals resulting in lopsided decisions.

The story was quite different among non-death criminal decisions. Only 67.5% were lopsided in 2000. In 2001, the figure rose to 85.11% lopsided decisions. In 2002, just above three-quarters of the Court’s non-death criminal decisions were lopsided – 76.79%. The rate increased further in the two years that followed, to 86.05% in 2003 and 92.16% in 2004, but dropped sharply in 2005 and 2006 (as one would expect, given the unanimity numbers above). In 2005, 62.86% of the Court’s non-death criminal appeals were lopsided decisions. The next year, 67.65% were. But in 2007, 97.37% of the Court’s non-death criminal decisions were lopsided – even a slightly higher percentage that on the death penalty side.

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Join us back here tomorrow as we turn our attention to the Court’s death penalty decisions for the years 2008 through 2015.