DEATH ROW U.S.A. Spring 2020 A quarterly report by the NAACP Legal Defense and Educational Fund, Inc. Deborah Fins Consultant to the NAACP Legal Defense and Educational Fund, Inc. Death Row U.S.A. Spring 2020 (As of April 1, 2020) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2603 (2,603 – 183* - 897M = 1523 enforceable sentences) Race of Defendant: White 1,099 (42.22%) Black 1,077 (41.38%) Latinx 352 (13.52%) Native American 27 (1.04%) Asian 47 (1.81%) Unknown at this issue 1 (0.04%) Gender: Male 2,550 (97.96%) Female 53 (2.04%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 30 Alabama, Arizona, Arkansas, CaliforniaM, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, Ohio, Oklahoma, OregonM, PennsylvaniaM, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Wyoming, U.S. Government, U.S. Military. M States where a moratorium prohibiting execution has been imposed by the Governor. JURISDICTIONS WITHOUT DEATH PENALTY STATUTES: 23 Alaska, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Hampshire [see note below], New Jersey, New Mexico, New York, North Dakota, Rhode Island, Vermont, Washington, West Virginia, Wisconsin. [NOTE: New Hampshire repealed the death penalty prospectively. The man already sentenced remains under sentence of death.] * Designates the number of people in non-moratorium states who are not under active death sentence because of court reversal but whose sentence may be reimposed. M Designates the number of people in states where a gubernatorial moratorium on execution has been imposed. Death Row U.S.A. Page 1 In the United States Supreme Court Update to Winter 2020 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2019 or 2020 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Kansas v. Glover, No. 18-556 (Vehicle stop, reasonable suspicion) (decision below 422 P.3d 64 (Kan. 2018)) Question Presented: For purposes of an investigative stop under the 4th Amendment is it reasonable for an officer to suspect that the registered owner of a vehicle is the one driving the vehicle absent any information to the contrary? Torres v. Madrid, No.19-292 (Parameter of “seizure”) (decision below 769 Fed.Appx. 654 (10th Cir. 2019)) Question Presented: Is an unsuccessful attempt to detain a suspect by use of physical force a "seizure" within the meaning of the 4th Amendment, as the 8th, 9th, and 11th Circuits and the New Mexico Supreme Court hold, or must physical force be successful in detaining a suspect to constitute a "seizure," as the 10th Circuit and the D.C. Court of Appeals hold? Sixth Amendment Ramos v. Louisiana, No 18-5924 (Unanimous verdict guarantee) (decision below 231 So.3d 44 (La. App. 4 Cir. 2017)) Question Presented: Does the 14th Amendment fully incorporate the 6th Amendment guarantee of a unanimous verdict? Eighth Amendment Jones v. Mississippi, No. 18-1259 (Juvenile LWOP decisions) (decision below 2015-CT-00899- SCT Miss. 2018) Question Presented: Does the 8th Amendment require the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole? Kahler v. Kansas, No.18-6135 (Insanity defense) (decision below 410 P.3d 105 (Kan. 2018)) Question Presented: Do the 8th and 14th Amendments permit a state to abolish the insanity defense? Decision: The Court finds that Kansas has not abolished the insanity defense, because it allows defendants to argue that mental illness prevented them from forming the criminal intent required for conviction of the crime. Due process does not require that the state also allow defendants to argue a lack of capacity to distinguish right from wrong. The Court will defer to states to develop their own rules on mental health defenses, an area in which science is evolving. Mathena v. Malvo, No. 18-217 (Interpretation of retroactivity decision) (decision below 893 F.3d 265 (4th Cir. 2018)) Question Presented: Did the 4th Circuit err in concluding -- in direct conflict with Virginia's highest court and other courts -- that a decision of this Court (Montgomery v. Death Row U.S.A. Page 2 Louisiana, 136 S. Ct. 718 (2016)), addressing whether a new constitutional rule announced in an earlier decision (Miller v. Alabama, 567 U.S. 460 (2012)), applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question? Decision: Dismissed by stipulation in light of state law making juveniles parole eligible. McKinney v. Arizona, No. 18-1109 (Application of capital law and resentencing) (decision below 426 P.3d 1204 (Ariz. 2018)) Question Presented: 1) Was the Arizona Supreme Court required to apply current law when weighing mitigating and aggravating evidence to determine whether a death sentence is warranted? 2) Does the correction of error under Eddings v. Oklahoma, 455 U.S. 104 (1982), require resentencing? Decision: An appellate court on collateral review may choose a new sentence after a finding of an Eddings error at trial, just as in Clemons the Court held that an appellate court may choose a sentence after deleting an aggravating circumstance. Both are deemed “reweighing” of the circumstances, akin to review for “harmless error,” and not an imposition of sentence. Clemons was not overruled by Ring or Hurst, which are described as holding merely that the jury must decide on aggravating facts that could lead to a death sentence, not that a jury must make the ultimate sentencing decision. The original sentence in this case pre-dated Ring, and Ring is held not to apply to the appellate court decision because it is not a reopening of the direct appeal but a collateral review. Fourteenth Amendment Ramos v. Louisiana, No 18-5924 (Unanimous verdict guarantee) (decision below 231 So.3d 44 (La. App. 4 Cir. 2017)) Question Presented: Does the 14th Amendment fully incorporate the 6th Amendment guarantee of a unanimous verdict? 2. CASES RAISING HABEAS CORPUS QUESTIONS Banister v. Davis, No. 18-6943 (Successive habeas petition) (decision below 5/8/2018 CTA 5 ORDER) Question Presented (By the Court): Whether and under what circumstances should a timely Rule 59 (e) motion be recharacterized as a second or successive habeas petition under Gonzalez v. Crosby, 545 U.S. 524 (2005)? 3. CASES RAISING OTHER IMPORTANT FEDERAL QUESTIONS Borden v. United States, No. 19-5410 (Scope of ACCA crimes) (decision below 769 Fed.Appx. 266 (6th Cir. 2019)) Question Presented: 1. Does the "use of force" clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i) encompass crimes with a mens rea of mere recklessness? Brownback v. King, No. 19-546 (Interplay of FTCA and Bivens) (decision below 917 F.3d 409 (6th Cir. 2019)) Question Presented: Does a final judgment in favor of the US in an action brought under § 1346(b)(1) [Federal Tort Claims Act], on the ground that a private person would not be liable to the claimant under state tort law for the injuries alleged, bar a claim under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), that is brought by Death Row U.S.A. Page 3 the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant's FTCA claim? Carpenter v. Murphy, No. 17-1107 (Jurisdiction, “Indian reservation”) (decision below 875 F.3d 896 (10th Cir. 2017)) Question Presented: Do the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an "Indian reservation" today under 18 U.S.C. § 1151 (a)? Davis v. United States, No. 19–5421 (5th Circuit rule on reviewing “unpreserved” factual claims) (decision below No. 18-10748 (5th Cir. 2019)) Question Presented: Is factual error categorically immune from plain error review? Decision: In a per curiam opinion, the Court held that “there is no legal basis for the 5th Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.” Hernandez v. Mesa, No. 17-1678 (Bivens claim against “rogue” federal officer) (decision below 885 F.3d 811 (5th Cir. 2018)) Question Presented: When plaintiffs plausibly allege that a rogue federal law enforcement officer violated clearly established 4th and 5th Amendment rights for which there is no alternative legal remedy, can and should the federal courts recognize a damages claim under Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971)? Decision: Bivens does not extend to cross-border shootings. The victim was on the Mexico side of the border, while the shooter was on the U.S. side. The Court declines to extend Bivens to cases that might implicate foreign relations and border security. It is up to Congress to make such a decision. Holguin-Hernandez v. United States, No. 18-7739 (Necessity of formal objection for “reasonableness review” of sentence) (decision below 746 Fed.Appx. 403 (5th Cir. 2018)) Question Presented: Is a formal objection after pronouncement of sentence necessary to invoke appellate reasonableness review of the length of a defendant's sentence? Decision: No. Defendant’s argument for a lesser punishment before pronouncement of sentence suffices to preserve the issue of length of sentence for appellate review. McGirt v. Oklahoma, No. 18-9526 (State court jurisdiction in “Indian Country”) (decision below pc-2018-1057 (OK CCA 2019)) Question Presented: Can Oklahoma courts continue to unlawfully exercise, under state law, criminal jurisdiction as "justiciable matter" in Indian Country over Indians accused of major crimes enumerated under the Indian Major Crimes Act - which are under exclusive federal jurisdiction? Walker v.