! DEATH ROW U.S.A. Summer 2016 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 2016 (As of July 1, 2016) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2,905 Race of Defendant: White 1,230 (42.34%) Black 1,214 (41.79%) Latino/Latina 380 (13.08%) Native American 27 (0.93%) Asian 53 (1.82%) Unknown at this issue 1 (0.03%) Gender: Male 2,850 (98.11%) Female 55 (1.89%) 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, 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 [NOTE: New Mexico repealed the death penalty prospectively. The men already sentenced remain under sentence of death.] Death Row U.S.A. Page 1 In the United States Supreme Court Update to Spring 2016 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2015 or 2016 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Bernard v. Minnesota, No. 14-1470 (Criminalization of refusal to take blood alcohol test) (decision below 859 N.W.2d 762 (Minn. 2015)) Consolidated with Beylund v. Levi, No. 14-1507 (decision below 859 N.W.2d 403 (ND 2015)) Birchfield v. North Dakota, No. 14-1468 (decision below 858 N.W.2d 302 (ND 2015)) Question Presented: In the absence of a warrant, may a State make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person's blood? Decision: A warrantless breath test for alcohol incident to a drunk driving arrest is constitutional. A warrantless blood test is not. A person cannot be prosecuted for refusing to consent to a warrantless blood alcohol test. Utah v. Strieff, No. 14-1373 (Arrest pursuant to outstanding warrant uncovered during unlawful investigatory stop) (decision below 2015 WL 223953 (1/16/15)) Question Presented: Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful? Decision: No. Under “the attenuation doctrine,” evidence is admissible when there is an “intervening circumstance” between unconstitutional police conduct and the discovery of the evidence. Here, after an unconstitutional investigatory stop the police discovered an outstanding arrest warrant and then searched the defendant. The police conduct was not flagrantly illegal, which weighed against suppression of the evidence. Fifth Amendment Bravo-Fernandez v. United States, No. 15-537 (Double jeopardy acquittal and inconsistent verdicts) (decision below 790 F.3d 41 (1st Cir. 2015)) Question Presented: (1) Under Ashe v. Swenson, 397 U.S. 436 (1970) and Yeager v. United States, 557 U.S. 110 (2009), can a vacated, unconstitutional conviction cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause? McDonnell v. United States, No.15-474 (Interpretation and constitutionality of Hobbs Act) (decision below 792 F.3d 478 (4th Cir. 2015)) Question Presented: (1) Is "official action" under the Hobbs Act limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and must the jury be so instructed; or, if not so limited, are the Hobbs Act and honest-services fraud statute unconstitutional? Decision: (1) An “official act” is more than “setting up a meeting, calling another public official, or hosting an event.” By narrowing the possible definition of “question” and “matter” under the statute, the Court finds the statute not unconstitutional. But since the jury was instructed under a broader definition of “official act,” the conviction must be reversed. Death Row U.S.A. Page 2 Puerto Rico v. Sanchez Valle, No. 15-108 (Dual sovereignty Puerto Rico/US and double jeopardy) (decision below 2015 WL 1317010 (Sup. Ct. PR March 20, 2015)) Question Presented: Are the Commonwealth of Puerto Rico and the Federal Government separate sovereigns for purposes of the Double Jeopardy Clause of the United States Constitution? Decision: No. The question of whether a government is a separate sovereign for double jeopardy purposes depends on the source of the government’s prosecutorial power. Although the US Congress granted self-rule to the Commonwealth, the source of its prosecutorial power is still the US Congress. Welch v. United States, No. 15-6418 (Convictions qualifying for sentence enhancement) (decision below 14-15733 order (11th Cir. June 9, 2015)) Question Presented: (2) Did Johnson v. United States, 135 S. Ct. 2551 (2015), announce a new substantive rule of constitutional law that applies retroactively to cases that are on collateral review? (See also question under Cases Raising Other Important Federal Questions below) Decision: Yes. Johnson -- which held part of the federal law enhancing sentences for felons in possession of a gun unconstitutionally vague -- is retroactive. It is a substantive rule which changes the conduct or person subject to a criminal law. Sixth Amendment Betterman v. Montana, No. 14-1457 (Speedy Trial requirements for sentencing phase) (decision below 342 P.3d 971 (Mont. 2015)) Question Presented: Does the 6th Amendment's Speedy Trial Clause apply to the sentencing phase of a criminal prosecution, protecting a criminal defendant from inordinate delay in final disposition of his case? Decision: No. The 6th Amendment’s speedy trial guarantee attaches when a defendant is arrested or formally charged, and ends once the defendant has been found guilty at trial or has pleaded guilty to criminal charges. After conviction, rules, statutes and due process offer a defendant the only recourse against inordinate delay. Pena-Rodriguez v. Colorado, No. 15-606 (Impeaching jury to prove racial discrimination) (decision below 350 P.3d 287 (Colo. 2015)) Question Presented: May a no-impeachment rule constitutionally bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury? Eighth Amendment Moore v. Texas, No. 15-797 (Standard for determination of intellectual disability in death penalty cases) (decision below 470 S.W.3d 481 (Tex. Ct. Crim. App. 2015)) Question Presented: Does it violate the 8th Amendment and this Court's decisions in Hall v. Florida, 134 S. Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed? Death Row U.S.A. Page 3 Williams v. Pennsylvania, No. 15-5040 (Former prosecuting attorney as judge on case he prosecuted) (decision below 105 A.3d 1234 (Pa. 2015)) Question Presented: Are the 8th and 14th Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive? Decision: (See cases under Fourteenth Amendment, below) Fourteenth Amendment Foster v. Chatman, No. 14-8349 (Batson standard) (decision below Sup. Ct. Ga. Case No. S14e0771 (Nov. 3, 2014)) Question Presented: Did the Georgia courts err in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case? Decision: Yes. The Georgia courts’ denial of relief was clearly erroneous. Foster established a Batson violation as to 2 of the black jurors excluded. The record refuted the prosecutor’s explanations for striking the jurors. The explanations were either patently not true, or facially reasonable explanations for the strike were equally applicable to white jurors who were not struck. The prosecution’s “shifting explanations, misrepresentations of the record, and persistent focus on race” leads to the conclusion that discriminatory intent was a substantial motivating factor for the strikes. Lynch v. Arizona, No. 15–8366 (Right to inform jury of LWOP alternative to death sentence where future dangerousness at issue) (decision below 357 P. 3d 119 (Ariz. 2015)) Question Presented: Did the Arizona Supreme Court commit federal constitutional error when it determined that Lynch was not entitled to an instruction pursuant to Simmons v. South Carolina, 512 U.S. 154 (1994)? Decision: Yes. In a per curiam opinion the Court held that, as in Simmons, where the state inserts the issue of future dangerousness into the life or death decision in a capital case and the alternative to death is life in prison without parole, the defendant has the right under Due Process to insist that the jury be so informed. Williams v. Pennsylvania, No. 15-5040 (Former prosecuting attorney as judge on case he prosecuted) (decision below 105 A.3d 1234 (Pa. 2015)) Question Presented: Are the 8th and 14th Amendments violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive? (See cases under Eighth Amendment, above) Decision: It is a violation of the Due Process Clause of the 14th Amendment for a prosecutor to later serve as a judge in a case in which he had significant personal involvement as a prosecutor and had been involved in a critical decision in the case, such as the decision to seek the death penalty. There is “an impermissible risk of actual bias” in such circumstances. The error is structural, meaning it is not subject to harmless error review even if the judge did not cast a deciding vote in the appeal.