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Judge Sotomayor and the Death Penalty

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As noted in yesterday's post, Supreme Court nominee Sonia Sotomayor has almost no record on the death penalty. (Update: AP article by Mark Sherman is here.) She has had little or no involvement in the few Second Circuit capital cases, some pretrial rulings in one potentially capital case in the District Court, and some unclear but potentially disturbing involvement with an activist Puerto Rican legal group a long time ago. This last item and the lack of any other significant record calls for careful and thorough exploration of the issue during the confirmation process.

The Second Circuit gets very few capital cases. One Connecticut case, that of "volunteer" Michael Ross, made it through to execution. When the District Court granted a stay on a "next friend" petition and a Second Circuit panel refused to vacate it, the State went straight to the Supreme Court to lift the stay. See Lantz v. Ross, 543 U.S. 1134 (2005). Judge Sotomayor was not on the panel, and there was no en banc vote.

Then there was the federal death penalty case of United States v. Fell. District Judge William Sessions held the Federal Death Penalty Act, 18 U.S.C. ยงยง 3591 et seq. unconstitutional, 217 F. Supp. 2d 469 (2002), the government appealed, and a Second Circuit panel reversed. 360 F.3d 135 (2004), cert. den. 543 U.S. 946. The docket notes an order denying rehearing en banc with no indication of a vote. We really don't know where she was on that one.

Following conviction and sentence, defendant's appeal was heard by a panel of Judges Walker, Cabranes, and Parker and affirmed. The docket indicates a petition for rehearing en banc was filed June 14, 2008, and apparently it is still pending. (Note to USCA2: The criteria for rehearing en banc are largely the same as for certiorari. If the Supreme Court can decide these petitions in a couple of months, so can you.)

On the District Court, Judge Sotomayor was assigned the case of United States v. Clarence Heatley, aka "Preacher" and others of the "Preacher's Crew" gang. "Preacher" eventually pleaded guilty and got a life sentence (something that would have been unlikely without a federal death penalty law, as we confirmed in this study), so it never got to the stage of a death penalty trial and sentence. The pretrial motions are mostly dismissing a lot of dross.

One motion that I found rather interesting was that of a defendant not facing the death penalty who wanted a severance simply because the others were.

As a preliminary matter, there is no reason why the [FRCrP] 14 standards [for severance] enunciated above should not apply to the noncapital defendants in a capital case. The Court can see no reason why there is inherent prejudice to noncapital defendants in being tried with capital ones.... As noted, Weller, like the capital defendants is charged with numerous acts of violence, including murder. Given the voluminous and lengthy nature of the government's proof in this trial -- evidence which will in the main apply both to the noncapital and capital defendants alike -- concerns for judicial economy make a joint trial particularly appropriate. Weller has simply pointed to no specific reasons why joinder with the capital defendants would be unfairly prejudicial, and thus has fallen well short of the burden imposed by Rule 14.
Weller's insubstantial argument was the kind of "death is different" gambit that judges who recoil in (real or affected) horror at the death penalty sometimes buy. Judge Sotomayor's "so what?" rejection of it is a good signal, although a faint one.

By far the most disturbing thing I have read about Judge Sotomayor with regard to criminal law is in this New York Times story by Raymond Hernandez and David Chen. The story describes her involvement with the Puerto Rican Legal Defense and Education Fund. It includes this bombshell:

Ms. Sotomayor was part of a three-person committee of the board that recommended in 1981 that the fund oppose the reinstitution of the death penalty in New York State, according to board minutes from that time.

"Capital punishment is associated with evident racism in our society," the panel wrote. "It creates inhuman psychological burdens for the offender and his/her family."

To be fair, 1981 was a very long time ago. It is quite possible she just believed the tripe that the people she associated with were saying, had not then critically examined it, and now knows it is tripe. But we don't know that. It is something that needs to be examined, carefully, during the confirmation process.

If Judge Sotomayor is personally opposed to the death penalty as a matter of policy, that is not disqualifying provided she is very clear on and committed to the distinction between personal views and constitutionality. Justice Blackmun understood the difference when he was first appointed, and he explained it in his dissent in Furman v. Georgia. Regrettably, somewhere along the route he lost his way.

A person's views on the constitutionality of capital punishment can tell us a lot about their views on judicial review, the separation of powers, and the role of courts generally. I will explore that further in another post. For now, it is important to note that we know very little about Judge Sotomayor's views on an issue that is very important and a large part of the Supreme Court's workload. We need to know a lot more. I hope the Senators will examine the issue closely.


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Apropos the federal death penalty, any news about federal executions? They've been on hold since 2006 and I've been unable to find anything on the internet about any developments since then. I know that at least six inmates (Corey Johnson, Richard Tipton, James Roane, Orlando Hall, Bruce Webster and Anthony Battle) have otherwise exhausted all of their appeals. Why has the Justice Department (under President Bush as well as under President Obama) seemingly been dragging its feet on this?

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