"We're doing what the death penalty has always done historically, which is target minority people," one of the lawyers said in 1998 as he asked a Federal District Court judge to declare the penalty unconstitutional. That judge was Sonia Sotomayor a Bronx-born woman of Puerto Rican descent who as a young lawyer had leveled much the same attack on capital punishment. And as she listened to the arguments that day, she acknowledged there were many unresolved "tensions" surrounding the death penalty.
But she flatly told the lawyers she had no power to resolve them. "I don't as a judge," she said. "They are not up to me. Ultimately, they are up to Congress and the Supreme Court."
Judge Sotomayor, of course, is now up for a seat on the Supreme Court, and her nomination has sparked questions about her early advocacy and whether that might flavor her performance as a justice.
The 1998 case, the only death penalty matter she appears to have handled on the federal bench, offers some answers. Transcripts provide a revealing look at the judge, acting as an official arbiter on an issue she once addressed strongly and weighing the lives of 2 men.
The case record shows she was curious enough about the defense arguments that she ordered prosecutors to produce data on the race of defendants considered for the death penalty. But it also shows she was tough on defense lawyers, repeatedly challenging their claims that minority defendants were disproportionately singled out.
She even rejected the same kind of statistical argument against capital punishment that she had made years earlier as a lawyer, saying it was not sufficient to prove discrimination.
"We gave her enough ammunition that she could have struck down the death penalty," recalled David A. Ruhnke, a defense lawyer in the case. "Whether it would have stood up in the U.S. Supreme Court, who knows? But we gave her enough room to do it had she wanted to reach out and do it and she didn't."
In the end, Judge Sotomayor never ruled on the merits of the death penalty, even though her remarks made clear that she was unlikely to find it unconstitutional. Some 2 years into the case, she was elevated to the federal appellate bench in New York, and the case was handed to another judge, who declined to strike down the law. Both defendants pleaded guilty and avoided execution.
But Judge Sotomayor conducted three lively pretrial hearings that explored the death penalty. In more than 100 pages of transcripts, she emerges as deeply engaged, vocal and demanding, scrutinizing both sides and sometimes floating provocative ideas.
At one point, pressed by defense lawyers to resolve the death penalty's inequities, she advised them to be careful what they wished for.
"As my law clerk said to me the other day, what is the remedy? Should we just have more people sentenced to capital punishment? That's as effective a remedy as having fewer people sentenced to capital punishment if we find that we need to remedy some overall societal inequity."
Judge Sotomayor, who turns 55 on Thursday, has spoken very little publicly about the death penalty during her long career, which included about 5 years as an assistant district attorney in Manhattan. But conservatives who oppose her nomination have seized on a 1981 internal memo signed by her and 2 other directors of the Puerto Rican Legal Defense and Education Fund recommending that the organization oppose restoration of the death penalty in New York State.
The memo said capital punishment was "associated with evident racism in our society" and cited statistics to show that "the number of minorities and the poor executed or awaiting execution is out of proportion to their numbers in the population."
Seventeen years later, she heard a similar argument on behalf of two defendants charged with multiple murders: Clarence Heatley, who led a multimillion-dollar crack-cocaine operation based in the Bronx, and his bodyguard, John Cuff, a former New York City housing police officer.
In 1997, Mary Jo White, the United States attorney in Manhattan, received authorization from Attorney General Janet Reno to seek the death penalty against both men. Congress had reinstituted the federal death penalty in recent years, and Ms. White's office had considered a dozen other cases before settling on Mr. Heatley's and Mr. Cuff's.
Before the men could be tried, however, Judge Sotomayor had to consider their lawyers' challenge to the law. They presented data showing that since 1988, the federal government had authorized 119 capital cases, with 79 % involving minority defendants. Of the 16 men who had been sentenced to death, 13 were members of minorities.
But the judge agreed with prosecutors that the numbers alone did not prove discrimination in this case. The high percentage of minority defendants, she said, "tells me nothing about the pool from which that number comes from." She said the defense had to offer more "some actual proof of discrimination besides statistical evidence, because it can be manipulated."
The defense had, indeed, tried to get more evidence, asking the judge to order the government to produce information on federal defendants across the country who had been considered for capital punishment, and on how each decision had been reached.
Judge Sotomayor balked. "The only way that we can end up with your getting anything that would be admissible," she said, "is if we literally redid all of the deliberative processes in every single case that was eligible for the death penalty."
Ultimately, she agreed to order data on the racial and ethnic composition of the pool of defendants.
"I would like to see the numbers myself," she said. "I do agree with you that the death population in the federal system is so disparately different from the general population that one look more should be done, at least an initial inquiry."
The judge also seemed open to the idea of allowing the defense, during a possible future sentencing hearing, to tell the jury that other murderers had been spared the death penalty.
She said: "You can very well see a potential argument by the defense that says, If Joe Blow, who kills his wife, 10 children, his mother, and didn't get the death penalty, why should my client? Why shouldn't society put to death murderers of more heinous crimes? These are drug dealers killing drug dealers."
Judge Sotomayor was not shy about asserting a personal opinion. She allowed that in the past five years, she had noticed "a sea change" in Manhattan federal prosecutors' handling of the death penalty an apparent reference to an increase in cases considered for capital punishment and new policies on how such decisions were made. But she dismissed the defense's claim that racial bias was the cause.
"It may be based on politics," she said, "since it's the only explanation that could justify the sea change. But I have no basis to believe, in what you presented me with or otherwise, that it's based on race."
Whatever her own feelings on capital punishment, the judge showed a willingness to understand and apply the death penalty law, even if the result could be 2 executions. When the prosecutor, Andrew S. Dember, seemed to ask for too much legal leeway on 1 point, she cautioned that his approach could lead to a reversal of any verdict.
"Remember 2 things," she told him. "A conviction is important. Surviving conviction is more important."
She also had a pointed word for the defense: Do not expect the Supreme Court to abolish capital punishment anytime soon.
Mr. Ruhnke, the defense lawyer, had suggested that in 50 years there might not be a death penalty. He asserted that the Supreme Court almost struck down capital punishment in a 1987 case involving racial disparities. The author of the 5-to-4 ruling, Justice Lewis F. Powell Jr., later said he regretted his vote.
"It was that close to being no death penalty," Mr. Ruhnke said.
Judge Sotomayor suggested that the Supreme Court of 1998 was even less likely to overturn the penalty than the court had been in 1987.
"Unfortunately for your client, regardless of what the makeup of the decision-making will be 50 years from now, in the short run," she said, the death penalty "will still be here."
Source: New York Times, June 25, 2009