TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,701 Race of Defendant: White 1,678 (45.34%) Black 1,593 (43.04%) Latino/Latina 347 ( 9.38%) Native American 41 ( 1.11%) Asian 41 ( 1.11%) Unknown at this issue 1 ( .03%) Gender: Male 3,647 (98.54%) Female 54 ( 1.46%) Juveniles: Male 83 ( 2.24%) JURISDICTIONS WITH CAPITAL PUNISHMENT STATUTES: 40 (Underlined jurisdiction has statute but no sentences imposed) Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming, U.S. Government, U.S. Military. JURISDICTIONS WITHOUT CAPITAL PUNISHMENT STATUTES: 13 Alaska, District of Columbia, Hawaii, Iowa, Maine, Massachusetts, Michigan, Minnesota, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. Death Row U.S.A. Page 1 In the United States Supreme Court Update to Winter 2002 Issue of Significant Criminal, Habeas, & Other Pending Cases for Decision in October Term 2001 1. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment Republican Party of Minnesota v. Kelly, No. 01-521 (Judicial Candidate speech & Code of Judicial Conduct) (decision below 247 F.3d 854 (8th Cir. 2001)) Question Presented: Does provision of Minnesota Code of Judicial Conduct that prohibits candidate for elective judicial office from “announc[ing] his or her views on disputed legal or political issues” unconstitutionally impinge on freedom of speech as guaranteed by First and Fourteenth Amendments? Fourth Amendment Board of Education of Independent School District No. 92 of Pottawatomie County, Okla. v. Earls, No. 01-332 (Suspicionless searches & extracurricular activities) (decision below 242 F.3d 1264 (10th Cir. 2001)) Question Presented: Did Tenth Circuit properly determine that board of education cannot validly exercise its judgment in effort to deter and eliminate student drug use by enacting suspicionless drug-testing policy covering students who voluntarily engage in interscholastic competition unless board has first specifically identified and quantified actual drug users among students to be tested? United States v. Arvizu, 150 L.Ed. 2d 208 (2001) (Border search; Use of “totality of circumstances” test) (decision below 232 F.3d 1241 (9th Cir. 2000)) Questions Presented: (1) Did court of appeals erroneously depart from totality-of- circumstances test that governs reasonable suspicion determinations under the 4th Amendment by holding that seven facts observed by law enforcement officer were entitled to no weight and could not be considered as matter of law? (2) Under totality-of-circumstances test, did Border Patrol agent in this case have a reasonable suspicion that justified a stop of vehicle near Mexican border? Decision: Court of appeals erred in focusing upon only the factors it articulated and not the totality of the circumstances. All the circumstances in this case -- the route taken by the van, the unusual behavior by the children, and the registry of the van to a high-drug neighborhood, yielded a reasonable suspicion of criminal activity to the experienced border patrol agent. Court reaffirms that appellate review of such decisions are de novo. United States v. Drayton, No. 01-631 (Warrantless search on bus) (decision below 231 F.3d 787 (11th Cir. 2001)) Question Presented: Has officer who informs passenger on bus that officer is conducting drug and illegal weapons interdiction and asks passenger for consent to search, while another officer stays at front of bus without blocking exit, effective “seizure” of that passenger within meaning of Fourth Amendment and Florida v. Bostick, 501 U.S. 429 (1991)? Death Row U.S.A. Page 2 United States v. Knights, 149 L.Ed. 2d 752 (2001) (Breadth of probationer’s consent to search) (decision below 219 F.3d 1138 (9th Cir. 2000)) Question Presented: Does defendant’s agreement to term of probation that authorized any law enforcement officer to search his person or premises with or without warrant, and with or without individualized suspicion of wrongdoing, constitute valid consent to search by law enforcement officer investigating crimes? Decision: In this case, the search did not violate the Fourth Amendment because the police had reasonable suspicion that Knights was engaged in criminal conduct. The fact that Knights had consented to probationary searches pursuant to gaining release on probation is but one factor that suggests the Fourth Amendment was not violated in this case. Fifth Amendment McKune v. Lile, 149 L.Ed. 2d 752 (2001) (Revocation of privileges in correctional setting and Fifth Amendment) (decision below 224 F.3d 1175 (10th Cir. 2000)) Question Presented: Does revocation of correctional institution privileges violate Fifth Amendment’s privilege against self-incrimination when prisoner has no liberty interest in lost privileges and such revocation is based upon prisoner’s failure to accept responsibility for his crimes as part of sex offender treatment program? Sattazahn v. Pennsylvania, No. 01-7574 (Double Jeopardy / Due Process; Sentence to death after imposition of life sentence) (decision below, 763 A.2d 359 (2000)) Questions Presented: (1) Does the Double Jeopardy Clause of the Fifth Amendment bar imposition of the death penalty upon reconviction after an initial conviction, set aside on appeal, in which the trial court imposed a statutorily mandated life sentence when the capital sentencing jury failed to reach a unanimous verdict? (2) Is a capital defendant’s life and liberty interest in the imposition of a life sentence by operation of state law, following a capital sentencing hearing in which the sentencing jury fails to reach a unanimous verdict, violated when his first conviction is later overturned and the state seeks and obtains a death sentence on retrial? Sixth Amendment Alabama v. Shelton, 149 L.Ed. 2d 752 (2001) (Right to counsel & imposition of conditional sentence) (decision below 67 Crim.L. Rep. 356 (2000)) Question Presented: In light of “actual imprisonment” standard established in Argersinger v. Hamlin, 407 U.S. 5 (1972), and refined in Scott v. Illinois, 440 U.S. 367 (1979), does imposition of suspended or conditional sentence in misdemeanor case invoke defendant’s Sixth Amendment right to counsel? Harris v. United States, No. 00-10666 (Apprendi rule and mandatory minimums) (decision below 243 F.3d 806 (4th Cir. 2001)) Question Presented: Given that finding of “brandishment,” as used in 18 U.S.C. § 924(c) (1)(A), results in increased mandatory minimum sentence, must fact of “brandishing” be alleged in indictment and proved beyond reasonable doubt? Mickens v. Taylor, Warden, 149 L.Ed. 2d 467 (2001) (Standard for assessing Sixth Amendment conflict of interest claims) (decision below 240 F.3d 348 (4th Cir. 2001)) Question Presented: Did the Court of Appeals err in holding that a defendant must show Death Row U.S.A. Page 3 an actual conflict of interest and an adverse effect in order to establish a Sixth Amendment violation where a trial court fails to inquire into a potential conflict of interest about which it reasonably should have known? Decision: In a 5-4 vote, the Court held that the Cuyler, rather than Holloway, rule applied. Because the record showed no adverse effect on Mickens’s defense from his lead attorney’s former representation of the crime victim in this case, no constitutional violation was proven. For 28 U.S.C. § 2254(d) purposes, Cuyler does not provide a clearly established rule for conflict of interest cases arising from trial counsel’s relationship with someone other than a co-defendant. Ring v. Arizona, No. 01-488 (Apprendi & Capital Punishment) (decision below, 25 P.3d1139 (Ariz. 2001)) Question Presented: Walton v. Arizona, 497 U.S. 639 (1990), held that Arizona’s capital sentencing statute, which assigns solely to the trial judge the responsibility for making the findings of fact which are necessary to subject a defendant to a death sentence, does not contravene the Sixth Amendment’s jury-trial right as made applicable to the States through the Fourteenth Amendment’s Due Process Clause. The question presented is whether Walton should be overruled in light of this Court’s subsequent holding, in Apprendi v. New Jersey, 530 U.S. 466 (2000), that “for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed” (id. at 490 (internal quotation marks omitted)) violates the defendant’s Sixth Amendment right to a jury trial. Eighth Amendment Atkins v. Virginia, No. 00-8452 (Constitutionality of executing defendants with mental retardation) (decision below 534 S.E.2d 312 (Va. 2000)) Question Presented: Whether the execution of mentally retarded individuals convicted of capital crimes violates the Eighth Amendment? Lockyer v. Andrade, No. 01-1127 (California three-strikes law & cruel & unusual punishments clause) (decision below 270 F.3d 743 (9th Cir. 2001)) Questions Presented: (1) Does California’s three-strikes law, which provides for prison term of 25 years to life for third strike conviction, violate Eighth’s Amendment prohibition against cruel and unusual punishment when applied to defendant whose third strike conviction is for petty larceny with prior theft-related convictions? (2) In light of this Court’s existing jurisprudence concerning Eighth Amendment and proportionality in noncapital cases, did judgment of California Court of Appeal upholding habeas corpus petitioner’s sentence involve unreasonable application of clearly established federal law as determined by this Court within meaning of 28 U.S.C. § 2254 (d)(1)? (3) Is Ninth Circuit correct concerning necessity for habeas court analyzing claim under AEDPA to first decide if state court’s determination was erroneous before deciding whether determination was contrary to, or involved unreasonable application of, clearly established federal law as determined by this court, or is Fourth Circuit’s contrary view, expressed in Bell v.