TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,709 Race of Defendant: White 1,691 (45.59%) Black 1,598 (43.08%) Latino/Latina 337 ( 9.09%) Native American 42 ( 1.13%) Asian 40 ( 1.08%) Unknown at this issue 1 ( .03%) Gender: Male 3,655 (98.54%) Female 54 ( 1.46%) Juveniles: Male 82 ( 2.21%) 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 Summer 2001 Issue of Significant Criminal, Habeas, & Other Pending Cases for Decision in October Term 2001 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment 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 stop of vehicle near Mexican border? 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? 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? 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? 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 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? Death Row U.S.A. Page 2 Eighth Amendment Atkins v. Virginia, No. 00-8452 (Execution of Mentally Retarded Offenders) (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? McCarver v. North Carolina, No. 00-8727 (Constitutionality of executing defendants with mental retardation) (decision below N.C. Sup. Ct., Feb. 27, 2001) Question Presented: Whether significant objective evidence demonstrates that national standards have evolved such that executing a mentally retarded man would violate the 8th Amendment prohibition against cruel and unusual punishment? Decision: The case was dismissed as improvidently granted on September 25, 2001. After the grant of certiorari, the North Carolina legislature passed a statute prohibiting execution of the mentally retarded and directed that the statute have retroactive effect. Fourteenth Amendment Kansas v. Crane, 149 L.Ed. 2d 372 (2001) (Civil commitment of sexual offenders) (decision below 7 P.3d 285 (Kan 2000)) Question Presented: Does 14th Amendment’s due process clause require state to prove that sexually violent predator “cannot control” his criminal sexual behavior before state can civilly commit him for residential care and treatment? Kelly v. South Carolina, 2001 U.S. Lexis 4708 (2001) (Simmons v. South Carolina and future dangerousness) (decision below 540 S.E.2d 851 (S.C. 2001)) Question Presented: Whether the South Carolina courts’ refusal to inform petitioner’s sentencing jury that he would never be eligible for parole if the jury sentenced him to life imprisonment rather than to death violated Simmons v. South Carolina, 512 U.S. 154 (1994). 2. CASES RAISING HABEAS CORPUS QUESTIONS Lee v. Kemna, 149 L.Ed. 2d 103 (2001) (Right to a hearing; Showing of actual innocence) (decision below 213 F.3d 1037 (8th Cir. 2000)) Questions Presented: (1) Did the 8th Circuit err by affirming the district court's denial of a petition for habeas corpus because a defendant's due process rights were violated when the trial court refused to grant him a 19-hour continuance to contact his three subpoenaed alibi witnesses who unexpectedly did not return after a lunch break? (2) Should a habeas corpus hearing have been held to at least consider the testimony of the alibi witnesses? (3) Has Lee made a substantial showing of actual innocence, under Schlup v. Delo, 513 U.S. 298 (1995), for his alibi witnesses to be explored further to prevent a fundamental miscarriage of justice? Newland v. Saffold, No. 01-301 (Tolling of statute of limitations in state post-conviction proceedings) (decision below 250 F.3d 1262 (9th Cir. 2001)) Question Presented: Whether the time during which a petitioner has failed to properly pursue his state collateral remedies falls within the meaning of “pending’ set forth by 28 U.S.. Section 2244(d)(2), the Antiterrorism and Effective Death Penalty Act’s tolling provision. Death Row U.S.A. Page 3 As of October 1, 2001 Total number of executions since the 1976 reinstatement of capital punishment: 732 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 00 01 1020125211818251116231431383156457468988549 Gender Gender of defendants executed Gender of victims total number 732 total number 1135 Female .......................... 7 ( .96%) Female.................... 551 (48.55%) Male .......................... 725 (99.04%) Male ..................... 584 (51.45%) Race Race of defendants executed Race of victims White ......................... 406 (55.46%) White..................... 917 (80.79%) Black.......................... 260 (35.52%) Black..................... 155 (13.66%) Latino/a......................... 48 ( 6.56%) Latino/a.................... 39 ( 3.44%) Native American.................. 13 ( 1.78%) Native American.............. 3 ( .26%) Asian............................ 5 ( .68%) Asian...................... 21 ( 1.85%) Defendant-victim racial combinations White Victim Black Victim Latino/a Victim Asian Victim Native American Victim White Defendant 379 (51.78%) 11 (1.50%) 5 (.68%) 3 (.41%) 0 (0%) Black Defendant 169 (23.09%) 73 (9.97%) 7 (.96%) 6 (.82%) 0 (0%) Latino/a Defendant 27 (3.69%) 2 (.27%) 16 (2.19%) 1 (.14%) 0 (0%) Asian Defendant 1 (.14%) 0 ( 0%) 0 (0%) 4 (.55%) 0 (0%) Native American 12 (1.64%) 0 (0%) 0 (0%) 0 (0%) 1 (.14%) TOTAL: 588 (80.33%) 86 (11.75%) 28 (3.83%) 14 (1.91%) 1 (.14%) Note: In addition, there were 15 defendants executed for the murders of multiple victims of different races. Of those, 8 defendants were white, 5 black and 2 Latino. (2.05%) Death Row U.S.A. Page 4 Execution Breakdown by State State # % of Racial Combinations (see codes Total below) 1. TX 252 34.43 124 W/W (49%); 56 B/W (22%); 22 L/W (9%); 17 B/B 19* 9# 2^ (7%); 14 L/L (6%); 7 B/L (3%); 3 B/A, 3 W/L (1% each); 2 A/A (.8%); 1 N/W, 1 L/B, 1 L/A, 1 W/A (.4% each) 2. VA 82 11.20 35 W/W (43%); 29 B/W (35%); 11 B/B (13%); 2 W/B, 5* 3# 2 W/mix (2% each); 1 L/W, 1 W/A, 1 B/mix (1% each) 3. FL 51 6.97 30 W/W (59%); 10 B/W (20%); 5 B/B (10%); 1 L/W 3* 1^ 1 N/W, 1 L/B, 1 W/L, 1 B/mix, 1 W/mix (2% each) 4. MO 51 6.97 28 W/W (55%); 10 B/W (20%); 11 B/B (22%); 4* 1# 1 N/W, 1 W/B (2% each) 5. OK 45 6.15 21 W/W (47%); 7 B/W (16%); 5 N/W (11%); 4 B/B 5* 1# 2^ (9%); 2 W/B, 2 W/mix (4% each); 1 N/N, 1 B/A, 1 A/A, 1 W/A (2% each) 6. LA 26 3.55 13 W/W (50%); 8 B/W (31%); 5 B/B (19%) 1# 7. SC 25 3.42 10 W/W (40%); 6 B/W (24%); 3 W/B (12%); 2 B/B, 4* 1# 2 W/mix (8% each); 1 B/A, 1 B/mix (4% each) 8.