Just weeks after a leaked Supreme Court draft opinion signaled the end of a constitutional right to an abortion, a final opinion issued by the 6-3 conservative supermajority undermined another enshrined right: effective assistance of counsel.
In Shinn v. Martinez Ramirez, the majority opinion, written by Clarence Thomas, held that federal courts may not conduct evidentiary hearings in cases involving state prisoners who lacked sufficient counsel — a right that is guaranteed by the Sixth Amendment.
As Leah Litman, a University of Michigan Law professor writes in Slate:
Martinez Ramirez held that there is nothing a federal court can do when a defendant received ineffective assistance at their trial in violation of the Sixth Amendment and was then appointed an ineffective attorney during post-conviction proceedings who did not present evidence to support the claim that the defendant received ineffective assistance at trial. Specifically, the court held that the federal statute governing post-conviction review, the Antiterrorism and Effective Death Penalty Act, prohibits the federal court from considering evidence that the ineffective post-conviction lawyer failed to uncover.
The decision, written by a man who has openly expressed skepticism of Gideon v. Wainwright (1963), a landmark case from the mid-century that led to a right to counsel for criminal defendants who could not afford one, will adversely impact and disproportionately fall on low-income and working-class people.
Centering the story of the plaintiff’s material circumstances rather than the nature of the crime in the case highlights just how important providing effective counsel to those who cannot afford outside-the-system, well-resourced legal assistance is to a fair and equitable system of justice.
The case primarily involves an Arizona man, Barry Lee Jones. At the time of Jones’s alleged crime, the rape and murder of a partner’s four-year-old daughter, Rachel Gray, Jones was living in Pima County Arizona, a desert town outside of Tucson with an unemployment rate of 7.6 percent. Jones drove around a rusted yellow van and lived in the sprawling, sand-covered Desert Vista Trailer Park on East Benson Highway.
Liliana Segura, a reporter for the Intercept whose coverage meticulously documents both the holes in the prosecution’s case and the insufficiency of the defendant’s counsel, described Jones’s living conditions in a recent podcast: “This was a place where there was a lot of poverty, a lot of drug use. A lot of people . . . living on the margins.”
Due to his precarious economic circumstances, when Jones was charged with murder, he could not afford counsel of his own, so the state provided legal assistance. As Justice Sonia Sotomayor wrote in a dissenting opinion joined by the court’s two other Democratic appointees, “Jones’ trial counsel failed to undertake even a cursory investigation and, as a result, did not uncover readily available medical evidence that could have shown that Rachel sustained her injuries when she was not in Jones’ care.” When Jones went on to challenge his conviction in a state court proceeding, he faced “another egregious failure of counsel.”
He now sits on Arizona’s death row.
States’ Rights, Indeed
The system’s failure should come as no surprise even to the most casual observer of the criminal legal system. The issue of providing sufficient counsel for the poor and working class goes back decades. In 1993, the Department of Justice published a paper declaring an “Indignant Defense Crisis,” concluding that “the long-term neglect of and lack of funding for indigent defense has created a major crisis in many States because constitutional protections are often guaranteed only to those who can afford to pay for them.”
The indignant defense crisis is coupled with a post-conviction catastrophe, putting low-income defendants like Jones in a Kafkaesque double bind. The proceedings are meant, in part, to highlight the inadequacies of counsel at the trial stage. But because the post-conviction system is also underfunded and understaffed, the process is plagued with the very same issues it is meant to address.
According to an amicus brief in the case, “The [Arizona] State Legislature briefly established an Office of the State Capital Post Conviction Defender. But the office was so severely underfunded that it employed just three attorneys — only one of whom was qualified to serve as lead counsel — and accepted only a handful of the growing backlog of capital post-conviction cases.”
Thomas and the five other Republican-appointed justices who signed on to his majority opinion find little fault with the system’s empirical inadequacies. And they see a remedy to documented issues regarding access to effective counsel as a form of federal usurpation of state power.
Federal courts, as Thomas writes, should not be endowed with the power to “override the States’ core power to enforce criminal law.” When a federal court intervenes, it “overrides the State’s sovereign power to enforce ‘societal norms through criminal law,’” and “disturbs the State’s significant interest in repose for concluded litigation.”
But what about when the state fails to provide, as was the case with Jones? Should the federal government and its vast array of resources — including money and manpower that states often lack — be put to use for disadvantaged, often poor criminal defendants? The conservative justices do not think so.
The decision, as Sotomayor writes, guts two earlier precedents “that recognized a critical exception to the general rule that federal courts may not consider claims on habeas review that were not raised in state court.” (In one of those cases, Martinez v. Ryan, Chief Justice John Roberts and Samuel Alito were in the majority — their switch highlights the radical change of pace the conservative supermajority is willing to pursue.)
Just as the draft decision in Dobbs v. Jackson Women’s Health Organization ends the constitutional right to an abortion and leaves essential reproductive health measures solely up to states with varying degrees of access to care, the final decision in Shinn v. Ramirez and Jones undermines the Sixth Amendment’s right to effective assistance of counsel by curbing the federal government’s power to review and enforce said right, while relying on vastly underfunded state regimes to ensure that defendants receive a fair shake. It’s a massive blow against what should be a basic right to counsel for all Americans.