TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,718 Race of Defendant: White 1,683 (45.27%) Black 1,605 (43.17%) Latino/Latina 348 ( 9.36%) Native American 41 ( 1.10%) Asian 40 ( 1.08%) Unknown at this issue 1 ( .03%) Gender: Male 3,666 (98.60%) Female 52 ( 1.40%) Juveniles: Male 83 ( 2.23%) 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 Spring 2002 Issue of Significant Criminal, Habeas, & Other Pending Cases for Decision in October Term 2001 and October Term 2002 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? Decision: By a 5-4 vote, the majority holds that this provision is a classic restraint on the First Amendment that is not justified by a compelling state interest. Candidates for judicial office, like candidates for other offices, should be free to speak about problems within the courts short of making promises to rule in certain ways. Virginia v. Black, No. 01-1107 (Cross-burning prosecution) (decision below 553 S.E.2d 738 (Va. 2002)) Question Presented: Does Virginia statute that bans cross-burning with intent to intimidate violate First Amendment, even though statute reaches all such intimidation and is not limited to any racial, religious, or other content-focused category? 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? Decision: Because this policy reasonably serves the school district’s important interest in detecting and preventing drug use among students, it is constitutional. Here, a search unsupported by probable cause is reasonable because of the special needs of the school setting. Kirk v. Louisiana, No. 01-8419 (Warrantless entry into home) (decision below 773 So. 2d 259 (La. App. 2000)) Decision: (Per Curiam) Warrantless search and arrest of Kirk in his home in the absence of exigent circumstances would plainly violate the Fourth Amendment. Case is remanded for determination of whether exigent circumstances were present. Death Row U.S.A. Page 2 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)? Decision: No, a six Justice majority concludes. The Fourth Amendment does not require police officers to advise bus passengers of their right not to cooperate with police-initiated suspicionless searches. The fact that three officers stationed themselves inside the bus, requested passengers for their cooperation and asked some if they would submit to a pat-down and search of their luggage, does not mean that any of the passengers were “seized” within the meaning of the Fourth Amendment. As respondents were not subjected to an unreasonable “search” their consent to be searched was voluntary. The touchstone for such encounters continues to be an objective appraisal of the totality of the circumstances. 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? Decision: A plurality of four justices, joined in judgment only by Justice O’Connor, concludes there is no Fifth Amendment violation on these facts. Four justices conclude that the program serves an important purpose, offers rehabilitation, and does not amount to compelled self-incrimination even though the program does not offer legal immunity. Justice O’Connor provides the fifth vote, acknowledges that the Court is split on the appropriate standard for evaluating compulsion for Fifth Amendment purposes, but concludes that the penalties for not cooperating are not sufficient to amount to coercion. Sattazahn v. Pennsylvania, No. 01-7574 (Double jeopardy / due process; Death sentence 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 Death Row U.S.A. Page 3 Amendment right to counsel? Decision: A five-justice majority affirms the state supreme court and holds that imposition of a suspended sentence invokes the 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? Decision: Five justices, in two opinions, conclude that the Apprendi rule does not require that juries, as opposed to judges, make the factual determination necessary to impose a mandatory minimum sentence. Ring v. Arizona, No. 01-488 (Apprendi & capital punishment) (decision below 25 P.3d 1139 (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. Decision: A seven-justice majority overrules Walton after concluding that it cannot survive in the wake of Apprendi. Juries, not judges, must determine whether or not the facts presented by the government render a defendant eligible for a capital sentence. 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? Decision: A six-justice majority holds that execution of people with mental retardation