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December 13, 2010

Justice Scalia (joined by two other Justices) dissents for cert denial in capital habeas case

The only opinion of note coming from the Supreme Court this dissent from denial of certiorari in Allen v. Lawhorn.  Here is how the seven-page opinion authored by Justice Scalia, which was joined by Justices Thomas and Alito, starts and ends:

Respondent James Lawhorn was sentenced to death by an Alabama court in 1989.  Nearly two decades later, the United States Court of Appealsfor the Eleventh Circuit granted him habeas relief on the ground that his counsel had rendered ineffective assistance at the sentencing hearing by failing to make a closing argument.  In my view that decision was patently wrong: The court had no basis in law for setting aside the state courts’ judgment that respondent had failed to establish a probable effect of that failure upon the outcome.  I dissent from the Court’s decision not to grant certiorari and summarily reverse the Eleventh Circuit’s judgment....

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. §2254(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.

December 13, 2010 at 01:39 PM | Permalink


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As I have repeatedly said in here, the federal courts have shown themselves completely irresponsible. It's time for their habeas jurisdiction over capital sentencing to end.

Scalia should have mentioned the victim's family. Why should they have to endure this?

Posted by: federalist | Dec 13, 2010 3:27:58 PM

Setting aside the policy issues for a moment, surely completely ending habeas review in federal court would be unconstitutional - US Const. Article I §9.

Posted by: jsmith | Dec 13, 2010 4:47:37 PM

Unfortunately, Roberts and Kennedy declined to join in. That is the second Alabama case that the 11th reversed that SCOTUS has rejected in the past couple of weeks.

Posted by: DaveP | Dec 13, 2010 5:16:18 PM

Wrong, jsmith. Habeas is not a one-way ratchet. Congress is perfectly within its powers to ban the federal judiciary from being able to review death sentences.

Posted by: federalist | Dec 13, 2010 5:26:53 PM

Wrong, federalist. As jsmith pointed out, that would present major Suspension Clause issues.

Posted by: lawyer | Dec 13, 2010 5:47:33 PM

No it wouldn't. What the Suspension Clause does is simply state that whatever habeas rights are given by legislation cannot be suspended. It does not create a free-standing right to a minimum level of habeas corpus.

Last I checked, the Suspension Clause has been around since the adoption of the Constitution, yet there was a century or so when federal courts simply didn't have the power to review state convictions/sentences. Unless you believe that habeas corpus enactments are a one way ratchet, then that is a pretty tough fact to get around. Now, of course, with the current makeup of the Court, one never knows.

Posted by: federalist | Dec 13, 2010 6:03:31 PM

Jsmith and "lawyer": the "writ of habeas corpus" addressed in the Constitution is the Great Writ, which provides simply that the executive or military can't detain you indefinitely without judicial trial.

The "writ of habeas corpus" that permits lower federal courts to entertain collateral attacks on final state-court criminal judgments, on the other hand, is solely a creature of statute; it didn't exist until after the Civil War. It simply doesn't make sense to say that because Congress created a new postconviction remedy as a matter of statute, the statute somehow feeds back and becomes part of the Constitution itself and therefore can't be amended materially or repealed without amending the Constitution. (The Reconstruction Congress wouldn't have had the power to bind future Congresses that way even if it had wanted to do so, which I doubt it did.)

There is no constitutional right to an appeal in a criminal case (although, as the Supreme Court has held, when the state courts do authorize direct appeals -- as all states do -- principles of due process and equal protection apply); there can't possibly be a constitutional right to a second round of postconviction collateral attack in the lower federal courts.

The point here isn't what Congress **should** do. My point is simply that those who start with the premise that the right to a second round of postconviction collateral review of state court judgments in the lower federal courts is enshrined in the Constitution because the statutory remedy shares the same name as the Great Writ should question the soundness of the premise.

Posted by: guest | Dec 13, 2010 6:07:55 PM

Regardless of the Suspension Clause discussion, there's a practical way that Congress could greatly restrict federal habeas review of capital sentences. Just deprive the lower federal courts of jurisdiction. There's no doubt that, as pure creatures of Congress, Congress could deprive them entirely of habeas jurisdiction. The nine Justices will not be able to review every capital case in the nation.

I can't imagine it ever happening.

Posted by: Mark | Dec 13, 2010 6:58:35 PM


we were lucky just to get AEDPA. Unfortunately, some of them slip through without deference to the state court. Congress would never deprive the federal courts of habeas jurisdiction.

Posted by: DaveP | Dec 13, 2010 8:06:45 PM

federalist - the Court is the most conservative it has been for decades. Not the most conservative it has ever been, certainly. But compare the narrow judgments today to the broad, almost philosophical, opinions handed down in the 60s and 70s.

I still do not think you are right - at the least the point was left open by the Supreme Court when they considered a Suspension Clause Challenge on AEDPA:

The writ of habeas corpus known to the Framers was quite different from that which exists today...It was not until 1867 that Congress made the writ generally available in "all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States." Supra, at 659. And it was not until well into this century that this Court interpreted that provision to allow a final judgment of conviction in a state court to be collaterally attacked on habeas. But we assume, for purposes of decision here, that the Suspension Clause of the Constitution refers to the writ as it exists today, rather than as it existed in 1789.

Felker v. Turpin, 518 US 651, 663-664 (1996) (citations omitted)

The Court went on to consider the restrictions on successive petitions (because they might be barred from being considered at all), but they concluded that the restrictions were not great enough to amount to a 'suspension'. Removing habeas jurisdiction from the federal courts entirely would clearly be suspension.

Posted by: jsmith | Dec 13, 2010 10:07:13 PM

Felker explicitly reserved the question, jsmith: federalist may end up being wrong, but his/her views are perfectly consistent with the current caselaw.

Personally, I doubt this Court has any appetite for constitutionalizing more than an absolutely minimal post-state-conviction habeas right. It's unfortunate that habeas is so tied up in capital litigation, because if it weren't for capital cases, I think it would be far easier to build a consensus that federal courts have better things to do with their time than comb through the records of decades-old state criminal cases.

Posted by: matth | Dec 14, 2010 1:06:58 AM

me i think it's pretty simple. The federal court has no business ruling on a state matter UNLESS the state court through WHATEVER resason has done something that VIOLATES State or Federal Law.

Posted by: rodsmith | Dec 14, 2010 1:16:20 AM

rodsmith, AEDPA, passed by the best Congress money can buy, restricts a federal court from granting relief unless the defendant as complied with a number of procedural doctrines and even then still prevents them granting relief unless the state court has violated federal law in a manner that is 'unreasonable'. That is, the state court can get the federal law wrong and no the defendant doesn't get relief, the state court have to have really screwed up.

A large number of people have been executed without ever getting a hearing on the merits in federal court. Many of the people who have had a hearing but been denied relied because of AEDPA have later been exonerated and released. There is nothing wrong with the current scheme of habeas corpus review. Of course, there are going to be some who think that every state court decision was correct and every defendant is guilty. But the federal courts serve a vital role in ensuring that innocent people are not put to death by the state - Anthony Graves, recently released in Texas, only avoided execution because the Fifth Circuit granted him the writ.

Posted by: jsmith | Dec 14, 2010 12:37:27 PM

hmm if this!

"That is, the state court can get the federal law wrong and no the defendant doesn't get relief, the state court have to have really screwed up."

Is what the feds are doing. they are comitting bigger crimes then the state.

Posted by: rodsmith | Dec 14, 2010 4:14:07 PM

The First Congress, largely made up of the people who wrote and ratified the Constitution, flatly forbade federal-court habeas for state prisoners. No one doubted the constitutionality of that act at the time. In addition, it was universally understood at the time that where a court did have habeas jurisdiction, it was not a proper use of it to collaterally attack a felony judgment by a court of general jurisdiction. So I do not doubt that Congress could constitutionally remove from the federal courts all the cases presently under 28 U.S.C. 2254.

Politically, though, it won't happen, and I'm not sure it needs to. The problem in capital habeas lies mostly in penalty phase claims. Federal courts do not wrongly flip the convictions in capital cases very often. So Congress could simply limit habeas jurisdiction to guilt-phase claims.

Posted by: Kent Scheidegger | Dec 14, 2010 7:32:40 PM

kent - what do you make of the comment in Felker that assumes the opposite of what you say (though admittedly it leaves the question open).

If death sentences need to be carried out quicker (because as well know rushed justice is quality justice) then the simple solution is to reduce the number of death sentences and commute the sentences of everyone on death row who was not the actual killer and was not convicted of intentional and premeditated first degree murder or who has a serious mental illness.

Posted by: jsmith | Dec 14, 2010 10:21:13 PM

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