DEATH ROW U.S.A. Spring 2019 A quarterly report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc. Deborah Fins Consultant to the Criminal Justice Project NAACP Legal Defense and Educational Fund, Inc. Death Row U.S.A. Spring 2019 (As of April 1, 2019) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2673 (2,673 - 230* - 923M = 1520 enforceable sentences) Race of Defendant: White 1,122 (41.98%) Black 1,114 (41.68%) Latino/Latina 359 (13.43%) Native American 28 (1.05%) Asian 49 (1.83%) Unknown at this issue 1 (0.04%) Gender: Male 2,619 (97.98%) Female 54 (2.02%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 32 Alabama, Arizona, Arkansas, CaliforniaM, ColoradoM, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, 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: 21 Alaska, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Jersey, New Mexico [see note below], New York, North Dakota, Rhode Island, Vermont, Washington, West Virginia, Wisconsin. [NOTE: New Mexico repealed the death penalty prospectively. The men already sentenced remain under sentence of death.] * Designates the number of people 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 2019 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2018 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment Mitchell v. Wisconsin, No. 18-6210 (Blood draw from unconscious motorist) (decision below 914 N.W.2d 151 (Wisc. 2018)) Question Presented: Does a statute authorizing a blood draw from an unconscious motorist provide an exception to the 4th Amendment warrant requirement? Nieves v. Bartlett, No. 17-1174 (Probable cause to arrest) (decision below 712 Fed.Appx. 613 (9th Cir. 2017)) Question Presented: In Hartman v. Moore, 547 U.S. 250 (2006), the Court held that probable cause defeats a 1st Amendment retaliatory-prosecution claim under 42 U.S.C. § 1983 as a matter of law. Does probable cause likewise defeat a 1st Amendment retaliatory-arrest claim under § 1983? Fifth Amendment Gamble v. United States, No. 17-646 (Double jeopardy “separate sovereigns” exception) (decision below 694 Fed.Appx. 750 (11th Cir. 2017)) Question Presented: Should the Court overrule the "separate sovereigns" exception to the Double Jeopardy Clause? Sixth Amendment Garza v. Idaho, No. 17-1026 (Failure to file notice of appeal and presumption of prejudice) (decision below 405 P.3d 576 (Idaho 2017)) Question Presented: Does the "presumption of prejudice" recognized in Roe v. Flores- Ortega, 528 U.S. 470 (2000), apply where a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant's plea agreement included an appeal waiver? Decision: Yes. The waiver of an appeal in a plea agreement does not necessarily bar the defendant from an appeal on all issues. Some issues may be outside the scope of the agreement. The government may forfeit or waive the waiver, or the waiver may be waived if the government breaches the agreement. The waiver within the agreement may not have been knowing and voluntary. Counsel must therefore file a notice of appeal, which preserves the right to appeal and imposes no burden upon counsel. 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 Eighth Amendment Bucklew v. Precythe, No. 17-8151, (Means of execution) (decision below 883 F.3d 1087 (8th Cir. 2018)) Questions Presented: 1) Should a court evaluating an as-applied challenge to a state's method of execution based on an inmate's rare and severe medical condition assume that medical personnel are competent to manage his condition and that the procedure will go as intended? 2) Must evidence comparing a state's proposed method of execution with an alternative proposed by an inmate be offered via a single witness, or should a court at summary judgment look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate? 3) Does the 8th Amendment require an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state's proposed method of execution based on his rare and severe medical condition? 4) (Added by the Court) Has petitioner met his burden under Glossip v. Gross, 576 U.S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the state’s method of execution? 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? Madison v. Alabama, No. 17-7505 (Execution of person whose cognitive impairments leave him with no memory of the crime or understanding of the circumstances of execution) (decision below cc-1985-001385.80 (11th Cir. 2018)) Questions Presented: 1) Consistent with the 8th Amendment and USSC decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense? 2) Do evolving standards of decency and the 8th Amendment's prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? Decision: A prisoner’s lack of memory of the commission of his crime will not bar his execution if he comprehends the reason for his execution, although the lack of memory may be a factor in deciding whether he lacks comprehension. The prisoner need not suffer from a psychotic disorder, as was the case in prior incompetence-to-be-executed cases. Other brain disorders, including dementia and stroke, may render a person incompetent. The determination to be made is “whether he can reach a rational understanding of why the State wants to execute him.” 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? Death Row U.S.A. Page 3 Moore v. Texas, No. 18-443 (Standard for evaluating intellectual disability) (decision below Ex parte Moore, 548 S. W. 3d 552 (Tex. Crim. App. 2018)) Questions Presented: 1) Do the 8th Amendment and the Court’s decision in Moore v. Texas, 137 S. Ct. 1039 (2017) prohibit relying on non-clinical criteria and lay stereotypes, rather than current medical standards, to determine whether a capital defendant is intellectually disabled? 2) Does it violates the 8th Amendment to proceed with an execution when the prosecutor and the defendant both agree that the defendant is intellectually disabled and may not be executed? Decision: The Court finds that the TCCA’s analysis, although superficially acknowledging the correct standard for determining intellectual disability, “when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.” When that improper analysis is excluded, there is insufficient reason to contradict the trial court’s finding of intellectual disability, conceded by the district attorney (with opposition from the state Attorney General). The Court finds intellectual disability based on the trial record. Fourteenth Amendment Flowers v. Mississippi, No. 17-9572 (Application of Batson) (decision below 240 So.3d 1082 (Miss. 2018)) Question Presented: (By the Court) Did the Mississippi Supreme Court err in how it applied Batson v. Kentucky, 476 U.S. 79 (1986) in this case? 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? Timbs v. Indiana, No.17-1091 (Incorporation of 8th Amendment under 14th Amendment) (decision below 84 N.E.3d 1179 (Ind. 2017)) Question Presented: Is the 8th Amendment's Excessive Fines Clause incorporated against the States under the 14th Amendment? Decision: Yes. The 14th Amendment incorporates protections within the Bill of Rights that are “fundamental to our scheme of ordered liberty,” or “deeply rooted in this Nation’s history and tradition.” 2. CASES RAISING HABEAS CORPUS QUESTIONS Shoop v. Hill, No. 18-56 (“Clearly established” law regarding intellectual disability) (decision below Hill v.