A hard lesson that law students learn in criminal procedure classes is the difference between factual guilt and legal guilt. Factual guilt refers to what someone actually did. Legal guilt refers to what the prosecution can prove in accordance with law’s distinctive presumptions and burdens of proof.
Being factually innocent is no guarantee of what juries and judges will decide as they apply those presumptions and burdens.
Convicting the innocent is always tragic, but never more so than in death penalty cases. We know that 187 people have been wrongly convicted in capital cases and ultimately exonerated since 1973.
And there is little doubt that innocent people have been executed in this country.
On Monday, May 23, in Shinn v. Ramirez, the Supreme Court increased the chances that still more innocent people will be executed. In that case, the now-dominant six-Justice conservative majority elevated finality over justice and took another step in its campaign to erode constitutional rights and legal protections for people sentenced to death.
The Shinn decision does incalculable damage to America’s political, legal, and moral values and further undermines confidence in our clearly broken death penalty system.
The Court’s ruling came in a case in which two Arizona death row inmates sought federal habeas relief under 28 U.S.C. § 2254. The state court lawyers for one of them, Barry Jones, had not bothered to investigate available evidence that Jones was actually innocent.
In 2018, a federal court overturned Jones’ conviction, concluding that he had failed to receive effective counsel, a violation of his Sixth Amendment rights. Had his lawyers done their job, a federal judge ruled, “there is a reasonable probability that his jury would not have convicted him of any of the crimes with which he was charged and previously convicted.”
Nonetheless, during oral argument before the Supreme Court in December 2021, lawyers for the state of Arizona “repeatedly argued that ‘innocence isn’t enough’ of a reason to throw out Jones’ conviction.”
The Court agreed and held that federal judges may not intervene in state cases to protect the Sixth Amendment right to the effective assistance of counsel. It denied relief even when there is evidence that the condemned might be actually innocent.
Justice Clarence Thomas wrote in his majority opinion, “A federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on the ineffective assistance of state postconviction counsel.” He argued that what he dubbed “serial relitigation of final convictions,” undermines the finality that “is essential to both the retributive and deterrent functions of criminal law.”
In addition, Thomas argued that allowing federal courts to overturn a state prisoner’s conviction and sentence was an “intru[sion] on state sovereignty … [that] overrides the State’s sovereign power to enforce societal norms through criminal law.”
As the Death Penalty Information Center explained, Thomas decided that “1990’s amendments to federal habeas corpus law permit state prisoners who were provided ineffective representation at trial and in post-conviction proceedings to argue that their counsel were ineffective.”
But those amendments “bar them from presenting evidence of their ineffectiveness that competent lawyers had discovered once the case had reached federal court.”
Along the way, Thomas made short work of prior precedents which had held that “ineffective assistance of state postconviction counsel may constitute ‘cause’ to forgive procedural default of a trial-ineffective-assistance claim.”
Justice Sonia Sotomayor dissented, joined by Justices Stephen Breyer and Elena Kagan. She called the Court’s decision “perverse” and “illogical.”
It makes no sense, Sotomayor said “to excuse a habeas petitioner’s counsel’s failure to raise a claim altogether because of ineffective assistance in postconviction proceedings … but to fault the same petitioner for that postconviction counsel’s failure to develop evidence in support of the trial-ineffectiveness claim.”
A statement issued by the Innocence Project following the Shinn ruling agreed with Sotomayor and noted that the Court “set aside the judgments of four federal judges—on both the federal district court and the federal court of appeals—that Barry Jones was represented by a trial attorney whose failure to investigate and challenge the prosecution evidence caused Mr. Jones to be wrongfully convicted.”
Shinn is not the first time that conservative Justices have elevated finality over justice even if doing so risks executing the innocent.
In 1993, Herrera v Collins, with then Chief Justice Rehnquist writing for another six-Justice majority, held that a death row inmate was not entitled to federal habeas corpus relief when his petition was based on a claim that new evidence proved his innocence but did not allege any other federal constitutional violation.
Rehnquist argued that entertaining actual innocence claims in federal habeas corpus proceedings should be avoided “because of the very disruptive effect that entertaining such claims would have on the need for finality in capital cases, and the enormous burden that having to retry cases based on often stale evidence would place on the States.”
Justice Antonin Scalia, joined by Justice Thomas, was still more blunt about actual innocence claims. As he put it, “There is no basis in text, tradition, or even in contemporary practice (if that were enough), for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction.”
The conservative, pro-death penalty Justices now have the votes to read the Constitution as Scalia did three decades ago and to construct procedural barriers that increase the risk of executing the innocent.
Their actions serve only to erode confidence in and support for capital punishment in this country. Americans have gotten the message about the conservative emphasis on finality and the risk of executing the innocent that follows from it.
A Pew Center survey conducted last year found that 78% of the respondents believe that there is a risk that an innocent person will be put to death.
Other research reports that “three-quarters of Americans believed that an innocent person had been executed for a crime they did not commit within the last five years and that this belief was associated with lower levels of support for capital punishment.”
In the end, even as Justice Thomas and his colleagues give priority to finality over justice in capital cases, the public seems to understand that, as Justice Harry Blackmun wrote in his Herrera dissent, ”The execution of a person who can show that he is innocent comes perilously close to simple murder.”
