United States: Reviewing The Justices' Voting Records In Death Penalty Appeals, 1994-2017 (Part 1)

Last Updated: September 26 2017
Article by Kirk Jenkins

Last week, we looked at how often the Justices voted with the majority in death penalty appeals, regardless of whether the decision was to affirm, reverse in part while affirming the sentence, reverse in part and vacate the sentence, or reverse outright. This week, we're looking at the Justices' votes themselves.

In Table 555, we report the percentage of each Justice's votes in death penalty cases between 1994 and 1999 which were either to affirm entirely, or reverse in part while affirming the sentence. The most frequent vote to affirm during these years was Chief Justice Lucas, who voted to affirm in 95.83% of his death penalty cases. Justice Arabian was next at 91.67%. Four Justices voted to affirm between eighty and ninety percent of the time – Chief Justice George (85.48%) and Justices Baxter (83.87%), Brown (83.33%) and Chin (81.58%). Two more were between seventy and eighty percent – Justices Werdegar (79.66%) and Kennard (73.02%). That leaves the least frequent votes to affirm entirely, which were Justice Mosk (64.52%) and pro tem Justices sitting by designation (50%, in a very small sample).

Votes to reverse in part while affirming the sentence were relatively rare during these years. Only one permanent Justice voted that way more than ten percent of the time – Justice Chin, 10.53%. Justice Baxter was next at 9.68%. Three Justices were between eight and nine percent – Justice Werdegar (8.47%), Justice Brown (8.33%) and Chief Justice George (8.06%). Three Justices cast such votes in less than five percent of their cases – Justice Mosk (4.84%), Chief Justice Lucas (4.17%) and Justice Arabian (4.17%). Pro tems voted to reverse in part and affirm the sentence in 25% of their very small sample of cases.

We report votes to reverse in part while vacating the sentence and to reverse outright in Table 556. Not surprisingly, Justice Mosk led in both categories, voting to reverse in part and overturn the death sentence in 16.13% of his cases, and to reverse outright in another 14.52%. Justice Kennard was next, voting to reverse in part in 7.94% of her cases, and to reverse outright in another 9.52%. The remaining Justices seldom voted to disturb death sentences during these years. Justice Arabian voted to reverse in part in 4.17% of the limited number of death sentence cases he participated in at the beginning of our perioc. Justices Werdegar and Baxter and Chief Justice George all voted to reverse in part in between three and four percent of their cases (3.39%, 3.23% and 3.23%, respectively). Justices Brown and Chin both voted to reverse in part in less than three percent of their cases (2.78% and 2.63%). After Justice Kennard, Justice Werdegar was the next most likely vote to reverse outright, voting to reverse in 8.47% of her death penalty cases. Justice Brown voted to reverse 5.55% of the time, Justice Chin 5.26%, and Chief Justice George and Justice Baxter 3.23% each. Chief Justice Lucas and Justice Arabian cast no votes to reverse outright during their limited time on the Court at the outset of these years.

Reversals appear to have edged up at least slightly during the years 2000 through 2005. No Justice voted to affirm in ninety percent or more of his or her cases. Seven voted to affirm between eighty and ninety percent of the time – Justices Baxter (86.92%), Chin (85.98%), Brown (85.87%), and Werdegar (85.05%), Chief Justice George (83.81%), Justice Moreno (80.25%), and pro tem Justices sitting by designation (85.71%). Justice Kennard voted to affirm in 77.57% of death penalty appeals, and Justice Mosk did so 72.22% of the time. Justice Moreno was the most frequent vote to reverse in part while affirming the sentence, voting that way in 7.41% of his cases. Four Justices were between six and seven percent – Chief Justice George (6.67%) and Justices Werdegar, Chin and Baxter (6.54% each). Justice Kennard voted to reverse in part with sentence affirmed in 5.61% of her cases. Justice Mosk did so 5.56% of the time, and Justice Brown 5.43%.

Three permanent Justices voted to reverse in part and vacate the death sentence in more than 10% of their death penalty appeals – Justices Mosk (22.22%), Kennard (13.08%) and Moreno (11.11%). Pro tem Justices voted that way in 14.29% of their cases. Chief Justice George voted to reverse in part with sentence vacated in 7.62% of his cases. Justice Brown was just behind at 7.61%. Justice Werdegar voted that way in 7.48% of her cases. Justices Chin and Baxter cast the fewest such votes – 6.54% and 5.61%, respectively. Outright reversals, however, remained quite rare. Justice Kennard voted to reverse 3.74% of the time. Chief Justice George voted to reverse in 1.9% of his cases, Justice Moreno did so in 1.23% of his, and Justice Brown voted to reverse in 1.09%. Justices Werdegar, Chin and Baxter each voted to reverse in only 0.93% of their death penalty appeals. Justice Mosk and pro tem Justices case no votes to reverse outright during these years.

Join us back here tomorrow as we turn our attention to the years 2006 to 2017.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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