Sotomayor Sidesteps on Death Penalty and Sentencing

The second day of questioning in the confirmation hearings for Supreme Court nominee Judge Sonia Sotomayor is underway, and while there weren't any major fireworks in day one, there were some interesting moments for citizens concerned about the fate of the death penalty and over-sentencing in the United States.

Illinois Senator Dick Durbin, a Democrat, and Republican Senator Lindsey Graham of South Carolina both targeted questions on the death penalty to Sotomayor. Durbin asked Sotomayor whether she agreed with former Justice Harold Blackmun that the death penalty has been unfairly administered in the United States.

She answered with caution:

The state of this question is different today than it was when Justice Blackmun came to his views. As a judge, I don't rule in an abstract. I rule in the context of a case that comes before me and a challenge to a situation and an application of the death penalty that arises in an individual case.

I've been and am very cautious about expressing personal views since I've been a judge. I find that people who listen to judges express their personal views on important questions that the courts are looking at, that they have a sense that the judge is coming into the process with a closed mind, that their personal views will somehow influence how they apply the law. It's one of the reasons why, since I've been a judge, I've always been very careful about not doing that. And I think my record speaks more loudly than I can.

Durbin continued his line of questioning, pointing out that in 1981, Sotomayor recommended to the Puerto Rican Legal Defense Education Fund in a memo that the group oppose re-instituting the death penalty in New York. After some further remarks, he said "...ultimately the imposition of the death penalty in our country is too arbitrary." Durbin cited facts that minorities in the U.S. today account for 43% of executions, adding that while white victims account for about one-half of all murder victims, 80% of death-penalty cases involve victims who are white. The senator concluded: "I'm asking you if it raises questions of justice and fairness on your side of the table."

Sotomayor answered: "With respect to the issues of concerns about the application of the death penalty, I noted for the defense attorney that in the first instance, one, that question of the effects of the death penalty, how it should be done, what circumstances warrant it or don't, in terms of the law, that that's a legislative question. And in fact I said to him -- I acknowledged his concerns, I acknowledged that many had expressed views about that, but that's exactly what I said, which is, I can only look at the case that's before me and decide that case."

Durbin, who is the senior senator from President Obama's home state, did not stop his line of questioning there, knowing that he was about to give his former colleague's nominee a hard time. He brought up a recent case before the Supreme Court, DA's Office versus Osborne, which involved DNA. He noted that there are only three states in the United States that don't provide state legislative access to DNA evidence that could exonerate someone who has been wrongfully convicted and imprisoned.

Getting to the point, Durbin asked if there is a federal right to access to DNA evidence for someone who's already been put in prison.

Sotomayor, though, stayed below the radar - as many Supreme Court nominees do during these hearings - and punted.

"The court is not a legislative body. It is a reviewing body of whether a particular act by a state in a particular case is constitutional or not. In a particular situation, the court may conclude that the state has acted unconstitutionally and invalidate the act. But it's difficult to answer a question about the role of the court outside of the functions of the court, which is, we don't make broad policies; we decide questions based on cases and the principles implicated by that particular case before you."

Durbin went on to ask about sentencing and rates of incarceration for minorities, noting that, while in the House of Representatives, he voted for tough sentences for those caught selling/using/dealing crack cocaine. His vote made it so that someone caught using crack would serve a wildly longer sentence than someone caught using cocaine. The senator, admitting his "serious mistake" in voting for a hundred-to-one ration in sentencing law, which means it currently takes 100 times more powdered cocaine than crack cocaine to trigger the same harsh mandatory minimum sentences. Durbin pointed out that 81% of those convicted for crack offenses in 2007 were African-American, although only about 25% of crack cocaine users are African-Americans.

Durbin was hoping to get Sotomayor to respond to his position that minorities are unfairly treated when it comes to U.S. drug policy. Unfortunately (for us), but also fortunately (for her chances at confirmation), Sotomayor didn't bite.

"It's so unsatisfying, I know, for you and probably the other senators when a nominee to the court doesn't engage directly with the societal issues that are so important to you both as citizens and senators. And I know they're important to you, because this very question you just mentioned to me is part of bipartisan efforts that you're making. And I respect that many have concerns on lots of different issues.

With respect to the crack cocaine disparity, as you may know, the guidelines are no longer mandatory, as a result of a series of recent Supreme Court -- not so recent, but Supreme Court cases -- probably, almost in the last 10 years. I think the first one, Apprendi, was in 2000, if my memory is serving me right, or very close to that.

At any rate, that issue in -- was addressed recently by the Supreme Court in a case called U.S. versus Kimbrough. And the court noted that the Sentencing Commission's recommendation of sentences was not based on its considered judgment that the 100-to-one ratio was an appropriate sentence for this conduct. And the court recognized that sentencing judges could take that fact into consideration in fashioning an individual sentence for a defendant.

And in fact, the Sentencing Commission in very recent time has permitted defendants who have been serving prior sentences in certain situations to come back to court and have the courts reconsider whether their sentences should be reduced in a way specified under the procedures established by the Sentencing Commission.

This is an issue that I can't speak further about, because it is an issue that's being so actively discussed by Congress, and which is controlled by law. But as I said, I can appreciate why not saying more would feel unsatisfying, but I am limited by the role I have.