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.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions