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This story originally appeared in Common Dreams on May 23, 2022. It is shared here with permission under a Creative Commons (CC BY-NC-ND 3.0) license.
Legal experts responded with alarm Monday to a ruling from the US Supreme Court’s right-wing majority that could lead to the indefinite imprisonment and even execution of people who argue their lawyers didn’t provide adequate representation after convictions in state court.
Justice Sonia Sotomayor—joined by the other two liberals on the court—also blasted the majority opinion in Shinn v. Martinez Ramirez, writing in her scathing dissent that the decision is both “perverse” and “illogical.”
The case involved two men, David Martinez Ramirez and Barry Lee Jones, who are on death row in Arizona. The majority determined that inmates can’t present new evidence in federal court to support a claim that their post-conviction attorney in state court was ineffective, in violation of the Sixth Amendment to the US Constitution, which affirms the right to “the assistance of counsel” in all criminal prosecutions.
“A federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state court record based on ineffective assistance of state post-conviction counsel,” Justice Clarence Thomas wrote for the majority, adding that “serial relitigation of final convictions undermines the finality that ‘is essential to both the retributive and deterrent functions of criminal law.'”
Sotomayor, meanwhile, wrote that “the Sixth Amendment guarantees criminal defendants the right to the effective assistance of counsel at trial. This court has recognized that right as ‘a bedrock principle’ that constitutes the very ‘foundation for our adversary system’ of criminal justice.”
“Today, however, the court hamstrings the federal courts’ authority to safeguard that right. The court’s decision will leave many people who were convicted in violation of the Sixth Amendment to face incarceration or even execution without any meaningful chance to vindicate their right to counsel,” she warned, also noting that the ruling “all but overrules two recent precedents,” Martinez v. Ryan and Trevino v. Thaler.
In a piece for Slate highlighting how the ruling “will cause profound suffering and perhaps even death as people are denied their constitutional rights,” University of Michigan Law School professor Leah Litman declared that the majority “took a wrecking ball to those decisions.”
As Litman detailed Monday:
Indigent defense—defense for people who lack the resources to hire their own lawyer—is in crisis in this country. Indigent defense is woefully underfunded, and public defenders handle hundreds of cases per year, many more than they have the time or resources to manage effectively. States also heavily restrict the procedures and resources that would allow public defenders to develop their cases in greater depth…
But just as there is an indigent defense crisis in this country, there is also a post-conviction crisis. Post-conviction proceedings are woefully underfunded, and lawyers are limited in the time and resources they have to pursue post-conviction relief. So defendants who are represented by ineffective lawyers at trial may then be represented by an ineffective lawyer during their post-conviction proceedings, when they are supposed to be arguing that their trial lawyer was ineffective. And—surprise—the ineffective post-conviction lawyer may fail to argue that the trial lawyer was ineffective, or may fail to develop any evidence in support of that claim.
In a series of tweets, fellow Michigan law professor Andrew Fleischman pointed out that “without ineffective assistance of counsel claims, there is no procedural vehicle to bring evidence of actual innocence in most states.”
“So, if you have a shitty conflict trial lawyer, and a shitty conflict appeals lawyer, and a mountain of evidence you are innocent, no relief,” Fleischman said, noting Jones’ argument that there is evidence of his innocence.
Other legal experts were similarly critical on social media. University of Texas professor law Lee Kovarsky called the opinion an “abomination” while public defender Eliza Orlins said: “This is radical. This is horrifying. This is extremely scary.”
Slate senior writer Mark Joseph Stern tweeted that the “absolutely atrocious” opinion “effectively ensures that innocent people will remain imprisoned.”
“The unceasing stream of callous, radical, reactionary decisions coming from the Supreme Court is fairly easy to miss because so many of them involve complicated points of law,” Stern added. “But the conservative majority is very much in the midst of a revolution. And it is a brutal one.”