DEATH ROW U.S.A. Fall 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. Fall 2020 (As of October 1, 2020) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2553 (2553 – 180* - 877M = 1496 enforceable sentences) Race of Defendant: White 1,076 (42.15%) Black 1,062 (41.60%) Latino/Latina 343 (13.44%) Native American 24 (0.94%) Asian 47 (1.84%) Unknown at this issue 1 (0.04%) Gender: Male 2,502 (98.00%) Female 51 (2.00%) 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 [NOTE: New Hampshire repealed the death penalty prospectively.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 Summer 2020 Issue of Significant Criminal & Other Pending Cases for Cases to Be Decided in October Term 2019 or October Term 2020 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment 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 Edwards v. Vannoy, No. 19-5807 (Retroactivity of Ramos) (decision below Case No. 18-31095 (5th Cir. 5/20/19 denial of COA)) Question Presented: Does the Court’s decision in Ramos v. Louisiana, 590 U.S. ___ (2020), apply retroactively to cases on federal collateral review? Eighth Amendmentp 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? 2. 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 (the "ACCA"), 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 United States 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 the same claimant, based on the same injuries, and against the same governmental employees whose acts gave rise to the claimant's FTCA claim? Death Row U.S.A. Page 2 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)? Decision: Yes. In a per curiam opinion citing McGirt (see below), the Court affirmed the 10th Circuit’s decision that the Creek Nation remains intact and Oklahoma did not have jurisdiction over major crimes. 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? Decision: No. The state courts have no jurisdiction in Indian Country over Indians accused of crimes enumerated in the IMCA. The land reserved for the Creek Nation in Oklahoma has not been ceded to the state, and remains “Indian Country.” Death Row U.S.A. Page 3 Execution Update As of October 1, 2020 Total number of executions since the 1976 reinstatement of capital punishment: 1526 100 98 85 80 74 71 68 66 65 56 59 60 60 53 52 45 42 46 43 43 38 37 39 35 40 31 31 28 21 25 23 23 25 22 18 18 16 20 20 11 14 14 5 1 0 2 0 1 2 0 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 Race of defendants executed Race of victims total number 1526 total number 2229 White 855 (56.03%) White 1687 (75.68%) BlacK 519 (34.01%) BlacK 339 (15.21%) Latino/a 128 (8.39%) Latin 155 (6.95%) Native American 17 (1.11%) Native American 7 (0.31%) Asian 7 (0.46%) Asian 41 (1.84%) Gender of defendants executed Gender of victims Female 16 (1.05%) Female 1099 (49.30%) Male 1510 (98.95%) Male 1130 (50.70%) Defendant-victim racial combinations White Victim BlacK Victim Latino/a Victim Asian Victim Native American Victim White Defendant 791 51.83% 21 1.38% 18 1.18% 6 0.39% 0 0% BlacK Defendant 294 19.27% 176 11.53% 20 1.31% 16 1.05% 0 0% Latino/a Defendant 55 3.60% 3 0.20% 62 4.06% 2 0.13% 0 0% Asian Defendant 2 0.13% 0 0% 0 0% 5 0.33% 0 0% Native Amer. Def. 14 .92% 0 0% 0 0% 0 0% 3 0.20% TOTAL: 1156 75.75% 200 13.11% 100 6.55% 29 1.90% 3 0.20% Note: In addition, there were 38 defendants executed for the murders of multiple victims of different races. Of those, 21 defendants were white, 11 blacK and 6 Latino. (2.49%) Death Row U.S.A. Page 4 Execution Breakdown by State State # % of Racial Combinations (see codes Total below) 1. TX 570 37.35 227 W/W (40%); 109 B/W (19%); 67 B/B (12%); 55 L/L 28* 13# 6^ (10%); 45 L/W (8%); 18 B/L (3%); 13 W/L, 10 B/A ( 2% each); 6 W/mix (1%); 4 W/B (.7%); 3 L/mix (.5%); 2 L/B, 2 L/A, 2 A/A, 2 N/W, 2 W/A, 2 B/mix (.4% each) 2. VA 113 7.40 48 W/W (43%); 36 B/W (32%); 13 B/B (12%); 4 W/B, 4 10* 3# 1^ W/mix (4% EACH); 3 L/W (3%); 1 B/L, 1 B/A, 1 W/A, 1 A/W, 1 B/mix (.9% each) 3. OK 112 7.34 61 W/W (55%); 17 B/W (15%); 14 B/B (13%); 5 N/W (5%); 3 7* 2# 3^ W/A (3%); 2 W/B, 2 B/A, 2 A/A, 2 W/mix (2% each); 1 N/N, 1 W/L, 1 B/L, 1 L/L (.9% each) 4. FL 99 6.49 58 W/W (59%); 18 B/W (18%); 8 B/B (8%); 4 L/W (4%); 3 10* 2^ W/mix (3% each); 2 L/L, 2 B/mix (2% each); 1 N/W, 1 L/B, 1 W/L, 1 L/mix (1% each) 5. MO 90 5.90 54 W/W (60%); 17 B/W, 17 B/B (19% each); 1 N/W, 1 W/B 5* 1# (1% each) 6. GA 76 4.98 48 W/W (63%); 18 B/W (24%); 10 B/B (13%) 1* 2# 1^ 7. AL 67 4.39 37 W/W (55%); 18 B/W (27%); 10 B/B (15%); 1 W/B, 1 7* 1^ B/mix % each) 8. OH 56 3.67 34 W/W (61%); 8 B/W, 8 B/B (14% each); 2 W/mix, 2 B/mix 6* (4% each); 1 B/A, 1 W/B (2% each) 9. NC 43 2.82 28 W/W (65%); 7 B/B (16%); 6 B/W (14%); 1 W/B, 1 N/N 4* 1^ (2% each) 10. SC 43 2.82 20 W/W (47%); 11 B/W (26%); 5 W/B (12%); 4 B/B (9%); 2 10* 1# W/mix (5%); 1 B/A (2%) 11. AZ 37 2.42 27 W/W (73%); 3 L/L (8%); 2 N/W (5%); 1 B/W, 1 L/W, 1 5* W/L, 1 W/mix, 1 L/mix (3% each) 12.