Last week, we continued our analysis of the California Supreme Court’s death penalty docket, tracing the number of cases which the Court decides every year, the fraction of the docket that’s decided unanimously, and the frequency with which the Court reverses in part or outright. Today we turn our attention to a controversial topic: how long do death penalty appeals take?
As we noted last week, according to the American Civil Liberties Union of California, as of November 2015, the Supreme Court had approximately 340 undecided death penalty appeals pending before it, including 110 which were fully briefed but not yet set for argument, and another 128 in the process of briefing. Proposition 66 requires that absent “extraordinary and compelling” circumstances, direct appeals and the initial state habeas corpus proceedings must be completed within five years, or in other words – since the tables below and in tomorrow’s post are all measured in days – 1,825 days.
For civil and non-death criminal cases, our database measures lag time in two ways: days from the granting of the petition for review to the oral argument, and days from oral argument to decision. Since there is no petition for review in automatic death penalty appeals, we use the appointment of counsel as a proxy for the moment at which the work of the appeal can begin. For the entire seventeen year period from 2000 through the end of 2016, the average time from appointment of counsel to oral argument in death penalty appeals is 3,286.12 days – 45% more than the ceiling in Proposition 66.
Tracking that measure year by year, as shown in Table 157, demonstrates that the counsel-to-argument measurement may be slowly increasing. In 2000, the average time from appointment of counsel to argument was 2,747.2 days – just over seven and a half years. The following year it had increased to 3,379.73 days, but the average declined again in 2002 (2,889.86) and 2003 (2,672.85). The average then increased in 2004 (3,055.33) and 2005 (3,210.81) before falling to its lowest level of the entire study period in 2007, at 2,472.09 days.
For 2008, the average was up to 3,194.12 days. The next year, it was flat – 3,102.76 days. In 2010, the number was up again, to 3,472.75 days. For 2011, it fell to 2,949.96 days, but the average increased each year from 2012 to 2014 – 3,656.48 in 2012, 3,758.56 in 2013 and 3,862.52 in 2014. The average time was down a bit in 2015 to 3,598.47 days, but up sharply in 2016 to 4,496.08 days. Recent history would suggest that 2016’s number is likely an anomaly, but one thing is certain – death penalty appeals have taken far more than the 1,825 days mandated in Proposition 66 for at least a generation.
So can we tell anything about the Court’s ultimate decision simply by looking at days a case is pending before the Court? As we saw last week, cases in which the Court overturns the death penalty are quite rare, so breaking the penalty-reversed cases into year-by-year numbers wouldn’t be especially meaningful. For the entire seventeen years, cases in which the Court overturned the penalty – whether outright reversals of the entire judgment, vacatur or partial reversals including penalty – were pending from appointment of counsel to oral argument for 3,375 days. In Table 158 below, we report the year by year data for cases in which the penalty was affirmed (both outright affirmances and partial reversals where the penalty was upheld). We see that there is no clear relationship between result and time pending from counsel to argument. For 2000, the Court affirmed in all its death cases, so the measure is 2,747.2 days. In 2001, affirmances were pending 3,191.2 days. The number dropped for the next three years, to 2,942.15 in 2002, 2,659.44 in 2003 and 2,012.11 in 2004 (the lowest number in the period). In 2005, penalty affirmed cases were pending an average of 3,210.81 days, and in 2006, the lag was nearly that: 3,184.48 days. There was a one-year drop in 2007 to 2,452.14 days, but it was back up to trend in the next three years: 2008 (3,262.54), 2009 (3,186.78) and 2010 (3,472.75). In 2011, the average time for affirmances was 2,927.76 days. It was up significantly in 2012, to 3,765.19 days, and in 2013, to 3,758.56 days. The average was up slightly in 2014, to 3,845.38 days, down again in 2015 to 3,569.57 days, and then up substantially in 2016, to 4,571.67 days.
Join us back here tomorrow as we review the days-pending data measured from oral argument to decision in the Court’s death penalty cases.