Winning Death Penalty Abolition at
the U.S. Supreme Court
April 2015
Confidential: Please Do Not Share
SE PROJECT
The Strategy for Winning Death Penalty
Abolition at the U.S. Supreme Court
The death penalty abolition movement will end the death
penalty in the United States when we have produced enough
evidence to persuade at least five members of the United
States Supreme Court to recognize that executions violate the
Eighth Amendment’s prohibition against cruel and unusual
punishment.
To do so, we must show that a growing and substantial
national consensus against the death penalty exists, and
demonstrate that the practice is in conflict with the Court’s
definition of “evolving standards of decency that mark the
progress of a maturing society.”
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What Are Appropriate Benchmarks for
Demonstrating Consensus?
. Annual Rate of Executions
. Annual Rate of New Death Sentences
. Number of Abolition States
. Number of Recent de facto States (10 year)
. Number of Long-Term de facto States (50 year)
. Declining Death Sentences in Active Death Penalty States
. Declining Executions in Active Death Penalty States
. Maintain Gubernatorial Moratoriums
WO ON DMN BWN PB
. Public Opinion
10. Percentage of the Population That Lives in No-Use States
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1st Benchmark:
Under 50 Executions Annually
Has it been met? YES
e With just 35 executions, 2014 had the lowest number of
executions in 20 years.
e Only 7 states carried out executions in 2014.
e The most recent 10-year period (2005-2014) had an average
of 45 executions annually, compared to 55 in the Pre-Furman
period (1954-1963). There was an average of more than 50
executions a year prior to this period.
e The trend has moved consistently downward since 1999.
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Annual Rate of Executions
Executions by Year Since 1976
A
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2d Benchmark:
Under 100 Death Sentences Per Year
Has it been met? YES
e With just 72 new death sentences, 2014 saw the lowest
number of death sentences in 40 years.
e The most recent 10-year period (2005-2014) averaged 106.3
new sentences. The pre-Furman period (1961-1970) also
averaged 106 death sentences.
° The trend has moved consistently downward since 1996.
° Of the states with the death penalty on the books, only 18
handed down new death sentences in 2014.
e Just 2% of the counties in the U.S. are responsible for 56% of
the population of death row.
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&
Annual Rate of Death Sentences
[BStatoz that handed down
death sentences in 2014
DEATH SENTENCES
ARE AT A 40-YEAR
LOW 1996: 315
2014: 72
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2014 Death Sentences
Death Sentences, By County, 2014
No death sentences
1 or more death sentences
#nationalconsensus
Scroll over map for county information
2
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3'd Benchmark:
At least 18-20 Abolition States
Has it been met? We have 18, but could possibly get to 20 in 2
years.
° To date, 18 states and D.C. have abolished the death penalty
by legislation or court ruling.
e Six states have gotten rid of the death penalty since 2007.
e No state has reinstated the death penalty since 1995.
¢ The direction of change is one-directional.
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Current Number of Abolition States = 18
4th Benchmark:
At Least 12 Recent De Facto States
Defined by no executions and/or no new death sentences in the last 10 years
Has it been met? NO, Seven states and the military and federal
governments have had no executions in 10 years. Five states are close.
Number of Years Since Last Execution
76 HE Total yrs
10 years
NH KS NE OR Fed CA MT
Military WY co PA AR NV NC
Two states have had NO new death sentences in 10 Years: MT & WY
Total by August 2016 = 12 states + federal and military governments
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5% Benchmark:
At Least 12 Long-Term De Facto States
Defined by less than 5 executions total over 50 years, or an average of one per decade.
Has it been met? YES
In the past 50 years:
e Oexecutions: NH, KS, and military government
° 1 execution: WY
e 2 executions: OR
e 3 executions: ID, KY, MT, NE, PA, SD, CO, and the federal
government
e 5 executions: WA
Total of 12 states with 1 or fewer executions per decade
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6" Benchmark: New Sentences Down by
50% in Active Death Penalty States
Has it been met? YES, usage down by 57.34% in these states
Between 2005-2014, new death sentences in 16/17 traditionally active death penalty states have
declined from the previous 10-year period (1995-2004).
Virginia
North Carolina
Tennessee
Georgia
Oklahoma
Texas
South Carolina
Indiana
Utah
ae
AMENDMENT PROJECT
-86.00%
-83.91%
-72.73%
-71.93%
-70.97%
-70.38%
-68.75%
-68.42%
-66.67%
Missouri
Louisiana
Ohio
Mississippi
Delaware
Alabama
Florida
Arizona
TOTAL
-66.67%
-66.23%
-60.00%
-56.52%
-50.00%
-33.85%
-13.59%
+18.97%
-57.34%
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New Sentences Declining in Traditionally
Active Death Penalty States
240
180 fee
120 |
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7% Benchmark: Executions Down by
30% in Active Death Penalty States
Has it been met? Yes, total usage down by 30.4% in these
states. Only 7 of these states carried out executions in 2014.
Between 2005-2014, executions in a majority (10/17) of the traditionally active death penalty states
have declined from the previous 10-year period (1995-2004).
100
75
50
25
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Via me 1996 2000 2004 2008 2012
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8th Benchmark:
Maintain Gubernatorial Moratoriums
Has it been met? YES
e In 2011, Oregon Governor John Kitzhaber declared a
moratorium. His successor Kate Brown agreed to continue it in
2015.
e In 2014, Washington Governor Jay Inslee declared a
moratorium.
e In 2014, Colorado Governor John Hickenlooper effectively
implemented a moratorium by granting an indefinite reprieve
to one of the state’s three prisoners on death row.
e In 2015, Pennsylvania Governor Tom Wolf declared a
moratorium.
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9% Benchmark: Demonstrate That a
Majority of Americans Prefer LWOP
Over the Death Penalty
Has it been met? YES, but inconsistently.
¢ Gallup poll shows that support for the death penalty is at its
lowest levels in 40 years.
e Support peaked at 80% in 1994, and has steadily declined
since that time to 60-63%.
e When asked which punishment they prefer, LWOP or the
death penalty, multiple polls show that support for the death
penalty plummets under 50%
e 2014 Washington Post NBC poll which found 52% prefer
LWOP, while only 42% chose the death penalty.
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Public Opinion
Are you in favor of the death penalty for a person convicted of murder?
@ %Infavor |) % Opposed
10 17 16 16
'56 '60 '64 '68 '72 '76 '80 '84 '88 '92 '06 'oo ‘oa 'O8 ‘12
Views on the Death Penalty
ABC News / Post Poll
'36 ‘40 '44 ‘48 '5
GALLUP
2014
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Death Penal Life in prison without parole
AMENDMENT PROJECT Les vy , =
ABC News Pol
10 Benchmark:
At Least 60% of the Population Lives in
No-Use States/Counties
Has it been met? YES
° 65% of the U.S. population will live in states that have
abandoned the death penalty in law or in practice by August
2016.
° 84% of the U.S. population currently lives in counties that
haven’t produced an execution in more than 45 years.
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We Can Demonstrate a Compelling
National Consensus Within Two Years
Y Declining executions and new death sentences
¥ 18-20 abolition states + D.C. + federal & military gov’ts + all 5 U.S.
territories (Puerto Rico, Guam, American Samoa, Northern Mariana
Islands, U.S. Virgin Islands)
v 8-12 recent de facto states + federal and military governments
¥ 12 long-term de facto states
Y Declining executions and sentences in traditionally high-use states
¥ Gubernatorial moratoriums in four states
¥ Good public opinion data
¥ 60% of the population lives in no-use states/counties
A consensus across America:
34 - 35 total states + D.C. + federal and military governments + 5 U.S.
territories
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We Can Demonstrate a Compelling
National Consensus Within Two Years
J
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The U.S. Supreme Court:
The Legal Precedents
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Supreme Court: Intellectual Disability
Atkins v. Virginia (2002) Barred the execution of the intellectually
disabled.
° Only 30 states barred execution of the intellectually disabled
° 18 states had formal ban on executing persons with I.D.
° 12 states barred the death penalty altogether
e “Even in those States that allow the execution of mentally retarded
offenders, the practice is uncommon. Some States, for example New
Hampshire and New Jersey continue to authorize executions, but
none have been carried out in decades.”
e “It is not so much the number of these States that is significant, but
the consistency of the direction of change.”
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Supreme Court: Juveniles
Roper v. Simmons (2005) Barred the execution of juveniles.
° Only 30 states states barred the execution of juveniles
° 18 had formal ban on executing juveniles
° 12 states barred death penalty altogether
e “Even in the 20 States without a formal prohibition on executing
juveniles, the practice is infrequent. Since Stanford, six states have
executed prisoners for crimes committed as juveniles. In the past 10
years, only three have done so: Oklahoma, Texas, and Virginia.”
° Simmons introduces the concept of three categories of states, those
that authorize a punishment, those that prohibit the punishment,
and those that authorize but do not use the punishment.
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Supreme Court: Child Rape
Kennedy v. Louisiana (2008) Barred execution of those convicted of
child rape.
e 44 jurisdictions barred the death penalty for child rape
° However, the direction of change was moving towards allowing the
punishment
e Even though 5 states had recently authorized the punishment, the
Court said, “there are other measures of consensus than legislation.
Statistics about the number of executions may inform the
consideration whether capital punishment for the crime of child
rape is regarded as unacceptable in our society. Review of state
statutes [show] that there is a social consensus against the death
penalty for the crime of child rape.”
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Supreme Court: Juvenile LWOP
Graham v. Florida (2011) Barred life without parole sentences for
children convicted of non-homicide offenses
° Only 13 states barred JLWOP for non-homicide offenses
° 6 states barred LWOP for children convicted of any crime
° 7 states reserved LWOP for children convicted of homicide
° Graham required no showing of legislative consensus.
¢ The Graham opinion invalidated a sentence at a time when it was
still authorized by 37 states and the Federal gov’t. Reducing usage,
under Graham, becomes not only a part of the campaign, but a
major focus.
Miller v. Alabama (2012) Barred mandatory sentences of LWOP for
juvenile offenders.
° Only 22 states banned mandatory LWOP for juveniles.
° 29 jurisdictions permitted LWOP for juveniles convicted of murder.
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Supreme Court: Bright Line on Intellectual
Disability
Hall v. Florida (2014) Barred the requirement of an IQ test showing a
score of 70 or lower as a bright line for excluding people with
intellectual disability from execution. Said other factors must be
considered.
e Atleast 41 states did not use a bright line to determine IQ
° Only nine states used a rigid cutoff.
° However, Justice Kennedy suggested the Court might consider states
that have a gubernatorial moratorium, such as Oregon, to be in the
de facto column abolition.
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