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An Injustice in Alabama

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The US Supreme Court today declined to review a decision of the Eleventh Circuit overturning the well-deserved death sentence of James Lawhorn.  Justice Scalia dissented, joined by Justices Thomas and Alito:

In March 1988, Altion Maxine Walker offered to pay her nephews, James Lawhorn and his brother Mac Lawhorn, $100 in exchange for murdering her boyfriend, William Berry. The Lawhorns accepted. After they ambushed Berry, Mac Lawhorn shot him, causing him to fall. James Lawhorn (hereinafter Lawhorn) then heard Berry making"'gurgling noises'" and shot him repeatedly "'to make sure he was dead.'" 519 F. 3d 1272, 1278 (CA11 2008).
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It has been over 21 years since Lawhorn was sentenced to death. Alabama should be not barred from carrying out its judgment based on a federal court's lawless speculation. I would not dissent from denial of certiorari if what happened here were an isolated judicial error. It is not. 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, or involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U. S. C. ยง2254(d)(1) (emphasis added). We invite continued lawlessness when we permit a patently improper interference with state justice such as that which occurred in this case to stand. We should grant Alabama's petition for certiorari and summarily reverse the Eleventh Circuit's judgment.

Although the AEDPA deference standard has been largely a success in the guilt phase, it has been much less effective in the penalty phase.  We have reached a point where federal court review of state penalty phase determinations is causing more harm than good.  While the Ninth Circuit is the worst offender, and the Sixth is second, these miscarriages of justice occur in other circuits as well.  The penalty phase should now be removed from federal habeas review of state judgments altogether.

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Scalia gives words to the open secret--AEDPA can be blown off in capital cases, pretty much with impunity. What does that say about the federal judiciary's ability to get things right in other cases? Additionally, what does it say about the Supreme Court's legitimacy? If the Supreme Court is tolerating federal judges routinely blowing off a federal statute, then the Supreme Court is falling down on the job.

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