Death Row U.S.A

DEATH ROW U.S.A. Summer 2019 A quarterly report by the NAACP Legal Defense and Educational Fund, Inc. Deborah Fins Consultant to the NAACP Legal Defense and Educational Fund, Inc. Death Row U.S.A. Summer 2019 (As of July 1, 2019) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2656 (2,656 - 187* - 918M = 1551 enforceable sentences) Race of Defendant: White 1,120 (42.17%) Black 1,104 (41.57%) Latino/Latina 355 (13.37%) Native American 27 (1.02%) Asian 49 (1.84%) Unknown at this issue 1 (0.04%) Gender: Male 2,601 (97.93%) Female 55 (2.07%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 31 Alabama, Arizona, Arkansas, CaliforniaM, ColoradoM, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma, OregonM, PennsylvaniaM, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wyoming, U.S. Government, U.S. Military. M States where a moratorium prohibiting execution has been imposed by the Governor. JURISDICTIONS WITHOUT DEATH PENALTY STATUTES: 22 Alaska, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire [see note below], New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, Washington, West Virginia, Wisconsin. [NOTE: New Hampshire repealed the death penalty prospectively. The man already sentenced remains under sentence of death.] * Designates the number of people in non-moratorium states who are not under active death sentence because of court reversal but whose sentence may be reimposed. M Designates the number of people in states where a gubernatorial moratorium on execution has been imposed. Death Row U.S.A. Page 1 In the United States Supreme Court Update to Spring 2019 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2018 or 2019 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Kansas v. Glover, No. 18-556 (Vehicle stop, reasonable suspicion) (decision below 422 P.3d 64 (Kan. 2018)) Question Presented: For purposes of an investigative stop under the 4th Amendment is it reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary? Mitchell v. Wisconsin, No. 18-6210 (Blood draw from unconscious motorist) (decision below 914 N.W.2d 151 (Wisc. 2018)) Question Presented: Does a statute authorizing a blood draw from an unconscious motorist provide an exception to the 4th Amendment warrant requirement? Decision: A plurality of the Court holds that the “exigent circumstances” exception will “almost always” allow a warrantless blood draw to be done on an unconscious person. Nieves v. Bartlett, No. 17-1174 (Probable cause to arrest) (decision below 712 Fed.Appx. 613 (9th Cir. 2017)) Question Presented: In Hartman v. Moore, 547 U.S. 250 (2006), the Court held that probable cause defeats a 1st Amendment retaliatory-prosecution claim under 42 U.S.C. § 1983 as a matter of law. Does probable cause likewise defeat a 1st Amendment retaliatory-arrest claim under § 1983? Decision: Yes. Probable cause defeats a First Amendment retaliatory-arrest claim under § 1983. Fifth Amendment Gamble v. United States, No. 17-646 (Double jeopardy “separate sovereigns” exception) (decision below 694 Fed.Appx. 750 (11th Cir. 2017)) Question Presented: Should the Court overrule the "separate sovereigns" exception to the Double Jeopardy Clause? Decision: The Court declines to overrule the dual sovereignty doctrine, which it finds is not an exception to the Double Jeopardy Clause, but “flows from the text” of the clause, that is, one cannot be tried twice for the same “offense,” but an “offense” derives from a particular law, and thus a crime that derives from the statute of one sovereign is not the same as a crime deriving from the statute of a different sovereign. Sixth Amendment Ramos v. Louisiana, No 18-5924 (Unanimous verdict guarantee) (decision below 231 So.3d 44 (La. App. 4 Cir. 2017)) Question Presented: Does the 14th Amendment fully incorporate the 6th Amendment guarantee of a unanimous verdict? Death Row U.S.A. Page 2 United States v. Haymond, No. 17-1672 (Right to jury determination of facts increasing punishment) (decision below 869 F.3d 1153 (10th Cir. 2017)) Question Presented: Did the court of appeals err in holding "unconstitutional and unenforceable" the portions of 18 U.S.C. § 3583(k) that required the district court to revoke respondent's ten-year term of supervised release, and to impose five years of reimprisonment, following its finding by a preponderance of the evidence that respondent violated the conditions of his release by knowingly possessing child pornography? Decision: A statute allowing revocation of supervised release and requiring imposition of a mandatory minimum sentence based on facts found by a judge rather than a jury under a “preponderance of the evidence” standard violates the 6th Amendment right to a jury and 5th Amendment right to due process, particularly where the resulting sentence exceeded that permitted by the original conviction. Eighth Amendment Bucklew v. Precythe, No. 17-8151, (Means of execution) (decision below 883 F.3d 1087 (8th Cir. 2018)) Questions Presented: 1) Should a court evaluating an as-applied challenge to a state's method of execution based on an inmate's rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended? 2) Must evidence comparing a state's proposed method of execution with an alternative proposed by an inmate be offered via a single witness, or should a court at summary judgment look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate? 3) Does the 8th Amendment require an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state's proposed method of execution based on his rare and severe medical condition? 4) (Added by the Court) Has petitioner met his burden under Glossip v. Gross, 576 U.S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution? Decision: When challenging a means of execution, whether on its face or as applied, “a prisoner must show a feasible and readily implemented alternative method of execution that would significantly reduce a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason.” The cruelty of a method of execution can only be determined by comparing it to an available alternative to see if pain and suffering are “superadded” to the execution by the choice of method. Although an inmate need not propose an alternative authorized by the laws of the executing state, Bucklew’s proposed alternative, death by nitrogen hypoxia, was not described in his pleadings in sufficient detail so as to assure the courts that the method could be carried out “relatively easily and reasonably quickly.” It is a method that other states have only proposed be studied, and it has never been implemented. Bucklew could not show that his alternative method would provide a difference in risk of pain that is “clear and considerable.” Kahler v. Kansas, No.18-6135 (Insanity defense) (decision below 410 P.3d 105 (Kan. 2018)) Question Presented: Do the 8th and 14th Amendments permit a state to abolish the insanity defense? Death Row U.S.A. Page 3 Mathena v. Malvo, No. 18-217 (Interpretation of retroactivity decision) (decision below 893 F.3d 265 (4th Cir. 2018)) Question Presented: Did the 4th Circuit err in concluding -- in direct conflict with Virginia's highest court and other courts -- that a decision of this Court (Montgomery v. Louisiana, 136 S. Ct. 718 (2016)), addressing whether a new constitutional rule announced in an earlier decision (Miller v. Alabama, 567 U.S. 460 (2012)), applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question? McKinney v. Arizona, No. 18-1109 (Application of capital law and resentencing) (decision below 426 P.3d 1204 (Ariz. 2018)) Question Presented: 1) Was the Arizona Supreme Court required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted? 2) Does the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), require resentencing? Fourteenth Amendment Flowers v. Mississippi, No. 17-9572 (Application of Batson) (decision below 240 So.3d 1082 (Miss. 2018)) Question Presented: (By the Court) Did the Mississippi Supreme Court err in how it applied Batson v. Kentucky, 476 U.S. 79 (1986) in this case? Decision: Yes. The defendant was tried 6 times by the same prosecutor for the same crime. The Court concludes that evidence from all 6 trials is relevant in evaluating the prosecutor’s use of peremptory challenges against potential African American jurors in the 6th trial. The Court concludes that four facts, taken together, show the trial court committed clear error in concluding that the strikes were not racially motivated: 1) the State used 41 of 42 peremptory challenges to strike black prospective jurors; 2) in the 6th trial, the State used peremptory challenges to strike 4 of 5 prospective black jurors; 3) in the 6th trial, the State engaged in “dramatically disparate questioning” of black and white prospective jurors; 4) in the 6th trial, the state struck a black juror who was similarly situated to white jurors. Ramos v. Louisiana, No 18-5924 (Unanimous verdict guarantee) (decision below 231 So.3d 44 (La.

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