It’s been a bad term for the U.S. Supreme Court’s 2021-2022 criminal justice reform efforts. Justice Sonia Sotomayor issued a pair of recent dissents that show the state of affairs.
In the first one, called Shinn v. Ramirez, the Court held that a death row inmate named Barry Jones, who claims he is innocent and who received ineffective state-appointed counsel at both trial and post-conviction state court proceedings is now barred from presenting new evidence of actual innocence in federal court. Jones is facing execution even while his new counsel has turned up evidence of his potential innocence. This violates the Sixth Amendment, which guarantees the right to effective counsel in criminal cases.
“This decision is perverse,” wrote Sotomayor in dissent. “It is illogical.”
Sotomayor’s second dissent came in Egbert v. Boule, where a ruling shielded a border patrol agent from being sued in federal court for his alleged violations of the First and Fourth Amendments. In 1971 the Court ruled in Bivens v. Six that Unknown Named Agents of the Federal Bureau of Narcotics may be sued in federal court for alleged Fourth Amendment violations.
Robert Boule, an inkeeper, alleged that Border Patrol Agent Erik Egbert assaulted him on his own property after Boule asked him to leave.
“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 concluded that 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.”
