DEATH ROW U.S.A. Fall 2018 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. Fall 2018 (As of October 1, 2018) TOTAL NUMBER OF DEATH ROW INMATES KNOWN TO LDF: 2,721 Race of Defendant: White 1,144 (42.04%) Black 1,130 (41.53%) Latino/Latina 366 (13.45%) Native American 28 (1.03%) Asian 52 (1.91%) Unknown at this issue 1 (0.04%) Gender: Male 2,666 (97.98%) Female 55 (2.02%) 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, 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 [NOTE: New Mexico repealed the death penalty prospectively.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 2018 Issue of Significant Criminal, Habeas, & Other Pending Cases for Cases to Be Decided in October Term 2018 1. CASES RAISING CONSTITUTIONAL QUESTIONS Fourth Amendment 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? 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? Death Row U.S.A. Page 2 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? Fourteenth Amendment 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? 2. 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)? Herrera v. Wyoming, No. 17-532 (Federal treaty rights) (decision below unreported Dist. Ct. Wyo., Sheridan Cty No. 2016-242 (2017)) Question Presented: Did Wyoming's admission to the Union or the establishment of the Bighorn National Forest abrogate the Crow Tribe of Indians' 1868 federal treaty right to hunt on the "unoccupied lands of the United States," thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family? Stokeling v. United States, No. 17-5554 (Meaning of “violent felony”) (decision below 684 Fed.Appx. 870 (11th Cir. 2017)) Question Presented: Is a state robbery offense that includes "as an element" the common law requirement of overcoming "victim resistance" categorically a "violent felony" under the only remaining definition of that term in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i) (an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another"), if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance? United States v. Stitt, No. 17-765 (Meaning of “burglary”) (decision below 860 F.3d 854 (6th Cir. 2017)) consolidated with United States v. Sims, No. 17-766 (decision below 854 F.3d 1037 (8th Cir. 2017)) Question Presented: Can burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation qualify as "burglary" under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii)? Death Row U.S.A. Page 3 Execution Update As of October 1, 2018 Total number of executions since the 1976 reinstatement of capital punishment: 1483 Race of defendants executed Race of victims total number 1483 total number 2171 White 828 (55.83%) White 1642 (75.63%) Black 509 (34.32%) Black 333 (15.34%) Latino/a 123 (8.29%) Latin 150 (6.91%) Native American 16 (1.08%) Native American 5 (0.23%) Asian 7 (0.47%) Asian 41 (1.89%) Gender of defendants executed Gender of victims Female 16 (1.08%) Female 1063 (48.96%) Male 1467 (98.92%) Male 1108 (51.04%) Defendant-victim racial combinations White Victim Black Victim Latino/a Victim Asian Victim Native American Victim White Defendant 765 51.58% 20 1.35% 18 1.21% 6 0.40% 0 0% Black Defendant 289 19.49% 171 11.53% 20 1.35% 16 1.08% 0 0% Latino/a Defendant 52 3.51% 3 0.20% 60 4.05% 2 0.13% 0 0% Asian Defendant 2 0.13% 0 0% 0 0% 5 0.34% 0 0% Native Amer. Def. 14 .94% 0 0% 0 0% 0 0% 2 0.13% TOTAL: 1122 75.66% 194 13.08% 98 6.61% 29 1.96% 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. (2.56%) Death Row U.S.A. Page 4 Execution Breakdown by State State # % of Racial Combinations (see codes Total below) 1. TX 555 37.42 221 W/W (40%); 107 B/W (19%); 65 B/B (12%); 54 L/L 27* 13# 6^ (10%); 43 L/W (8%); 18 B/L (3%); 13 W/L, 10 B/A ( 2% each); 6 W/mix (1%); 3 W/B, 3 L/mix (.5% each); 2 L/B, 2 L/A, 2 A/A, 2 N/W, 2 W/A, 2 B/mix (.4% each) 2. VA 113 7.62 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 7.55 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 96 6.47 56 W/W (58%); 18 B/W (19%); 8 B/B (8%); 3 L/W, 3 W/mix 10* 2^ (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.