News
Death cases among early issues for new justice
- 6/1/2009
- Associated Press
- Link: http://www.google.com
Sonia Sotomayor has never confronted the contentious issue of the death penalty as a federal judge, but she was a director of a Puerto Rican advocacy group that opposed capital punishment in the 1980s.
Sotomayor was part of a three-person committee at the Puerto Rican Legal Defense and Education Fund that recommended opposing a legislative proposal to re-institute the death penalty in New York. The group adopted the panel's position in 1981, explaining in a letter to then-Gov. Hugh Carey that "capital punishment represents ongoing racism within our society."
An examination of the group's records did not turn up any death penalty-related writings directly attributable to Sotomayor. And since becoming a federal judge in 1992, Sotomayor has imposed life sentences on drug dealers and rejected criminal defendants' claims that they were subjected to unconstitutional searches, but she hasn't dealt with the death penalty.
That would change quickly if she is confirmed to the Supreme Court, even beforehand if senators seek to explore the question at her confirmation hearing.
The Supreme Court will hear three death penalty cases in its next term beginning in October, when Sotomayor will likely be sitting as its first Hispanic justice. They deal with claims by death row inmates and the power of federal courts to review their sentences after state courts have upheld them, not the constitutionality of the death penalty itself.
Only infrequently is the guilt of the person in doubt. Most often, the cases that the court hears involve prisoners' claims of ineffective lawyers or muddled jury instructions.
Justices, however, use such cases to voice their concerns about the fairness of who gets sentenced to death and who doesn't, particularly the uneven quality of lawyers in capital cases. The decisions often find the four liberal justices on one side, the four conservatives on the other and Justice Anthony Kennedy determining who wins.
Retiring Justice David Souter, whom Sotomayor would replace, generally sides with the inmates, along with his liberal colleagues.
The Puerto Rican defense fund's death penalty stance should be looked at in the confirmation hearing, said Kent Scheidegger, legal director of the pro-death penalty Criminal Justice Legal Foundation.
"It was a long time ago, so it's not anything we can say indicates her present attitudes," Scheidegger said.
Richard Dieter, executive director of the anti-capital punishment Death Penalty Information Center, said that even if Sotomayor opposes the death penalty, it would not preclude her from ruling against defendants "when that's what precedents and the Constitution require."
Dieter agreed with Scheidegger, though, that where she stands on the issue now is unknown, whatever she thought about the death penalty as a lawyer in her late 20s.
So far this year, there have been 29 executions: 15 in Texas, four in Alabama, two each in Georgia, Oklahoma and South Carolina, and one each in Florida, Missouri, Tennessee and Virginia.
The upcoming death penalty cases from Alabama, Ohio and Pennsylvania would be Sotomayor's first sustained exposure to the issue of capital punishment. As a judge on the 2nd Circuit U.S. Court of Appeals, which hears cases from Connecticut, New York and Vermont, Sotomayor has had scant opportunity to deal with capital punishment.
Of those states, only Connecticut currently has a valid death penalty law and only one inmate, serial killer Michael Ross in 2005, has been executed there in roughly 50 years.
Although generally regarded as liberal in her views, Sotomayor spent five years as a prosecutor in New York, and she has ruled against challenges to police searches and other claims by defendants.
In 1999, she sided with prosecutors in upholding as evidence illegal drugs that were found during a search that a defendant claimed was unconstitutional.
A conservative Supreme Court majority ruled the same way in a similar case this year.
As a trial judge, Sotomayor sentenced a pair of drug dealers to 45 years in prison by ordering that they serve their sentences consecutively for each count on which they were convicted, rather than the more common concurrent sentence. Her order came after the Supreme Court limited judges' discretion in sentencing and made it impossible for Sotomayor to re-impose the original sentences of life in prison.
"She certainly doesn't seem to have a pro-criminal bias and, if anything, because of her history, may have a pro-state bias," said Ohio State University law professor Douglas Berman.
Scheidegger said his review of Sotomayor's record when defendants try to use federal courts to challenge state court rulings against them found "nothing to complain about."
The justices' views on capital punishment do not always foretell their votes.
Justice John Paul Stevens, for example, sided with Kentucky in last year's challenge to the validity of the state's lethal injection method of execution, even as he voiced his belief that the death penalty is unconstitutional.
"It will be fascinating to see how she tips her hand in these cases," Berman said. "We might all be inclined to assume that Sotomayor will hang out where Souter does, but who knows?"
She could decide to join with conservatives in these less important cases, Berman said, without signaling how she might view a more fundamental challenge to the death penalty that could arise in the coming years.
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