The basic definition of a homicide is the death of one human because of the actions of another. By that definition, Clarence Thomas attempted homicide via the majority opinion he wrote in the Supreme Court case Shinn v. Ramirez on May 23. I do not say that merely because Thomas denied the appeal of two people on death row. Supreme Court justices deny final appeals from people condemned to die all the time, and while those denials have the effect of killing people, I wouldn’t call every denial a homicide. I call Thomas’s opinion a homicide because his reason for denying the appeal was so twisted and evil that his intent to kill was discernible through the legal jargon. He even added a footnote wherein he callously explained that he had the discretion to save these lives, but was choosing not to use it.
People who follow death penalty jurisprudence know that the Supreme Court has been on something of a killing spree over the past few years. The elevation of alleged attempted rapist Brett Kavanaugh to the court in 2018 gave conservatives five solid votes for denying death row appeals, while people like Samuel Alito and Neil Gorsuch are unwilling to let mere constitutional or procedural concerns stand in the way of the state’s ability to kill people.
But the Thomas opinion in Shinn is extreme even by the bloody standards set by his fellow conservatives. At issue in the case were the claims of two men on death row in Arizona, David Martinez Ramirez and Barry Lee Jones, that they had ineffective counsel at their trial and also at their post-conviction appeal, both of which were in state courts. Essentially, the men argued—on appeal yet again, this time in federal court—that their first two groups of lawyers were bad and their third group should be able to provide new evidence as part of a competent defense.
Both men have good arguments. Ramirez was convicted of killing his girlfriend and her daughter, but his initial lawyers never brought up intellectual disability as a mitigating factor in his crimes—a factor that might have spared him a death sentence. Jones was convicted of raping and killing his girlfriend’s 4-year-old daughter while she was in his care, but his original lawyers never investigated the timeline of events. When his current lawyers finally did investigate, they showed that the injuries that led to the child’s death were not sustained while she was in his custody. Jones is likely innocent of the crime he is set to be executed for.
During oral arguments, the State of Arizona repeatedly claimed that “innocence isn’t enough” to throw out Jones’s conviction and grant him a new trial, and the Supreme Court agreed. In his majority decision, Thomas argued that because Ramirez and Jones did not bring up the issue of ineffective counsel during their initial appeal of their state court convictions, they couldn’t bring it up later, in federal court. He also ruled that federal courts could not reopen evidentiary hearings because of inadequate prior counsel. Of course, the reason the men didn’t bring up their trial lawyers’ ineffectiveness is that their appellate lawyers were also ineffective. But Thomas gives them no way out of that death spiral. According to Thomas, if your trial lawyer is bad and your appellate lawyer is bad, then you can be put to death even if you are innocent. A federal court isn’t even allowed to review new evidence of innocence should it come to light after your first two attorneys failed to uncover it.
While holding the two men in this procedural death loop, Thomas touts his power to let the prosecutors who want to kill them off the hook for their errors. Ramirez’s team argued that the State of Arizona lost the right to object to his new evidence because it didn’t do so when the team first brought it up in federal court. Thomas waves this argument away in a freaking footnote: “Further, because we have discretion to forgive any forfeiture…we choose to forgive the State’s forfeiture before the District Court.” And this is happening in the very same case where he is holding Ramirez’s appellate lawyers’ errors against him, on pain of death. Thomas is flaunting his power to decide who lives and who dies, and has decided that Ramirez and Jones should die.
Thomas seems to think these people deserve it. He invests considerable space in his opinion to lurid descriptions of the crimes the men were convicted of. It is a sick and unnecessary detour into murder porn, in which Thomas shows himself to be less concerned about the laws at issue than about painting these men as monsters, undeserving of the court’s mercy. Again, while Ramirez does not deny that he committed a crime (and instead argues that his capacity to know right from wrong is diminished), Jones disputes—and has evidence disputing—the details recounted by Thomas. Not only is Thomas condemning a potentially innocent man to die; he’s smearing him on his way to the grave.
In dissent, Sonia Sotomayor assails Thomas for all of it. She says his opinion is “perverse” and “illogical” and “makes no sense.” She points out that Thomas and the majority are essentially overruling two Supreme Court precedents in their haste to authorize yet more killing by the state. She calls out Thomas’s sick game of rehashing the crimes the men have been convicted of, writing: “The majority sets forth the gruesome nature of the murders with which respondents were charged. Our Constitution insists, however, that no matter how heinous the crime, any conviction must be secured respecting all constitutional protections.” In what’s shaping up to be a career of biting dissents, this is one of Sotomayor’s best.
But there is no stopping this Supreme Court. The conservatives are acting like sharks who have caught the scent of blood in the water: They are now just violently gnashing at any person unfortunate enough to be in range of their murderous mouths.
Four federal judges, on the district court and the court of appeals, ruled that Barry Jones received ineffective counsel that led to a wrongful conviction. Nobody was asking Thomas to save this man; the system had done that already. But Thomas and the conservatives won’t allow the system to work. They’re not applying the law; they’re killing this man. Deliberately.