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Death Row U.S.A DEATH ROW U.S.A. Summer 2015 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. Summer 2015 (As of July 1, 2015) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2,984 Race of Defendant: White 1,275 (42.73%) Black 1,243 (41.66%) Latino/Latina 385 (12.90%) Native American 30 (1.01%) Asian 50 (1.68%) Unknown at this issue 1 (0.03%) Gender: Male 2,930 (98.19%) Female 54 (1.81%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 34 Alabama, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, 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: 19 Alaska, Connecticut [see note below], District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, 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 [NOTE: Connecticut and New Mexico repealed the death penalty prospectively.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 Spring 2015 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases Decided or to Be Decided in October Term 2014 or 2015 1. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment Elonis v. United States, No. 13-983 (First Amendment and conviction of threat) (decision below 730 F.3d 321 (3rd Cir. 2013)) Question Presented: Consistent with the 1st Amendment and Virginia v. Black, 538 U.S. 343 (2003), does conviction of threatening another person require proof of the defendant's subjective intent to threaten, as required by the 9th Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or is it enough to show that a "reasonable person" would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort? (See also Cases Raising Other Important Federal Questions, below) Decision: The Court declined to reach the First Amendment issue given its disposition of the statutory construction issue (see Cases Raising Other Important Federal Questions, below). Fourth Amendment Rodriguez v. United States, No. 13-9972 (Extension of traffic stop for canine sniff) (decision below 741 F.3d 905 (8th Cir. 2014)) Question Presented: May an officer extend an already-completed lawful traffic stop for a canine sniff without reasonable suspicion or other lawful justification? Decision: No. Police must have reasonable suspicion of a crime to extend the stop. Fifth Amendment Johnson v. United States, No. 13-7120 (Definition of “violent felony”) (decision below 526 Fed. Appx. 708 (8th Cir. 2013)) Question Presented: Should mere possession of a short-barreled shotgun be treated as a violent felony under the armed career criminal act? Decision: Part of the definition of “violent felony” (any felony that “involves conduct that presents a serious potential risk of physical injury to another”) in the statute at issue, the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B), is unconstitutionally vague. It asks a court to imagine an “ordinary case” of a crime and assessing whether there is potential risk. Such an exercise is too indeterminate for conviction of a crime. Luis v. United States, No. 14-419 (Government freezing assets needed to hire lawyer) (decision below 564 Fed. Appx. 493 (11th Cir. 2014)) Question Presented: Does the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violate the 5th and 6th Amendments? (also listed under Sixth Amendment cases) Death Row U.S.A. Page 2 Sixth Amendment Hurst v. Florida, No. 14-7505 (Constitutionality of Florida death-sentencing scheme) (decision below 147 So. 3d 435 (Fla. 2014)) Question Presented: Does Florida's death sentencing scheme violate the 6th or 8th Amendments in light of this Court's decision in Ring v. Arizona, 536 U. S. 584 (2002)? (See also cases under Eighth Amendment, below) Luis v. United States, No. 14-419 (Government freezing assets needed to hire lawyer) (decision below 564 Fed. Appx. 493 (11th Cir. 2014)) Question Presented: Does the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violate the 5th and 6th Amendments? Ohio v. Clark, No. 13-1352 (Mandated reporters and Confrontation Clause) (decision below 999 N.E.2d 592 (Ohio 2013)) Questions Presented: (1) Does an individual's obligation to report suspected child abuse make that individual an agent of law enforcement for purposes of the Confrontation Clause? (2) Do a child's out-of-court statements to a teacher in response to the teacher's concerns about potential child abuse qualify as "testimonial" statements subject to the Confrontation Clause? Decision: (1) No. Reporting requirements do not make an individual an agent of law enforcement for 6th Amendment purposes. (2) No. Looking at all the circumstances involved here, a 3-year-old child's statements to a teacher asking about potential child abuse do not qualify as "testimonial" statements subject to the Confrontation Clause, because neither the child nor teacher had the “primary purpose” of assisting in the prosecution of the abuser. The teacher was dealing with determining a potential imminent threat to the child if he was released to an abuser; the purpose of the questioning was not prosecution of the abuser, but safety of the child; the setting was informal and spontaneous; such statements were admissible under common law; and the statements of a young child will rarely be testimonial because the child is too young to have a “purpose” of prosecution. Eighth Amendment Kansas v. Gleason, No. 14-452 (Jury instructions on burden of proof of mitigators) (decision below 329 P.3d 1102 (Kansas 2014)) Question Presented: Does the 8th Amendment require that a capital-sentencing jury be affirmatively instructed that mitigating circumstances "need not be proven beyond a reasonable doubt," as the Kansas Supreme Court held in this case, or instead whether the 8th Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances? Glossip v. Gross, No. 14-7955 (Lethal Injection standards) (decision below 2015 WL 137627 (10th Cir. 2015)) Questions Presented: (1) Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious? (2) Does the Baze-plurality stay standard apply when states are not using a protocol Death Row U.S.A. Page 3 substantially similar to the one that this Court considered in Baze? (3) Must a prisoner establish the availability of an alternative drug formula even if the state's lethal-injection protocol, as properly administered, will violate the 8th Amendment? Decision: In this action seeking a preliminary injunction against the use of midazolam as the first drug in a three-drug execution, the Court held that the standards for issuing an injunction had not been met. It upheld the District Court’s findings that use of midazolam did not create an unacceptable risk of severe pain, and that the petitioners had failed to show, as necessary for an 8th Amendment method of execution claim, that there was a known and acceptable alternative execution method that entailed a lesser risk of pain. Hurst v. Florida, No. 14-7505 (Constitutionality of Florida death-sentencing scheme) (decision below 147 So. 3d 435 (Fla. 2014)) Question Presented: Does Florida's death sentencing scheme violate the 6th or 8th Amendments in light of this Court's decision in Ring v. Arizona, 536 U. S. 584 (2002)? (See also cases under Sixth Amendment, above) Kansas v. Jonathan Carr, No. 14-449 (Jury instructions on burden of proof of mitigators and severance) (decision below 329 P.3d 1195 (Kansas 2014)). Consolidated with Kansas v. Reginald Carr, No. 14-450 (decision below 331 P.3d 544 (Kansas 2014)) Questions Presented: (1) Does the 8th Amendment require that a capital-sentencing jury be affirmatively instructed that mitigating circumstances "need not be proven beyond a reasonable doubt," as the Kansas Supreme Court held here, or instead whether the 8th Amendment is satisfied by instructions that, in context, make clear that each juror must individually assess and weigh any mitigating circumstances? (2) Does the trial court's decision not to sever the sentencing phase of the co-defendant brothers' trial here -- a decision that comports with the traditional approach preferring joinder in circumstances like this -- violate an 8th Amendment right to an "individualized sentencing" determination and was not harmless in any event? Taylor v. Barkes, No. 14-939 (Qualified immunity of prison officials for failure to adequately supervise contractor conducting suicide screenings) (decision below Barkes v. First Correctional Medical, Inc., 766 F.3d 307 (3rd Cir. 2014)) Question Presented (2) Did the 3rd Circuit err in holding that there is a clearly established right under the 8th Amendment to the “proper implementation of adequate suicide prevention protocols?” Decision: There was no clearly established right under the 8th Amendment at the time of the suicide “to the proper implementation of adequate suicide prevention protocols.” (See also Cases Raising Other Important Federal Questions below) Toca v.
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