Amicus Curiae Brief — Roper v. Simmons

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a | JUL 19 2004 |

No. 03-633 L OFFICE OF THE CLES

IN THE

Supreme Court of the United States

DONALD P. ROPER,

SUPERINTENDENT, POTOSI CORRECTIONAL CENTER,

Petitioner.

Vv.

CHRISTOPHER SIMMONS,

Respondent.

On Writ Of Certiorari To

The Supreme Court of Missouri

BRIEF OF THE NAACP LEGAL DEFENSE

AND EDUCATIONAL FUND, INC., THE

AMERICAN CIVIL LIBERTIES UNION, THE

NATIONAL ASSOCIATION OF CRIMINAL

DEFENSE LAWYERS, THE NATIONAL BAR

ASSOCIATION, THE NATIONAL URBAN

LEAGUE INSTITUTE FOR OPPORTUNITY

AND EQUALITY, THE NATIONAL BLACK

POLICE ASSOCIATION, THE NATIONAL

CONFERENCE OF BLACK LAWYERS, AND

THE NATIONAL BLACK LAW STUDENTS

ASSOCIATION, AS AMICI CURIAE IN

SUPPORT OF RESPONDENT

THEODORE M. SHAW

Director-Counsel NAACP LEGAL DEFENSE

NORMAN J. CHACHKIN AND EDUCATIONAL

MIRIAM GOHARA FUND, INC.

*CHRISTINA A. SWARNS 99 Hudson Street, 16” FI.

New York, NY 10013

(212) 965-2200

*Counsel of Record

{Additional Counsel listed inside front cover]

—— SS

—

[Listing of Counsel continued from cover]

STEVEN R. SHAPIRO BARRY C. SCHECK

AMERICAN CIVIL LIBERTIES PRESIDENT ELECT

UNION FOUNDATION NATIONAL ASSOCIATION OF

125 Broad Street CRIMINAL DEFENSE

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(202) 675-2321 PRESIDENT

NATIONAL BAR

CHARLES J. HAMILTON, JR. ASSOCIATION

PAUL, HASTINGS. JANOFSKY 1225 11™ Street, N.W.

& WALKER LLP Washington, DC 20001

75 East 55” Street (202) 842-3900

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GILDA SHERROD-ALI

NATIONAL CONFERENCE OF

BLACK LAWYERS

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Counsel for Amici Curiae

TABLE OF CONTENTS

Page

EE ere ii

rd oi eee cau ekeeeeoeseeoees |

i . cccesceenceceoceceooeovees 4

ARGUMENT —

EE ee 5

Race in the Criminal and Juvenile Justice

ieee beens bub eeeéendeocecee< 6

Race Influences Capital Sentencing

Decisions in Cases Involving Juveniles ....... 9

The Only Way to Insure that Race Does

Not Determine Whether a Juvenile

Defendant Will Receive a Death Sentence

Is to Hold that the Death Penalty May No

Longer Be Imposed Upon Juveniles ........ 15

“*

TABLE OF AUTHORITIES

Page

Cases:

Alexander v. Louisiana,

Sp es GED cc cccccecnvcdvecécuuxuast In

Atkins v. Virginia,

S36 US. SO6, SUT CAGGZ) . wc cccccccccs 5, 16, 17, 18

Batson v. Kentucky,

Gees SED oc ncekcxescdscnenesceueens In

City of Los Angeles v. Lyons,

Ge Ss SP ns Cccucoceeeseaensecseatan 7n

Furman v. Georgia,

Ge ees SED cabecsecucesececekeseun In, 15

Gregg v. Georgia,

Ga as EOE ccccccescesedeeecasesesns 15

Ham v. South Carolina,

Gas SPE 6 ce cebecdoedvséodsceseens In

Lockett v. Ohio,

Ge es NEED cv ccoscesdsdccdsoneneuct 16, 17

McCleskey v. Kemp,

GS GE. BoP Se oc ccccereveecotvccsoedsans In

TABLE OF AUTHORITIES (continued)

Page

Cases (continued):

Miller-El v. Cockrell,

Be Ws SE oc cccdecesscsncdsdeceouss In

State ex rel. Simmons v. Roper,

SE re ee Gn Se dec ccsccccessces 18n

Swain v. Alabama, 380 U.S. 202 (1965) ............ In

Weems v. United States, 217 U.S. 349 (1910) ..... 15-16

Other Authorities:

Anthony Amsterdam et al.,

Amicus Brief, Court of Appeals of the

State of New York, People of the State

of New York Against Darrel K. Harris,

27 N.Y.U. Rev. L. & Soc.Change 399 (2002) .. 11-12

David C. Baldus et al.,

How the Death Penalty Works: Empirical

Studies of the Modern Capital Sentencing

System, 83 Cornell L. Rev. 1638 (1998) ........ 17n

Rick Bragg,

DNA Clears Louisiana Man on Death Row,

Lawyer Says, N.Y. Times, Apr. 22, 2003, at Al4 . 13n

iV

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Bureau of Justice Statistics,

U.S. Dep’t of Justice, Contacts Between

Police and the Public: Findings from the

1999 National Survey 2 (2001), available

at http://. vww.ojp.usdoj.gov a

GEES Codenevacecceaudsescsescsessess 6n-7n

Jeffrey Fagan & Garth Davies,

Street Stops and Broken Windows:

Terry, Race and Disorder in New York

City, 28 Fordham Urb. L. J. 457 (2000) ..........

Gwen Filosa,

Ex-Death Row Inmate Home on Bond,

Times-Picayune, June 23, 2004 ...............

Samuel R. Gross et al.,

Exonerations in the United States 1989

Through 2003 (Apr. 19, 2004), available at

http://www.law.umich.edu/NewsAndInfo/

exonerations-in-us. pdf ................... ll,

Bob Herbert,

Trapped in the System, N.Y. Times,

July 14, 2003, at Al7 ...... hanecaclchacunede

Vv

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

New York City Police Department,

Citywide Stop and Frisk Data: 1998, 1999,

and 2000, available at http://www.nyc.gov/

html/nypd/pdf/pap/stopandfrisk_OSO1.pdf........ 6n

Note,

Developments inthe Law: Race and the

Criminal Process, 101 Harv. L. Rev. 1472 (1988) . 7n

Kenneth B. Nunn,

The Child as Other: Race and Differential

Treatment in the Juvenile Justice System,

51 DePaul L. Rev. 679 (2002) ..............-5. 8n

Office of Juvenile Justice and Delinquency

Prevention,

Office of Justice Programs, U.S. Dep’t

of Justice, Juveniles in Corrections 12

(June 2004), available at http://www.ncjrs.org/

pdffiles 1/ojjdp/202885.pdf ............... 7, 8n, 9n

Office of Juvenile Justice and Delinquency

Prevention,

Office of Justice Programs, U.S. Dep’t

of Justice, Minorities in the Juvenile

Justice System 2 (Dec. 1999), available at http://

www.ncjrs.org/pdffiles 1/ojjdp/179007.pdf .... 8n, 9n

~

vi

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Marc Riedel, :

Discrimination in the Imposition of the

Death Penalty: A Comparison of the

Characteristics of Offenders Sentenced

Pre-Furman and Post-Furman, 49 Temp.

Dd ED 060060608 00cedecvevesecenes 12n

David A. Sklansky,

Traffic Stops, Minority Motorists and the

Future of the Fourth Amendment, 1997

Ba. GR. BASU. STE CHS UD ccccccccevccccscecces 6n

Victor L. Streib,

The Juvenile Death Penalty Today: Death

Sentences and Executions for Juvenile Crimes,

January 1, 1973 - June 30, 2004, available at

http://www.law.onu.edu/faculty/streib/

documents/JuvDeathJune302004NewTables.pdf . 10n

Alan J. Tompkins et ai.,

Subtle Discrimination in Juvenile Justice

Decisionmaking: Social Scientific Perspectives

and Explanations, 29 Creighton L. Rev.

SREP NEED cccocdéesesssoceceesesseneeveces 7

United States General Accounting Office,

Death Penalty Sentencing: Research Indicates

Pattern of Racial Disparities 2 (Feb. 1990) .. 12n,13n

vii

TABLE OF AUTHORITIES (continued)

Page

Other Authorities (continued):

Bela August Walker,

Note, The Color of Crime: The Case Against

Race-Based Suspect Descriptions, 103 Colum.

es ED oo bncccenesésccendaceecanas 6

l

Interest of Amici Curiae’

The NAACP Legal Defense and Educational Fund, Inc.

(LDF), is a non-profit corporation formed to assist African

Americans in securing their rights by the prosecution of

lawsuits. Its purposes include rendering legal aid without

cost to African Americans suffering injustice by reason of

race who are unable, on account of poverty, to employ legal

counsel on their own. For many years, its attorneys have

represented parties and it has participated as amicus curiae

in this Court, in the lower federal courts, and in state courts.”

The American Civil Liberties Union (ACLU) is a

nationwide, nonprofit, nonpartisan organization with more

than 400,000 members dedicated to the principles of liberty

and equality embodied in the Constitution. It has two

regional affiliates in Missouri: the ACLU of Kansas &

Western Missouri, and the ACLU of Eastern Missouri. The

ACLU has long supported abolition of the death penalty as

‘Letters of consent by the parties to the filing of this brief have

been lodged with the Clerk of this Court. No counsel for any party

authored this brief in whole or in part, and no person or entity

other than amici made any monetary contribution to the

preparation or submission of this brief.

The LDF has a long-standing concern with the influence of

racial discrimination on the criminal justice system in general,

and on the death penalty in particular. We therefore represented

the defendants in, inter alia, Furman v. Georgia, 408 U.S. 238

(1972), McCleskey v. Kemp, 481 U.S. 279 (1987), Swain v.

Alabama, 380 U.S. 202 (1965), Alexander v. Louisiana, 405

U.S. 625 (1972) and Ham v. South Carolina, 409 U.S. 524

(1973) and appeared as amicus curiae in Batson v. Kentucky,

476 U.S. 79 (1986) and Miller-El v. Cockrell, 537 U.S. 322

(2003).

2

a form of cruel and unusual punishment. It has also long

believed that the death penalty is administered in this country

in a manner that is both arbitrary and discriminatory. These

concerns prompted the creation of the ACLU’s Capital

Punishment Project, and this case once again brings those

concerns into sharp focus. The question of whether juveniles

can be executed by the state is thus one of substantial

importance to the ACLU and its members.

The National Association of Criminal Defense Lawyers

(NACDL) is a non-profit corporation with more than 10,000

members nationwide and 28,000 affiliate members in 50

states, including private criminal defense lawyers, public

defenders and law professors. The American Bar

Association recognizes NACDL as an affiliate organization

and awards it full representation in its House of Delegates.

NACDL was founded in 1958 to promote study and research

in the field of criminal law, to disseminate and advance

knowledge of the law in the area of criminal practice, and to

encourage the integrity, independence, and expertise of

defense lawyers in criminal cases. NACDL seeks to defend

individual liberties guaranteed by the Bill of Rights and has

a keen interest in ensuring that legal proceedings are handled

in a proper and fair manner. Among NACDL’s objectives is

promotion of the proper administration of justice.

The National Bar Association, the Nation’s oldest and

largest bar association of color, was founded in 1925. One

of its missions is to promote social justice and equality. Its

membership is comprised of a network of 18,000 lawyers,

judges and legal scholars who have developed a substantive

interest and expertise in the juvenile justice area.

The National Urban League Institute for Opportunity and

Equality is dedicated to the pursuit of equal opportunity for

3

African Americans and concentrates on criminal justice,

employment and workforce development, education, housing

and economic and community development.

The National Black Police Association (NBPA), which

represents approximately 35,000 individual members and

more than 140 chapters, is a nationwise organization of

African American Police Associations dedicated to the

promotion of justice, fairness and effectiveness of law

enforcement. ,

The National Conference of Black Lawyers (NCBL), a

legal organizations that employs its members’ skills in the

movement against racism and for the liberation of African

peoples, seeks to protect human rights, achieve self-

determination of African communities, and work in coalition

to assist to assist in ending the oppression of all peoples.

The National Black Law Students Association (NBLSA),

which represents over 6,000 Black students at law schools

across the country, endeavors to sensitize the law and legal

profession to the ever-increasing needs of the Black

community.

All amici have a substantive interest in juvenile justice

and oppose the execution of juvenile offenders because the

sentencing and execution of young offenders is plagued by

the same racial bias that each group strives to eliminate.

Amici believe their perspectives on how race inappropriately

influences capital prosecutions against juvenile offenders

differs from the immediate concerns of the parties and will

be valuable to the Court in appraising the issues presented.

4

Summary of Argument

This Court has long sought to ensure that the death

penalty is administered with channeled discretion, that

decisionmakers consider and give effect to relevant factors

counseling against death, and that arbitrary factors, such as

race, do not dictate the outcome of life or death decisions.

By steadfastly guarding these principles, this Court has

endeavored to achieve a fair and color-blind death penalty.

Despite this Court’s efforts to excise race from the capital

punishment calculation, it remains a pivotal factor in the

administration of the juvenile death penalty. Decisionmakers

— e.g., prosecutors and juries — are legally precluded from

relying explicitly on race when exercising their discretion

and deciding whether, and to what extent, a defendant’s

youth weighs against a decision to seek or to impose a death

sentence. But in practice, race remains a critical

consideration. Specifically, empirical evidence suggests that

for offenders of color, decisionmakers discount or altogether

eliminate the mitigating value of youth. Thus, currently

death-sentenced juveniles as well as juveniles who have been

executed are predominantly youth of color.

Empirical evidence likewise demonstrates that young

offenders of color are more likely than juvenile defendants

generally to be wrongfully convicted, wrongly sentenced to

death, and wrongfully subjected to an otherwise flawed

adjudication. Much more than a majority of both exonerated

juveniles and of exonerated juvenile offenders who had been

prosecuted on the basis of false confessions are adolescents

of color.

Because race continues to constrain the discretionary

consideration of youth as a mitigating factor and increases

the risk that juvenile offenders of color will receive a death

{

t

,

5

sentence, this Court should categorically exclude juveniles

from death penalty eligibility.

ARGUMENT

Introduction

The question presented by this case is whether the death

penalty is constitutionally disproportionate for juvenile

offenders. For the reasons outlined in Respondent’s brief and

the briefs of numerous other supporting amici, the answer to

that question is certainly “yes.” This brief is being submitted

to highlight the fact that race improperly continues to

diminish (and often to eliminate) the mitigating value of

youth at the various points of discretion in capital

prosecutions against juvenile offenders and thereby

“undermine[s] the strength of the procedural protections that

our. capital jurisprudence steadfastly guards.” Atkins v.

Virginia, 536 U.S. 304, 317 (2002).

The process for determining how, if at all, to factor youth

into the calculus when deciding whether to charge,

prosecute, try and sentence juvenile offenders to death is

unavoidably subjective and standardless. Even bifurcated

sentencing hearings fail to provide meaningful direction

because the sentencer is not provided with any guidelines for

determining whether and to what extent a defendant’s youth

is to be considered a mitigating factor. This absence of

structure denies capitally charged juvenile offenders the

necessary protection against the influence of improper

considerations, such as race, in these critical death penalty

decisions. In light of this dilemma, this Court should hold

that the death penalty for juvenile offenders is

6

unconstitutional and disproportionate, and that it violates the

Eighth Amendment.

Race in the Criminal and Juvenile Justice Systems

Empirical evidence has repeatedly demonstrated that

within the criminal justice system,

[d]isproportionate burdens on people of color emerge

at each point that discretion is used: whether it be the

decision to detain a suspect, to make a traffic stop, to

search a driver, to shoot at a civilian, to handcuff a

suspect, to make an arrest, to prosecute a Case, to try

a minor defendant as an adult, to increase charges, to

plea bargain, to convict, to determine sentence

length, or ultimately whether to apply the death

penalty or not. Each step in the criminal process

increases the discriminatory effect, as well as the

perceived image of minorities as disproportionately

criminal.

Bela August Walker, Note, The Color of Crime: The Case

Against Race-Based Suspect Descriptions, 103 Colum. L.

Rev. 662, 680-81 (2003) (footnotes omitted).’

>Among the works cited by the author, see, inter alia, New

York City Police Department Citywide Stop and Frisk Data:

1998, 1999, and 2000, at 1, available at http://www.nyc.

gov/html/nypd/pdf/pap/stopandfrisk_0501.pdf (citing NYPD

records indicating that approximately one half of stop and frisk

suspects during 1998-2000 period were black); David A.

Sklansky, Traffic Stops, Minority Motorists and the Future of the

Fourth Amendment, 1997 Sup. Ct. Rev. 271, 313 (1997) (citing

data from Florida, New Jersey, and Maryland to show that

“minority motorists are pulled over far more frequently than

whites”); Bureau of Justice Statistics, U.S. Dep’t of Justice,

Contacts Between Police and the Public: Findings from the 1999

7

The same phenomenon occurs within the juvenile justice

system. In juvenile justice, “discretionary decisionmaking,

which necessarily utilizes substantive factors [such as the

juvenile’s personal and social environment, and his/her

situation at home, in the community and in school], serves to

facilitate disproportionately adverse outcomes for minorities,

particularly African Americans.” Alan J. Tompkins et al.,

Subtle Discrimination in Juvenile Justice Decisionmaking:

Social Scientific Perspectives and Explanations, 29

Creighton L. Rev. 1619, 1631 (1996). ‘Thus, the U.S.

Department of Justice, Office of Juvenile Justice and

Delinquency Prevention has found that “[b]lack juveniles are

overrepresented at all stages of the juvenile justice system

National Survey 2 (2001), available at http://www.ojp.usdoj.gov

/bjs/pub/pdf/cpp99/pdf (“During the traffic stop, police were more

likely to carry out some type of search . . . on a black (11.0%) or

Hispanic (11.3%) than a white (5.4%).”); id. at 16 (“Blacks

(6.4%) and Hispanics (5.0%) were more likely than whites (2.5%)

to be handcuffed.””); Note, Developments in the Law: Race and

the Criminal Process, 101 Harv. L. Rev. 1472, 1495 (1988) (“[A]

black citizen today is far more likely than is a nonblack citizen to

be shot or seriously injured by a police officer.”); City of Los

Angeles v. Lyons, 461 U.S. 95, 116 n.3 (1983) (Marshall, J.,

dissenting) (“[I]n a city where Negro males constitute 9% of the

population, they have accounted for 75% of the deaths resulting

from the use of chokeholds.”’); Jeffrey Fagan & Garth Davies,

Street Stops and Broken Windows: Terry, Race and Disorder in

New York City, 28 Fordham Urb. L. J. 457, 491 (2000) (“[S}top-

to-arrest ratio of blacks (7.3 stops per arrest) is 58.7% higher than

the ratio for non-Hispanic whites (4.6).”); Marc Mauer, Race to

Incarcerate 125 (1999) (“[S)tatistical analysis by the United

States Sentencing Commission concluded that, for comparable

behavior, whites were being offered plea bargains leading to

outcomes falling below the level requiring a mandatory minimum

sentence more often than blacks or Hispanics.”).

8

compared with their proportion to the population.”

Specifically, African-American children are

disproportionately represented in the number of juvenile

arrests,” are overrepresented among children who are

detained,® are more likely to have formal delinquency

petitions filed against them than their white counterparts,’ are

more likely to have their cases transferred into adult court for

prosecution," are “more likely to be placed in public secure

‘Office of Juvenile Justice and Delinquency Prevention,

Office of Justice Programs, U.S. Dep’t of Justice, Juveniles in

Corrections 12 (June 2004), available at http://www.ncjrs.org

/pdffiles 1/ojjdp/202885 .pdf [hereinafter Juveniles in Corrections).

*Kenneth B. Nunn, The Child as Other: Race and Differential

Treatment in the Juvenile Justice System, 51 DePaul L. Rev. 679,

683-84 (2002) (noting that, in 1997, while black youth accounted

for only 15% of the under-eighteen population in the United

States, they represented 26% of the juvenile arrests and 31% of

the delinquency cases referred for prosecution).

‘Office of Juvenile Justice and Delinquency Prevention,

Office of Justice Programs, U.S. Dep’t of Justice, Minorities in

the Juvenile Justice System 2 (Dec. 1999), available at

http://www.ncjrs.org/pdffiles 1/ojjdp/179007.pdf [hereinafter

Minorities) (“In 1996-97, while 26% of juveniles arrested were

black, [blacks] made up 45% of cases involving detention.

Thirty-two percent of adjudicated cases involved black youth, yet

40% of juveniles in residential placement are black. Even

recognizing the overrepresentation of black juveniles involved in

violent crimes reported by victims (39%), they still accounted for

a disproportionate share of juvenile arrests for violent crimes

(44%) and confinement (45%).”).

"Nunn, supra, at 685.

"Id. at 685-86.

9

facilities, while white youth are more likely to be housed in

private facilities or diverted from the juvenile justice

system,” are “more likely . . . to be confined behind locked

doors,”"°® and “are . . . held in custody longer than white

youth.””"!

Race Influences Capital Sentencing

Decisions in Cases Involving Juveniles

The above evidence of racial discrimination within the

juvenile and criminal justice systems has significant

implications for this Court’s — and our Nation’s —

aspiration to achieve unbiased capital sentencing, including

in juvenile cases. Decisions whether to charge a juvenile

with a capital offense, whether to offer a juvenile a non-

death plea bargain, and whether to impose a death sentence

on a juvenile offender, take place within the context of a

system in which race is deeply ingrained. Because there are

no standards governing whether and to what extent youth

should factor into these decisions, there is a significant

possibility, if not probability, that an offender’s race will

influence, if not dictate, that determination. This is so even

though at every stage at which a decisionmaker must

*Minorities, supra, at 3. See also Juveniles in Corrections,

supra, at 10 (finding that, in 1999, “[m]Jinorities accounted for

66% of juveniles committed to public facilities nationwide — a

proportion nearly twice their proportion of the juvenile

population”).

'© Id. at 17. See also Minorities, supra, at 9 (“Secure

detention was nearly twice as likely in 1996 for cases involving

black youth as for cases involving whites, even after controlling

for offense.”’).

"Nunn, supra, at 687.

10

exercise his/her discretion for or against a death sentence

(e.g., the point at which a prosecutor files a capital charge

and/or when the trial factfinder makes its sentencing

determination), the decisionmaker is prohibited from

explicitly considering race. The empirical evidence

demonstrates that race continues to matter, presumably

because decisionmaker(s) in the capital system often fail to

exclude conscious or unconscious racial considerations from

the subjective, standardless, and unreviewed process of

deciding whether an individual defendant’s youth is

sufficiently mitigating to warrant leniency.

Available data regarding the administration of the death

penalty for juvenile offenders supports this conclusion. As

of June 30, 2004, there were 72 juveniles under sentence of

death in the United States.'* Two thirds are teenagers of

color.’® (In addition, two thirds of the victims of the death-

sentenced adolescents are white."*) Over half of the

juveniles who were executed since 1973 were black or

Latino.’ And significantly more adolescents of color have

"Victor L. Streib, The Juvenile Death Penalty Today: Death

Sentences and Executions for Juvenile Crimes, January 1, 1973 -

June 30, 2004, at 12 tbl.5, at http://www.law.onu.edu

/faculty/streib/documents/JuvDeathJune302004NewTables.pdf.

"See id. Twenty-nine of these offenders are African-

American, 15 of them are Latino, | is Native American and 2 are

Asian. Id. |

“See id. One Native American, 7 Asians, 8 Blacks, 11

Latinos and 65 whites were the victims of these death sentenced

juvenile offenders. /d.

"See id. at 4 tbl.1. Eleven of the twenty-two executed

juveniles were African-American and one was Latino. /d.

11

been found to have been wi wngly convicted of rape and

murder than white adolescents: A study of exonerations

occurring between 1989 and 2003 revealed that ninety

percent of exonerated juveniles were African-American or

Latino. '*

[Although] white defendants account for 34% of all

murder exonerations and 27% of all rape

exonerations — [they represent] only 14% of juvenile

murder exonerations, and not a single juvenile rape

exoneration. A majority of the teenagers arrested for

these two crimes are white — 62% of all juvenile

rape arrests in 2002, and 46 % of juvenile murder the

relevant time period.’

This pattern of race limiting (or eviscerating) the

mitigating value of youth at the point of prosecutor, judge

and/or jury discretion, is consistent with the empirical

evidence documenting the fact that race continues to

influence capital prosecutions generally. Data reveals that

[njone of the statutes upheld by Gregg [v. Georgia,

428 U.S. 153 (1976)] and its progeny as formally

sufficient to cure the Furman arbitrariness/

discrimination problem have come close to

eliminating it. To the contrary, capital sentencing

of statute sustained in Gregg . . . have consistently —

been found to turn primarily on the race of the victim

‘See Samuel R. Gross et al., Exonerations in the United

States 1989 Through 2003, at 24 tbl.6 (Apr. 19, 2004), available

at http://www.law.umich.edu/NewsAndInfo/exonerations-in-us.

pdf .

'"Id. at 34 (emphasis in original).

12

and secondarily on the race of the defendant, usually

in combination.

Anthony Amsterdam et al., Amicus Brief, Court of Appeals

of the State of New York, People of the State of New York

Against Darrel K. Harris, 27 N.Y.U. Rev. L. & Soc. Change

399, 442-43 (2002) (footnotes omitted).'* Thus, for example,

in 1999, the United States General Accounting Office issued

a Report to the Senate and House Committees on the

Judiciary evaluating 28 separate studies of the death penalty

from various regions of the country.'? That report concluded

that the studies “s.ow[] a pattern of evidence indicating

racial disparities in the charging, sentencing, and imposition

'* ooking at the 493 people who had been on death rows in

28 States just before Furman was decided and then at the 407

people sent to death rows in the same 28 States during their first

three years of operating under post-Furman statutes, this study

found that the percentage of nonwhite death row inmates had

actually risen, from 53% to 62%. ... Although more than half of

the nation’s murder victims in the post-Furman period were

nonwhite, 87% of the victims of the persons condemned to die in

States selected to compare mandatory-death-sentence

jurisdictions with guided-discretion jurisdictions were white.”

Amsterdam, supra, at 442 n.143 (citing Marc Riedel,

Discrimination in the Imposition of the Death Penalty: A

Comparison of the Characteristics of Offenders Sentenced Pre-

Furman and Post-Furman, 49 Temp. L.Q. 261 (1976)); see also

id. at 443 n.147 (citing articles establishing the fact that race

influences the exercise of prosecutorial discr .tion to seek a death

sentence or to refuse a noncapital disposition).

‘United States General Accounting Office, Death Penalty

Sentencing: Research Indicates Pattern of Racial Disparities 2

(Feb. 1990).

—_—

13

of the death penalty after the Furman decision.””

Review of one juvenile capital case provides a concrete

illustration of how discretionary decisions that may be

influenced by race can have a detrimental impact on the

Capital punishment process in cases involving young

defendants.

Ryan Matthews is an African-American young man. In

1999, Ryan Matthews was charged with, convicted of, and

sentenced to death for a Louisiana murder he allegedly

committed when he was seventeen years old. Ryan

Matthews, like the majority of death-sentenced juveniles,

was convicted of murdering a white victim. A jury

composed of 11 whites and one black found him guilty

notwithstanding questionable identification testimony,”' the

absence of physical evidence connecting Ryan Matthews to

Id. at 5. The GAO Report concluded that “[i)n 82 percent

of the studies, race of victim was found to influence the likelihood

of being charged with capital murder or receiving the death

peiialty, i.e., those who murdered whites were found to be more

likely to be sentenced to death than those who murdered blacks.”

Furthermore, the GAO study found that “(t]he evidence for the

race of victim influence was stronger for the earlier stages of the

judicial process (e.g., prosecutorial discretion to charge a

defendant with a capital offense, decision to proceed to trial rather

than plea bargain) than in later stages.” Jd.

"Rick Bragg, DNA Clears Louisiana Man on Death Row,

Lawyer Says, N.Y. Times, Apr. 22, 2003, at Al4 (“One witness

said he had pulled his car in front of the robber’s car and

fishtailed for a while so it could not get past him. The witness

said that as he was dodging bullets from the gunman, he saw the

gunman’s face clearly in the rearview mirror. Another witness

said she had seen Mr. Matthews briefly pull up the mask in the —

store while she was in the parking lot.”’).

14

the murder, and the inconsistencies between the witness

statements and the physical evidence.” The same jury

sentenced Ryan Matthews to death.

In 2003, after another prisoner braceed of having

committed the murder for which Ryan Matthews was

convicted, DNA testing was conducted. Those tests revealed

that DNA found in saliva and a skin cell which were left on

the ski mask worn by the killer did not match the DNA of

Ryan Matthews. Instead, it matched the DNA of the

bragging prisoner — a convicted drug dealer and murderer.

Ryan Matthews’ conviction was then vacated and a new trial

was ordered. He was released from prison on bond and is

now awaiting re-trial.”

Given the dearth of credible evidence regarding guilt, it

would have been reasonable to expect that Ryan Matthews’

youth would, at the very least, have diminished the

likelihood that a death sentence would be sought or imposed.

**Witnesses said the masked gunman had dived through the

open car window, but the window on the Grand Prix the police

believe was the getaway car [the car in which Mr. Matthews was

apprehended] had been stuck closed for as long as anyone could

remember.” Jd. Additionally,

[e]yewitnesses had said the gunman in the convenience

store was not very tall, perhaps 5-5 or 5-6, and of medium

build. Sheree Falgout, who was standing at the register

when the proprietor was gunned down, recalled telling the

police that the assailant ‘was not a large person.’ Other

witnesses concurred. Ryan Matthews is 6 feet tall.

Bob Herbert, Trapped in the System, N.Y. Times, July 14, 2003,

at Al7.

See Gwen Filosa, Ex-Death Row Inmate Home on Bond,

Times-Picayune, June 23, 2004.

15

It did not. And, although“[w]e cannot say from facts

disclosed in [the] record[{] that [this] defendant[{] [was]

sentenced to death because [he was] black,”Furman v.

Georgia, 408 U.S. 238, 253 (1972) (Douglas, concurring), it

is equally impossible to discount the possibility that race

played a constitutionally inappropriate role in the ultimate

decision to seek and impose the death penalty. In light of all

of the other factors counseling against the execution of

juvenile offenders, such individuals should not, in addition,

be compelled to face the risk of racial bias in the capital

punishment process.

The Only Way to Insure that Race Does Not

Determine Whether a Juvenile Defendant Will

Receive a Death Sentence Is to Hold that the

Death Penalty May No Longer Be Imposed

Upon Juveniles

In 1972, this Court announced, in Furman v. Georgia,

408 U.S. 238 (1972), that any law which allowed an arbitrary

and illegitimate factor such as race to play a role in the

administration of the death penalty is unconstitutional. See

id. at 249-57 (Douglas, J., concurring), 274-77, 293-96 &

n.48 (Brennan, J., concurring), 309-10 & n.13 (Stewart, J.,

concurring), 312-14 (White, J., concurring), 363-66 & n.152

(Marshall, J., concurring). While the death penalty laws

have been changed to limit sentencer discretion, see Gregg

v. Georgia, 428 U.S. 153 (1976), race continues to play an

invidious role in the administration of capital punishment for

juvenile offenders. The death penalty for such offenders is,

therefore, unconstitutional.

The Eighth Amendment’s prohibition on excessive

sentences requires the “punishment for crime [to] be

graduated and proportioned to [the] offense.” Weems v.

16

United States, 217 U.S. 349, 367 (1910). In analyzing

whether capital punishment is constitutionally proportional

for specific categories of offenders, this Court has considered

whether the offenders at issue have a characteristic which

undermines the criminal justice system’s capacity for

effective adjudication. Thus, for example, when this Court

decided that the Eighth Amendment prohibits the execution

of mentally retarded offenders, it held that

[t]he risk “that the death penalty will be imposed in

spite of factors which may call for a less severe

penalty,”is enhanced, not only by the possibility of

false confessions, but also by the lesser ability of

mentally retarded defendants to make a persuasive

showing of mitigation in the face of prosecutorial

evidence of one or more aggravating factors.

Mentally retarded defendants may be less able to give

meaningful assistance to their counsel and are

typically poor witnesses, and their demeanor may

create an unwarranted impression of lack of remorse

for their crimes. As Penry demonstrated, moreover,

reliance on mental retardation as a mitigating factor

can be a two-edged sword that may enhance the

likelihood that the aggravating factor of future

dangerousness will be found by the jury.

Atkins, 536 U.S. at 320-21 (quoting Lockett v. Ohio, 438

U.S. 586, 605 (1978)) (footnote omitted).

Youth of color in capital cases face meaningfully

identical circumstances. For many juvenile offenders, race

devalues evidence that would otherwise support a case for

life, encourages the imposition of the death penalty in spite

of the existence of factor(s) which should call for leniency

and ultimately functions as an unlawful impediment to the

17

proper consideration of mitigating evidence. “When the —

choice is between life and death, that risk is unacceptable

and incompatible with the commands of the Eighth and

Fourteenth Amendments.” Lockett, 438 U.S. at 605.

One specific way in which race increases the likelihood

that the death penalty will be imposed on a juvenile offender

notwithstanding the existence of significant factors calling

for leniency is that youth of color, like offenders with mental

retardation, are more likely to offer false confessions. As

detailed in other briefs before this Court, this is true for

juveniles in general. Empirical evidence reveals, however,

that this likelihood of falsely confessing is even greater when

the youth at issue is a person of color. The Gross study of

rape and murder exonerations between 1989 and 2003,

revealed that “/e]ighty-five percent of the juvenileexonerees_.

who falsely confessed were African American.”™ Thus, race

combines with age to render capitally charged juveniles

particularly vulnerable to false confessions and wrongful

convictions. The combination thereby enhances “[tJhe risk

‘that the death penalty will be imposed in spite of factors

which may call for a less severe penalty.’”” Atkins, 536

U.S.at 320-21 (quoting Lockett, 438 U.S. at 605).

- Additionally, as with mental retardation, the combination

of race and youth functions as a “double-edged sword,”

increasing the likelihood that a sentencer will perceive the

defendant as a future danger. When the offender is a young

person of color, the jury may be conditioned to think of the

offender as “the other” and dangerous (especially if the

victim is white).* The youthfulness of the offender causes

*Gross, supra, at 25 (emphasis added).

*°See, e.g., David C. Baldus et al., How the Death Penalty

Works: Empirical Studies of the Modern Capital Sentencing

18

the jury to think that this defendant is more likely to get out

of prison and is, therefore, more likely to pose a future

danger to society.” Combined these factors undoubtedly

cause the jury to lean in favor of the death penalty. Race

together with youth is, therefore, a combination which is

often perceived by factfinders as aggravating when, in fact,

it can and should be perceived as mitigating.

Because youth combines with race in a way that

“undermine[s] the strength of the procedural protections that

our capital jurisprudence steadfastly guards,” Atkins, 536

U.S. at 317, and because, as a result, youth of color “in the

aggregate face a special risk of wrongful execution,” id. at

321, it is appropriate for this Court to issue “a categorical

rule making such offenders ineligible for the death penalty.”

Id. at 320.

System, 83 Cornell L. Rev. 1638 (1998) (finding that in

Philadelphia, Pennsylvania, African-American capital defendants

faced substantially increased odds of receiving the death penalty

as compared to similarly situated white defendants and that being

African American increased the odds of receiving a death

sentence to the same extent as did the presence of the additional

aggravating circumstances of torture or grave risk of death).

Indeed, in Christopher Simmons’ case, the prosecution

argued that the jury should consider Mr. Simmons’ age as an

aggravator instead of a mitigator in that it rendered him more

likely to be a future danger to society. State ex rel. Simmons v.

Roper, 112 S.W.3d 397, 413 (Mo. 2003)

“ i POEL RRR

Conclusion

The judgment below should be affirmed.

Respectfully submitted,

STEVEN R. SHAPIRO

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

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