DEATH ROW U.S.A. Fall 2012 A quarterly report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc. Deborah Fins, Esq. Consultant to the Criminal Justice Project NAACP Legal Defense and Educational Fund, Inc. Death Row U.S.A. Fall 2012 (As of October 1, 2012) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,146 Race of Defendant: White 1,358 (43.17%) Black 1,319 (41.93%) Latino/Latina 390 (12.40%) Native American 34 (1.08%) Asian 44 (1.40%) Unknown at this issue 1 (0.03%) Gender: Male 3,083 (98.00%) Female 63 (2.00%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 35 Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming, U.S. Government, U.S. Military. JURISDICTIONS WITHOUT DEATH PENALTY STATUTES: 18 Alaska, Connecticut [see note, below], District of Columbia, Hawaii, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico [see note, below], New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. [NOTE: Connecticut and New Mexico repealed the death penalty prospectively. The men already sentenced in each state remain under sentence of death.] Death Row U.S.A. Page 1 In the United States Supreme Court Update to Summer 2012 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2012 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Bailey v. United States, No. 11-770 (Detention incident to search) (decision below 652 F.3d 197 (2nd Cir. 2011)) Question Presented: Pursuant to Michigan v. Summers, 452 U.S. 692 (1981), may police officers detain an individual incident to the execution of a search warrant when the individual has left the immediate vicinity of the premises before the warrant is executed? Florida v. Harris, No. 11-817 (Dog sniff of vehicle) (decision below 71 So. 3d 756 (Fla. 2011)) Question Presented: Has the Florida Supreme Court decided an important federal question in a way that conflicts with the established 4th Amendment precedent of this Court by holding that an alert by a well-trained narcotics detection dog certified to detect illegal contraband is insufficient to establish probable cause for the search of a vehicle? Florida v. Jardines, No. 11-564 (Dog sniff outside house) (decision below 73 So. 3d 34 (Fla. 2011)) Question Presented: Is a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog a 4th Amendment search requiring probable cause? Missouri v. McNeely, No. 11-1425 (Blood sample from drunk driver) (decision below 358 S.W.3d 65 (2012)) Question Presented: May a law enforcement officer obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the 4th Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream? Fifth Amendment Smith v. United States, No. 11-8976 (Burden of persuasion on conspiracy withdrawal) (decision below 651 F.3d 30 (D.C. Cir. 2011)) Question Presented: Does withdrawing from a conspiracy prior to the statute of limitations period negate an element of a conspiracy charge such that, once a defendant meets his burden of production that he did so withdraw, the burden of persuasion rests with the government to prove beyond a reasonable doubt that he was a member of the conspiracy during the relevant period -- a fundamental due process question that is the subject of a well-developed circuit split? Sixth Amendment Chaidez v. United States, No. 11-820 (Retroactivity of Padilla) (decision below 655 F.3d 684 (7th Cir. 2011)) Question Presented: Does Padilla v. Kentucky, 130 S. Ct. 1473 (2010) apply to persons whose convictions became final before its announcement? Death Row U.S.A. Page 2 2. CASES RAISING HABEAS CORPUS QUESTIONS Cavazos v. Williams, No. 11-465 (State court decision not acknowledging federal claim) (decision below 646 F.3d 626 (9th Cir. 2011)) Question Presented: Has a habeas petitioner's claim been "adjudicated on the merits" for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim? Descamps v. United States, No. 11-9540 (Proof of missing element of offense) (decision below 466 Fed.Appx. 563 (9th Cir. 2012)) Question Presented: Did the 9th Circuit err by applying its ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011), (en banc) that, where the burglary statute is missing an element of the generic crime, a state conviction may be subject to the modified categorical approach? Ryan v. Gonzales, No. 10-930 (Competency to assist counsel in capital federal habeas) (decision below 623 F.3d 1242 (9th Cir. 2010)) Question Presented: Did the 9th Circuit err when it held that 18 U.S.C. § 3599(a)(2) -- which provides that an indigent capital state inmate pursuing federal habeas relief "shall be entitled to the appointment of one or more attorneys" -- impliedly entitles a death row inmate to stay the federal habeas proceedings he initiated if he is not competent to assist counsel? Tibbals v. Carter, No. 11-218 (Competency of capital petitioners in habeas proceedings) (decision below 644 F.3d 329 (6th Cir. 2011)) Questions Presented: (1) Do capital prisoners possess a "right to competence" in federal habeas proceedings under Rees v. Peyton, 384 U.S. 312 (1966)? (2) Can a federal district court order an indefinite stay of a federal habeas proceeding under Rees? 3. CASES RAISING OTHER IMPORTANT FEDERAL QUESTIONS Henderson v. United States, No. 11-9307 (Plain error on appeal) (decision below 646 F.3d 223 (5th Cir. 2011)) Question Presented: When the governing law is unsettled at the time of trial but settled in the defendant's favor by the time of appeal, should an appellate court reviewing for "plain error" apply Johnson's time-of-appeal standard, as the 1st, 2nd, 6th, 10th, and 11th Circuits do, or should the appellate court apply the 9th Circuit’s time-of-trial standard, which the D.C. Circuit and the panel below have adopted? Millbrook v. United States, No. 11-10362 (Immunity of Prison Guards) (decision below 2012 WL 1384918 (3rd Cir. 2012)) Question Presented: Limited by the Court to the following question: Do 28 U.S.C §§1346(b) and 2680(h) waive the sovereign immunity of the United States for the intentional torts of prison guards when they are acting within the scope of their employment but are not exercising authority to “execute searches, to seize evidence, or to make arrests for violations of federal law?” Death Row U.S.A. Page 3 As of October 1, 2012 Total number of executions since the 1976 reinstatement of capital punishment: 1307 Race of defendants executed Race of victims total number 1307 total number 1920 White 735 (56.24%) White 1475 (76.82%) Black 450 (34.43%) Black 290 (15.10%) Latino/a 99 (7.57%) Latin 113 (5.89%) Native American 16 (1.22%) Native American 5 (0.26%) Asian 7 (0.54%) Asian 37 (1.93%) Gender of defendants executed Gender of victims Female 12 (0.92%) Female 937 (48.80%) Male 1295 (99.08%) Male 983 (51.20%) Defendant-victim racial combinations White Victim Black Victim Latino/a Victim Asian Victim Native American Victim White Defendant 682 52.18% 19 1.45% 17 1.30% 6 0.46% 0 0% Black Defendant 264 20.20% 147 11.25% 17 1.30% 12 0.92% 0 0% Latino/a Defendant 42 3.21% 3 0.23% 49 3.75% 2 0.15% 0 0% Asian Defendant 2 0.15% 0 0% 0 0% 5 0.38% 0 0% Native Amer. Def. 14 1.07% 0 0% 0 0% 0 0% 2 0.15% TOTAL: 1004 76.82% 169 12.93% 83 6.35% 25 1.91% 2 0.15% Note: In addition, there were 24 defendants executed for the murders of multiple victims of different races. Of those, 13 defendants were white, 8 black and 3 Latino. (1.84%) Death Row U.S.A. Page 4 Execution Breakdown by State State # % of Racial Combinations (see codes Total below) 1. TX 486 37.18 200 W/W (41%); 101 B/W (21%); 53 B/B (11%); 44 L/L 25* 13# 3^ (9%); 35 L/W (7%); 16 B/L (3%); 12 W/L, 8 B/A ( 2% each); 3 W/B (.6%); 2 L/B, 2 L/A, 2 A/A, 2 W/mix, 2 N/W, 2 W/A (.4% each); 1 L/mix, 1 B/mix (.2% each) 2. VA 109 8.34 48 W/W (44%); 37 B/W (34%); 13 B/B (12%); 4 W/B (4%); 2 9* 3# 1^ L/W, 2 W/mix (2% each); 1 W/A, 1 A/W, 1 B/mix (.9% each) 3. OK 100 7.65 57 W/W (57%); 15 B/W (15%); 10 B/B (10%); 5 N/W (5%); 3 7* 2# 3^ W/A (3%); 2 W/B, 2 A/A , 2 W/mix (2% each); 1 N/N, 1 B/A, 1 W/L, 1 B/L (1% each) 4. FL 73 5.59 43 W/W (59%); 13 B/W (18%); 7 B/B (10%); 2 L/W, 2 L/L, 2 9* 2^ W/mix (3% each); 1 N/W, 1 L/B, 1 W/L, 1 B/mix (1% each) 5.