Yesterday, we began our analysis of a new question: how much of the California Supreme Court’s civil and criminal dockets arises from unpublished Court of Appeal decisions? Today, we turn our attention to the Court’s criminal docket (omitting the automatic death penalty appeals).
Unpublished decisions are significantly more common on the criminal docket than they have been on the civil docket. For the entire sixteen years, 52.13% of non-unanimous criminal decisions arose from unpublished decisions of the Court of Appeal. The unpublished share of unanimous decisions was even greater – 60.16%.
As our period of study begins in 2000, 35.29% of the Court’s non-unanimous criminal decisions arose from unpublished decisions below, while 55.26% of the unanimous ones did. In 2001 and 2003-2005, the share of unanimous decisions which arose from unpublished Court of Appeal decisions was over sixty every year – 62.5, 62.79, 66.07 and 63.41. For the years 2003-2005, the share of unpubs among non-unanimous decisions was around fifteen points lower each year – 47.37% in 2003, 37.5% in 2004 and 47.37% the following year.
In 2006, unpubs among unanimous criminal decisions reached their highest level of the entire period, accounting for 70.97% of the Court’s decisions. That same year, 54.55% of the non-unanimous criminal decisions were unpublished below. The share among unanimous decisions dropped about fifteen points for the two years that followed, but in 2008, three-quarters of the non-unanimous criminal decisions were unpubs. In 2011, the unpublished share of both sides of the criminal docket topped 70% – 71.43% for non-unanimous decisions, 70.27% for unanimous ones. The share for unanimous decisions settled back into the high 50s and low 60s for the next few years, but in 2013, two-thirds of the Court’s non-unanimous criminal decisions came from unpublished Court of Appeal decisions. The following year, the share among non-unanimous decisions reached its highest level of the period – 77.78% arose from unpublished Court of Appeal decisions. For 2015, the share among unanimous decisions was only slightly down at 54.54%, but the share among non-unanimous decisions fell sharply, down to 45.45%.