Is Death Different to Federal Judges?

62 Pages Posted: 28 Jul 2020

See all articles by Brett Parker

Brett Parker

Stanford University - Department of Political Science

Date Written: June 30, 2020


Legal commentators have long believed that federal judges treat capital appeals more favorably than noncapital appeals. However, due to the bifurcated nature of capital trials and the complexity of the ensuing appeals, no empirical research to date has proven that the guilt-phase claims of capital defendants are more likely to succeed on federal habeas review than the claims of other defendants. This Note addresses that gap in the literature. The Author analyzed 1,368 votes cast by federal appellate judges between 2013 and 2017 in murder cases heard on habeas review. In each of those cases, the defendant was under a sentence of either death or life in prison. Exploiting this unique dataset, this Note finds that federal appellate judges are significantly more likely to grant guilt-phase relief to capital defendants than they are to similarly situated noncapital defendants. It then rules out alternative explanations for this finding of a “sentencing effect,” such as differential attorney investment or dissimilarity between capital and noncapital defendants. After establishing that federal appellate judges do in fact behave differently in capital cases, the Note considers the normative implications of this finding. It ultimately concludes that the behavior of federal judges on habeas review is consistent with a generally shared principle of capital jurisprudence: preventing the execution of innocents.

Keywords: Capital Punishment, Federal Judiciary, Judicial Behavior

Suggested Citation

Parker, Brett, Is Death Different to Federal Judges? (June 30, 2020). Stanford Law Review, Vol. 72, No. 6, 2020, Available at SSRN:

Brett Parker (Contact Author)

Stanford University - Department of Political Science ( email )

Stanford, CA 94305
United States

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