Criminal justice has always held a prominent place in the work of civil rights. From the trials of the Scottsboro boys; to the wrongful convictions in Tulia, Texas, in the 1990s; to the NAACP's recent successful intervention on behalf of the Scott sisters, rooting out injustice in the criminal-justice system has long defined the essence of civil rights. Recently, civil rights litigation challenges to inequities in the criminal-justice system have taken on renewed importance.
As Congress and the U.S. Supreme Court have gradually reduced the ability of those convicted to challenge criminal convictions by state courts under federal habeas corpus procedures, convicts have turned to 42 U.S. Code, Section 1983, the statute that enables individuals to sue state officials for interfering with rights held under the Constitution. Two cases before the Supreme Court this term raise what are known as "Section 1983" challenges that may have widespread consequences for the rights of criminal convicts.
One of those cases — Skinner v. Switzer (pdf) — was decided by the Supreme Court last week. In the decision, two of the court's most conservative members — Justice Antonin Scalia and Chief Justice John Roberts — joined with the court's moderates. In the 6-3 opinion written by Justice Ruth Bader Ginsburg, the court held that a criminal defendant may properly invoke Section 1983 to challenge failure of the state prosecutors to test clothing found at the scene of a murder for traces of DNA evidence.
The challenge was to a Texas state law — enacted six years after Henry Skinner's 1995 conviction for the murder of his girlfriend, Twila Busby, and her children in Tampa, Texas — that allows prisoners to obtain access to post-conviction DNA evidence. Skinner challenged the refusal of the state prosecutor in his case to test key items found at the scene of the murder.
Although some items found at the scene were tested, the prosecutor refused to test knives, an ax handle or hair and body fluids, despite the request from Skinner. Texas state courts repeatedly denied Skinner's efforts to obtain the DNA testing. Finally, Skinner sought relief in the federal courts.
Skinner, who was convicted of capital murder and sentenced to die, was set to be executed in March 2010, until the Supreme Court stayed his execution. Although Skinner was in the house when Busby and her children were murdered, and was found by the police wearing bloodstained blue jeans, he contended that he had passed out after consuming alcohol and drugs on the night of the murders, and that another man — his girlfriend's uncle — had both motive and opportunity to commit the murders.
The uncle, who was seen scrubbing the floorboards and burning the carpet of his car the day after the murder, had been known to make unwanted sexual advances to Skinner's girlfriend. In fact, witnesses testified that the uncle had made such advances just hours before the murder.
The issue before the Supreme Court was a tricky one. It's undisputed that Skinner could not raise this claim under the habeas statute (28 USC Section 2254). The availability of habeas relief was severely restricted by the passage of the Anti-Terrorism and Effective Death Penalty Act of 1996. As a result, Skinner presented his claim under 42 USC Section 1983, which governs claims that state actors have deprived an individual of rights held under the Constitution.
Section 1983 is not available for claims that challenge "the fact or duration of … confinement" — such claims fall squarely within the parameters of habeas relief. Skinner argues that he does not challenge the fact or duration of his confinement, only his right to have access to DNA testing (although, to be sure, Skinner hopes that DNA testing might provide the basis for challenging the fact of his confinement).
Justice Ginsburg's opinion carefully delineates the scope of the federal law restricting habeas relief to exclude testing of biological evidence, and finds that because there is no guarantee that the results of DNA testing will exculpate Skinner, his Section 1983 action was not within the scope of a habeas challenge. The dissenting justices — in an opinion by Justice Clarence Thomas — denounced the majority's ruling as giving prisoners an "additional bite at the apple" outside the habeas proceeding to challenge their conviction.
The Supreme Court's decision may do more for other convicts in states that require DNA testing than it will for Skinner, who still faces a considerable challenge on remand. The mere fact that the court has determined that Skinner can use Section 1983 to challenge the failure of the prosecutor to test all of the crime-scene evidence does not mean that he will prevail in obtaining the testing, or that the results will point to his innocence. But the court's decision loosens the stranglehold that its increasingly restrictive habeas analysis has had on challenges to state-court criminal convictions, leaving open the critically important avenue of Section 1983.
There remains another case — considerably more compelling than Skinner's — on the Supreme Court's docket this term in which Section 1983 has been invoked to challenge aspects of the criminal-justice system. The court hasn't yet decided Connick v. Thompson — a Section 1983 challenge to the failure of the prosecutor in New Orleans to properly train attorneys under his supervision about the obligation to disclose exculpatory evidence to criminal-defense attorneys.
In that case, the prosecutor's office withheld exculpatory blood evidence from John Thompson's defense counsel. Thompson was convicted of murdering a prominent New Orleans businessman and spent 14 years on death row for a crime he did not commit.
For civil rights advocates, the Supreme Court's decisions in Skinner and Connick may be a welcome sign that even our largely conservative Supreme Court is unwilling to close the door on civil rights challenges to unfair practices in our criminal-justice system.
Sherrilyn A. Ifill writes about legal matters for The Root. She teaches at the law school of the University of Maryland.