Tuesday, June 9, 2009


At last we have the 1981 memorandum that then-private-citizen Sotomayor signed off on as a member of a task force recommending that the Board of Directors of the Puerto Rican Legal Defense and Education Fund oppose restoration of the death penalty and the Governor to veto a restoration bill.  Despite the expected apoplexy among the pro-execution crowd (see, e.g., here), it's really quite a mild document.

It does not say, or even suggest, that the death penalty is unconstitutional.  Instead, the memorandum says the death penalty is bad policy.
  • It's widely opposed by "respectable" organizations and mainstream religious groups.
  • It's final with the risks of uncorrectable error that entails.
  • It's not been shown by recent (as of 1981) studies to be a deterrent, and it isn't a panacea for the problems of crime and violence.
  • It's "associated with" racism, as seen by the disproportion of blacks on death row.
  • It's at odds with the Judeo-Christian tradition and with the values of the rest of the world.
  • It's teaches a lesson of violence.
  • It's inhumane.
  • It takes too long, and there are better ways to deal with crime.
Does now-Judge Sotomayor still believe those things?  I have no idea.

We have learned since 1981 that the racial component of the death penalty is primarily reflected in the race of the victim rather than the race of the defendant.  And there are recent studies, although they have all been discredited, that tend to show that executions - even of the innocent - have some deterrent effect on murderers.  But overall what the memorandum said remains accurate.  The death penalty was and is bad policy.

Still, if you're looking for some serious indication that a Justice Sotomayor would echo Justices Brennan, Marshall, ultimately Blackmun, and perhaps now Stevens in finding that the death penalty is unconstitutional, you sure won't find it in that memorandum.  Or much of anywhere else.


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