Document Type

Book Chapter

Publication Title

The Future of America's Death Penalty: An Agenda for the Next Generation of Capital Punishment Research

Publication Date



We know that through the course of American history federal habeas corpus has been a critical mechanism for preventing injustice in capital cases. We also know that through the 1980s and 1990s Supreme Court doctrine erected a series of legal barriers to the availability of habeas corpus that caused many scholars to question whether the goal of achieving justice was being threatened. And we know from a major empirical study covering the years 1973-1995 what success rate death rate inmates achieved in federal habeas corpus actions during that period.

The Anti-terrorism and Effective Death Penalty Act of 1966 (AEDPA) "dramatically altered the landscape for federal habeas corpus petitions"(Rhines v. Weber 2005) by making legal alterations that were designed, as President Clinton said in signing the legislation, "to streamline Federal appeals for convicted criminals sentenced to the death penalty," while preserving "independent review of Federal legal claims and the bedrock constitutional principle of an independent judiciary" (Hertz and Liebman 2005b:2124). We have now learned, from a study covering the 2000-2006 and here reported in full for the first time, the, insofar as the published cases reveal, the success rate for capital inmates on federal habeas has fallen dramatically--to levels about a fifth of what they previously were. . . .

We have examined the published results on appeal of all federal habeas corpus applications filed by all death row inmates between 2000 and 2006, inclusive. The data can be summarized simply: whereas prior to AEDPA deathrow inmates prevailed somewhere between half and two-thirds of the time, they now prevail, nationwide, approximately 12 percent of the time. Further, the success rate, in most jurisdictions, appears to be declining.


This chapter is from The Future of America's Death Penalty, edited by Charles S. Lanier, et al.



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