DEATH ROW U.S.A. Fall 2019 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 2019 (As of October 1, 2019) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2639 (2,639 – 181* - 913M = 1545 enforceable sentences) Race of Defendant: White 1,112 (42.14%) Black 1,100 (41.68%) Latino/Latina 351 (13.30%) Native American 27 (1.02%) Asian 48 (1.82%) Unknown at this issue 1 (0.04%) Gender: Male 2,586 (97.99%) Female 53 (2.01%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 31 Alabama, Arizona, Arkansas, CaliforniaM, ColoradoM, 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: 22 Alaska, 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 [NOTE: New Hampshire repealed the death penalty prospectively.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 2019 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2019 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? 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 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? 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. 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? 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? 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? Death Row U.S.A. Page 2 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 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)? 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)? 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? Death Row U.S.A. Page 3 Execution Update As of October 1, 2019 Total number of executions since the 1976 reinstatement of capital punishment: 1506 Race of defendants executed Race of victims total number 1506 total number 2200 White 841 (55.84%) White 1662 (75.55%) Black 515 (34.20%) Black 339 (15.41%) Latino/a 127 (8.43%) Latin 153 (6.95%) Native American 16 (1.06%) Native American 5 (0.23%) Asian 7 (0.46%) Asian 41 (1.86%) Gender of defendants executed Gender of victims Female 16 (1.06%) Female 1082 (49.18%) Male 1490 (98.94%) Male 1118 (50.82%) Defendant-victim racial combinations White Victim Black Victim Latino/a Victim Asian Victim Native American Victim White Defendant 777 51.59% 21 1.39% 18 1.20% 6 0.40% 0 0% Black Defendant 290 19.26% 176 11.69% 20 1.33% 16 1.06% 0 0% Latino/a Defendant 55 3.65% 3 0.20% 61 4.05% 2 0.13% 0 0% Asian Defendant 2 0.13% 0 0% 0 0% 5 0.33% 0 0% Native Amer. Def. 14 .93% 0 0% 0 0% 0 0% 2 0.13% TOTAL: 1138 75.56% 200 13.28% 99 6.57% 29 1.93% 2 0.13% 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. (2.52%) Death Row U.S.A. Page 4 Execution Breakdown by State State # % of Racial Combinations (see codes Total below) 1. TX 565 37.52 224 W/W (40%); 108 B/W (19%); 67 B/B (12%); 55 L/L 27* 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 7.50 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 7.44 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 6.57 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 88 5.84 52 W/W (59%); 17 B/W, 17 B/B (19% each); 1 N/W, 1 W/B 5* 1# (1% each) 6. GA 74 4.91 47 W/W (64%); 17 B/W (23%); 10 B/B (14%) 1* 2# 1^ 7. AL 66 4.38 37 W/W (56%); 17 B/W (26%); 10 B/B (15%); 1 W/B, 1 7* 1^ B/mix (2% each) 8. OH 56 3.72 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 2.86 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 2.86 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 2.46 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. AR 31 2.06 20 W/W (65%); 7 B/W (23%); 3 B/B (10%); 1 L/W (3%) 4* 1^ 13. LA 28 1.86 15 W/W (54%); 8 B/W (29%); 5 B/B (18%) 1* 1# 14.