Yesterday, we began our review of the California Supreme Court’s death penalty docket, looking at both the number of cases the Court decides each year, and its usual unanimity rate. Today, we turn our attention to a new question: what’s the reversal rate?

We must begin by defining our terms. As we showed earlier, death penalty appeals almost inevitably raise far more issues than other cases, resulting in majority opinions that are anywhere from 50 to 150 pages or more long. So what does “reversed” mean for purposes of calculating a reversal rate? With these defendants often being convicted of multiple crimes, there are many things which could trigger a partial reversal while still leaving the death penalty in place. So we divide the cases into four different possible results: outright affirmances; partial reversals, but with the death penalty affirmed; partial reversals with the death penalty reversed; outright reversals and vacatur.

For the entire period 2000 through 2015, the Court affirmed outright in 81.26% of all death penalty cases. Another 10.27% were partially reversed, but the death penalty was left in place. The Court reversed in part and overturned the death penalty in 5.14% of the cases it heard during the sixteen year period. Finally, the Court reversed or vacated the judgment in another 3.32% of cases.

We see in Table 156 below that the Court has become markedly more likely to find something to reverse in a death penalty case over the past two years. In 2000 and 2001, the Court affirmed outright in twenty-five of twenty-six death penalty appeals, reversing in part and overturning the penalty in one. The affirmance rate took a dip in 2002 to its lowest level until 2014, as the Court affirmed outright in 69.23% of cases. The next year was about the same: the Court affirmed outright 73.68% of the time, reversed in part reversing the penalty in 5.26%, and reversed or vacated in another 15.79%. After a two year return to its earlier form, with the Court affirming outright in 90.48% of cases in 2004 and 96% in 2005, the affirmance rate dropped below 80% for the next four years. In 2006, the Court reversed in part reversing the penalty in 5.26% of cases, and reversed outright or vacated in another 5.26%. In 2009, the Court reversed in part reversing the penalty in 3.85% of cases and reversed outright or vacated in another 7.69%.

The numbers shifted again in 2010 and 2011. In 2010, the Court affirmed outright in 95.83% of the death penalty cases it decided. The next year, it affirmed in 88.46%, reversing outright or vacating in only 3.85%. In 2012, the Court reversed the death penalty in 16% of the cases it heard, evenly divided between partial reversals reversing the penalty and outright reversals. That year, the Court affirmed outright in 76% of its cases. But in 2013, the Court affirmed outright in 94.44% of death penalty appeals.

As we mentioned at the outset, things have definitely shifted on the death penalty docket over the past two years. For 2014, the Court affirmed outright in only 56.52% of cases. The Court reversed in part reversing the penalty in 13.04% of cases that year, and reversed outright or vacated in 4.35%. Last year, the Court affirmed outright in 58.82% of its death penalty decisions. It reversed in part reversing the penalty in 17.65%.

Click here to view table. 

Join us back here next Thursday as we continue our review of the Court’s death penalty docket.