The Death Penalty and the Right to Counsel

The Maples decision earlier this week contained one of Scalia’s great “parade of horribles” that point to a future superior to the status quo.   I’m not sure if it’s possible to top his reverse slippery slope in Lawrence, when he admonished us that the decision would lead to widely-respected and enforced state laws against masturbation being struck down, but his embarrassing dissent in Maples certainly comes close:

Remarkably, the Court’s decision was not unanimous, with Justice Antonin Scalia and Clarence Thomas dissenting. In his opinion, Scalia argues that Maples was, in fact, being represented by legal counsel during the appeals process because other lawyers at the firm had helped with the pro bono case. The theoretical possibility that someone at Sullivan & Cromwell was still secretly working on Maples’s case cannot be taken seriously. The most disturbing part of Scalia’s dissent, however, is his argument that the Court’s decision “invites future evis­ceration of the principle that defendants are responsible for the mistakes of their attorneys.”  Scalia seems to take for granted that reconsidering penalties against defendants for their poor legal representation would be a bad thing.

To use Brennan’s phrase, modern conservative jurisprudence seems to be motivated by “a fear of too much justice.”

Unfortunately, for reasons I explain in the piece I think Scalia is wrong to think that the very narrow Maples holding will “eviscerate” the precedents that allow states to execute people without giving them decent legal representation.   But as Adam says, Alabama is an excellent example of why these states’ “rights” could use some evisceration:

Alabama is in a different league when it comes to the death penalty, executing inmates at a rate six times higher than Texas, which has about five times as many people. Juries need not be unanimous in death penalty cases. Judges are allowed to override jury verdicts and impose the death penalty if they feel like it. Alabama judges have been known to brag about their body counts during their reelection campaigns. They have strong political incentives to execute people, and as Justice Ruth Bader Ginsburg writes in her majority opinion, the state has made it particularly easy by lowering legal standards for public defenders and capping state reimbursements for legal expenses for those attorneys who do choose to represent their clients in post-conviction proceedings. This all reflects a particular worldview: The possibility that the convicted are actually innocent is so slim that taxpayers shouldn’t be on the hook for whatever legal shenanigans they might try.