For the past several weeks, we’ve been comparing the Court’s lag times – time to oral argument, and then oral argument to decision – for affirmances as opposed to reversals. We’ve determined that affirmances tend to take longer from outset to argument than reversals do. The difference between affirmances and reversals is much greater for criminal cases than it is for civil cases. That discovery led us to wonder whether the very high affirmance rate in the death penalty docket might be driving the aggregate numbers. So we divided up the criminal docket between death penalty and non-death cases.
In Table 187 below, we show the year-by-year data for lag times in death penalty appeals from the appointment of capital counsel to oral arguments, divided between affirmances and reversals for the years 2008 through 2016. The data on reversals is fragmentary because outright reversals (including the penalty) are rare in death penalty cases. In 2008 and 2009, affirmances took far longer than reversals did – 3,262.54 (affirmances) to 2,373 days (reversals) in 2008, and 3,186.78 (affirmances) to 2,136.5 (reversals) in 2009. No death penalties were reversed in 2010, and affirmances averaged 3,472.75 days. In 2011, the relationship between results and lag time reversed – affirmances averaged 2,927.76 days, while reversals averaged 3,505 days. But the following year, affirmances averaged 3,591.1 days to 3,149.25 days for reversals.
In 2013, again there were no death penalty reversals. Affirmances averaged 3,760.06 days. In 2014, affirmances averaged 3,845.38 days, while reversals averaged 4,042 days. Reversals again took longer in 2015 – 3.994 days for reversals to 3,375.79 days for affirmances. Last year, all death penalty appeals took longer from counsel to argument, regardless of the result – affirmances averaged 4,571.22 days, while reversals averaged 4,269.33 days.
Lag times from argument to decision were not consistently longer for affirmances during these years either. In 2008, affirmances averaged 74.04 days to 62 days for reversals. The following year, affirmances averaged 71.7 days, while reversals were filed in only 48 days. In 2010, affirmances averaged 72.13 days. For 2011, affirmances averaged 71.68 days, while reversals averaged 90 days. In 2012, affirmances averaged 73.57 days to 73 for reversals. In 2013, affirmances were almost flat, averaging 73.11 days. In 2014, affirmances averaged 74.86 days from argument to decision, while reversals were handed down in 63 days. In 2015, affirmances averaged 78.93 days to 83.67 days for reversals. Last year, affirmances averaged 79.89 days to 81.33 days for reversals.
Join us back here tomorrow as we look at the non-death penalty criminal docket’s lag times in recent years.