Study Reflects Increasing Futility of Judicial Review in Texas Death Penalty Cases

Judicial enforcement of constitutional rights in Texas death penalty cases has become increasingly rare and is virtually non-existent in the state’s federal courts, a new University of Houston Law Center study has found. The study, Reversal Rates in Capital Cases in Texas, 2000–2020, published online on April 27, 2020 in the UCLA Law Review, reports that reversal rates in cases in which Texas capital defendants were sentenced to death in the first two decades of the 21^st century have plummeted in comparison to grants of relief in earlier cases.

The authors of the study, University of Houston law professor David R. Dow (pictured, left) and Jeffrey R. Newberry, Clinical Supervising Attorney at the law center’s Death Penalty Clinic (pictured, right), believe the decrease in grants of relief can be attributed to new limitations on judicial review, not to fairer trial proceedings. “The occasional rebukes by the [U.S.] Supreme Court of the lower courts with jurisdiction over Texas capital cases,” they write, “suggests the best explanation for these statistics is not that constitutional norms are being vigorously enforced in the trial courts, but instead that constitutional rights are increasingly difficult to vindicate.”

The study tracked the cases of the 282 prisoners sent to death row in Texas between January 1, 2000 and December 31, 2019. The researchers found just 28 cases in which prisoners were successful in challenging their convictions or death sentences, with the courts upholding convictions and death sentences 90.1% of the time. The Texas numbers contrast sharply with historical grants of relief in death penalty cases across the country. A study by Columbia Law School professors James Liebman, Jeffrey Fagan, and Valerie West of death sentences imposed nationwide between 1973 and 1995 showed that more than two-thirds of those capital convictions or death sentences had been overturned. The reversal rate in 21^st century Texas death sentences is 6.8 times lower.

Dow and Newberry looked at capital appeal outcomes at three stages of the judicial review process: direct appeal, state post-conviction review, and federal habeas corpus. They found that, at each stage of review, Texas courts upheld capital convictions and death sentences about 95% of the time and that federal habeas corpus grants of relief were vanishingly rare. On direct appeals that had been completed at the time of the study, Texas death-row prisoners overturned their convictions or death sentences in 15 out of 262 cases, a reversal rate of 5.7%. The reversal rate at the state post-conviction stage — known in Texas as state habeas corpus — was virtually identical: convictions or death sentences were overturned in just 12 out of 214 adjudicated appeals (5.6%). The Texas federal courts, they found, almost never enforced death-row prisoners’ fair trial rights. Only one capital habeas corpus petitioner of the 151 who completed federal habeas corpus review (0.66%) was granted relief. The U.S. Court of Appeals for the Fifth Circuit — which includes Texas — has vacated a second grant of relief, and that case is currently before the full court pending reconsideration of the prior decision issued by a three-judge panel.

The Dow/Newberry research is a follow-up to the Liebman study and a 2009 study by Dow and Hofstra law professor Eric M. Freedman that examined federal habeas outcomes from 2000 to 2007 in capital cases across the country to measure the impact of amendments to the federal habeas corpus statute in the mid 1990s. The Liebman study reviewed outcomes for cases beginning with the resumption of death sentences in the modern era of capital punishment in 1973 and ending in 1995, just before the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA).

AEDPA, Dow and Newberry explain, “was designed specifically to accelerate federal habeas review of state death penalty cases and shorten the time between sentencing and execution.” It was therefore unsurprising, they say, that Liebman reported much higher reversal rates in his study period than Freedman and Dow did in theirs. Liebman’s study found that nearly 40% of capital habeas corpus petitioners succeeded in overturning their convictions or death sentences in the federal courts. After AEDPA, Dow and Freedman found that capital habeas corpus petitioners were successful in obtaining reversals just 12% of the time, and only 4% of the time in the Fifth Circuit.

Dow and Newberry write, “Even if we cannot state with certainty that AEDPA itself has caused this precipitous decline in the success rate of death row inmates in their appeals, we can say that AEDPA represents the boundary between two eras. In the first, death-sentenced inmates prevailed two-thirds of the time; in the second, their success rate percentage is in the single-digits. If, therefore, a principal objective of AEDPA was to insulate state-imposed death sentences from constitutional attack, the data strongly imply that objective has been achieved. Death row inmates challenging their convictions or sentences in Texas prevail dramatically less often than they did before the enactment of AEDPA.”

The findings follow on the heels of a 2018 study of Harris County, Texas death penalty cases that found rampant judicial “rubberstamping” of prosecutors’ proposed factfindings in state habeas appeals. Researchers from the University of Texas School of Law Capital Punishment Center examined trial court orders in 191 Harris County capital post-conviction proceedings in which factual issues were contested, and found that in 96% of the cases, local judges — many of whom had previously served in the county district attorney’s office — had simply adopted the county prosecutors’ proposed findings of fact verbatim. In the vast majority of cases, judges signed the prosecution’s proposed document without even changing the heading. These practices, the authors wrote, “undermine the accuracy and fairness of the death penalty,” and the combination of the wholesale adoption of prosecutorial factfindings in the state courts and the deference the Texas federal courts have afforded such factfinding under the AEDPA amendments may contribute to the low reversal rates Dow and Newberry found.