DEATH ROW U.S.A. Summer 2006 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. Death Row U.S.A. Summer 2006 (As of July 1, 2006) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,366 Race of Defendant: White 1,525 (45.31%) Black 1,407 (41.80%) Latino/Latina 356 (10.58%) Native American 38 ( 1.13%) Asian 39 ( 1.16%) Unknown at this issue 1 ( .03%) Gender: Male 3,309 (98.31%) Female 57 ( 1.69%) Juveniles:* Male 5 ( .15%) (* NOTE: On March 1, 2005, the U.S. Supreme Court determined in Roper v. Simmons that it is unconstitutional to execute a person for a crime committed when that person was under the age of 18. Only juveniles whose death sentences were vacated by court order or other official action before July 1, 2006 have been removed from the state rosters. The others remain with their names in brackets.) 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 Spring 2006 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2005 or October Term 2006 1. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment Beard v. Banks, No. 04-1739 (Prison policy prohibiting access to any material that isn’t legal or religious) (decision below 399 F.3d 134 (3rd Cir. 2005)) Question Presented: Does a prison policy that denies newspapers, magazines, and photographs to the most difficult inmates in the prison system in an effort to promote security and good behavior violate the First Amendment under the standards of Turner [v. Safley, 482 U.S. 78 (1987)] and Overton [v. Bazzetta, 539 U.S. 126 (2003)]? Decision: The First Amendment is not violated by the policy, which is “reasonably related to legitimate penological interests,” i.e., creating a system of incentives for improved behavior by particularly difficult prisoners. If the restriction were permanent, the Court might reach a different conclusion. Hartman v. Moore, No. 04-1495 (Liability for retaliatory prosecution) (decision below 388 F.3d 871 (D.C. Cir. 2004)) Question Presented: Whether law enforcement agents may be liable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for retaliatory prosecution in violation of the 1st Amendment when the prosecution was supported by probable cause? Decision: Federal law enforcement agents may not be liable under Bivens if the prosecution was supported by probable cause. Fourth Amendment Brigham City, Utah v. Stuart, No. 05-502 (“Emergency aid exception” to warrant requirement) (decision below 2005 UT 13 (2005)) Questions Presented: (1) Does the “emergency aid exception” to the warrant requirement recognized in Mincey v. Arizona, 437 U.S. 385 (1978), turn on an officer’s subjective motivation for entering the home? (2) Was the gravity of the “emergency” or “exigency” sufficient to justify, under the 4th Amendment, the officers’ entry into the home to stop the fight? Decision: In evaluating entry to a home without a warrant, courts must look at whether there was an objectively reasonable basis for believing that someone inside is seriously injured or imminently threatened with such an injury. The “tumult” and “fracas” in this case was sufficient, and the entry was not unconstitutional. Hudson v. Michigan, No. 04-1360 (Inevitable discovery doctrine) (decision below unpublished (Mich. Ct. App. 1/17/04)) Question Presented: Does the inevitable discovery doctrine create a per se exception to the exclusionary rule for evidence seized after a 4th Amendment “knock and announce” violation, as the 7th Circuit and the Michigan Supreme Court have held, or is evidence subject to suppression after such violations, as the 6th and 8th Circuits, the Arkansas Supreme Court, and the Maryland Court of Appeals have held? Death Row U.S.A. Page 2 Decision: Violation of the “knock-and-announce” rule does not require the suppression of evidence seized in a resulting search. Samson v. California, No. 04-9728 (Warrantless search of parolee) (decision below unpublished (Cal. App. 10/14/04)) Question Presented: Does the 4th Amendment prohibit police from conducting a warrantless search of a person who is subject to parole search conditions, when there is no suspicion of criminal wrongdoing and the sole reason for the search is that the person is on parole? Decision: The reasonableness of a search is determined by looking at the “totality of circumstances,” the degree to which an expectation of privacy has been violated and the interest of the government in invading the person’s privacy. Parolees do not have the same expectation of privacy as other citizens because they are still in the legal custody of the state and subject to the terms of their release from prison. Under such circumstances, the 4th Amendment does not prohibit a suspicionless search of a parolee. Fifth Amendment Burton v. Waddington, No. 05-9222 (Retroactivity of Blakely) (decision below unpublished; 142 Fed. Appx. 297 (9th Cir. 2005)) Questions Presented: (1) Is the holding in Blakely a new rule or is it dictated by Apprendi? (2) If Blakely is a new rule, does its requirement that facts resulting in an enhanced statutory maximum be proved beyond a reasonable doubt apply retroactively? Sixth Amendment Cunningham v. California, No. 05-6551 (Enhanced sentencing by judges) (decision below unpublished; Cal. Ct. App., 1st App. Dist., 4/18/05)) Question Presented: Whether California’s Determinate Sentencing Law, by permitting sentencing judges to impose enhanced sentences based on their determination of facts not found by the jury or admitted by the defendant, violates the 6th and 14th Amendments. Davis v. Washington, No. 05-5224 (Testimonial statement under Crawford) (decision below 111 P.3d 844 (Wash. 2005)) Question Presented: Whether an alleged victim’s statements to a 911 operator naming her assailant — admitted as “excited utterances” under a jurisdiction’s hearsay law — constitute “testimonial” statements subject to Confrontation Clause restrictions enunciated in Crawford v. Washington, 541 U.S. 36 (2004). Decision: Statements are nontestimonial when made in the course of police investigation where objective circumstances show that the purpose of the police questioning is to help them deal with an ongoing emergency. Where the objective circumstances show there is no emergency, and the questioning is to establish what happened, relevant to future criminal proceedings, the statements made in response to the police questioning are testimonial. The statements to the 911 operator were not testimonial, because they were about a current emergency and designed to obtain police help. Hammon v. Indiana, No. 05-5705 (Testimonial statement under Crawford) (decision below 829 N.E.2d 444 (Ind. 2005)) Question Presented: Whether an oral accusation made to an investigating officer at the Death Row U.S.A. Page 3 scene of an alleged crime is a testimonial statement within the meaning of Crawford v. Washington, 541 U.S. 36 (2004). Decision: (Decided with Davis v. Washington, above) When the officers arrived, there was no emergency. Questioning was about events that had concluded. The primary purpose of the questioning was to determine whether a crime had occurred. The statements in response were testimonial, and should have been excluded. Holmes v. South Carolina, No. 04-1327 (Admissibility of evidence of another person’s guilt) (decision below 605 S.E.2d 19 (S.C. 2004)) Question Presented: Whether South Carolina’s rule governing the admissibility of third- party guilt evidence violates a criminal defendant’s constitutional right to present a complete defense grounded in the Due Process, Confrontation and Compulsory Process Clauses? Decision: A rule that prohibits the defendant from introducing evidence of another person’s guilt if the state’s evidence against him is “strong” is unconstitutional. United States v. Gonzalez-Lopez, No. 05-352 (Representation by counsel of choice) (decision below 399 F.3d 924 (8th Cir. 2005)) Question Presented: Whether a district court’s denial of a criminal defendant’s qualified right to be represented by counsel of choice requires automatic reversal of his conviction. Decision: A criminal defendant who is erroneously denied his choice of counsel is entitled to reversal of his conviction. The error is not subject to harmless error analysis. Eighth Amendment Hill v. McDonough, No. 05-8794 (Execution protocol and § 1983 action) (decision below unreported (11th Circuit 1/24/06)) Questions Presented: (1) Whether a complaint brought under 42 U.S.C. § 1983 by a death- sentenced state prisoner, who seeks to stay his execution in order to pursue a challenge to the chemicals utilized for carrying out the execution, is properly recharacterized as a habeas corpus petition under 28 U.S.C. § 2254? (2) Whether, under this Court’s decision in Nelson v. Campbell, 541 U.S. 637 (2004), a challenge to a particular protocol the State plans to use during the execution process constitutes a cognizable claim under 42 U.S.C. § 1983? Decision: The prisoner’s action challenging lethal injection is not a claim that must be brought in habeas, but may properly be litigated under 42 U.S.C.