DEATH ROW U.S.A. SPRING 2003 (As of April 1, 2003) A quarterly report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc. Deborah Fins, Esq. Director of Research and Student Services, Criminal Justice Project NAACP Legal Defense and Educational Fund, Inc. TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,525 Race of Defendant: White 1,610 (45.67%) Black 1,490 (42.27%) Latino/Latina 344 ( 9.76%) Native American 39 ( 1.11%) Asian 41 ( 1.16%) Unknown at this issue 1 ( .03%) Gender: Male 3,477 (98.64%) Female 48 ( 1.36%) Juveniles: Male 82 ( 2.33%) 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 Winter 2003 Issue of Significant Criminal, Habeas, & Other Pending Cases for October Term 2002 and Cases to Be Decided in October Term 2003 1. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment Overton v. Bazzetta, No. 02-0094 (Prisoners’ rights to non-contact visitation) (decision below 286 F.3d 311 (6th Cir. 2002)) Questions Presented: (1) Whether prisoners have a right to non-contact visitation protected by the 1st and 14th Amendments. (2) Whether the restrictions on non-contact prison visitation imposed by the Michigan Department of Corrections are reasonably related to legitimate penological interests. 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? Decision: The First Amendment permits Virginia to outlaw cross burnings done with the intent to intimidate because burning a cross is a particularly virulent form of intimidation. Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a signal of impending violence. The case was remanded for consideration of an instruction given to the jury on prima facie evidence of intent to intimidate. Fourth Amendment Arizona v. Grant, No. 02-1019 (Search of vehicle) (decision below 43 P.3d 188 (2d DCA Az. 2003)) Question Presented: When police arrest the recent occupant of a vehicle outside the vehicle, are they precluded from searching the vehicle pursuant to New York v. Belton unless the arrestee was actually or constructively aware of the police before getting out of the vehicle? Maryland v. Pringle, No. 02-0809 (Arrest of car occupants) (decision below unreported (Md. Ct. App. 2002)) Question Presented: Where drugs and a roll of cash are found in the passenger compartment of a car with multiple occupants, and all deny ownership, does the 4th Amendment prohibit a police officer from arresting the occupants of the car? United States v. Banks, No. 02-473 (Knock and announce search) (decision below 282 F.3d 699 (9th Cir. 2003)) Questions Presented: Did law enforcement officers executing warrant to search for illegal drugs violate Fourth Amendment and 18 U.S.C. § 3109, thereby requiring suppression of evidence, when they forcibly entered small apartment in middle of afternoon 15-20 seconds after knocking and announcing their presence? Death Row U.S.A. Page 2 Fifth Amendment Price v. Vincent, No. 02-524 (Double jeopardy) (decision below 292 F.3d 506 (6th Cir. 2002)) Questions Presented: (2) Was habeas petitioner twice placed in jeopardy by action of trial court in first granting motion for directed verdict on issue of first-degree murder and shortly thereafter withdrawing its grant, when both initial decision and its recall occurred out of presence of jury? (3) Should this Court grant certiorari to resolve split of opinion within federal courts of appeals and within Sixth Circuit and state courts on question of whether double jeopardy principles were violated in factually similar situations? Sattazahn v. Pennsylvania, No. 01-7574 (Double jeopardy / due process; Death sentence after imposition of life sentence) (decision below 763 A.2d 359 (Pa. 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? Decision: Neither the double-jeopardy bar nor the right to due process protect petitioner against Pennsylvania's seeking and obtaining the death penalty on retrial. Any "life" or "liberty" interest that Pennsylvania law may have given petitioner in the first proceeding's life sentence was not immutable, and he was "deprived" of any such interest only by operation of the "process" he invoked to invalidate the underlying first-degree murder conviction. United States v. Patane, No. 02-1183 (Suppression of physical evidence derived from unwarned but voluntary statement) (decision below 304 F.3d 1013 (10th Cir. 2002)) Questions Presented: Whether a failure to give a suspect the warnings prescribed by Miranda v. Arizona, 384 U.S. 436 (1966), requires the suppression of physical evidence derived from the suspect's unwarned but voluntary statement? Sixth Amendment Banks v. Cockrell, No. 02-8286 (Ineffective assistance of counsel ) (decision below unreported (5th Cir. 2002)) Question Presented: (2) Did the Fifth Circuit act contrary to Strickland v. Washington, 466 U.S. 668 (1984) and Williams v. Taylor, 529 U.S. 362 (2000), where it weighed each item of mitigating evidence separately and concluded that no single category would have brought a different result at sentencing without weighing the impact of the evidence collectively? Fellers v. United States, No. 02-6320 (Statements elicited by government; post-indictment interview without counsel) (decision below 285 F.3d 721 (8th Cir. 2002)) Questions Presented: (1) Did the 8th Circuit err when it concluded that Feller's 6th Amendment right to counsel under Massiah v. United States, 377 U.S. 201 (1964), was not violated because he was not interrogated by government agents when the proper standard under Supreme Court precedent is whether the government agents deliberately elicited information from him? (2) Should second statements, preceded by Miranda warnings, have been suppressed as fruits of an illegal post-indictment interview without the presence of counsel, under this Court's decisions in Nix v. Williams, 467 U.S. 431 (1984), and Brown v. Illinois, 422 U.S. 590 (1975)? Death Row U.S.A. Page 3 Wiggins v. Corcoran, No. 02-311 (Ineffective assistance of counsel / reasonable investigation) (decision below 288 F.3d 629 (4th Cir. 2002)) Question Presented: Does defense counsel in capital case violate requirements of Strickland v. Washington by failing to investigate available mitigating evidence that could have convinced jury to impose life sentence, as this court concluded in Williams v. Taylor, and most courts of appeals have concluded, or is defense counsel’s decision not to investigate such evidence “virtually unchallengeable” so long as counsel knows rudimentary facts about the defendant’s background, as Fourth Circuit held in this case? Eighth Amendment Ewing v. California, No. 01-6978 (California “Three Strikes” law & cruel & unusual punishment clause) (decision below unreported (2nd DCA Ca. 2001)) Question Presented: Does petitioner’s twenty-five-years-to-life prison sentence violate the federal constitutional provision against cruel and unusual punishments because his sentence is grossly disproportionate to the offense of stealing golf clubs? Decision: Three justices (O’Connor, Rehnquist and Kennedy) concluded that the punishment was not grossly disproportionate, but was “justified by the State's public-safety interest in incapacitating and deterring recidivist felons,” and “supported by [Ewing’s] own long, serious criminal record.” Two justices (Scalia and Thomas) opined that the Eighth Amendment does not prohibit disproportionate punishments except as to the mode of punishment, rather than the length of a sentence. Lockyer v. Andrade, No. 01-1127 (California three-strikes law & cruel & unusual punishments clause) (decision below 270 F.3d 743 (9th Cir. 2001)) Question Presented: (1) Does California’s three-strikes law, which provides for prison term of 25 years to life for third strike conviction, violate Eighth Amendment’s prohibition against cruel and unusual punishment when applied to a defendant