DEATH ROW U.S.A. Winter 2014 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. Winter 2014 (As of January 1, 2014) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,070 Race of Defendant: White 1,323 (43.09%) Black 1,284 (41.82%) Latino/Latina 388 (12.64%) Native American 30 (0.98%) Asian 44 (1.43%) Unknown at this issue 1 (0.03%) Gender: Male 3,010 (98.05%) Female 60 (1.95%) 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 [see note below], District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland [see note below], Massachusetts, Michigan, Minnesota, New Jersey, New Mexico [see note below], New York, North Dakota, Rhode Island, Vermont, West Virginia, Wisconsin. [NOTE: Connecticut, Maryland and New Mexico repealed the death penalty prospectively. The men already sentenced in each state remain under sentence of death.] Death Row U.S.A. Page 1 In the United States Supreme Court Update to Fall 2013 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases Decided or to Be Decided in October Term 2012 or 2013 1. CASES RAISING CONSTITUTIONAL QUESTIONS Article I § 10 Ex Post Facto Clause Peugh v. United States, No. 12-62 (Use of sentencing guidelines) (decision below 675 F.3d 736 (7th Cir. 2012)) Question Presented: Does a sentencing court violate the Ex Post Facto Clause by using the U.S. Sentencing Guidelines in effect at the time of sentencing rather than the Guidelines in effect at the time of the offense, if the newer Guidelines create a significant risk that the defendant will receive a longer sentence? Decision: Yes. The Guidelines in effect at the time of the offense must be applied. United States v. Kebodeaux, No. 12-418 (Retroactive application of sex offender registration act) (decision below 687 F.3d 232 (5th Cir. 2012)) Questions Presented: (1) Did the court of appeals err in conducting its constitutional analysis on the premise that respondent was not under a federal registration obligation until SORNA was enacted, when pre-SORNA federal law obligated him to register as a sex offender? (2) Did the court of appeals err in holding that Congress lacks the Article I authority to provide for criminal penalties under 18 U.S.C. 2250(a)(2)(A), as applied to a person who was convicted of a sex offense under federal law and completed his criminal sentence before SORNA was enacted? Decision: Yes. Respondent was under obligation under prior law to register. (2) The prior law was passed under authority granted by the Military Regulation Clause, Art. I, §8, cl. 14, and the Necessary and Proper Clause. Fourth Amendment Fernandez v. California, No. 12-7822 (Continuing assertion of 4th Amendment rights) (decision below 208 Cal.App.4th 100 (2012)) Question Presented: What is the proper interpretation of Georgia v. Randolph, 547 U.S. 103 (2006), specifically, must a defendant be personally present and objecting when police officers ask a co-tenant for consent to conduct a warrantless search or is a defendant's previously-stated objection, while physically present, to a warrantless search a continuing assertion of 4th Amendment rights which cannot be overridden by a co-tenant? Maryland v. King, No. 12-207 (Collection of DNA from arrestees) (decision below 425 Md. 550 (Ct. App. Md. 2012)) Question Presented: Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes? Decision: Yes. The Court likens DNA collection to fingerprinting and photographing, and holds it is a “reasonable” search after weighing the level of intrusion against the benefits of accurate identification of criminals. Death Row U.S.A. Page 2 Missouri v. McNeely, No. 11-1425 (Blood sample from drunk driver) (decision below 358 S.W.3d 65 (2012)) Question Presented: May a law enforcement officer obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the 4th Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream? Decision: No. The natural dissipation of alcohol in the blood is insufficient justification for creating a per se rule that the police may take a blood sample without obtaining a warrant. Fifth Amendment Alleyne v. United States, No. 11-9335 (Element of offense vs. sentencing factor) (decision below 457 Fed.Appx. 348 (4th Cir. 2011)) Question Presented: Should Harris v. United States, 536 U.S. 545 (2002), be overruled? Decision: Yes. Harris is overruled. Because mandatory minimum sentences increase the penalty for a crime, any fact that increases the mandatory minimum is an “element” of the offense that must be submitted to a jury and not determined by a judge. Kansas v. Cheever, No. 12-609 (State’s use of evidence from court-ordered mental exam) (decision below 284 P.3d 1007 (Kan. Sup. Ct. 2012)) Question Presented: When a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant's methamphetamine use, does the State violate the defendant's 5th Amendment privilege against self-incrimination by rebutting the defendant's mental state defense with evidence from a court-ordered mental evaluation of the defendant? Decision: When a defendant introduces expert testimony about his mental status from an expert who examined him, the state does not violate his 5th Amendment rights by introducing rebuttal testimony from another expert even if the expert’s examination was pursuant to a court order in a prior case. Salinas v. Texas, No. 12-246 (5th Amendment rights before arrest) (decision below 369 S.W.3d 176 (Tex. CCA 2012)) Question Presented: Does the 5th Amendment's Self-Incrimination Clause protect a defendant's refusal to answer law enforcement questioning before he has been arrested or read his Miranda rights, and if so, under what circumstances? Decision: A plurality of the Court asserts that a person must expressly invoke his 5th Amendment right not to answer in order to raise a claim that the right was denied, with two exceptions not applicable in this case: 1) he need not assert it on the stand at trial and 2) government coercion excuses failure to invoke the privilege. Merely remaining silent is not an invocation of the privilege. Two additional justices assert that petitioner would not be entitled to relief even if he had invoked the privilege because the prosecutor’s comments on his silence would not “compel” him to give self-incriminating information. White v. Woodall, No. 12-794 (Instruction on failure to testify in penalty phase of capital case) (decision below 685 F.3d 574 (6th Cir. 2012)) (See description under habeas cases, below.) Death Row U.S.A. Page 3 Sixth Amendment Boyer v. State of Louisiana, No. 11-9953 (Speedy trial and failure to appoint counsel) (decision below 56 So. 3d 1119 (La. Ct. App. 3rd Cir. 2011)) Question Presented: Should a state's failure to fund counsel for an indigent defendant for five years, particularly where failure was the direct result of the prosecution's choice to seek the death penalty, be weighed against the state for speedy trial purposes? Decision: Certiorari was dismissed as improvidently granted. Burt v. Titlow, No. 12-414 (Adequacy of counsel regarding pleas) (decision below 680 F.3d 577 (6th Cir. 2012)) Question Presented: (3) Does Lafler always require a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to "remedy" the violation of the defendant's constitutional right? (See also habeas cases below) Decision: Having concluded that the 6th Circuit erred in finding counsel ineffective, the Court declined to address the issue of resentencing. 2. CASES RAISING HABEAS CORPUS QUESTIONS Burt v. Titlow, No. 12-414 (AEDPA and adequacy of counsel regarding pleas) (decision below 680 F.3d 577 (6th Cir. 2012)) Questions Presented: (1) Did the 6th Circuit fail to give appropriate deference to a Michigan state court under AEDPA in holding that defense counsel was constitutionally ineffective for allowing Respondent to maintain his claim of innocence? (2) Is a convicted defendant's subjective testimony that he would have accepted a plea but for ineffective assistance, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea? (See also 6th Amendment cases above) Decision: (1) Yes, the 6th Circuit did not use the “doubly deferential” standard of review required in guilty plea cases. The state and district court’s findings were not an unreasonable interpretation of the facts. (2) In light of the Court’s holding on the ineffectiveness issue, the Court declined to address the second issue. Descamps v. United States, No. 11-9540 (Proof of missing element of offense) (decision below 466 Fed.Appx. 563 (9th Cir. 2012)) Question Presented: Did the 9th Circuit err by applying its ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) that, where the burglary statute is missing an element of the generic crime, a state conviction may be subject to the modified categorical approach? Decision: The modified categorical approach does not apply to statutes like the one at issue which have a single, indivisible set of elements rather than alternative elements.