By Robert Barnes
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.
With characteristic understatement, Scalia ripped into "lawless speculation" by federal judges who misread the court's jurisprudence and offer their own interpretations of law rather than defer to the courts closest to the case.
"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 involve an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States," Scalia wrote.
By not taking the case, Scalia said, "we invite continued lawlessness."
Earlier this month, it was Justices Sonia Sotomayor and Ruth Bader Ginsburg objecting to their colleagues' decision to let a lower court decision stand.
Marcel Wayne Williams was charged in Arkansas with the 1994 abduction, rape and murder of Stacy Errickson. Williams pleaded guilty in hope of receiving a life sentence, but at the penalty phase, his attorney called only one witness - "an inmate who had no personal relationship with Williams and who testified from his own experience that life was more pleasant on death row than in the general prison population," Sotomayor wrote.
"Not surprisingly, the jury unanimously recommended a death sentence."
In subsequent appeals, Williams won a new evidentiary hearing and a federal judge heard testimony that Williams had been "subject to every category of traumatic experience that is generally used to describe childhood trauma," including sexual abuse and a violent gang rape as an adolescent.
After the judge ordered that Williams should either receive a new penalty trial or have his sentence reduced to life in prison, the state of Arkansas objected, and the U.S. Court of Appeals for the 8th Circuit agreed. It said the evidentiary hearing should not have been held and reinstated the death penalty.
"In my opinion, the interests of justice are poorly served by a rule that allows a state to object to an evidentiary hearing only after the hearing has been completed and the state has lost," Sotomayor wrote.
Sotomayor, who had a long tenure as a trial and circuit judge but little opportunity to try to carry out the Supreme Court's directions on capital punishment, has written fairly frequently to question lower court decisions on procedure and her colleagues' decisions about review.
A recent essay in the New York Review of Books by retired justice John Paul Stevens reiterated his statement two years ago on "the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes."
It has brought new criticism both of the court's jurisprudence and its preoccupation with capital punishment - and Stevens's role in creating whatever confusion exists.
But the work of the court will go on - the search for apparently elusive rules and regulations that identify who deserves the death penalty and who does not.