Supreme Court continues to look for elusive rules on death penalty

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Washington Post Staff Writer
Sunday, December 19, 2010; 10:47 PM

When the Supreme Court hands down a list of the (few) cases it has picked for its docket and the (many) petitions it has rejected, it sometimes is accompanied by a commentary from one or more of the justices.

More often than not, the subject is the death penalty.

Even as the number of executions falls and the death sentences handed out decrease, the court still spends a remarkable amount of its time deciding whether someone receives the ultimate punishment.

Or at least deciding when other judges have made the right decision.

The court's decision to deny certiorari and leave the ruling of the lower court in place draws complaints from both ends of the bench.

Liberals complain that lower courts are ignoring the justices' increasingly complex and exacting standards on what must happen before someone is executed in America. Conservative justices complain that the lower courts ignore Congress's attempts to make sure death sentences that are imposed properly are actually carried out.

(The justices rarely face the question of whether someone is actually innocent.)

Lawmakers passed the Antiterrorism and Effective Death Penalty Act of 1996 in an effort to move things along. To view the justices' workload at almost any time would dispel the notion that the problem has been corrected.

Last week, it was the conservative justices who objected to the high court's refusal to review a murder case that began more than 22 years ago.

The U.S. Court of Appeals for the 11th Circuit earlier this year shelved the death penalty for an Alabama inmate named James Lawhorn, who, along with his brother, repeatedly shot and killed their aunt's boyfriend in exchange for $100.

The court said Lawhorn's attorney made a mistake at the death penalty portion of the trial by not offering a closing argument, an omission it said amounted to ineffective assistance of counsel.

Justice Antonin Scalia, joined by colleagues Clarence Thomas and Samuel A. Alito Jr., said the Supreme Court should have accepted Alabama's petition to hear the case and reversed the 11th Circuit's ruling.


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