The U.S. Supreme Court’s 2021-2022 term is not yet over and it is already going down in the books as a terrible term for criminal justice reform. A pair of recent dissents by Justice Sonia Sotomayor spotlights the sorry state of affairs.
First, in Shinn v. Ramirez, the Court held that a death row inmate who received ineffective state-appointed counsel at both trial and postconviction state court proceedings is now barred from presenting new exculpatory evidence—evidence of actual innocence—in federal court. “Innocence isn’t enough,” declared the state attorney during oral arguments, insisting that the federal courts must defer to the flawed state proceedings.
“This decision is perverse,” wrote Sotomayor in dissent. “It is illogical.” She is right on both counts. As The Washington Post’s Radley Balko has detailed, “every court to consider the actual merits of [death row inmate] Barry Jones’s innocence claim has ruled that he never should 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.”
The Sixth Amendment guarantees the right to effective counsel in criminal cases. Jones had ineffective state-appointed counsel during trial and postconviction. Now, as his new, effective counsel has turned up evidence of his potential innocence (evidence that the earlier, ineffective lawyers failed to find), the Supreme Court has barred him from presenting such exculpatory evidence in federal court. So much for the Sixth Amendment.
The second notable Sotomayor dissent came in Egbert v. Boule, a ruling which shielded a border patrol agent from being sued in federal court for his alleged violations of the First and Fourth Amendments. Among its many sins, this outcome made a mockery of the Court’s 1971 decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, which said that federal officers may indeed be sued in federal court for alleged Fourth Amendment violations.
“Bivens itself involved a U.S. citizen bringing a Fourth Amendment claim against individual, rank-and-file federal law enforcement officers who allegedly violated his constitutional rights within the United States by entering his property without a warrant and using excessive force. Those are precisely the facts of Boule’s complaint,” wrote Sotomayor in dissent.
She is again right on all counts. Innkeeper Robert Boule alleged that Border Patrol Agent Erik Egbert assaulted him on his own property after Boule asked Egbert to leave. That Fourth Amendment complaint does not differ in any meaningful way from the Fourth Amendment complaint at issue in Bivens.
Thanks to the Supreme Court’s flawed judgment, Sotomayor observed, Customs and Border Protection (CBP) “agents are now absolutely immunized from liability in any Bivens action for damages, no matter how egregious the misconduct or resultant injury. That will preclude redress under Bivens for injuries resulting from constitutional violations by CBP’s nearly 20,000 Border Patrol agents, including those engaged in ordinary law enforcement activities, like traffic stops, far removed from the border.” So much for the Fourth Amendment when a federal officer is involved.