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When people who fly the Confederate flag are asked why they willingly associate with something heavily associated with racism, treason, and being pro-slavery, they usually respond with something about how it symbolizes tradition and states’ rights. When met with the response that the Confederacy only lasted four years, which is to say, the Confederacy survived for less time than the Survivor television series (21 years) or the Obama presidency (eight years), they then lean on the states’ rights prong. Until they get asked to define which rights the Confederate states were interested in.
I see a shared similarity with how 2nd Amendment enthusiasts justify their purchase and occasional stockpiling of the military surplus often used to mow down their fellow citizens — they own them to curb tyranny. Tyranny here is defined as “oppressive power exerted by government.” And few things are more tyrannical than the government protecting its right to kill innocent people.
Clarence Thomas, echoing his dear friend Scalia, had this to say:
[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.”
Michael Cohen goes on to clarify:
In short, a convicted defendant, like Jones, can be held responsible and kept in prison if his state-appointed lawyer provided ineffective counsel for his appeal.
How can a defendant argue ineffective counsel if they can’t point to specific examples of that ineffective counsel? And how else can they do that other than by introducing new evidence not presented at trial, which would have likely acquitted them? Thomas is saying, in effect, that a petitioner has to rely on the record of a trial in which they were ineffectively defended—and their actual innocence is of secondary importance.
Thomas justifies the court’s decision by arguing that a federal review imposes “significant costs” on state criminal justice systems that includes potentially overriding “the State’s sovereign power to enforce ‘societal norms through criminal law.’”
One might argue that housing a man who committed no actual crime on Arizona’s death row “imposes significant costs.” One might even further argue that executing an innocent man imposes far greater societal costs—not just to the legitimacy of the criminal justice system, but more acutely to the man whose life the state ended.
Our prosecutorial system is no stranger to “collateral damage” with no less than 375 people having done time before DNA evidence proved they were innocent, 21 of them being on Death Row. Since 1973, 187 people wrongly convicted and sentenced to death have been exonerated. The Court’s stance if they were to have been killed anyway? Tough shit.
Maybe these discussions about police brutality should be reframed as a tyranny problem — what else would you call 600 people being killed in traffic stops since 2017? At what point do we consider police shootings racial tyranny? Or what about these abortion bans? Compelling births upon the threat of imprisonment has to register as tyrannical, right?
So, about that high-powered rifle in your closet. Is it really about tyranny? Because most of the armed protests I see are just about… defending the right to have rifles. Will you actually be doing anything to curb government overreach? Or do you just want to look cool for prom date pictures or buy semi-automatic rifles for children? Because if your AR-15 has no actual, meaningful purpose, you should follow the lead of this longstanding NRA member.
The Supreme Court Just Said That Evidence of Innocence Is Not Enough [The Daily Beast]
Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. He endured Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com and by tweet at @WritesForRent.
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