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Death Row U.S.A DEATH ROW U.S.A. Summer 2017 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 2017 (As of July 1, 2017) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2,817 Race of Defendant: White 1,196 (42.46%) Black 1,168 (41.46%) Latino/Latina 373 (13.24%) Native American 26 (0.92%) Asian 53 (1.88%) Unknown at this issue 1 (0.04%) Gender: Male 2,764 (98.12%) Female 53 (1.88%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 33 Alabama, Arizona, Arkansas, California, Colorado, 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: 20 Alaska, Connecticut, Delaware, 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 [NOTE: New Mexico repealed the death penalty prospectively.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 2017 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2016 or 2017 1. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment Packingham v. North Carolina, No. 15-1194 (Use of websites by sex offender) (decision below 777 S.E.2d 738 (N.C. 2015)) Question Presented: Under this Court's 1st Amendment precedents, is a law which makes it a felony for a registered sex offender to “access” a wide variety of websites permissible, both on its face and as applied to petitioner - who was convicted based on a Facebook "post" in which he celebrated dismissal of a traffic ticket, declaring "God is Good!" Decision: The statute violates the 1st Amendment because it is overly broad, prohibiting access to social media in a way that inhibits the exercise of free speech rights without the state having proven that such a broad prohibition is necessary to keep offenders away from children. Fourth Amendment Carpenter v. United States, No. 16-402 (Warrantless cell phone tracking) (decision below 819 F.3d 880 (6th Cir. 2016)) Question Presented: Is the warrantless seizure and search of historical cell phone records revealing the location and movements of a cell phone user over the course of 127 days permitted by the 4th Amendment? Hernandez v. Mesa, No. 15-118 (Reach of 4th Amendment beyond U.S. border) (decision below 785 F.3d 117 (5th Cir. 2015)) Question Presented: (1) Does a formalist or functionalist analysis govern the extraterritorial application of the 4th Amendment's prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States? (2) May qualified immunity be granted or denied based on facts -- such as the victim's legal status -- unknown to the officer at the time of the incident? (3) [Added by the Court] May the claim in this case be asserted under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971)? Decision: In a per curiam opinion, the Court remanded to the Court of Appeals for consideration of the question addressed by Ziglar v. Abbasi, (see below) whether there is a “special facto[r] counseling hesitation” in making a Bivens remedy available in the circumstances of the case and in the absence of affirmative action by Congress. Fifth Amendment Ashcroft v. Abbasi, No. 15–1358 (Availability of Bivens remedy for post 9/11 detainees) (decision below 789 F.3d 218 (2nd Cir. 2015)), consolidated with Ashcroft v. Abbasi, No. 15– 1359 and Hasty v. Abbasi, No. 15–1363 Questions Presented: 1) Did the 2nd Circuit, in finding that Respondents' 5th Amendment claims did not arise in a "new context" for purposes of implying a remedy under Bivens v. Six Unknown, Named Agents Of The Federal Bureau Of Narcotics, 403 U.S. 388 (1971), err by defining "context" at too high a level of generality where Respondents challenge the actions Death Row U.S.A. Page 2 taken in the immediate aftermath of the attacks of September 11, 2001, by Petitioner James W. Ziglar, then the Commissioner of the US INS, the then-Attorney General of the US, and the then- Director of the FBI regarding the detention of persons illegally in the US whom the FBI had arrested in connection with its investigation of the 9/11 attacks, thereby implicating concerns regarding national security, immigration, and the separation of powers? 2) Did the 2nd Circuit, in denying qualified immunity to Petitioner Ziglar for actions he took in the immediate aftermath of the attacks of 9/11, regarding the detention of persons illegally in the US whom the FBI had arrested in connection with its investigation of those attacks, err: (A) by failing to focus on the specific context of the case to determine whether the violative nature of Mr. Ziglar's specific conduct was at the time clearly established, instead defining the "established law" at the high level of generality that this Court has warned against; and (B) by finding that even though the applicability of 42 U.S.C. § 1985(3) to the actions of federal officials like Petitioner Ziglar was not clearly established at the time in question, Respondents nevertheless could maintain a § 1985(3) claim against him so long as his conduct violated some other clearly established law? 3) Did the 2nd Circuit err in finding that Respondents' Fourth Amended Complaint met the pleading requirements of Ashcroft v. Iqbal, 556 U.S.662 (2009), and related cases, because that complaint relied on allegations of hypothetical possibilities, conclusional assumptions, and unsupported insinuations of discriminatory intent that, at best, are merely consistent with Petitioner Ziglar's liability, but fall short of stating plausible claims? Decision: A Bivens remedy, giving damages for Constitutional violations, is limited and should not be extended to “detention policy” claims challenging restrictive confinement conditions or frequent strip searches. When faced with a new kind of Bivens claim, a court should do a “special factors” analysis to determine whether Congress or the courts should decide to extend the right to a remedy to that situation. Doing that analysis, the Court finds no Bivens claims against the named defendants. Turner v. United States, No. 15-1503 and Overton v. United States, No. 15-1504 (Brady standards) (decision below 116 A.3d 894 (D.C. Cir. 2016)) Question Presented: (By the Court) Must Petitioners’ convictions be set aside under Brady v. Maryland, 373 U.S. 83 (1963)? Decision: No. The evidence withheld by the state was not “material,” although it was favorable to the defense. The evidence that a single person was in the area is not sufficient to undermine confidence in the state’s theory, testified to by multiple witnesses (including co- defendants and disinterested witnesses) that the victim was killed by a group of attackers. The impeachment evidence was, in the context of this case, cumulative and insufficient to undermine confidence in the jury’s verdict. Sixth Amendment Davila v. Davis, No.16-6219 (Ineffective assistance of appellate counsel and waivers) (decision below 650 Fed.Appx. 860 (5th Cir. 2016)) Question Presented: (see Cases Raising Habeas Corpus Questions below) Jae Lee v. United States, No. 16-327 (Effectiveness of counsel and pleas) (decision below 825 F.3d 311 (6th Cir. 2016)) Question Presented: In the context of a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States, is it always irrational for a defendant to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation? Decision: Lee has shown he was prejudiced by his counsel’s unquestionably deficient Death Row U.S.A. Page 3 performance. Deportation was the “determinative” issue for Lee on whether to take the plea, and his counsel’s advice that the plea would not subject him to deportation was wrong. He was prejudiced by forfeiting the right to trial based on erroneous advice of counsel. Chances of success at trial may be relevant for some errors of counsel, but not this one. Weaver v. Massachusetts, No. 16-240 (Structural defects and harmless error analysis) (decision below 54 N.E.3d 495 (Mass. 2016)) Question Presented: Must a defendant asserting ineffective assistance that results in a structural error, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or is prejudice presumed in such cases, as held by four other circuits and two state high courts? Decision: When objection to closure of the courtroom is made at trial and raised on direct appeal, the error should be considered “structural” and no prejudice need be proven. When raised in a post-conviction challenge to counsel’s failure to object to closure, defendant must show a reasonable probability of a different outcome, or that the trial was rendered fundamentally unfair. Eighth Amendment Virginia v. LeBlanc, No. (Conditional geriatric release and life-without-parole sentences for juveniles committed of non-homicide offenses) (decision below LeBlanc v. Mathena, 841 F. 3d 256 (4th Cir. 2016)) Question Presented: Did the 4th Circuit err under AEDPA in holding that the Virginia Supreme Court’s decision in Angel v.
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