United States: Reviewing The Justices' Voting Records In Death Penalty Appeals, 1994-2017 (Part 2)

Last Updated: September 27 2017
Article by Kirk Jenkins

Yesterday, we reviewed the individual Justices' voting records in death penalty appeals for the years 1994 through 2005. Today, we look at the second half of our study period, 2006 through 2017.

In Table 303, we report the percentage of each Justice's votes in death penalty cases which were to affirm or to reverse in part while affirming the sentence for the years 2006 through 2011. No one topped ninety percent during these years in votes to affirm, as Chief Justice Lucas and Justice Arabian both did for the first six years we studied (based on comparatively few votes for each). Five permanent Justices were between eighty and ninety percent affirmances – Chief Justice Cantil-Sakauye (85.71%), Justices Baxter (84.51%), Chin (84.4%) and Corrigan (84.06%), and Chief Justice George (82.76%). Three more voted to affirm between seventy and eighty percent of the time – Justice Werdegar (79.58%), Justice Moreno (77.97%) and Justice Kennard (77.46%). Justice Liu, who joined the Court in the final year of this six year period, voted to affirm in half the death penalty cases he participated in. Pro tem Justices voted to affirm 83.33% of the time.

Votes to reverse in part while affirming the sentence were also more common that they had been earlier. Every Justice but one – Chief Justice Cantil-Sakauye – voted to reverse in part while affirming the sentence in at least 10% of cases. Justice Liu voted that way 25% of the time. Justice Kennard did 13.38% of the time. Justice Moreno cast such votes 12.71% of the time. Chief Justice George (12.07%), Justice Chin (11.35%), Justices Werdegar and Baxter (11.27% each) and Justice Corrigan were next (10.87%).

In Table 304, we review the Justices' votes to overturn death sentences between 2006 and 2011 – both reversing in part with the sentence vacated, and outright reversals. Pro tem Justices were the most frequent votes to reverse in part and vacate the sentence, casting such votes in 8.33% of their cases. Justice Moreno was next at 5.93%, followed by Justices Kennard and Werdegar (4.93% each), Chief Justice George (3.45%), and Justices Corrigan, Chin and Baxter (2.17%, 2.13% and 2.11%, respectively). Although he participated in far fewer cases than the others, joining the Court in the final year of our six year period, Justice Liu led in reversals, voting to reverse 25% of the time. Chief Justice Cantil-Sakauye was next among the permanent Justices, voting to reverse in 4.76% of cases. Justices Kennard and Werdegar both voted to reverse 4.23% of the time. Justice Moreno was next at 3.39%, followed by Justices Corrigan, Chin and Baxter (2.9%, 2.13% and 2.11%, respectively) and Chief Justice George (1.72%).

In Table 305, we report the first half of the data for the years 2012-2017. During these years, the Court added two additional Democratic appointees, and the data clearly reflects the shift. Votes to affirm in full were about ten percentage points less common across the board. Justice Kennard was the most frequent vote to affirm at 75.47%. Justice Baxter voted to affirm 74.24% of the time, and Justice Chin did in 70.43% of his cases. Justice Corrigan voted to affirm 69.3% of the time, and Chief Justice Cantil-Sakauye did in 68.7%. Justice Werdegar voted to affirm in 64.91% of her cases, and Justice Liu did in 60.18%. The two least frequent votes to affirm in full were the two newest Justices – Justice Kruger (57.45%) and Justice Cuellar (53.19%). Even pro tems were down substantially in votes to affirm – pro tems only voted to affirm in 55.56% of their cases.

The most frequent vote to reverse in part while affirming the sentence among the permanent Justices was Justice Cuellar, who cast such votes in 23.4% of his death penalty cases. Justices Kruger and Liu were next at 21.28% and 20.35%, respectively. The Republican nominees were up in this category during these years too. Justices Corrigan and Werdegar voted to reverse in part affirming the sentence 19.3% of the time. Chief Justice Cantil-Sakauye did 19.3% of the time. Next were Justice Chin (18.26%), Justice Baxter (16.67%) and Justice Kennard (15.09%). Pro tem Justices voted to reverse in part affirming the sentence in 22.22% of their cases.

In Table 306, we report each Justice's frequency of voting to reverse in part with the sentence vacated, and to reverse outright. Justice Kruger was the most frequent vote to reverse in part at 17.02%. Justices Cuellar and Liu were next at 14.89% and 14.16%. Justice Werdegar voted to reverse in part in 10.53% of her cases. Chief Justice Cantil-Sakauye did so in 8.7%, Justice Corrigan in 7.89%, Justice Chin in 7.83%, and Justice Baxter in 6.06%. Justice Kennard was the least frequent vote to reverse in part at 5.66%.

Justice Cuellar was the most frequent vote to reverse outright, voting that way in 8.51% of death penalty cases he participated in. Justices Liu and Werdegar were next (5.31% and 5.26%, respectively). Justice Kruger voted to reverse in 4.25% of cases. Justices Kennard and Corrigan were next (3.77% and 3.51%), followed by Chief Justice Cantil-Sakauye and Justice Chin (3.48 each) and Justice Baxter (3.03%).

In Table 307, we mix and match the data for the last two periods – 2006 to 2011 and 2012 to 2017 – to better illustrate a noteworthy trend. Students of appellate decision-making have written extensively about "panel effects" for many years – the phenomenon of judges voting differently based upon who else is on the same panel (i.e., conservative Justices vote more liberally when sitting with liberals, and more conservatively when sitting with conservatives, and vice versa). Indeed, political scientists have written about the phenomenon as a more basic tenet of group decision theory (as in, voters being polled when surrounded by people who either agree with their attitudes, or don't).

We report the fraction of cases each Republican nominee has voted to reverse in part with the sentence vacated and to reverse outright in the years 2006 through 2011, compared to the years 2012 through 2017. The data shows clear evidence of a panel effect. For example, in the years 2006 through 2011, Justice Corrigan reversed in part in 2.17% of her cases and reversed outright 2.9% of the time. For the years 2012 through 2017, she voted to reverse in part in 7.89% of cases, and to reverse 3.51% of the time. Justice Werdegar's numbers were up significantly too. For the years 2006 to 2011, she averaged a partial reversal every 4.93% of the time, and an outright reversal every 4.23% of the time. For the years 2012 through 2017, she reversed in part 10.53% of the time, and reversed outright in 5.26%.

Chief Justice Cantil-Sakauye didn't reverse in part in any case between 2006 and 2011. She reversed in part in 8.7% of cases between 2012 and 2017. She voted to reverse outright in 4.76% of cases between 2006 and 2011, and to reverse in 3.48% of her cases from 2012 on. Justice Chin reversed in part and reversed outright in the same fraction of cases between 2006 and 2011 – 2.13%. Between 2012 and 2017, Justice Chin reversed in part in 7.83% of his cases, and reversed outright 3.48% of the time. Justice Baxter reversed in part and reversed outright 2.11% of the time for the years 2006 through 2011. For the years 2012 through 2017, he reversed in part in 6.06% of cases, and reversed outright 3.03% of the time.

Join us back here next Thursday as we turn our attention to a new subject in our ongoing study of the California Supreme Court's decision making.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.