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Sonia Sotomayor's Death Penalty Memo

Now this requires explanation: thorough, no-waffling, no-evasion explanation.

First, a bit of background on where we are coming from. CJLF has not jumped on the bandwagon of either the opponents or supporters of the nomination of Sonia Sotomayor. We believe that a calm and fair examination is in order, and we have sought to contribute to that process with what we believe to be a balanced review of her decisions in the area we know the most about, available here. We have criticized both opponents and supporters when we thought they were out of line, and we will continue to do so.

As we noted here, in 1981 Sonia Sotomayor was a member of a three-person committee of the Puerto Rican Legal Defense and Education Fund regarding a bill to restore the death penalty in New York. The committee wrote a memo to the Board, recommending that the organization ask Gov. Hugh Carey to veto the bill. The organization subsequently sent a letter to the governor congratulating him after he vetoed the bill. As noted in our previous post, the New York Times had the memo and had mentioned it in a story published May 28. The full text is finally available to the public, and it raises some serious concerns.

The Process. The memo falls squarely within the category of documents requested in question 12(b) of the Judiciary Committee questionnaire. It was not included in the response, although the follow-up letter to the governor was. So, there is a bit of a kerfuffle about the omission.

At Bench Memos, Wendy Long writes, "One of two possibilities explains this omission: Either this is another Tom Daschle-type vetting failure, or the White House wants to rush this nomination through to avoid such documents coming to light." The second doesn't seem too plausible, given that the NYT already had the memo and had already written about it. Intelligent people do not try to deceive when the attempt has zero chance of success. Poker players do not bluff with their cards face up on the table. This WSJ story by Naftali Bendavid quotes an unnamed White House official saying it was a "clerical error." If so, it's a whopper of an error, given the extremely controversial nature of the subject and the fact that this particular memo was already news. Whatever the reason for it, the omission is "harmless error," and the substance is much more important.

The Substance.  The memo is here.  First, it is important to keep in mind that this was written 28 years ago, when Sonia Sotomayor was less than half her present age. It was about the time she moved up from misdemeanors to felonies in the DA's office, at which time she may have changed her attitudes somewhat. As noted here, she said in a 1983 interview, "Once I started doing felonies, [prosecuting] became less hard. No matter how liberal I am, I'm still outraged by crimes of violence." Did her experiences as an ADA and a District Judge, dealing with murderers and families of murder victims as real people, not abstractions, change her views on the death penalty? That is quite possible, but we don't know. We need to know.

What is important is not a so-called "litmus test" of whether a nominee is in favor of or opposed to the death penalty as a matter of policy. That should make little or no difference if one has a correct view of the separation of powers and the very limited scope of proper judicial review. On the other hand, if a nominee has already decided that the death penalty is unconstitutional, the people are entitled to know that.

Much of the memo is the same trite arguments we have heard many times. Some of it was plausible at the time but is now much less so. For example, the memo says, "The evidence for capital punishment as a deterrent of crime is unconvincing." First off, nobody said it was supposed to deter crime generally. The purpose is to deter murder, and the evidence continues to grow that an enforced death penalty does, in fact, save innocent lives through deterrence. We should know if Judge Sotomayor is aware of this, as lack of a penological purpose is one of the claims made by those who maintain that the death penalty is unconstitutional.

Most disturbing by far, though, is this paragraph:

Capital punishment is associated with evident racism in our society. The number of minorities and the poor executed or awaiting execution is out of proportion to their numbers in the population. For example, 47% of the inmates on death row are Black although Blacks constitute 11% of the population of the United States.
This is so wrong it is almost painful to read. Over 98% of the people on death row are men, even though men are less than half the general population. Does any rational person think that disparity alone proves the system is sexist against men? Of course not. While some difference in treatment may be a part of this disparity, it is perfectly obvious to everyone that the main reason for it is that men commit far more capital murders than women. Comparison of the demographics of death row with the general population is completely irrelevant. The valid first place to start is comparison with the people who choose to commit murder. When you run those numbers, you see that the racial breakdown of death row and the relevant comparison group is about the same.

When you get past the first step and do more sophisticated studies, the opponents' own studies show no discernable race-of-defendant bias. The research is described in this article. The opponents turned to their "race-of-victim bias" claim precisely because they had no case for bias on the race of the defendant. The race-of-victim effect also disappears when the data are properly analyzed and legitimate factors are controlled.

However, this research postdates the memo. Because concerns about racial bias were really at the heart of the 1972 Furman decision, it is important to know what Judge Sotomayor thinks about this today. If she still believes the racial claim despite all the evidence accumulated since then, or if she has swallowed the anti side's spin on that evidence, that could be a huge problem.

The absolute last thing we need in this area is another Justice who goes the Brennan/Marshall route and automatically votes for the murderer in every capital case. Those automatic votes, obstinately refusing to accept Gregg v. Georgia as precedent, are a large part of the reason our death penalty law is so screwed up. Back then, one defendant could claim a statute was unconstitutional because it gave the sentencer too much discretion, and he had two knee-jerk votes for that. Another defendant could claim that the same law or an indistinguishable one was unconstitutional because it gave the sentencer too little discretion, and he had the same two votes right out of the gate.  Death penalty jurisprudence was thus formed out of a series of opinions by shifting pluralities, and it is a tangled, self-contradictory mess.

The first, simplest question for Judge Sotomayor is whether she believes the death penalty is unconstitutional. The correct answer is "of course not." The penalty was universally in place when the Eighth and Fourteenth Amendments were adopted, it remains supported by the vast majority of the people, and it is the law in most of the states. These indisputable facts conclusively rebut any argument that it is contrary to "evolving standards" of the people of the United States. The only way the question could be considered at all difficult is if one believes that "evolving standards" under the Eighth Amendment empower the judges to ram their own beliefs down the people's throats over their objection. No one who believes that should even be considered, much less confirmed, for the Supreme Court.

Judge Sotomayor's present views on this critically important issue are unknown, and her past views are deeply disturbing. The issue must be thoroughly explored before a confirmation vote.

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