This week, we’re continuing our review of the Court’s constitutional law docket by asking (1) how much of the Court’s docket consists of cases won below by one side or the other; (2) whether the Court has a significantly higher (or lower) reversal rate depending on who won below; and (3) whether the Court tends to reverse more or less often in constitutional law cases than it does in other cases. Today, we’re looking at the Court’s criminal law docket. The coding terms conservative and liberal track the two sides much more easily in criminal law than they do in civil law – a defendant’s win is coded as a liberal decision, and a prosecution win is coded as a conservative one.
Not surprisingly, the Court is far more likely to review an Appellate Court win by a criminal defendant than it is a win by the prosecution – 65.3% of the Court’s criminal constitutional law cases since 1990 were won by the defendant below. Also not surprisingly, the moderate Illinois Supreme Court is far more likely to reverse a criminal defendant’s win from the Appellate Court than it is a win for the prosecution – it’s reversed 64.02% of the defense wins it’s heard since 1990, but only 33.07% of the prosecution wins.
In Table 707, we report the eighty-five cases in which the Court has affirmed a prosecution win in a constitutional law case. The Court did so once each in 1990 and 1991, twice in 1992, four times in 1993, three in 1994 and six in 1995. The Court affirmed two prosecution wins a year in 1997 and 1998, four in 1999, three in 2000, eight in 2001 and two per year from 2002 to 2004. The Court affirmed six prosecution wins in 2005, three in 2006, one in 2007, seven in 2008, one in 2009, six in 2010, two per year in 2011 and 2012. Finally, the Court affirmed four prosecution wins in 2013, five in 2014, one each in 2015 and 2016 and four in 2017.
In Table 708, we review the yearly data for the much rarer event – reversal of a prosecution win in a criminal constitutional law case. The Court reversed twice in 1990, once in 1991, four times in 1992, once in 1993, twice in 1994, once in 1996, three times in 1997, five times in 1998, once in 1999 and four times in 2000. The Court reversed twice in 2001, once in 2002, twice each in 2003 and 2004, once in 2007, twice in 2008 and once in 2009. The Court reversed two prosecution wins a year in 2012, 2013 and 2015, and one in 2016.
In Table 709, we review the yearly data for defense wins in criminal constitutional law cases which were affirmed at the Court. Over the entire twenty-eight years, affirmance of defense wins was almost exactly as common as affirmance of prosecution wins – 86 to 85 (this doesn’t mean the two sides were equally likely to get reversed – there are nearly four times as many defense reversals as prosecution reversals). In 1990, the Court affirmed three defense wins, it affirmed twice in 1991, three times in 1992, once in 1993, four times in 1994, once in 1995, four times in 1996, three times in 1997, five times in 1998, seven times in 1999 and twice in 2000. The Court affirmed one decision in 2001, twelve in 2002, sixteen in 2003, four in 2004, two in 2005, one in 2006, three in 2008 and two in 2009. Since 2009, affirmances of defense wins have been comparatively uncommon – there were two in 2011, one in 2012, three in 2014, one each in 2015 and 2016 and two in 2017.
Next, we review the 153 cases reversing a defense win. The Court reversed eight times in 1990, four in 1991, twelve times in 1992 and 1994, four times in 1993, seven in 1995, five in 1996, two in 1997, seven in 1998, three in 1999 and four in 2000. The Court reversed three times each in 2001 and 2002, six times in 2003, eight times in 2004, ten times in 2005, nine in 2006, five in 2007, six in 2008, three in 2009 and five in 2010. The Court reversed twice per year in 2011 and 2012, three times in 2013, once in 2014, eight times in 2015, seven in 2016 and four in 2017.
Overall, the Court’s reversal rate in criminal constitutional law cases is roughly comparable to what it is in the docket as a whole. Since 1990, the Court has reversed in 45.5% of its criminal con law cases, and has reversed in part in just short of another ten percent, for an overall reversal rate of 55.04%. Looking at the yearly data, the Court reversed 74.4% of the cases between 1990 and 1992. From 1994, when the Court shifted its ideological balance from five Democrats in the seven seats to only four, through 1997, the Court’s reversal rate was in line with its totals for the period, as the Court reversed in 58.93% of criminal constitutional law cases.
But then, things shifted for several years. Between 1998 and 2005, the Court was noticeably less likely to reverse in a criminal constitutional law case than the rest of the criminal docket: it reversed in only 45% of 140 cases. The Court reversed in whole or in part in ten of thirteen cases in 2006, and six of seven in 2007. But from 2008 through 2011, the Court reversed in only 45.24% of cases. The Court reversed in four of seven cases in 2012 and six of nine in 2013, but in only one of nine in 2014. The Court reversed in whole or in part in all eleven constitutional law cases it decided in 2015, and reversed outright in eight of ten in 2016, but reversed in only four of ten in 2017.
Join us back here next Tuesday as we continue our exploration of the constitutional law caseload.