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Death Row U.S.A DEATH ROW U.S.A. Fall 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. Fall 2015 (As of October 1, 2015) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2,959 Race of Defendant: White 1,262 (42.65%) Black 1,234 (41.70%) Latino/Latina 382 (12.91%) Native American 30 (1.01%) Asian 50 (1.69%) Unknown at this issue 1 (0.03%) Gender: Male 2,905 (98.18%) Female 54 (1.82%) 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 [NOTE: New Mexico repealed the death penalty prospectively.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 Summer 2015 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2015 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fifth Amendment 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? 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: (See cases under Fifth Amendment, above) Eighth Amendment Hurst v. Florida, No. 14-7505 (Constitutionality of Florida death-sentencing scheme) (decision below 147 So. 3d 435 (Fla. 2014)) Question Presented: (See 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? 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 Death Row U.S.A. Page 2 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? 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? 2. CASES RAISING HABEAS CORPUS QUESTIONS Montgomery v. Louisiana, No. 14-280 (Retroactivity of decision prohibiting mandatory life sentences for juveniles) (decision below 141 So. 3d 264 (La. 2014)) Questions Presented: (1) Does Miller v. Alabama adopt a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison? (2) (Added by the Court) Does the Court have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to Miller? 3. CASES RAISING OTHER IMPORTANT FEDERAL QUESTIONS Lockhart v. United States, No. 14-8358 (Interpretation of criminal statutes) (decision below 749 F.3d 148 (2nd Cir. 2014)) Question Presented: Is § 2252(b)(2)'s mandatory minimum sentence triggered by a prior conviction under a state law relating to "aggravated sexual abuse" or "sexual abuse," even though the conviction did not "involv[e] a minor or ward," an issue that divides the federal courts of appeals? Musacchio v. United States, No. 14-1095 (Burden of government proof; reviewability of issue not raised at or before trial) (decision below 590 Fed. Appx. 359 (5th Cir. 2015)) Questions Presented: (1) Does the law-of-the-case doctrine require the sufficiency of the evidence in a criminal case to be measured against the elements described in the jury instructions where those instructions, without objection, require the government to prove additional or more stringent elements than do the statute and indictment? (2) Is a statute-of-limitations defense not raised at or before trial reviewable on appeal? Ocasio v. United States, No. 14-361 (Requirements for extortion) (decision below 750 F.3d 399 (4th Cir. 2014)) Question Presented: Does a conspiracy to commit extortion require that the conspirators agree to obtain property from someone outside the conspiracy? Torres v. Lynch, No. 14-1096 (State offenses aggravating federal) (decision below 764 F.3d 152 (2nd Cir. 2014)) Question Presented: Does a state offense constitute an aggravated felony under 8 U.S.C. § 1101(a)(43), on the ground that the state offense is "described in" a specified federal statute, where the federal statute includes an interstate commerce element that the state offense lacks? Death Row U.S.A. Page 3 As of October 1, 2015 Total number of executions since the 1976 reinstatement of capital punishment: 1415 Race of defendants executed Race of victims total number 1415 total number 2077 White 786 (55.55%) White 1571 (75.64%) Black 492 (34.77%) Black 319 (15.36%) Latino/a 114 (8.06%) Latin 142 (6.84%) Native American 16 (1.13%) Native American 5 (0.24%) Asian 7 (0.49%) Asian 40 (1.93%) Gender of defendants executed Gender of victims Female 16 (1.13%) Female 1014 (48.82%) Male 1399 (98.87%) Male 1063 (51.18%) Defendant-victim racial combinations White Victim Black Victim Latino/a Victim Asian Victim Native American Victim White Defendant 728 51.45% 20 1.41% 17 1.20% 6 0.42% 0 0% Black Defendant 280 19.79% 165 11.66% 20 1.41% 15 1.06% 0 0% Latino/a Defendant 48 3.39% 3 0.21% 55 3.89% 2 0.14% 0 0% Asian Defendant 2 0.14% 0 0% 0 0% 5 0.35% 0 0% Native Amer. Def. 14 .99% 0 0% 0 0% 0 0% 2 0.14% TOTAL: 1072 75.76% 188 13.29% 92 6.50% 28 1.98% 2 0.14% Note: In addition, there were 33 defendants executed for the murders of multiple victims of different races. Of those, 17 defendants were white, 10 black and 6 Latino. (2.33%) Death Row U.S.A. Page 4 Execution Breakdown by State State # % of Racial Combinations (see codes Total below) 1. TX 528 37.31 211 W/W (40%); 105 B/W (20%); 62 B/B (12%); 49 L/L 27* 13# 6^ (9%); 40 L/W (8%); 18 B/L (3%); 12 W/L, 9 B/A ( 2% each); 4 W/mix (.8%); 3 W/B, 3 L/mix (.6% each); 2 L/B, 2 L/A, 2 A/A, 2 N/W, 2 W/A, 2 B/mix (.4% each) 2. OK 112 7.92 61 W/W (55%); 17 B/W (15%); 14 B/B (13%); 5 N/W (5%); 3 7* 2# 3^ W/A (3%); 2 W/B, 2 B/A, 2 A/A, 2 W/mix (2% each); 1 N/N, 1 W/L, 1 B/L, 1 L/L (.9% each) 3. VA 110 7.77 48 W/W (44%); 35 B/W (32%); 13 B/B (12%); 4 W/B (4%); 3 10* 3# 1^ W/mix (3%); 2 L/W (2%); 1 B/L, 1 B/A, 1 W/A, 1 A/W, 1 B/mix (.9% each) 4. FL 90 6.36 51 W/W (57%); 18 B/W (20%); 8 B/B (9%); 3 L/W (3%); 2 10* 2^ L/L, 2 W/mix, 2 B/mix, (2% each); 1 N/W, 1 L/B, 1 W/L, 1 L/mix (1% each) 5. MO 86 6.08 50 W/W (58%); 17 B/W, 17 B/B (20% each); 1 N/W, 1 W/B 5* 1# (1% each) 6. GA 58 4.10 38 W/W (66%); 14 B/W (24%); 6 B/B (10%) 2# 1^ 7.
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