Saturday, May 30, 2009


Despite how it's starting to look, it's not my intention to be all Sotomayor all the time. But since another of my obsessions is the death penalty, and since Mark Sherman at AP (with thanks to Doug Berman over at the Sentencing Law and Policy blog for pointing it out, here), has actually now provided a bit of information, I'm at it again. This is how Sherman's story begins:
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.

I've been searching the web some and haven't come across anything else she's said on the subject over the years. So maybe that's it. And it's probably not enough to be much of a guide.

First, it's been decades since she signed off on the statement, and views change. Second, what she believes as policy is not necessarily how she'd vote as Justice (despite the fears of some on the right and, increasingly, on the left). Third, the Court hasn't had an up or down vote on the death penalty for 33 years, since the 1976 decisions in Gregg v. Georgia and there's no particular reason to think that there'll be one in the next 33.
There may be some exclusion cases akin to Atkins v. Virginia or Roper v. Simmons, likely starting with the seriously mentally ill, but they deal with details, not the broad questions of whether the death penalty as such is or is not permitted by the Constitution.

What's far more important is her treatment of the federal courts as protectors of federal rights in habeas corpus cases, a treatment that will likely manifest itself in the application of the Antiterrorism and Effective Death Penalty Act of 1976 (AEDPA) (complete text here for anyone insane enough to want to read it). Thanks to Kent Scheidegger of the Criminal Justice Legal Foundation, we have some useful information.

Scheidegger did a search for all opinions she wrote that include the acronym "AEDPA" and then analyzed and summarized the results (here). The short of it: She's a dead bang loser for the defense. The one exception is a pre-AEDPA Batson case, Galarza v. Keane, where she remanded for the District Court either to find more facts or to grant a conditional writ and allow the state court to find more.

We've seen that Sotomayor is deferential to the police. And from what I can tell, she's deferential to the state courts in habeas cases. From the signs, at least, it seems we of the criminal and capital defense bar are not going to be happy.

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