As I have noted in numerous prior posts (see, e.g. here), the U.S. Court of Appeals for the Sixth Circuit appears to be quite divided over how to evaluate habeas petitions, particularly those filed in capital cases. As a general rule, the more "liberal" judges on the court appear far more sympathetic to habeas claims, particularly those claiming ineffective assistance of counsel, than the more "conservative" judges. This is well known among criminal defense attorneys within the Sixth Circuit; one capital defense attorney I know routinely handicaps his clients' chances on appeal based upon the composition of the panel.

On Sunday, the Cincinnati Enquirer reported on the results of its analysis of judicial voting behavior in death penalty cases on the Sixth Circuit. Unsurprisingly, the report found that judges appointed by Democratic presidents are far more likely to rule in favor of capital defendants than are judges appointed by Republican Presidents. What is notable, however, is the extent of the gulf.

An Enquirer analysis of the court's death-penalty decisions since 2000 shows that 6th Circuit judges consistently voted along partisan lines . . . :

Judges appointed by Republican presidents voted to deny inmate appeals 85 percent of the time. Judges appointed by Democrats voted to grant at least some portion of those appeals 75 percent of the time.

Republican appointees dissented from majority opinions 25 times, always arguing against the inmate. Democratic appointees dissented 29 times, all but once arguing for the inmate.

The Enquirer analysis also looked at the voting patterns of judges appointed by specific Presidents.

Appointees of President George H. W. Bush posted the most lopsided track record, voting 50-4 against granting inmate appeals. President George W. Bush's appointees voted 34-5 against granting appeals.

By contrast, President Carter's appointees voted 31-4 in favor of inmate appeals.

Clinton and Reagan appointees were more moderate. Clinton's voted 75-32 in favor, while Reagan's voted 39-13 against. . . .

At one end of the spectrum are conservatives such as Alice Batchelder, Eugene Siler, Deborah Cook, Jeffrey Sutton, John Rogers and Danny Boggs. Together, they voted 92-9 against inmate appeals.

On the other side are liberals such as Gilbert Merritt, Eric Clay, Karen Nelson Moore and Boyce Martin. Their combined votes totaled 65-9 in favor of inmate appeals.

The only judges who did not vote one way or the other 60 percent of the time or more are Ronald Lee Gilman and Martha Craig Daughtrey. The two Clinton appointees voted for inmate appeals about half the time.

It would be easy to ascribe the disparity to ends-oriented jurisprudence by judges on the court. At least one Sixth Circuit judge has made clear that the death penalty is "beyond repair" and should be scrapped. Yet there are also meaningful jurisprudential differences between the more conservative and more liberal judges that should be considered before anyone makes the accusation that specific judges are acting in bad faith.

Liberal judges tend to give more weight to problems such as poor work by defense lawyers, misconduct by prosecutors and errors by judges. They also are more likely to conclude those problems are prejudicial, or serious enough to invalidate a death sentence.

Conservatives focus more on procedural issues, such as whether the appeal is properly filed. They also are more deferential to the original jury verdict and sentence, even when mistakes are made during the trial.

What does all this mean? Well, as a practical matter it means that the odds a capital defendant's habeas petition will be successful are dependent upon the luck of the draw in panel assignment. As University of Pittsburgh law professor Arthur Hellman observes, "It looks very much like a lottery. . . . Literally, if someone lives or dies depends on the panel they get."

Some argue that this disparity shows that the death penalty, at least as administered within the Sixth Circuit, is so inherently arbitrary as to be inherently unjust, if not unconstitutional. While I am sympathetic to the justice argument, I think the constitutional claim faces tough sledding. First, there are many features of the criminal justice system that inevitably result in differing verdicts in equivalent cases. The most obvious is the jury system, and the substantial discretion of individual juries to make individual determinations. As the Supreme Court noted in McClesky v. Kemp, a certain degree of arbitrariness is one cost of placing such emphasis on the jury right and the inevitable amount of discretion that juries are provided.

Second, the nature of appellate review also entails a certain amount of subjective judgment and discretion on the part of appellate judges. The existence of three-judge panels reduces the subjective element of appellate decisions, but it cannot eliminate it, particularly in those subject areas in which the reigning legal standards are insufficiently clear.

Third, the level of dissension in death penalty cases on the Sixth Circuit may well be a temporary phenomenon as more cases are decided, and particularly as more cases receive en banc or Supreme Court review. Although I'm hardly a habeas expert, I do get the sense that there is a decent amount of wiggle room under current precedents that should narrow over time. Circuit court judges are bound by their own prior decisions and Supreme Court precedent, so if one assumes that most if not all judges are acting in good faith, these sorts of divisions should not persist. So, for instance, as the court hears more cases alleging ineffective assistance of counsel, it should become easier to predict the outcome of such claims based on the facts of the case, and comparisons with prior decisions, rather than on the composition of the panel. On the other hand, some would suggest that the Sixth Circuit's case law in this area is already riddled with inconsistencies.

Finally, I would note that there would be something a bit odd were it possible that disagreement over the proper application of the death penalty on a court could itself be the source of sufficient arbitrariness to raise constitutional concerns. If nothing else, this would create the opportunity for strategic behavior on the part of death penalty opponents on the court. By voting to overturn death penalty convictions in specific cases they could introduce sufficient arbitrariness in the system to render the death penalty itself arbitrary within the Circuit.. I am not accusing any judges on the Sixth Circuit of engaging in such behavior. Nonetheless I would find a legal doctrine odd that would allow for that result.

The Enquirer story is not entirely clear on how its methodology, but the disparities it finds are large enough that I doubt an alternative approach would have yielded much different results. A colleague and I have discussed conducting an analysis of our own, so perhaps we'll see. In any event, it is an interesting analysis that provides much food for thought.