0:00:01.3 [Archival]: We'll hear argument next in number 91-7328, Leonel Torres Herrera v. James A. Collins.

0:00:13.0 Leon: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On today's episode of 5-4, Peter, Rhiannon, and Michael are talking about Herrera v. Collins, a death penalty case from 1993. In a 6 to 3 vote, the Court held that having new evidence of innocence does not entitle someone sentenced to death to habeas corpus proceedings, the last resort for capital punishment cases. This is 5-4, a podcast about how much the Supreme Court sucks.

0:00:49.8 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have killed off our civil liberties in the service of a misguided intellectual experiment, like Edison killed Topsy the elephant.

0:01:04.0 Rhiannon: Wow.

0:01:04.0 Peter: Are you guys familiar with the Topsy story?

0:01:06.1 Michael: I am. From Bob's Burgers. I know it from Bob's Burgers.

0:01:09.3 Peter: That's right.

0:01:09.9 Rhiannon: Did he electrocute an elephant or something?

0:01:12.0 Peter: Yeah, Edison wanted to prove that electricity was powerful, and so he just killed an elephant with it.

0:01:18.1 Rhiannon: God damn.

0:01:20.1 Peter: Yeah.

0:01:20.3 Michael: Yeah. American hero.

0:01:22.1 Peter: Thanks for the light bulbs, dude. I am Peter. I'm here with Michael.

0:01:26.9 Michael: Hey, everybody.

0:01:28.0 Peter: And Rhiannon.

0:01:29.3 Rhiannon: Hi, hi, hi, hi.

0:01:30.7 Peter: And today we are talking about Herrera v. Collins. This is a case about the death penalty. And we haven't done a death penalty case yet, and we thought it would a good time to do one for a couple of reasons.

0:01:42.5 Rhiannon: The holiday season.

0:01:46.9 Peter: Well, but I think first, we're like 48 something episodes in, so maybe a little overdue.

0:01:51.2 Rhiannon: Right.

0:01:51.9 Peter: And second, the Trump administration has, in its final months, begun what appears to be a calculated effort to expedite pending federal executions. So after two decades without a single federal execution taking place, the administration carried out three in the span of four days this summer, has carried out 11 total this year, and has more scheduled, including several immediately before Biden's inauguration.

0:02:17.2 Michael: Yeah.

0:02:17.8 Peter: So this has reignited some public debate, in large part because most likely the administration is doing this to make a statement about what they believe the role of the state to be in criminal justice, which is a mechanism for inflicting punishment.

0:02:33.1 Michael: Right.

0:02:33.2 Peter: I will say up top that I am opposed to the death penalty, in large part because I think the risk of executing an innocent person far outweighs whatever utility you might find in killing evil people. To me, I think you can make a moral argument that certain crimes are deserving of death. If someone brutally murders a child or founds a chapter of College Republicans, I get it. I'm not saying I agree, but I get the argument in the abstract. But this case isn't about the morality of killing someone who did something heinous. It's about the risk that you are almost always running, which is that you are maybe killing an innocent person. In this case, a man about to be executed filed a petition for a writ of habeas corpus in court, claiming that he had evidence of his innocence. If you don't know, habeas corpus is essentially a procedural mechanism for prisoners to claim that their imprisonment is unlawful and request that a court look into the matter. A habeas corpus is a right that stretches back to medieval times, which is why we keep using the stupid Latin name, in order to show that this is very old and fancy.

0:03:44.3 Michael: That's right.

0:03:45.0 Rhiannon: Right.

0:03:45.5 Peter: So Rhi, give us the background here.

0:03:48.3 Rhiannon: Sure. So just to note, this kind of feels like hearkening back to some older episodes. We're back in cases that start with some gruesome facts. So it's a murder case, right, so it's a tough story. In September 1981, a passerby happened upon the dead body of police officer David Rucker, on a highway in South Texas. This happened like just north of Brownsville. At about the same time that the passerby comes upon this dead body, another officer, officer Enrique Carrisalez pulled over a speeding car travelling away from the scene where Rucker's body had been found. The driver of the speeding car fired at officer Carrisalez and nine days later, Carrisalez died of those wounds.

0:04:38.3 Rhiannon: And Carrisalez had had a passenger with him, an officer partner in his police car, though, and that passenger as well as Carrisalez, before he died, identified a man named Leonel Herrera as the shooter. So the investigation found other evidence that it linked Herrera to the murder as well. A license plate check on the car that was pulled over revealed that Herrera's girlfriend owned the car and he was found with the keys in his possession. Splatters of blood on the car and on Herrera's jeans matched officer Rucker's blood type, but not Herrera's.

0:05:14.7 Peter: This is before you could do the full DNA, so they were just like, "Yeah, it's Type A, we got the guy."

0:05:20.0 Rhiannon: Right, right, yeah. Herrera's Social Security card was discovered next to officer Rucker, the first victim's car.

0:05:28.2 Michael: Well, that one's pretty damning. Not gonna lie.

[laughter]

0:05:30.4 Rhiannon: And...

0:05:30.9 Peter: Criminal mastermind, dude.

0:05:34.3 Rhiannon: Yeah.

0:05:34.6 Peter: Did he leave a signed confession at the scene too? Jesus Christ.

0:05:38.6 Rhiannon: Oh, well, Herrera was carrying on him, at the time of his arrest, a letter that sort of... It implicitly referred to knowledge of the deaths of the two officers.

0:05:48.8 Peter: Dude, who even has their Social Security card on them? Let alone in a precarious position where it might fly out of your pocket.

0:05:56.5 Michael: The note is so ridiculous. It's like accusing the cops of being involved in a drug smuggling ring with them. It's pretty good, though.

0:06:04.6 Rhiannon: Right.

0:06:05.3 Michael: Yeah.

0:06:05.6 Rhiannon: Yeah. You know, common conceptions of how sort of extreme interpersonal violence happens and murders and stuff is that... I don't know, people plan it and try to do a good job at it. But as somebody who defends convicted murderers sometimes, that's just not how it happens.

0:06:26.5 Michael: I'm convinced I could get away with a murder. I read this cases and I'm like, "I know all the pitfalls to avoid. I will not bring my Social Security card."

0:06:35.2 Peter: Yeah, if, you know, you're the type of guy who might kill two cops one night, then just leave the Social Security card at home.

0:06:42.8 Michael: Even if you take his confession card in his pocket at face value, it's like, "Dude, you're in a drug smuggling ring that involved several cops and you're carrying around your Social Security card?"

0:06:53.5 Peter: Right. "Here's a letter explaining the drug smuggling ring that I'm in."

[laughter]

0:07:00.5 Rhiannon: Oh, man, I wish you guys could spend five minutes with people accused of crime.

0:07:08.3 Michael: Well, I have...

0:07:08.9 Rhiannon: Just talk to them about how they ended up where they are...

0:07:11.7 Michael: Mine were always people with MBAs, though. Unfortunately. A more polished version.

0:07:18.5 Rhiannon: Right. So, Herrera went to trial and he is convicted of capital murder. A jury sentenced him to death. So began a long appeals process in which, starting in 1990, so just about a decade after the trial and everything, Herrera began to assert that he was actually innocent and he had not murdered the officers. And in support of his innocence claim, Herrera submitted to the courts four affidavits that pointed to the guilt of Raul Herrera, who was Leonel Herrera's deceased brother.

0:07:55.8 Peter: Wait, wait, how did his brother die?

0:08:00.6 Rhiannon: His brother had been murdered in 1984, a few years after the facts of this case happened. So I'm not gonna get into the claims within the affidavits, the specifics of the affidavits, but it's important to say, I think, that these four pieces of evidence were all collected after Herrera's trial. And they call into question the reliability of his conviction. One affidavit is written by a former state judge in Texas. So there are questions about whether this conviction is real, if Leonel Herrera really did it. The important thing is that new evidence that has come up since the initial trial, since Herrera's conviction, is what needs to be reviewed here. And I think here we should explain a little bit more about the habeas process.

0:08:47.5 Rhiannon: So habeas corpus is a parallel pathway to your direct appeals process. And the process is for asserting that your constitutional rights were violated at trial. If you're allowed to have your claims reviewed in habeas proceedings, this is a separate track from your direct appeals process, in order to get a new pair of eyes to make sure that your trial was constitutionally fair. If there was a constitutional defect at your trial, like for example, you weren't given access to your attorney, or the prosecutor didn't turn over exculpatory evidence, you can be granted a new trial in habeas review. And habeas is also special, because in some ways, it's the only pathway to get your claims in front of any court.

0:09:34.2 Rhiannon: Some states have their own habeas procedures, but federal habeas is the last hope, kind of the last resort for constitutional claims after other appeals processes under state and federal law are exhausted, or if you're past those appeals deadlines. And so, Herrera submits all of this documentary evidence of his innocence in federal court, and the Fifth Circuit Court of Appeals denied his claims. And basically they said he had not presented claims for which there was federal relief that could be granted.

0:10:06.4 Peter: Right, so they wouldn't even review the evidence?

0:10:08.6 Rhiannon: Right, right. They just tossed it out saying, "We can't help you, this isn't a legal claim that we can even review." So Herrera then appealed that decision to the Supreme Court, and that's how we get this...

0:10:21.7 Peter: Case.

0:10:22.1 Rhiannon: Dog shit opinion.

0:10:24.7 Peter: Oh.

[laughter]

0:10:25.7 Peter: Yeah, so to be clear, what Herrera is asking for is just that the evidence be heard. And he is asking that that be done through habeas corpus, the right of habeas corpus. And when it is denied, what he brings to the Supreme Court is a constitutional claim. What he says is, "Look, the Eighth Amendment forbids cruel and unusual punishment." And what exactly that means has been the subject of much debate between liberals and conservatives, both because it's a very vague term, and also because most of conservatism is just sort of creating fictional enemies and then fantasizing about punishing them. And so, Herrera is saying, "Look, executing me would be cruel unusual punishment, because I am innocent."

0:11:06.1 Rhiannon: Right.

0:11:06.4 Michael: Makes sense.

0:11:07.0 Peter: And you should review this evidence and determine whether or not that is the case." And the court, in a 6-3 decision says, "No, no, I think we're good here.

[chuckle]

0:11:20.5 Rhiannon: Right. We're not gonna look at this shit.

0:11:21.5 Michael: No, thank you.

0:11:22.9 Peter: I should note up top, there's also a Fourteenth Amendment claim here, a substantive due process under the 14th Amendment claim, basically saying that his fundamental right to have his evidence heard is being violated. We think it's sort of substantively the same as the Eighth Amendment claim, so we're gonna mostly ignore it, but just... Again, it's just so some nerd doesn't yell at us about not covering every aspect of this case. So, Chief Justice William Rehnquist takes off his Klan hood and pops on his executioner's hood to write the majority opinion here. His opinion does not actually address the question of whether executing an innocent person would violate the Eighth Amendment. Instead he sort of turns this into a procedural issue.

0:12:01.2 Peter: He says like, well, look, you already had a trial here, and that trial determined that you were guilty. So you can't use a habeas corpus petition to claim that you're innocent after a trial occurs, because that would essentially require a court to look at this again, and that's just too much, we don't need to do it. Put in the best light, taking the conservatives... Assuming they're acting in good faith here. The idea is that all of these procedural protections under the Constitution, like the due process protections, are meant to protect innocent people. But you can't just claim, according to them, "Well, I'm innocent, and that's a constitutional issue." What they're saying is, "If you had a fair trial and that determined you were guilty, then you're not innocent. Because innocence or guilt is the output of that process." You have to tie your innocence claim to some procedural unfairness. That's what the conservatives are saying.

0:12:51.2 Rhiannon: Right.

0:12:52.4 Michael: Right. Right. And so, Rehnquist has this sort of remarkable portion... A couple of paragraphs right in the middle of the opinion, where he says, look, evidence that you're innocent, it's not that it has no place in habeas, let me tell you where we care about it. And the thing is getting into a habeas court is complicated and you have to jump through a ton of hoops. And if you mess up one, maybe years ago, the court won't hear your claims. They'll say, sorry, you didn't do this weird random thing that no reasonable person should even know that they had to do, and so we can't even hear your claim. And what Rehnquist says is, look, in those cases, if you have evidence that you're actually innocent, we'll give you a pass on messing up this nuts and bolts process. But once you get into habeas court, we still don't care whether or not you have evidence that you're actually innocent, that's still not what the court's looking at and it's not what it's concerned with. It's still concerned with whether your trial met the constitutional bare minimum of fairness.

0:13:52.1 Michael: And so, think about what this is saying. This is saying, we don't actually care if you're actually innocent. All we care about is whether you got proper process. If your trial was fair. If you have a claim that your trial was unfair, we'll hear that. But actual innocence is only important in so far as it let's us decide whether your trial was fair. It's elevating process over substance.

0:14:23.9 Peter: Yeah, absolutely.

0:14:24.4 Michael: And saying, what's important is the fairness of your trial and not the accuracy of the outcome.

0:14:30.6 Peter: Yeah. It's like they're treating innocence as if it's not a real thing, but just the sort of determination of this system.

0:14:38.2 Michael: That's right.

0:14:38.9 Peter: It's just completely bizarre.

0:14:40.4 Rhiannon: Right, and the obvious gaps that this is creating and who can sort of avail themselves of the process of habeas corpus, is people with newly discovered evidence, evidence that's found after their trial, right? So they can't say that they have a constitutional claim about what happened at trial, because it's something new or subsequent developments that happened separate and apart from their trial and afterwards.

0:15:04.8 Peter: Yeah, so what Rehnquist is saying, I think, in short is, this guy has already had a trial, at that trial, he was found to be guilty, and after you're convicted and sentenced to death, you can't use a habeas corpus petition to claim your innocence. That is not a cognizable claim under the Constitution. So Justice Sandra Day O'Connor files a concurrence that is basically just a slightly more empathetic version of the majority opinion. We haven't really ever talked about her that much. She was the first woman on the Court, conservative, appointed by Reagan. And these types of concurrences are a staple of her jurisprudence, in my view.

0:15:45.9 Rhiannon: Absolutely, yeah.

0:15:46.3 Peter: The dudes on the Court will file some deeply heartless opinion, and she'll file a concurrence saying like, "Look, I agree with every pertinent part of that opinion, but here is a slightly nicer version of it." And everyone will be like, "Wow, Sandra was so nice."

[laughter]

0:16:03.4 Rhiannon: What if you take this awful psychotic opinion, but you just take it with a spoon full of sugar.

0:16:10.6 Peter: Yeah, so here she says like, look, if an innocent person were executed, that would violate the Constitution, but that's not what's happening here, because this guy had a fair trial and he was found guilty and that's that. And it's important to note what the Court is being asked is not to decide whether this guy is innocent or not. It's to decide whether this evidence should be looked at to figure out whether he is innocent.

0:16:31.5 Rhiannon: Yes.

0:16:31.9 Peter: The conservatives are reacting to a man on death row claiming that there's evidence of his innocence with like the exasperation of a chef reacting to a guy sending back his food for the third straight time, just like, "It's always something with this guy."

0:16:49.2 Rhiannon: Yeah, yes.

0:16:49.6 Peter: It just doesn't seem like too much to ask for a court to take a look at a fairly... I shouldn't say necessarily legitimate, but a fairly extensive claim of innocence before the State of Texas literally ends his life. Is that really too much to ask?

0:17:05.1 Rhiannon: Right. Look at it. Review it. It's obviously stupid and cruel even on their own terms on this procedural question that they choose to answer. Do we have to require courts to review new evidence, that kind of thing. By most accounts and based on the way the majority opinion was written, it actually seems like Chief Justice Rehnquist wanted to answer the constitutional question and he wanted to answer it no. Rehnquist would have liked to rule in the way that Scalia describes in his concurrence, which we'll discuss in just a little bit, to basically say that actual innocence is not a cognizable constitutional claim. And one reason the majority and concurrences kind of seem confusing on some ticky tack points, is that Rehnquist likely wrote this majority opinion saying what he wanted to say and coming to his conclusion, but he just couldn't get a five justice majority on that.

0:17:56.6 Rhiannon: Sandra Day O'Connor, Anthony Kennedy are sort of known as the more centrist conservative Justices, and obviously, they wouldn't join that kind of opinion. So Justice Rehnquist sort of changes, just the end of the opinion to be like, well, okay, really, this is just about the procedure stuff. And it would be terrible if someone was allowed to get a second bite of the apple just 'cause they have new evidence that tends to show their complete fucking innocence. So still, this opinion and the concurrences stand as one of the starker cases from the Supreme Court on the death penalty, because while they dodge the bigger questions for more narrow procedural ones, it's clear that what they're doing is tacitly accepting that the Constitution does not prevent an innocent person from being executed. I feel like if you told someone on the street that that was the case, they wouldn't believe you. That seems like anathema to the legal protections you're supposed to get in court.

0:18:52.2 Michael: Yeah.

0:18:52.5 Peter: Yeah, we always talk about the fact that rights without remedies are not really rights, and this is I think a big theme of this case. The majority is sort of dodging the question of whether there's a constitutional right to not be executed if you're innocent, but in a way they're answering it. They're holding that there is no constitutional remedy for an innocent person who has been sentenced to death. And without that remedy, the right doesn't exist.

0:19:15.3 Rhiannon: Exactly.

0:19:16.0 Michael: When I read cases like this, there's a question that always is just sort of in the back of my mind, which is like, what's the point of having a criminal justice system at all? And I don't mean that rhetorically. Like literally, what social problem are we solving? A lawless society, I imagine, would be something like the mob, like a lynch mob. That's what we're trying to replace. We're trying to prevent. If you have a fair, just criminal justice system, you won't have gangs of people going around putting nooses around someone's neck because they're pissed that their store got robbed. And when I read opinions like this, that doesn't feel right. It's not compatible with this. If that were the case, then executing an innocent person would cut to the core of that. Instead, it feels like what they want to do is like formalize the mob, like legitimize the mob. Like, "Oh, it's okay if we're putting a noose around some rando's neck, as long as he had a lawyer and he got to, you know, present evidence."

0:20:23.2 Peter: Yeah, so believe it or not, the opinions in this case get worse.

0:20:28.1 Rhiannon: Boy, do they.

0:20:29.3 Michael: Yes.

0:20:29.4 Peter: Justice Antonin Scalia (buy our merch: fivefourpod.com...)

[laughter]

0:20:35.2 Peter: Filed a concurrence here. As we just noted, the majority doesn't expressly say that executing an innocent person is not a violation of the Eighth and Fourteenth Amendments. So Scalia files this concurrence so that he can say that it's definitely not a violation of the Constitution.

0:20:53.8 Rhiannon: Yeah. That's right.

0:20:55.5 Michael: Yeah. Yeah.

0:20:55.6 Peter: His concurrence is brief and snarky. This is 1993, and Scalia sort as... Sort of hit his stride, in terms of his sense of intellectual superiority. It only grows from here, but this is where you really start to see it, in the early '90s, from decades of being bullied for being a big know-it-all dork has culminated in a lifetime appointment without any tangible accountability, and so he's taking it out on everyone. We all have to deal with it. Scalia says there's no reason to think that there's a constitutional right to have new evidence heard after you're convicted. Specifically, he says, there's nothing, quote,"in text, tradition or even in contemporary practice," unquote, to suggest that such a right exists. He doesn't really elaborate, but I still think it's important to talk about this, 'cause it fits squarely into a theme we've touched on several times before, which is the conservative weaponization of history to justify the wrongs of the present, and that's really what he's getting at here.

0:21:51.3 Rhiannon: Yes. Right.

0:21:52.5 Peter: Scalia's originalist interpretation of what cruel and unusual punishment means is rooted in what would have been thought to be cruel or unusual at the time of the Constitution being written. I don't want to get too into originalism as an academic pursuit, but when it first gained steam in the early '70s, it was primarily about trying to determine the original intent of the Constitution, meaning what the Founding Fathers intended, and over the ensuing decades, that sort of fell out of fashion in favor of what they call the original meaning, meaning what the public would have thought the Constitution meant at the time.

0:22:30.2 Rhiannon: Right.

0:22:30.8 Peter: And I bring this up because in a way, the shift from intent to meaning was sort of strategic by conservatives, because, in large part, what the Founders intended was probably going to be a bit more liberal than what the public would have interpreted, and I bring it up because this is a great example, the Founding Fathers themselves had fairly nuanced views on capital punishment. It's the late 1700s and Western aristocracy have just started to think about whether killing people is bad or something...

0:23:00.8 Rhiannon: Right, right, yeah. Yeah. [chuckle]

0:23:00.9 Peter: Cesare Beccaria, that's my attempt at the pronouncing that Italian name, wrote about punishment and specifically sort of condemned capital punishment and that... Like his work really gained favor among the Founding Fathers, so if you're trying to figure out what they intended, you might think, "Well, the Constitution might want to avoid a situation like this."

0:23:20.4 Rhiannon: Right.

0:23:20.9 Peter: But if you're trying to figure out what the general public would have thought, you're talking about people who were living substantially closer to a time when we executed people suspected of witchcraft than they do to the present.

0:23:31.5 Rhiannon: Right. Right.

0:23:31.7 Peter: In the early colonies, petty larceny could result in execution, so to use that era's norms as a barometer for what cruel and unusual punishment means is essentially to just write the clause out of the Constitution, right, these people were psychotic. And I bring this up to point out how conservatives' embrace of history as a useful tool for guiding the present is done very selectively, and that's why we say that they're weaponizing history, right? They're not learning from it or building on it, they are selectively using it to back what they already believe.

0:24:05.5 Rhiannon: Yeah, I think that's right.

0:24:06.6 Michael: Yeah, and there is one bit of Scalia snark that I want to talk about for a sec, which is he says that he understands the Court's reluctance to admit publicly that the Constitution would let stand any injustice, much less the execution of an innocent man, so he's literally being sarcastic about the idea that the Constitution might have something to say about killing someone you know to be innocent. And he turns around and he follows that up and he says like, "Look, if you have some real evidence, you'll probably just get a pardon."

0:24:40.8 Peter: Yeah.

0:24:41.4 Michael: And then the Court won't have to deal with this shit anymore. Literally he says, "It isn't probable, the evidence, which failed to produce an executive pardon, with any luck we shall avoid ever having to face this embarrassing question again." Embarrassing, whether or not the Constitution has anything to say about killing an innocent person.

0:25:00.8 Peter: Yeah.

0:25:00.8 Michael: That's what he thinks. Fuck that guy.

0:25:02.4 Rhiannon: Yeah, yeah, I think it's worth talking about, since we've mentioned that the conservative majority here is choosing to take on a formalistic procedural question rather than a big constitutional question. I think it's worth discussing a little bit what the Supreme Court could have done in this case, to have come to a better result. This one is almost so obvious that it's maybe a little bit stupid or elementary, the Court should have taken up the larger constitutional question, "Is it cruel and unusual punishment to be executed for a crime you did not commit?" And the answer is obviously, obviously, yes. That is unconstitutional.

0:25:39.7 Michael: Right.

0:25:40.4 Rhiannon: That is cruel and unusual. Because of course it is. What kind of depraved, fucked up, insane, authoritarian view of state power do you have to think otherwise?

0:25:51.7 Peter: Right. Right.

0:25:52.5 Rhiannon: You don't have to be a fucking whizz-kid legal genius to think that in a democracy, the law shouldn't have to sometimes be cool with innocent people being murdered by the state. That's crazy. But there are lots of reasons why that didn't happen, not least of which, because of an ideologically conservative understanding of when and where a court is supposed to step in on a case, and on whose behalf.

0:26:18.2 Peter: Yeah.

0:26:18.7 Michael: Right.

0:26:19.2 Peter: I think it's important to note that it might have been very simple for the conservatives to say, look, it's unconstitutional to execute an innocent person, but in this case, we're not gonna give him habeas review and for all these reasons. I think the reason they didn't do that is because they don't want to create a constitutional right, that they then have to sort of afford some procedural protections to. If you say, you can't do this under the Constitution, then you have to explain what they're actually doing to prevent it from happening. And this Court doesn't want to do anything to prevent it from happening.

0:26:51.0 Michael: Right, it's very easy to see how that would play out. Even if you were sending it down to the lower courts to figure it out, there'd have to be some standard for the type of evidence that even gets you habeas review and then the persuasiveness of that evidence to actually get your petition granted. And it would be a lot of work. And man, it would suck if they would have to hear a lot of these cases.

0:27:12.3 Peter: Yeah.

0:27:12.8 Rhiannon: Exactly. And I think the Court sees itself here, and I'd say in the vast majority of its cases, not as reviewing a criminal case and subsequent developments in order to vindicate an individual person's rights. They aren't looking at the procedures in place for people to have their day in court, and they're not trying to formulate more expansive pathways so that even people and prisoners with few resources can have all of the information that they would like presented to a court reviewed closely and fairly before the state can fucking kill them. Here, it's very clear that the Court sees itself instead as protecting the dockets of lower courts, making sure that the pathway is as narrow as possible, because we don't want all of these cases.

0:27:58.8 Rhiannon: On the one hand, in death penal jurisprudence, the Supreme Court emphasizes that the death penalty should only be given to the worst of the worst, the most extreme or depraved or violent or hurtful kinds of capital murder. But in this case, we see how much those writings, those other opinions are just paying lip service to sort of these more just principles. Because here what they're saying is, man, if some guy who's innocent gets executed, that's just a sacrifice our system must bear. Because God damn, would it suck if people were able to use federal courts to hear these kinds of claims. Like, God, we're tired of all the complaining. And I don't think it's worth trying to get into the mind of these freaks too much, because I promise you, it'll be 100 times more terrifying and depraved than any of the minds of any quote-unquote criminal client I've represented.

0:28:50.5 Rhiannon: But this flows, I think, from a conception of what it means to be a judge, that you make courts and access to legal remedies less available to common people. This idea that it should be hard, that the burden on an individual must be impossibly high to get a court to do shit for you. That from this opinion really makes me really sick.

0:29:11.0 Michael: Yeah, and I think something that makes this case maybe even worse, is that, look, this guy... There was a lot of evidence against him, and...

0:29:21.4 Rhiannon: Sure.

0:29:21.8 Michael: I think you could argue that the evidence that he was innocent is kinda weak. And so... I could see a listener listening to this and being like, "Well, yeah, but look, I don't think they put an innocent man to death. I think they put a guilty guy to death." And maybe... But that's even worse. That's literally even worse because the Court is closing off pathways that maybe should be available for people with far more persuasive evidence, far more compelling evidence. In this case, sending this back, the most likely scenario is that a judge looks at this, maybe takes testimony from the former judge in person to evaluate its credibility. And otherwise it's like, "Nah," and that's it.

0:30:01.0 Peter: I think all three of us would like, put a gun to my head and say, is this guy innocent or guilty? Guilty.

0:30:05.3 Rhiannon: Don't speak for me.

[laughter]

0:30:07.1 Peter: You think he's innocent? No, you don't.

[laughter]

0:30:10.3 Rhiannon: I think it doesn't matter, you know.

0:30:12.0 Peter: No, it doesn't matter. But that's the point I'm making, Rhi, God.

0:30:14.6 Rhiannon: Yeah, yeah.

0:30:15.2 Peter: The innocence of this guy is not what's really at issue here. The question is whether someone who produces evidence that he is innocent after his conviction, can have that heard in court. And if this guy is guilty, so be it, let a court look at the evidence.

0:30:30.4 Rhiannon: Right, exactly. And I think it should be emphasized how much this opinion is sort of a sign of the times, in terms of where our legal institutions... Where they were at in their treatment of criminality and the justice system. It wasn't that long ago, we mentioned this opinion came down in 1993, but it does feel like the product of a sort of bygone era, particularly because of the consequences this decision, and other so-called Tough on Crime approaches in the '80s and '90s, had particularly on the poor and people of color and how that's affected public understandings of how the death penalty is carried out. So just to illustrate this point a bit, this opinion comes down in 1993.

0:31:10.1 Rhiannon: The next year, 1994, the Federal Crime Bill, written by Joe Biden, becomes law, and that included the expansion of the use of the federal death penalty to more than 60 new crimes. And then in 1996, AEDPA, which is The Anti-terrorism and Effective Death Penalty Act, was passed.

0:31:29.7 Peter: Yeah, how'd that do on preventing terrorism, by the way... 1996...

[laughter]

0:31:34.4 Michael: Weren't the first World Trade Center bombings in '96?

0:31:38.4 Peter: No, it was '93.

0:31:40.2 Michael: Oh, were they? Oh.

0:31:41.8 Rhiannon: '93 is Oklahoma City.

0:31:41.9 Peter: No, '95 is Oklahoma City, '93 is World Trade Center. Guys, really.

0:31:47.1 Rhiannon: AEDPA is passed after Oklahoma City.

0:31:49.6 Peter: Yeah, yeah.

0:31:49.7 Rhiannon: So that... Tim McVeigh can get fucking fried.

0:31:53.4 Peter: That was back when they called that terrorism.

[laughter]

0:31:55.4 Michael: And not MAGA.

0:32:00.1 Peter: Right. Oh yeah, the official position of Ted Cruz is that Timothy McVeigh was a freedom fighter.

[laughter]

0:32:06.7 Rhiannon: So you see that institutionally in the US, at this time, there was a sort of blood-thirstiness for use of the death penalty. And often this urge for state-sponsored violence was couched in language about making capital sentencing and the criminal justice system, more broadly, more efficient.

0:32:23.8 Michael: Effective Death Penalty Act.

0:32:25.6 Rhiannon: Exactly.

0:32:26.0 Michael: We want an effective death penalty.

0:32:28.1 Rhiannon: Yes.

0:32:29.4 Michael: God.

[laughter]

0:32:32.8 Rhiannon: From the late '80s to the late '90s, the incidence of people being sentenced to death in the US peaked, as did the number of executions carried out. So in 1994, 1995 and 1996, there were more than 300 people sentenced to death each of those years in the United States, and this is happening at the same time that Governors, state legislators, Congress and Judges are talking about death penalty appeals taking too long, that we need to reduce the amount of time between when a person is convicted of a capital crime and when they're executed.

0:33:05.8 Michael: Look, you can't really sate the mob if you make them wait 10 years to see their public hanging.

0:33:11.4 Peter: That really is it, right?

0:33:12.7 Rhiannon: Yeah.

0:33:13.6 Peter: That really is it.

0:33:13.7 Rhiannon: No, that is it.

0:33:14.4 Peter: It's satiating the sort of public blood thirst, and it's so deeply intertwined with the conservative conception of what to do about crime, which is just...

0:33:24.2 Rhiannon: Which is genocide.

0:33:24.9 Peter: Well, sure, but you divide society into good guys and bad guys and just act accordingly. And it's like, "We already found out they're a bad guy. What else is there to discuss?" That's really their perspective.

0:33:35.1 Rhiannon: Right, right. All that said, with today's understandings of how all of these laws actually played out, it's hard to imagine this opinion being written in 2020, this level of callousness. In 1993, the idea that innocent people were routinely being caught up in the criminal justice system, much less that they were being executed, had not really proliferated across public discourse. At this time, there were not innocence projects across the country bringing a light to these cases, and there just wasn't like a comprehensive body of information about wrongful convictions. The Death Penalty Information Center, it's a really big non-profit organization that does a lot of reporting and dissemination of studies about how the death penalty is carried out in the US, they were only founded in 1990.

0:34:22.1 Rhiannon: And they say that since 1973, there have been 172 people exonerated from death row in the United States, and the vast majority of those have been after 1990 and after this case. The Justices, when they're writing Herrera, they just don't have in the front of their minds these stories of innocent people being executed. They just don't think it's a big problem.

0:34:47.9 Michael: Right.

0:34:48.4 Peter: A huge aspect of this is advances in technology, especially in DNA, where all of a sudden we have something that is as close to proof as the criminal justice system will ever really see, and you have these cases where you can definitively say, "Why, that guy didn't do it. He wasn't the rapist. He wasn't the murderer." And the idea that we were getting some sizable chunk of these wrong was suddenly introduced into the public consciousness with strong evidence.

0:35:15.8 Michael: Right. We said that there hadn't been federal executions in two decades and that spans Bush's tenure.

0:35:22.1 Rhiannon: Right, yes.

0:35:23.0 Michael: Just a few years later, you had a conservative president and they were not putting people to death.

0:35:28.9 Rhiannon: Yes.

0:35:29.2 Michael: It's not a big stretch to think that this was just like a few years too early.

0:35:33.9 Rhiannon: Yeah, exactly, and we should say that developments in forensic science, DNA, technological innovations, all of that has prompted some states to change their appeals and habeas proceedings slightly, which is why you might hear of people on death row being exonerated. We said up top that there are state habeas proceedings in some states and federal habeas proceedings as well, and we should be clear that this decision still stands, it's still law. So at the federal level, you are not entitled to habeas relief based only on an innocence claim. We should keep in mind that states don't always do a great job at reviewing cases in state court, in part, because they have a history of doing a shit job at all of this, like being racist, of being discriminatory, of carrying out executions in arbitrary and capricious ways.

0:36:27.2 Rhiannon: And the other thing, of course, is that you have federal prosecutions, like the ones we mentioned up top. Those cases don't start in state court. And because of this decision in Herrera, people with stand-alone innocence claims are not entitled to federal habeas review even if you have something like newly discovered DNA. This case is still identified as being one of the worst cases in Supreme Court jurisprudence on the death penalty by academics who study the Eighth Amendment and capital defense practitioners.

0:37:00.6 Rhiannon: The broad lesson for me is that the Supreme Court is sort of always behind the times. It's not gonna be out front on these issues even though they could be equipped to do so, and even though I think in public conceptions of what the Supreme Court does or is supposed to do, I think most people would think like, "Yeah, that's what the Supreme Court does, is step in on exactly this kind of issue. Is hear somebody's plea who's saying I'm scheduled for execution and I'm actually innocent and I have evidence." And I just think this case is a reminder that they are going to be behind public trends, not in front of them, and certainly not starting them. And in many ways, the institution sort of holds us back from social progress.

0:37:47.2 Peter: Yes, and I want to point out something that goes hand-in-hand with that, which is, yes, they are sort of behind the times in many ways, that doesn't impact their confidence. That didn't impact the way that Scalia wrote about this case as if it was open and shut. This is an institution that has in this case, no fucking idea what it's talking about. No concept of what the risk that they're running when they deny this man a hearing on his evidence of innocence actually is, and yet they speak as if they do. And just take a step back and picture the various ways in which the current court speaks with confidence, when they have no real vision into what's actually happening in criminal justice, in employment, across a hundred different possible topics. These are people who need to demonstrate some amount of humility, humble themselves a little before their responsibility, and you just do not see that in what they do, and that's why they fucking suck, that's why they suck.

0:38:48.7 Michael: Yeah, yeah. I was chatting with somebody the other day, and I made the point that I was like, "Look, as long as your brain isn't like totally rotten from cable news, especially, but not limited to Fox News, and you have an ounce of compassion, your politics are probably fine." Maybe not great, maybe you're not like fucking Martin Luther King or whatever, but they're probably fine. Cable news wasn't really nearly what it is now in 1993, and their politics was still awful, and you just have to think like how little empathy and compassion and concern for their fellow man, these people had... They are fucking demons.

0:39:30.4 Peter: Yeah, it's this ideological poison. They have this concept in their mind that they stick with very firmly, which is that the Constitution doesn't necessarily do anything, and we're not making these sort of moral judgment calls, and so that is how we create emotional and moral distance from our rulings. We can say, look, sure, the Constitution doesn't prevent this from happening, that's so unfortunate. You know, we totally wish it did, but it just doesn't, and you libs need to accept that. That's the sort of consequence of what is in the early '90s, 20 or so years of conservative ideology in the law being ascendant.

0:40:15.1 Rhiannon: Yeah, and I just want to get back to the Trump executions that we mentioned at the beginning, so the latest three people who have been executed by the federal government, I think it's worth just saying their names and talking a little bit about what happened at their trials, because in this case, Rehnquist and O'Connor and Scalia are so focused on the fairness of the trial proceedings, and I think it's worth highlighting what happens in this area of the law that the conservative justices have convinced themselves is sufficient and fair and constitutionally permissible.

0:40:55.6 Rhiannon: Orlando Hall was executed on November 19th of this year. Mr. Hall was a black man, he was convicted by an all-white jury, and his attorneys argued until his execution that the prosecutor in his case had engaged in racially discriminatory behavior throughout the entirety of Mr. Hall's trial. Brandon Bernard, you might have heard about, he was executed on December 10th, just a couple of days ago from this recording. He was executed for the shooting deaths of two people, but Brandon was not the gunman. We've talked in a previous episode about felony murder rules where somebody who actually did not kill anybody can be executed for somebody's murder, and in fact, in Mr. Bernard's case, newly revealed evidence showed that prosecutors withheld important information at Mr. Bernard's trial, showing that he had an even less important role than jurors were led to believe at the time they convicted him and sentenced him to death.

0:41:55.2 Rhiannon: With that new information, five of the nine jurors who convicted Mr. Bernard said that if they had been aware of the new information which was undisclosed to the public, they would not have sentenced Brendon Bernard to death. And in the case of Alfred Bourgeois, he was executed on December 11th, just a day after Mr. Bernard, he was executed despite the fact that he was intellectually disabled, he had an IQ between 70 and 75, there is a fairly long standing constitutional rule that we cannot execute a person who is intellectually disabled, and that execution was carried out you know, Peter, you said up top that you think that there is probably a moral argument for somebody who commits a specifically or egregiously heinous act of murder, and that may be morally being deserving of the death penalty. I think what's important, and that would I see sort of in my work and talking and thinking about these issues all the time, is that I probably agree with you, I probably think like there is a CEO who has wrought violence and harm on enough people that maybe morally is deserving of getting offed, but.

0:43:25.8 Michael: Robespierre over here has some thoughts about what crimes are and are not capital.

0:43:31.9 Peter: Alright, let's restate so that you don't have to say getting offed.

0:43:35.6 Rhiannon: That are deserving of execution, of the death penalty. But I think that in carrying out the death penalty in a modern society, the instances of where it actually happens, for which crimes, who gets prosecuted for it, the sort of just meta-moral argument is so abstracted from the reality of how human beings in a society like are meting out punishment.

0:44:02.3 Peter: And that is how I meant. I see the moral argument, I don't necessarily agree with it, but to the extent I do agree with it, it's completely in the abstract and sort of manifestation of that abstract concept into the death penalty as we know it, is completely distant from the moral argument. It has almost no relation, it's the manifestation of public blood thirst, state violence, and the systemic oppression of massive populations of people...

0:44:29.4 Michael: I don't know that I buy the moral argument, even in the abstract, we give the state the monopoly on violence, that's part of the social compact, we get to decide the limits of that violence. I think there's an argument for just saying, look, you don't get to kill people. That's it. And it doesn't matter the crime, that's something that we've decided we don't want to give the state for small l libertarian reasons about autocracy, oppression, injustice, all that, and just like... I think what I'm saying is that I just don't even think the death penalty discussion is even asking the right questions all the time.

0:45:09.7 Michael: Are there crimes heinous enough to deserve death? That's not the right question to me, I think you guys agree. But also, is there an intolerable risk of getting it wrong and killing an innocent person? I don't think that's the right question either. Maybe they're good for persuading people, but in terms of what's right and wrong, it's sort of first principle questions. What type of society do we want to live in? What do we collectively value? How should those values be reflected in the government we build for ourselves? And I want to live in a society that's compassionate, it's merciful, it values life. And I don't see a place for the death penalty in that at all.

0:45:49.8 Rhiannon: Yeah, something that is sort of really persuasive to me is the idea that because we live in a society that allows the state to murder people legally, then what sort of violence do we accept from the state after that? If they're allowed to kill somebody, then it sort of just logically flows that we accept a lot of state violence.

0:46:16.1 Michael: Yeah.

0:46:16.2 Rhiannon: Just from that premise.

0:46:16.1 Peter: Right. I think there's an idea that is common among reactionaries, that part of the state's role, and maybe even one of the largest parts of the state's role, is to punish malfeasance and to act as the manifestation of the anger of society broadly, towards people who deviate in their minds. And of course, what reactionaries view as deviation always aligns with their views of social hierarchies, etcetera, and that's why these systems act to facilitate and continue these oppressive structures.

0:46:52.6 Rhiannon: Yeah.

0:46:53.8 Michael: Yeah, and there's sort of academic or legal argument for things like the death penalty and retributive justice that, like it discourages private violence. I am not convinced that it's not the opposite, that it creates a culture in an idea that death is an appropriate punishment. And so we forgive when people mete it out privately. Like when a fight breaks out or whatever, and one guy gets killed, well, that's just what happens. And this ends up often being that when white people kill black people, we're like, "Well, what was he up to?" This is the output, a culture where Trayvon Martin can be murdered, where Eric Garner can be murdered and people think that's fine, because death is an appropriate punishment for selling loose cigarettes.

0:47:46.5 Rhiannon: Right.

0:47:47.4 Michael: Right.

0:47:48.9 Peter: An eye for an eye leaves the whole world blind.

[laughter]

0:47:52.2 Rhiannon: Gandhi told you already.

0:47:55.3 Peter: So, we are gonna take the holiday season off, there are gonna be some announcements, the first of which we can actually make. We will be guesting on a podcast very soon called Know Your Enemy, which I think will probably pop into our feeds so our listeners can check it out. And we will have some very big announcements in the new year. You may have noticed, we don't currently have ads. We have cast off our corporate shackles and are looking for newer better shackles to place on ourselves. So, hopefully some cool announcements in the new year.

0:48:35.2 Rhiannon: Peter, what'd you get me for Christmas?

0:48:37.6 Peter: I was just gonna Venmo you 10 bucks.

[laughter]

0:48:44.4 Michael: I actually do have a Christmas present for you guys.

0:48:46.2 Rhiannon: Shut up.

0:48:47.0 Michael: It's the friendship bracelets I promised you 10 months ago...

0:48:50.2 Rhiannon: Oh, yeah!

0:48:50.8 Michael: And never sent.

0:48:51.2 Peter: Yeah.

0:48:52.5 Rhiannon: Yeah.

0:48:53.1 Peter: Hell, yeah.

0:48:53.2 Michael: They're coming.

0:48:54.9 Leon: 5-4 is presented by Prologue Projects. This episode was produced by Katya Kumkova, with editorial oversight by Leon Neyfakh and Andrew Parsons. Our artwork is by Teddy Blanks at CHIPS NY, and our theme song is by Spatial Relations.