Winning Death Penalty Abolition at
the U.S. Supreme Court
New Orleans Fall 2015
Confidential: Please Do Not Share
SE PROJECT
Outline
Post-Glossip Overview of Strategy and 10 Benchmarks
Funding Landscape
2016 Litigation Projects
2016 Advocacy Projects
Survey Results
Discussion
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The Strategy for Winning Death Penalty
Abolition at the U.S. Supreme Court
Our goal is to convince a majority of the Supreme Court that the death
penalty is in violation of the Eight Amendment because:
1. The death penalty is an unusual punishment, with states continuing
to abandon it (both formally and informally) as a punishment for
crime. That is, there is a growing consensus that the death penalty is
cruel in practice, and society is abandoning capital punishment (the
consensus claim);
2. The death penalty is a cruel punishment because it does not serve
an additional penological purpose beyond that which can be
accomplished through lesser punishments (the penological purpose
claim); and
3. The death penalty is a cruel punishment because it is administered
in a way that risks wrongful executions (the risk of wrongful
executions claim).
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The Post-Glossip Roadmap
Our national strategy is focused primarily on the “consensus claim.”
The consensus indicators Justice Breyer emphasized in his recent
dissent include:
(1) Formal abandonment of the death penalty through legislation or
judicial opinions, including not only the number of states that abandon
the practice, but more importantly the speed and direction of the
change;
(2) The frequency with which the punishment is used in practice (“on-
the-ground abandonment”);
(3) Whether use of the punishment is geographically isolated in a few
states or counties (“geographic isolation”);
(4) Public opinion polling;
(5) The views of professional organizations; and
(6) International consensus against the death penalty.
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What Are Appropriate Benchmarks for
Demonstrating Consensus?
1. Annual Rate of Executions
2. Annual Rate and Geographic Isolation 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
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Public Opinion (quantitative & qualitative)
10. Percentage of the Population That Lives in No-Use States
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1% Benchmark:
Under 50 Executions Annually ¢iequeng)
Executions by Year Since 1976
Has it been met? YES
e With just 35 executions, 2014 had the
lowest number of executions in 20 years.
° Only 7 states carried out executions in 2014.
° The most recent 10-year period
(2005-2014) had an average of SSSR eA AANA NS AAS ASA SSASSNUSSSES
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.
° The trend has moved consistently downward since 1999.
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24 Benchmark:
Under 100 Death Sentences Per Year
(frequency)
Has it been met? YES
With just 72 new death sentences, 2014 saw the lowest
number of death sentences in 40 years.
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.
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 iequens)
[States that handed down
death sentences in 2014
DEATH SENTENCES
ARE AT A 40-YEAR
LOW 1996: 315
2014: 72
SERPS ESR RRR RRA
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2014 Death Sentences
(Geographic isolation)
Death Sentences, By County, 2014
No death sentences
’ 1 or more death sentences
= " ul
7
. #nationalconsensus
Scroll over map for county information
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3™d Benchmark:
At least 19-20 Abolition States
(formal abandonment)
Has it been met? We have 19, but could possibly get to 20 or
more in 2 years.
° To date, 19 states and D.C. have abolished the death penalty
by legislation or court ruling.
° Seven states have gotten rid of the death penalty since 2007.
° No state has reinstated the death penalty since 1995.
° The direction of change is one-directional.
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4th Benchmark:
At Least 11 Recent De Facto States
Defined by no executions and/or no new death sentences in the last 10 years.
(frequency and geographic isolation)
Has it been met? NO, six states and the military and federal
governments have had no executions in 10 years. Five states are close.
Number of Years Since Last Execution
1 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 = 11 states + federal and military governments
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5% Benchmark:
At Least 11 Long-Term De Facto States
Defined by less than 5 executions total over 50 years, or an average of one per decade.
(frequency and geographic isolation)
Has it been met? YES
In the past 50 years:
° O executions: NH, KS, and military government
1 execution: WY
2 executions: OR
3 executions: ID, KY, MT, PA, SD, CO, and the federal
government
5 executions: WA
Total of 11 states with 1 or fewer executions per decade
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6" Benchmark: New Sentences Down by
50% in Active Death Penalty States
(frequency)
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
> a
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-86.00%
-83.91%
5/2713%
-71.93%
-70.97%
-70.38%
-68.75%
-68.42%
-66.67%
Missouri -66.67%
Louisiana -66.23%
Ohio -60.00%
Mississippi -56.52%
Delaware -50.00%
Alabama -33.85%
Florida -13.59%
Arizona +18.97%
TOTAL -57.34%
Confidential: Please do not distribute.
7% Benchmark: Executions Down by
30% in Active Death Penalty States
(frequency)
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
25
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LI 1996 2000 2004 2008 2012
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8th Benchmark:
Maintain Gubernatorial Moratoriums
(frequency and formal abandonment)
Has it been met? YES
° In 2011, Oregon Governor John Kitzhaber declared a
moratorium. His successor Kate Brown agreed to continue it
in 2015.
° In 2014, Washington Governor Jay Inslee declared a
moratorium.
° 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.
° In 2015, Pennsylvania Governor Tom Wolf declared a
moratorium.
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9th Benchmark: Demonstrate That a
Majority of Americans Prefer LWOP
Over the Death Penalty (public opinion - quantitative)
Has it been met? YES, but inconsistently.
* Gallup poll shows that support for the
death penalty is at its lowest levels in 40 Views on the Death Penalty
years. ABC News / Washington Post Poll
* Support peaked at 80% in 1994, and has
steadily declined since that time to
60-63%.
° When asked which punishment they
prefer, LWOP or the death penalty,
multiple polls show that support for the 1 Death Penalty ll Life in prison without parole
death penalty plummets under 50% <r
° 2014 Washington Post NBC poll which
found 52% prefer LWOP, while only 42%
chose the death penalty.
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9% Benchmark: Demonstrate That a
Majority of Americans Prefer LWOP
Over the Death Penalty
(public opinion - qualitative, professional associations, and international consensus)
° Lift up a chorus of unusual voices to add depth and
dimension to changes in public opinion:
* Conservatives
* Law enforcement
° Religious
° Victims
° Exonerees
* Professional associations
° International
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10 Benchmark:
At Least 60% of the Population Lives in
No-Use States/Counties
(geographic isolation)
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
v Declining executions and new death sentences
v 19-20 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)
¥ 8-11 recent de facto states + federal and military governments
¥ 11 long-term de facto states
Y Declining executions and sentences in traditionally high-use states
¥ Gubernatorial moratoriums in four states
Y Good public opinion data & unusual voices
¥ 60% of the population lives in no-use states/counties
A consensus across America:
By 2016, 34 - 35 states + D.C. + federal and military governments + 5
U.S. territories will have abandoned the death penalty in law or in
practice.
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We Can Demonstrate a Compelling
National Consensus Within Two Years
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2016 Funding Landscape
° Approximately 50-55 groups funded for 2016
* 21 state advocacy groups will receive funding
* 15 national advocacy groups will receive funding
° 16 litigation projects will receive funding
¢ Approx. $10.6 million dollars invested in 2016 efforts
* Approximately half of the funding is part of coordinated process,
and other half given directly by foundations
* Support comes from approximately 8-10 foundations
* Amounts reflected here don’t include other sources of funding
(non-traditional foundations, major gifts, members, etc.)
° Atlantic Philanthropies, which made its final gifts for 2016/17,
accounts for at least 1/3 of this funding
* This doesn’t include ~ $5 million needed for Nebraska
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2016 Funding Landscape
@ Repeal Work
Comms/Unusual Voices
Comms
@ Litigation
©@ Litigation/Racial Justice
@ smi
High-Use States Advocacy
County Work! Racial Justice
@ Fundraising
Stratgey/Coordination
@ Protect Defacto/Explore Repeal
@ Moratorium
@ Federal
@ Research
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2016 Litigation Projects
(Aimed at reducing frequency and increasing geographic isolation)
° “Low and No" Use State Projects: Two projects begin work this summer. The
first focuses on pretrial case consulting in states that fit (or are very close to
fitting) into the de facto category. The second focuses on post-conviction
consulting, and efforts to obtain or bolster representation, as needed, in states
that count as de facto states.
* Special Litigation Project: This unit attempts to identify critical areas -- both in
terms of geography and substance -- to advance efforts to reduce capital
punishment. Seeking to enhance arguments supporting a consensus against the
use of capital punishment through litigation strategies, the unit partners with
local and national reform groups
° Habeas Special Litigation Project: This project will monitor state and federal
habeas litigation in jurisdictions across the country; identify and track emerging
legal issues; develop those legal issues through strategic litigation and
consulting; where useful, develop model briefing on issues; and train post-
conviction counsel.
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2016 Litigation Projects
(Aimed at reducing frequency and increasing geographic isolation)
In at least 12 counties:
° Prosecutorial Accountability & Conviction Integrity Project: Reduce death
sentences and executions through targeted efforts to create leverage to
influence the charging decisions of problematic prosecutors, create an
environment where those prosecutors are vulnerable to challenge, and taint
the location in the eyes of state and federal courts.
* Racial Equity Project (County Work): Reduce new death sentences and
taint the death penalty brand in high per capita jurisdictions that also
possess significant non-white populations by highlighting problems of racial
bias. For each jurisdiction this could include: a study of jurors struck
peremptorily, a study of jurors struck for cause during death qualification, a
Furman style sentencing study, a contemporary race audit that explains the
relevance of race and the health of race relationships in the community, and
a historical description of race problems in the community (e.g. history of
lynching). Each of these research products would be integrated into local
litigation and advocacy, as well as local and national media pushes.
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2016 Litigation Projects
(Aimed at reducing frequency and increasing geographic isolation)
* Mitigation Consulting Project: This project is providing consulting to the
Riverside County Public Defender Office and private counsel in Riverside,
California. The project is also providing trial consulting services in Florida, as a
supplement to the new trial consulting project at FIU.
* MyGideon: Capital Representation Online Toolbox:
* An intuitively organized motion bank with thousands of motions;
* Asection for new capital defense attorneys that lays out the basics of
resources needed and how to get them (including a mitigation specialist with
a scorched earth perspective and a second chair that works on all phases of
the case);
* A mitigation section that discusses how to gather different kinds of
information like school or jail records. The mitigation section will also include
the most prominent mental health diagnoses and how to connect the dots;
* Acomplete list of all available resources, conferences, databases, manuals,
etc.
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2016 Advocacy Projects
(Aimed at formal abandonment, public opinion, reducing frequency, and geographic isolation)
Projects and Investments:
° Repeal: Support viable repeal campaigns in more states (DE, WA, CO);
° SMI: Advance campaigns to bar the execution of the severely mentally ill
(TN, ID, IN, VA, GA, SD, OH) w/ support from ABA; Create national narrative.
* Develop unusual voices (Conservatives, law enforcement, religious voices)
to strengthen the consensus narrative and shape public opinion;
* High-Use States: Run campaigns aimed at damaging the death penalty
brand and reducing usage in traditionally high-use states (TX, OH, MO, NC,
FL, etc.);
* Protect wins and address threats Defeat the initiative to reinstate the
death penalty in Nebraska, maintain de facto status and explore future
repeal in MT/KS/NH;
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2016 Advocacy Projects
(Aimed at formal abandonment, public opinion, reducing frequency, and geographic isolation)
Projects and Investments Continued:
e Leverage moratoriums (PA, OR);
* Race equity and county work: Facilitate the participation of communities of
color in key state campaigns, and make connections to broader racial
justice/criminal justice campaigns; Reduce new death sentences and taint
the death penalty brand in high per capita jurisdictions (also under litigation
projects)
° Monitor federal activity and threats;
* Support communications/research/journalism projects that highlight the
growing national consensus, highlight or contribute to a decline in usage,
and damage the death penalty brand;
° Utilize opportunity funds to address emerging opportunities or threats.
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2015 Survey Results
° Sent survey in May 2015 to get feedback on strategy.
° Survey sent to approximately 300 members of community
° Approximately 82 responses. (Pre-Glossip decision)
Summary of respondents
@ Work for state-level
advocacy organization
@ Work for national
advocacy organization
© Litigator/member of
legal community
@ Academic/research
community
@ Member of broader
criminal justice,
progressive, or
religious community
@ Other
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2015 Survey Results
Responses on Timeframe
@ Could be within 3-5
years / just need a
few more states
@ Closer to 10 years
and/or that we need
at least 25 states
@ Longer than 10
years / need a lot
more states (> 25)
@ No time frame
given/unsure
@ Blank/Didn't answer
question
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% of Respondents
Past Successes
60%
45%
30%
15%
0%
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2015 Survey Results
2015 Survey Results
Past Obstacles
24% HM Past Obstacles
18%
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Questions?
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