ARBITRARINESS: Study Finds 6^th Circuit Political Appointments Result In Partisan Death Penalty Rulings

A Cincinnati Enquirer exam­i­na­tion of death penal­ty deci­sions issued by the U.S. Court of Appeals for the 6^th Circuit revealed that judges appear to con­sis­tent­ly vote along par­ty lines, there­by inject­ing arbi­trari­ness into death penal­ty rul­ings. The judges do most of their work as mem­bers of ran­dom­ly select­ed three-judge pan­els. Sixteen judges are eli­gi­ble to sit on those pan­els, includ­ing nine Republican appointees and sev­en Democratic appointees. This means life-and-death deci­sions often hinge on the luck of the draw. A pan­el with a lib­er­al major­i­ty gives the inmate a far greater chance of avoid­ing exe­cu­tion than one with a con­ser­v­a­tive major­i­ty.

​“It’s a roll of the dice. When I look at a line­up of a pan­el in this kind of case, you can almost go to the bank on what the result is going to be,” said Nathaniel Jones, a retired 6^th Circuit judge appoint­ed by President Carter. Arthur Hellman, a University of Pittsburgh law pro­fes­sor added, ​“It looks very much like a lot­tery. Literally, if some­one lives or dies depends on the pan­el they get.”

According to the Enquirer inves­ti­ga­tion, appointees of George H. W. Bush post­ed the most lop­sided track record, vot­ing 50 – 4 against grant­i­ng inmates appeals. President George W. Bush’s appointees vot­ed 34 – 5 against grant­i­ng appeals. By con­trast, President Carter’s appointees vot­ed 31 – 4 in favor of inmate appeals. Clinton and Reagan appointees were slight­ly more mod­er­ate. Clinton’s vot­ed 75 – 32 in favor of inmate appeals, and Reagan’s vot­ed 39 – 13 against. Ten of the 16 judges who cur­rent­ly hear 6^th Circuit death penal­ty appeals vote the same way at least 80% of the time. These sharp dif­fer­ences among the judges have led to dif­fer­ences and close pan­el votes that some­times lead to ten­sion on the court. The Enquirer report­ed that judges have trad­ed ver­bal jabs in their pub­lished opin­ions and have occa­sion­al­ly accused col­leagues of manip­u­lat­ing rules to give their side advan­tages.

​“It is, at the end of the day, a polit­i­cal issue and a social issue. They can’t sep­a­rate their own pathos, their own polit­i­cal views. While jus­tice is sup­posed to be blind, it’s not,” said Richard Chesley, an attor­ney who has argued cap­i­tal cas­es before the 6^th cur­cuit.
(The Enquirer, April 15, 2007). See Arbitrariness. The 6^th Circuit con­sid­ers death penal­ty appeal cas­es from Ohio, Kentucky, and Tennessee.