TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 3,697 Race of Defendant: White 1,665 (45.04%) Black 1,603 (43.36%) Latino/Latina 347 ( 9.39%) Native American 40 ( 1.08%) Asian 41 ( 1.11%) Unknown at this issue 1 ( .03%) Gender: Male 3,643 (98.54%) Female 54 ( 1.46%) Juveniles: Male 83 ( 2.25%) 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 2002 Issue of Significant Criminal, Habeas, & Other Pending Cases for October Term 2002 1. CASES RAISING CONSTITUTIONAL QUESTIONS First Amendment Virginia v. Black, No. 01-1107 (Cross-burning prosecution) (decision below 553 S.E.2d 738 (Va. 2002)) Question Presented: Does Virginia statute that bans cross-burning with intent to intimidate violate First Amendment, even though statute reaches all such intimidation and is not limited to any racial, religious, or other content-focused category? Fifth Amendment Sattazahn v. Pennsylvania, No. 01-7574 (Double jeopardy / due process; Death sentence after imposition of life sentence) (decision below 763 A.2d 359 (2000)) Questions Presented: (1) Does the Double Jeopardy Clause of the Fifth Amendment bar imposition of the death penalty upon reconviction after an initial conviction, set aside on appeal, in which the trial court imposed a statutorily mandated life sentence when the capital sentencing jury failed to reach a unanimous verdict? (2) Is a capital defendant’s life and liberty interest in the imposition of a life sentence by operation of state law, following a capital sentencing hearing in which the sentencing jury fails to reach a unanimous verdict, violated when his first conviction is later overturned and the state seeks and obtains a death sentence on retrial? Eighth Amendment Ewing v. California, No. 01-6978 (California “Three Strikes” law & cruel & unusual punishment clause) (decision below unreported) Question Presented: Does petitioner’s twenty-five-years-to-life prison sentence violate the federal constitutional provision against cruel and unusual punishments because his sentence is grossly disproportionate to the offense of stealing golf clubs? Lockyer v. Andrade, No. 01-1127 (California three-strikes law & cruel & unusual punishments clause) (decision below 270 F.3d 743 (9th Cir. 2001)) Question Presented: (1) Does California’s three-strikes law, which provides for prison term of 25 years to life for third strike conviction, violate Eighth Amendment’s prohibition against cruel and unusual punishment when applied to a defendant whose “third strike” conviction is for petty larceny with prior theft-related convictions? Fourteenth Amendment Miller-El v. Cockrell, Director, No. 01-7622 (Racial discrimination in jury selection) (decision below 261 F.3d 445 (5th Cir. 2001)) Question Presented: Did the Court of Appeals err in denying a certificate of appealability and in evaluating petitioner’s claim under Batson v. Kentucky? Death Row U.S.A. Page 2 2. CASES RAISING HABEAS CORPUS QUESTIONS Abdur'Rahman v. Bell, No. 01-9094 (Rule 60(b) motions, successive petitions; intervening legal developments) (decision below, 226 F.3d 696 (6th Cir. 2002)) Questions Presented: (1) Whether the Sixth Circuit erred in holding, in square conflict with decisions of this Court and of other circuits, that every Rule 60(b) Motion constitutes a prohibited "second or successive" habeas petition as a matter of law; (2) Whether a court of appeals abuses its discretion in refusing to permit consideration of a vital intervening legal development when the failure to do so precludes a habeas petitioner from ever receiving any adjudication of his claims on the merits. Clay v. United States, No. 01-1500 (Statute of Limitations/AEDPA) (decision below unreported (7th Cir. 2001)) Question Presented: Whether petitioner’s judgment of conviction became “final” within the meaning of 28 U.S.C. § 2255 ¶ 6(1) one year after the court of appeals issued its mandate on direct appeal or one year after his time for filing a petition for a writ of certiorari expired? Lockyer v. Andrade, No. 01-1127 (California three-strikes law & cruel & unusual punishments clause) (decision below 270 F.3d 743 (9th Cir. 2001)) Questions Presented: (2) In light of this Court’s existing jurisprudence concerning Eighth Amendment and proportionality in noncapital cases, did judgment of California Court of Appeal upholding habeas corpus petitioner’s sentence involve unreasonable application of clearly established federal law as determined by this Court within the meaning of 28 U.S.C. § 2254 (d)(1)? (3) Is the Ninth Circuit correct concerning the necessity for a habeas court analyzing a claim under AEDPA to first decide if the state court’s determination was erroneous before deciding whether the determination was contrary to, or involved an unreasonable application of, clearly established federal law as determined by this court, or is the Fourth Circuit’s contrary view, expressed in Bell v. Jarvis, 236 F.3d 149 (4th Cir. 2000), correct? Massaro v. United States, No. 01-1559 (Ineffective assistance of trial counsel and waiver) (decision below No. 00-2720 (2nd Cir. 2002) summary order, unreported) Question Presented: Is federal defendant, whose new appellate counsel failed to raise claim of ineffective assistance of trial counsel on direct appeal, procedurally barred from asserting that constitutional claim under 28 U.S.C. § 2255? Woodford v. Garceau, No. 01-1862 (AEDPA & McFarland) (decision below 275 F.3d 769 (9th Cir. 2001) Question Presented: What is correct triggering event for application of AEDPA in capital cases? 3. Cases Raising Other Important Federal Questions Chavez v. Martinez, No. 01-1444 (Coerced in-custody statements & qualified immunity) (decision below 270 F.3d 852 (9th Cir. 2002)) Questions Presented: (1) Was Ninth Circuit correct in characterizing this court’s Fifth Amendment discussion in United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), as non- binding dicta and ignoring holding favorable to civil rights defendant? (2) Does violation of Fifth Amendment, potentially resulting in award of civil damages, occur at time of purported coercive Death Row U.S.A. Page 3 interview or only when and if the state introduces constitutionally violative statement in criminal proceeding? (3) Was Ninth Circuit correct in holding that conduct of investigating officer in this case was so offensive as to deny him qualified immunity? United States v. Recio, No. 01-1184 (Drug conspiracy, conspiracy law & defendant’s involvement after government intervenes)(decision below 258 F.3d 1069 (9th Cir. 2001)) Question Presented: Does conspiracy end as a matter of law when the government frustrates its objective? Washington Legal Foundation v. Legal Foundation of Washington, No. 01-1325 (Fifth Amendment takings clause and IOLTA funds) (decision below 271 F.3d 835 (9th Cir. 2002)) Questions Presented: (1) Does regulatory scheme for funding state legal services by systematically seizing interest on clients’ trust funds held in IOLTA accounts violate takings clause of 5th Amendment so that property owners are entitled to relief? (2) Is injunctive relief available to enjoin state from committing such violation of takings clause, when legislative scheme in issue clearly contemplates that no compensation would be paid to owners of interest taken, and when small amount due in any individual case often renders recovery through litigation impractical? Death Row U.S.A. Page 4 As of October 1, 2002 Total number of executions since the 1976 reinstatement of capital punishment: 802 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 102012521181825111623143138315645746898 00 01 02 85 66 53 Gender of defendants executed Gender of victims total number 802 total number 1217 Female ..........................9 ( 1.12%) Female.................... 594 (48.81%) Male ..........................793 (98.88%) Male ..................... 623 (51.19%) Race of defendants executed Race of victims White ......................... 454 (56.61%) White..................... 982 (80.69%) Black.......................... 278 (34.66%) Black..................... 168 (13.80%) Latino/a......................... 52 ( 6.48%) Latino/a.................... 43 ( 3.53%) Native American.................. 13 ( 1.62%) Native American.............. 3 ( .25%) Asian............................ 5 ( .62%) Asian...................... 21 ( 1.73%) Defendant-victim racial combinations White Victim Black Victim Latino/a Victim Asian Victim Native American Victim White Defendant 426 (53.12%) 12 (1.50%) 5 (.62%) 3 (.37%) 0 (0%) Black Defendant 178 (22.19%) 81 (10.10%) 8 (1.00%) 6 (.75%) 0 (0%) Latino/a Defendant 28 (3.49%) 2 (.25%) 19 (2.37%) 1 (.12%) 0 (0%) Asian Defendant 1 (.12%) 0 ( 0%) 0 (0%) 4 (.50%) 0 (0%) Native American 12 (1.50%) 0 (0%) 0 (0%) 0 (0%) 1 (.12%) TOTAL: 645 (80.42%) 95 (11.85%) 32 (3.99%) 14 (1.75%) 1 (.12%) Note: In addition, there were 15 defendants executed for the murders of multiple victims of different races. Of those, 8 defendants were white, 5 black and 2 Latino. (1.87%) Death Row U.S.A. Page 5 Execution Breakdown by State State # % of Racial Combinations (see codes Total below) 1. TX 284 35.41 138 W/W (49%); 63 B/W (22%); 22 L/W, 23 B/B (8% 19* 14# 2^ each); 17 L/L (6%); 8 B/L (3%); 3 B/A, 3 W/L (1% each); 2 A/A, 2 N/W (.7% each); 1 L/B, 1 L/A, 1 W/A (.4% each) 2.