DEATH ROW U.S.A. Fall 2016 A quarterly report by the Criminal Justice Project of the NAACP Legal Defense and Educational Fund, Inc. Deborah Fins, Esq. Consultant to the Criminal Justice Project NAACP Legal Defense and Educational Fund, Inc. Death Row U.S.A. Fall 2016 (As of October 1, 2016) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2,902 Race of Defendant: White 1,226 (42.25%) Black 1,215 (41.87%) Latino/Latina 380 (13.09%) Native American 27 (0.93%) Asian 53 (1.83%) Unknown at this issue 1 (0.03%) Gender: Male 2,848 (98.14%) Female 54 (1.86%) JURISDICTIONS WITH CURRENT DEATH PENALTY STATUTES: 33 Alabama, Arizona, Arkansas, California, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, Wyoming, U.S. Government, U.S. Military. JURISDICTIONS WITHOUT DEATH PENALTY STATUTES: 20 Alaska, Connecticut, Delaware [see note below], 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, West Virginia, Wisconsin. [NOTE: The Delaware statute was found unconstitutional by the state supreme court. Retroactivity of that decision was not determined as of 10/1/16. Those previously sentenced to death remain under sentence of death. New Mexico legislatively repealed the death penalty prospectively. The men already sentenced remain under sentence of death.] Death Row U.S.A. Page 1 In the United States Supreme Court Update to Summer 2016 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2016 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fifth Amendment Bravo-Fernandez v. United States, No. 15-537 (Double jeopardy acquittal and inconsistent verdicts) (decision below 790 F.3d 41 (1st Cir. 2015)) Question Presented: (1) Under Ashe v. Swenson, 397 U.S. 436 (1970) and Yeager v. United States, 557 U.S. 110 (2009), can a vacated, unconstitutional conviction cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause? Sixth Amendment Pena-Rodriguez v. Colorado, No. 15-606 (Impeaching jury to prove racial discrimination) (decision below 350 P.3d 287 (Colo. 2015)) Question Presented: May a no-impeachment rule constitutionally bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury? Eighth Amendment Moore v. Texas, No. 15-797 (Standard for determination of intellectual disability in death penalty cases) (decision below 470 S.W.3d 481 (Tex. Ct. Crim. App. 2015)) Question Presented: Does it violate the 8th Amendment and this Court's decisions in Hall v. Florida, 134 S. Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed? 2. CASES RAISING HABEAS CORPUS QUESTIONS Buck v. Davis, No. 15-8049 (COA standard) (decision below 623 Fed. Appx 668 (5th Cir. 2015)) Question Presented: Did the 5th Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court's precedent and deepens two circuit splits when it denied Mr. Buck a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an "expert" who testified that Mr. Buck was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing Death Row U.S.A. Page 2 3. CASES RAISING OTHER IMPORTANT FEDERAL QUESTIONS Beckles v. United States, No. 15-8544 (Retroactivity of Johnson to collateral cases, (decision below 616 Fed.Appx. 415 (11th Cir. 2015)) Question Presented: (1) Does Johnson v. United States, 135 S. Ct. 2551 (2015), apply retroactively to collateral cases challenging federal sentences enhanced under the residual clause in U.S.S.G. § 4B1.2(a)(2)? (2) Does Johnson's constitutional holding apply to the residual clause in U.S.S.G. § 4B1.2(a) (2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review? (3) Does mere possession of a sawed-off shotgun, an offense listed as a "crime of violence" only in the commentary to U.S.S.G. § 4B1.2, remain a "crime of violence" after Johnson? Manrique v. United States, No. 15-7250 (Appeals and deferred restitution) (decision below 618 Fed.Appx. 579 (11th Cir. 2015)) Question Presented: How should the Court resolve the significant division among the circuits concerning the jurisdictional prerequisites for appealing a deferred restitution award made during the pendency of a timely appeal of a criminal judgment imposing sentence, a question left open by the Court's decision in Dolan v. United States, 560 U.S. 605, 618 (2010)? Manuel v. Joliet, Il, No. 14-9496 (Malicious prosecution claim under § 1983) (decision below 590 Fed. Appx. 641 (7th Cir. 2015)) Question Presented: Does an individual's 4th Amendment right to be free from unreasonable seizure continue beyond legal process so as to allow a malicious prosecution claim under 42 U.S.C. § 1983 based upon the 4th Amendment? Shaw v. United States, No. 15-5991 (Proof of intent under bank fraud statute) (decision below 781 F.3d 1130 (9th Cir. 2015)) Question Presented: For purposes of subsection (1) of the bank fraud statute, 18 U.S.C. §1344, does a “scheme to defraud a financial institution” require proof of a specific intent not only to deceive, but also to cheat, a bank, or is a scheme directed at a non-bank third-party sufficient? Death Row U.S.A. Page 3 As of October 1, 2016 Total number of executions since the 1976 reinstatement of capital punishment: 1437 Race of defendants executed Race of victims total number 1437 total number 2106 White 799 (55.60%) White 1593 (75.64%) Black 496 (34.52%) Black 323 (15.34%) Latino/a 119 (8.28%) Latin 145 (6.89%) Native American 16 (1.11%) Native American 5 (0.24%) Asian 7 (0.49%) Asian 40 (1.90%) Gender of defendants executed Gender of victims Female 16 (1.11%) Female 1029 (48.86%) Male 1421 (98.89%) Male 1077 (51.14%) Defendant-victim racial combinations White Victim Black Victim Latino/a Victim Asian Victim Native American Victim White Defendant 740 51.50% 20 1.39% 17 1.18% 6 0.42% 0 0% Black Defendant 282 19.62% 167 11.62% 20 1.39% 15 1.04% 0 0% Latino/a Defendant 51 3.55% 3 0.21% 57 3.97% 2 0.14% 0 0% Asian Defendant 2 0.14% 0 0% 0 0% 5 0.35% 0 0% Native Amer. Def. 14 .97% 0 0% 0 0% 0 0% 2 0.14% TOTAL: 1089 75.78% 190 13.22% 94 6.54% 28 1.95% 2 0.14% Note: In addition, there were 34 defendants executed for the murders of multiple victims of different races. Of those, 18 defendants were white, 10 black and 6 Latino. (2.37%) Death Row U.S.A. Page 4 Execution Breakdown by State State # % of Racial Combinations (see codes Total below) 1. TX 537 37.37 214 W/W (40%); 105 B/W (20%); 63 B/B (12%); 51 L/L 27* 13# 6^ (9%); 42 L/W (8%); 18 B/L (3%); 12 W/L, 9 B/A ( 2% each); 5 W/mix (.9%); 3 W/B, 3 L/mix (.6% each); 2 L/B, 2 L/A, 2 A/A, 2 N/W, 2 W/A, 2 B/mix (.4% each) 2. OK 112 7.79 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) 3. VA 111 7.72 48 W/W (43%); 35 B/W (32%); 13 B/B (12%); 4 W/B (4%); 3 10* 3# 1^ W/mix, 3 L/W (3% each); 1 B/L, 1 B/A, 1 W/A, 1 A/W, 1 B/mix (.9% each) 4. FL 92 6.40 53 W/W (58%); 18 B/W (20%); 8 B/B (9%); 3 L/W (3%); 2 10* 2^ L/L, 2 W/mix, 2 B/mix, (2% each); 1 N/W, 1 L/B, 1 W/L, 1 L/mix (1% each) 5. MO 87 6.05 51 W/W (59%); 17 B/W, 17 B/B (20% each); 1 N/W, 1 W/B 5* 1# (1% each) 6. GA 66 4.59 43 W/W (65%); 16 B/W (24%); 7 B/B (11%) 2# 1^ 7. AL 57 3.97 31 W/W (54%); 17 B/W (30%); 8 B/B (14%); 1 W/B (2%) 6* 1^ 8. OH 53 3.69 31 W/W (58%); 8 B/W, 8 B/B (15% each); 2 W/mix, 2 B/mix 6* (4%); 1 B/A, 1 W/B (2% each) 9. NC 43 2.99 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 2.99 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.