Death cases among early issues for new justice

As a director of a Puerto Rican advocacy group in the 1980s, Supreme Court nominee Sonia Sotomayor was part of a three-person committee that equated capital punishment with racism.

The Puerto Rican Legal Defense and Education Fund argued in a 1981 letter to the governor of New York, Hugh Carey, that "capital punishment represents ongoing racism within our society."

Sotomayor later became a federal judge and spent 16 years on the bench without having to address the death penalty, one of the most contentious legal issues in the United States. That would change quickly if she is confirmed to the Supreme Court as its first Hispanic justice.

The court will hear arguments in three death penalty cases in the term beginning in October. All of the upcoming cases 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 in such cases. Most often, what the court hears are 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.

An examination of the Puerto Rican defense fund's records did not turn up any death penalty-related writings directly attributable to Sotomayor. But her role in the group's advocacy against capital punishment is likely to be explored at her Senate confirmation hearing this summer, and should be, 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.

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. 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.