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Question of the Day for Soto – Guess the Answer…

Senator Cornyn continues to put out a question of the day for Judge Sotomayor in anticipation of the hearing to begin next week. The following question was put out yesterday – my apologies for the late posting – but it is particularly important given recent judicial interference with punishments chosen by the people through the democratic process… for example, overturning the death penalty for child rapists.

Sen. Cornyn’s Daily Question for Judge Sotomayor
Question 16: Monday, July 6, 2009

Should the Constitution be interpreted to allow the death penalty, and if so, under what limitations?

Explanation: The text of the Constitution indicates that the Framers of the Constitution specifically understood the Constitution to permit capital punishment. The Fifth Amendment requires a grand jury indictment to charge a person with “a capital, or otherwise infamous crime,” and it also prohibits deprivation of “life” without due process of law. The constitutional text, as well as the widespread use of capital punishment in the 18th Century, suggests that the scope of criminal punishment and the choice of whether to have a death penalty was designed to be a matter primarily for the elected branches rather than the courts.

In recent years, however, some Supreme Court Justices have decided that the Constitution should be read as not allowing governments to have capital punishment. Further, some Justices have used their positions on the Court to chip away at the death penalty, limiting its use to particular crimes, particular defendants, and particular trial procedures. See, e.g., Kennedy v. Louisiana, 128 S. Ct. 2641 (2008) (prohibiting the death penalty for child rape); Roper v. Simmons, 542 U.S. 551 (2005) (prohibiting the death penalty for crimes committed by a person not yet 18 years old); Wiggins v. Smith, 539 U.S. 510 (2003) (overturning death penalty conviction for insufficient investigation into mitigating evidence at sentencing).

Judge Sotomayor’s record on capital punishment is sparse, but it suggests that she may be a proponent of a broad judicial role in its regulation or prohibition. In 1998, Judge Sotomayor faced a capital case as a trial judge. Although she had no authority as a district court judge to strike down the death penalty on grounds that the Supreme Court had already upheld, she nonetheless ordered briefing and held three pretrial hearings on whether the death penalty was constitutional. Judge Sotomayor did not formally rule on the issue because she was elevated to the Second Circuit Court of Appeals before a ruling was required. According to The New York Times, however, Judge Sotomayor expressed serious concerns about the constitutionality of the death penalty but stated that it was up to the Supreme Court to resolve those concerns. See Benjamin Weiser, In ’98, Hints from Sotomayor on Death Penalty, New York Times, June 24, 2009.

The concerns that Judge Sotomayor expressed in 1998 echo a 1981 statement about the death penalty that she signed when she served on the Board of Directors of the Puerto Rican Legal Defense and Education Fund. The 1981 statement opposed the death penalty on several grounds, including a purported connection between capital punishment and “racism in our society.”

Judge Sotomayor has now been nominated to a seat on the U.S. Supreme Court, and her new position will give her a critical vote on the legality of capital punishment. Judge Sotomayor’s record suggests that she may agree with those who would prohibit or sharply limit the availability of capital punishment through the courts. I hope the upcoming hearing will give Judge Sotomayor the opportunity to clarify her views.

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