Scalia Rebukes Judges on Death Penalty

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As criticism of capital punishment is up in some quarters and use of the death penalty continues to decline nationally, Justice Scalia remains a vigorous voice for carrying out state executions.

This week he dissented from a high-court order favoring an Alabama murderer whose death sentence had been set aside by lower federal courts. The justices by 6-to-3 rejected a petition from Alabama officials protesting a new sentencing hearing for James Charles Lawhorn, who with his brother had killed their aunt’s boyfriend in 1988, in exchange for $100 from the aunt.

Lawhorn had won the new sentencing — after many years of appeals – because his lawyer had waived his right to closing argument during the penalty phase. The Supreme Court on Monday let stand an appeals court decision that the move constituted ineffective assistance of counsel.

Dissenting from the order, Scalia, joined by Justices Clarence Thomas and Samuel Alito, observed first that Lawhorn was sentenced to death more than 21 years. Scalia spurned the various scenarios lower court judges had offered regarding closing statements Lawhorn’s lawyer might have made and how jurors might have been persuaded against the death sentence. “Alabama should not be barred from carrying out its judgment based on a federal court’s lawless speculation,” Scalia said.

Scalia then proceeded to a larger complaint about a system that he says too often blocks executions. Scalia’s remarks contrasted starkly with those from other justices troubled by the death penalty’s inconsistent imposition and lack of safeguards – most recently from retired Justice John Paul Stevens in this New York Review of Books essay. Two years ago, Stevens said he had come to realize that the death penalty represents “the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes.”

Adopting an altogether different tone, Scalia wrote in Allen v. Lawhorn, “With distressing frequency, especially in capital cases such as this, federal judges refuse to be governed by Congress’s command that state criminal judgments must not be revised by federal courts unless they are contrary to … clearly established federal law, as determined by the Supreme Court of the United States. We invite continued lawlessness when we permit a patently improper inference with state justice such as that which occurred in this case to stand.”

Lawhorn’s situation notwithstanding, new end-of-the-year statistics will show that Alabama is one of the few states that have not seen a significant drop in executions in recent years to match the national downward trend.