I remember reading Justice Antonin Scalia’s opinion in the 1993 Herrera v. Collins case with my mouth gaping open. In that case, Justice Scalia opined that the Constitution does not stop the government from executing someone, even if new evidence indicates that the person may be “actually innocent.” At the time of Herrera, only one other justice agreed with this distorted analysis: Clarence Thomas.
The court has changed.
Radley Balko’s recent opinion piece in the Washington Post demonstrates how a once unthinkable position was made law in the 6-3 Shinn v. Ramirez ruling. In Shinn, SCOTUS determined that even though the court did not find the innocence claims of Barry Lee Jones, a man on Arizona’s death row, to be unpersuasive, it did find that the federal courts were barred from considering them. Clarence Thomas wrote the opinion.
If you are baffled as to how the highest court in our nation could determine that actual innocence isn’t enough to protect a person from execution, join the club. When the final arbiter in our criminal legal system determines that expediency and procedure trump getting to the truth, administering actual justice, and ensuring that the innocent are not executed, our system is in terrible trouble. Under no circumstance should anyone face execution if, as the title of Balko’s article frighteningly summarizes, “The Supreme Court says guilt is now beside the point.”
Balko closes his piece by revisiting Mr. Jones case:
Every court to consider the actual merits of Barry Jones’s innocence claim has ruled that he should never have been convicted of murder. And every court to rule against Jones did so for procedural reasons without considering the new evidence. If Jones is executed, it will not be because there is overwhelming evidence of his guilt. It will be because of a technicality. During oral arguments in 2021 for last week’s ruling, Brunn Roysden of the Arizona attorney general’s office said something that ought to chill us to the bone. When a federal court is deciding whether it has the power to overturn a state conviction, he said, “innocence isn’t enough.” He said it again for emphasis. And then he won