On December 8, 2021, Brunn W. Roysden, III asked the U.S. Supreme Court to allow the State of Arizona to execute an innocent man.

 Where are the signs, the billboards and yard signs and bumper stickers? Where is a single expression of outrage from any Democratic leader or candidate?

I understand single-issue women not caring, as they struggle to regain some measure of control over their own reproduction. But what about the Black and Hispanic and Native American Communities, who are the real victims, and targets of this new rule?

The 6th Amendment to the Constitution guarantees the right of defendants to confront evidence being offered against them. Such confrontation inherently means the right to produce evidence that contradicts that being used against them - evidence of official malfeasance, and evidence of simply inadequate or incompetent police investigations. We have an entire industry of “innocence project” lawyers who investigate improper convictions and get people released from prison, including death row, upon showing that their convictions were wrong.

On December 8, 2021, Brunn W. Roysden, III asked the U.S. Supreme Court to allow the State of Arizona to execute an innocent man. As Mr. Roysden acknowledged in the opening to his argument, “no fact-finder [jury] could have found the prisoner guilty”. But the state wants this man dead. The case is before the John Roberts Court because the four Federal judges who have reviewed the man’s post trial evidence discoveries have uniformly concluded, as Mr. Roysden, III concedes, that with this evidence, no fact-finder could find this man guilty.

Mr. Roysden’s argument is that guilt or innocence is irrelevant to the case. He argues that the state of Arizona has created a criminal prosecution system that successfully prevents defendants from presenting evidence of their innocence, and that therefore, the Supreme Court should rule that Arizona can execute people despite Mr. Roysden, III’s acknowledgement that, “no fact-finder could have found the prisoner guilty” if all the evidence were considered.

In his 30-minute argument, Mr. Roysden, III repeats the phrase “innocence is not enough” a couple of times. Innocence is not enough to escape execution. This is the official position of the Republican Party government of the State of Arizona.

On May 23, 2022, the six Republican ‘justices’ on the Supreme Court agreed with Mr. Roysden, III. Clarence Thomas writing for the majority, stressed the importance of, “both the retributive and deterrent functions of criminal law.”

We must wonder how convicting and executing a defendant whom even the prosecution concedes is factually innocent provides any retribution. Do victims families want criminal perpetrators punished, or are they satisfied with the punishment of some non-perpetrator who was convenient and easier than the real perpetrator to convict? And how is executing an admittedly innocent person supposed to deter any real criminal?

From 1789 (when the Constitution was ratified) until 2022, the U.S. had a presumption of innocence in criminal matters. In 2022, six Republican members of the nation’s highest court ruled that innocence is no longer determinative of whether executions are permissible.

We have a national political tradition of criticizing foreign, oppressive legal systems which conduct secret trials, show trials and trials where defendants are not allowed attorneys or are not allowed to contradict evidence offered by the prosecution, or offer their own evidence. Those nations whom we criticize often claim that their procedures are fair, or that secrecy and limitations on evidence are necessary for “national security.”

Clarence Thomas, speaking for the Roberts Republican Court makes no such arguments. He says the important thing is that state courts should be able to get the job done quickly, expediently. Simple ‘practicality’ trumps mere considerations of actual evidence and questions of prosecutorial misconduct or incompetence. This is the argument used by lynch mobs through our history - if we know we’ve got the right guy, string him up, there’s no need for a time consuming trial, that might be messed up by some tricky lawyer, or unexpected evidence of innocence.

It’s easy to say that this is just modern ReTrumplican politics trampling all over concepts like the presumption of innocence or substantive due process. Arizona is a purple state, with its ReTrumplican Party losing ground to Democratic candidates. But there are no Democrats in Arizona expressing outrage that their state has won the right to execute innocent people. Not Senator Mark Kelly, who’s own wife was shot in the head by a ReTrumplican. Not the Democratic candidate for state attorney general, who, if elected, will have to decide how many innocent people Arizona wants to execute.

As I said at the start, there are no billboards decrying the execution of innocent defendants in Arizona. There are no yard signs proclaiming that “Innocence is not enough” to avoid execution.

Arizona is a population center for Native Americans and Hispanic Americans. The question was not asked during the Supreme Court arguments, but the ReTrumplican Party intention is clear. This policy is not aimed at the white retirees who fill the profitable housing developments around Scottsdale and Phoenix. Native Americans, Hispanics and Black people are the ones who need “retribution” and “deterrence.” They need to be reminded of where the power lies, and that they need to refrain from getting too “uppity” or demanding of rights.

And while a Native American woman has just beaten Sarah Palin in an Alaska election, not one Arizona Native American tribe is expressing outrage that their members can now be executed by the state, even if provably, factually innocent. No Hispanic group, no local Democratic Party group seems upset that Arizona has led the United States Supreme Court to rule that executing the innocent is now permissible in the U.S.

So it is not merely a Republican problem. If Democrats, and the people most likely to be affected, aren’t seeing this as a matter of great concern, then concerned citizens are in real trouble, or have real reason to reconsider whether the Democratic Party stands for them.

And it is not only Arizona, and not only death penalty cases that are at issue. The Supreme Court ruled in May that states may execute the actually innocent. In August, the state supreme court in bright RED Oklahoma extended the rule to merely incarcerated prisoners. Ruling that the state no longer had to consider evidence of actual innocence, that court upheld the life sentence of a man now shown to have not committed the crime for which he is incarcerated.

We have to expect that this pattern will spread to other RED states. There are massive profits involved. There is political gain but little profit in executing innocent defendants. But private prisons make locking up the innocent very profitable. And the 13th Amendment, which ended widespread slavery, also includes a provision that people convicted of crimes can be held in slavery.

Throughout our post-Civil War history prisons in southern, former slave-holding states, leased out convict labor to plantations, without protections for the leased prisoner/slaves. That was for convicted prisoners. Now the Roberts Republican Court has ruled that such leased out labor programs can include factually innocent people. Maybe people with specialized skills prosecutors are paid to prosecute and convict, so that some prison-industrial complex corporation can get cheap labor.

As ReTrumplicans grouse constantly about the evils of globalism, there may be a small upside to this new, “execute the innocent” policy. 

People in other countries, people like Julian Assange, can now argue that the U.S. justice system has abandoned considerations of innocence in its criminal trials, and therefore, no longer meets minimal human rights standards for extradition requests. Probably too late for Assange, but certainly a solid argument for other whistleblowers. 

Tom Hall is a family lawyer in West Los Angeles. He is from Boston, and was raised in Friends Meeting at Cambridge (Quakers) to think that religion was a progressive force. During the Vietnam War, he organized draft counseling centers and worked with groups training people in techniques for disciplined nonviolent demonstrating. After the war, he became just another yuppie working to make a comfortable life. The Bush administration shocked him back into social concerns. Tom can be reached at ProgBlog@aol.com