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Judicial selection methods, Capital punishment, Death penalty, Bureau of Justice Statistics, BJS, National Prisoner Statistics Program


Applied Statistics | Courts | Criminal Procedure


Several studies try to explain case outcomes based on the politics of judicial selection methods. Scholars usually hypothesize that judges selected by partisan popular elections are subject to greater political pressure in deciding cases than are other judges. No class of cases seems more amenable to such analysis than death penalty cases. No study, however, accounts both for judicial politics and case selection, the process through which cases are selected for death penalty litigation. Yet, the case selection process cannot be ignored because it yields a set of cases for adjudication that is far from a random selection of cases. Effects based on judicial selection politics can only reliably be detected if one accounts for this filtering of cases judges adjudicate.

In death penalty litigation, the case filtering process begins with the prosecutor's decision to seek the death penalty. The case filtering process affecting reviewing courts' case mix continues at the adjudicatory stage. The trial adjudicator, either the judge or the jury, may cushion the effect of extreme prosecutorial death-seeking behavior.

Variation in the rates at which prosecutors seek death penalties and adjudicators impose them thus ought to influence the rate at which reviewing courts overturn capital sentences. In theory, case selection could frustrate efforts to detect political effects. Two aspects of the impact of judicial selection politics are worth separating. The first focuses on interstate differences in death penalty case processing. A second aspect of judicial selection politics relates to possible differences between state and federal judges.

This Article uses two databases to explore factors affecting grants of relief from death penalties. The first consists of approximately 800 appeals of death sentences decided from 1995 to 1997. It consists solely of direct appeals in capital cases and is limited to state courts. The second database is the Bureau of Justice Statistics' ("BJS") database of all persons sentenced to death from 1973 to 1995. It includes information about whether a defendant obtained relief from a death sentence and includes post-conviction relief. The source of relief could be federal or state court but the database does not reveal which court system acted to grant relief.

Although we find no system-wide evidence of the effect of state judicial election methods on case outcomes, developments in individual states do confirm the death penalty's politically charged character. We find indirect evidence that the federal judiciary processes death penalty cases differently than state courts. Part II of this Article documents recent campaigns to oust judges based on their decisions in death penalty cases. These campaigns suggest that judges subject to partisan elections will be reluctant to question death sentences. Part III explains our methodology for exploring the relationship among judicial elections, states' death-obtaining rates, and judicial review of capital cases. Finally, Part IV reports our empirical results.

Publication Citation

Published in: Southern California Law Review, vol. 72, nos. 2 & 3 (January/March 1999).