The Supremes rule against humanity

I've been in favor of the death penalty since I first knew what it was. I suppose it has something to do with my sense of justice: if you take a life, which is really the only time the death penalty is imposed, you owe a life. That also conflicts somewhat with my Catholic upbringing that teaches all life is precious, but humans have our convenient blind spots, and mine was capital punishment.

For most of my life, I've been fairly steadfast in my belief that killers deserve to be killed. In fact, I still believe that. But for the first time in over 50 years, I can say that I am truly anti-death penalty. And I can thank the Supreme Court for, inadvertently, changing my mind and fine-tuning my moral compass.

There is some inconsistency in embracing the life of an unborn child but rejecting the life of a man. The way I used to reconcile those two mutually exclusive postures is by arguing that the man on death row is guilty of taking a life, while the child in utero is guilty of only one thing: Being unwanted by her mother.

That helped me through a lot of conversations. But there was always the underlying supposition that the person being put to death was guilty of a heinous crime, and that taking him out of the world balanced the celestial scales. I can't argue that anymore.

Last week, the Supreme Court ruled this country could legally execute an innocent man. There really is no other way to interpret the opinion written by Clarence Thomas, which places the proper administration of judicial procedures, finality and order in the court over humanity.

The court had before it the case of a man who had been convicted of sexually abusing a 4-year-old child so viciously that her intestine ruptured and she died of peritonitis. The facts are so horrific that it's difficult to find any window of mercy, any possibility of compassion for the alleged abuser.

But there was strong, discoverable evidence that the defendant, Barry Jones, was not actually responsible for the child's death. That included indications that the child had not been raped, and that the pathologist's report was flawed concerning the actual timing of the child's death. Jones' attorneys failed to investigate these inconsistencies, and pretty much served him up on a platter to the state of Arizona. They committed clear, egregious ineffective assistance of counsel in violation of the Sixth Amendment.

But Justice Thomas rejected the argument that Jones should get a new trial to prove his possible innocence, noting that "a federal court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state court record based on the ineffective assistance of state postconviction counsel." That essentially means that a criminal defendant who had a completely incompetent attorney at both the trial and appellate levels is stuck with that incompetence, even if it means he might die because of it. The only way to prove that an attorney was constitutionally ineffective is to present evidence that he didn't, evidence which might have resulted in an acquittal if a judge or jury had seen it.

Six Supreme Court justices essentially said, "too bad." And this is particularly egregious when you consider that the attorneys in this case were court appointed, not chosen by Jones himself. In other words, the government that picked the pathetic attorneys is the same government that pushes the plunger.

Sonia Sotomayor, not someone with whom I normally agree, called the decision perverse and illogical, and she's absolutely correct. She should have added that it's also completely inhumane. As someone who awaits with bated breath a decision that will overturn the inhumanity of Roe v. Wade, I cannot escape the irony in this incredibly cruel example of nihilism.

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And that's why I've come to the conclusion that the death penalty in the United States does not protect the rights of the truly innocent, and that if we insist upon killing people without guaranteeing that they are actually guilty, we have no right to call ourselves a bastion of civil rights.

Just as those who lobby for legalized abortion ignore the nascent humanity of innocence, so do those who support the Supreme Court's decision to favor expedience over true justice show themselves to be frauds when it comes to the sanctity of life.

And if I can resolve the inconsistencies in my soul, perhaps those pro-abortion, anti-capital punishment folk can one day do the same.

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Christine M. Flowers is a lawyer and columnist.