Is Sotomayor Becoming a Defendant’s Rights Justice?

During Supreme Court Justice Sonia Sotomayor’s confirmation hearings, Senate advocates and the Obama administration depicted her as a judicial moderate, balancing her liberal record on equal protection cases against her more traditional career path as a prosecutor, corporate lawyer, trial judge and appellate judge. Sen. Patrick Leahy, Democratic chairman of the Senate Judiciary Committee, proudly told Sotomayor that she had “heard appeals in over 800 criminal cases. You affirmed 98 percent of the convictions for violent crimes, including terrorism cases. Ninety-nine percent of the time at least one of the Republican-appointed judges on the panel agreed with you.” At the hearings, she also drew support from what the American Prospect called a “tough on crime crew.” There was even an academic basis to the profile: a study of her record as a trial judge by Syracuse University released after her nomination found that Sotomayor was harsher than her fellow judges, sentencing convicts to longer terms, on average, than her colleagues in the Southern District of New York.

But during her eight months on the Supreme Court, the “tough on crime nominee” has generally sided with the court’s so-called liberal wing. A Truthout review of the 20 criminal cases decided so far this term reveals that Sotomayor has voted in favor of criminal defendants in more cases than Justice Ruth Bader Ginsburg, though not as often as Justice John Paul Stevens.

The track record is admittedly short, and the term’s most important criminal law cases have yet to be decided. Of the five law professors consulted for this article – all experts in constitutional and criminal law – all agreed that it was too early to make any firm predictions or observations about the new justice.

There were some tentative conclusions. Jesse Choper, former Dean of the UC Berkeley School of Law and a longtime observer of the court, is “not at all surprised” that Sotomayor has been “pretty much on the liberal side in terms of law enforcement.” Erwin Chemerinsky, dean of the UC Irvine School of Law, had a similar observation. “I honestly think it is too early to draw any overall conclusions about Sotomayor’s voting behavior in criminal cases,” he said in an email to Truthout, but added, “Overall, she has been much like was predicted: very similar to [retired justice David] Souter ideologically and a part of the ‘liberal’ bloc on the court.” It can take years before a member of the nation’s highest court fits comfortably in her role.

Still, a case from last week – Padilla v. Kentucky – provides a glimpse of how Sotomayor might vote in the future. The case centered around Jose Padilla, a Honduran born, legal permanent resident of the United States. Padilla, who has lived in the United States for more than 40 years and served in the Army during the Vietnam War, pled guilty to drug trafficking after he was found with a large quantity of marijuana in his tractor-trailer. His attorney incorrectly advised him that a guilty plea would not affect his immigration status, because “he had been in the country for so long.” However, federal law instead requires the mandatory deportation of any immigrant convicted of possessing a controlled substance, other than small amounts of marijuana for personal use.

At the Supreme Court, Padilla claimed that his defense attorney’s failure to advise him of the immigration consequences of his criminal plea constituted a violation of his right to effective assistance of counsel. Five Justices, including Sotomayor, agreed, and held that the Sixth Amendment requires defense attorneys to advise their clients of the immigration consequences of a guilty plea or verdict when the answer is easily available.

Sotomayor could have joined the more limited opinion of the conservative justices; Justice Samuel Alito wrote a concurring opinion, joined by Chief Justice John Roberts, in which he rejected the broad sweep of the majority opinion. (Justice Anthony Kennedy, the court’s swing vote, sided with the liberals). Justices Roberts and Alito argued that defense attorneys only violate the right to effective assistance of counsel if they affirmatively misadvise a client. Otherwise, they argued, counsel only has the responsibility to tell a criminal defendant that a guilty verdict may have consequences for their immigration status, and advise them to consult with an immigration attorney. Instead, Sotomayor opted to join what one immigration law clinical professor said in an email was a “HUGE decision, a real earthquake for day-to-day practice with potential radically to remake immigration law in many areas.”

Her vote in the Padilla case could stem from her view of immigration law more than from her expansive vision of the right to counsel. (Sotomayor’s use of the phrase “undocumented immigrant” instead of “illegal alien” in Mohawk Industries v. Carpenter marked a first in the court’s jurisprudence). But Sotomayor has sided against law enforcement in other cases, perhaps most strikingly in Michigan v. Fisher.

In the Fisher case, police officers responded to a disturbance call. At the scene, the officers found trace amounts of blood on the defendant’s car, and an angry defendant who was yelling and throwing objects inside his home. The defendant told the police they could not enter without a warrant, but the officers forced their way in. Inside, the defendant pointed a rifle at the officers and was later prosecuted for assault. The trial court excluded one of the officers’ testimonies of the incident, destroying the government’s case, based on the officers’ entry into the defendant’s house without a warrant and in violation of the Fourth Amendment. The Supreme Court reversed the decision, holding that the exigencies of the situation justified a warrantless entrance. Sotomayor was the only justice to join a dissent by Justice Stevens, who argued that the trial court interpretation of the Fourth Amendment should have been respected. It was a surprising vote for a nominee expected to side with law enforcement in close cases. (Two of her fellow “liberal” justices – Steven Breyer and Ruth Bader Ginsburg – decided that the police had reasonable grounds to enter the house).

Sotomayor, however, has not consistently been on the side of the accused. In Wood v. Allen, the only criminal opinion authored by Sotomayor, she rejected the habeas petition of a death row inmate who claimed that he was sentenced to death because his attorneys failed to introduce evidence of his mental retardation at the sentencing stage. Sotomayor found the inmate had not provided enough evidence required to revisit a state court decision that had already determined that he had not been denied the right to effective assistance of counsel. She was joined by six other justices in the case.

In Florida v. Powell, Sotomayor voted with a seven-member majority that took a limited view of police obligations to warn suspects of their right to counsel during police interrogation, known as a “Miranda” warning. (Stevens and Breyer dissented). Sotomayor also joined a 9-0 opinion further limiting Miranda rights in Maryland v. Shatzer, which several law professors pointed to as the most significant criminal law decision of the term.

So who is Sotomayor, if not a “tough on crime” justice or the defendant’s rights doppelganger? The apparent discrepancy between her pro-defendant vote in Fisher, and her pro-government votes in Wood, Powell and Shatzer could be explained by a strong deference to decisions of a trial court judge. This would suggest that Sotomayor will alternatively vote for the government and the accused in criminal law cases, depending on the lower court decision.

But that explanation also finds its limits. In United States v. Cavera, a rare en banc decision while Sotomayor was still an appellate judge, she wrote a dissent criticizing the majority’s deference to a trial court judge who had given a gun trafficker in New York an aggravated sentence with the intent of deterring other gun criminals. She argued that though the trial court decision was “thoughtful,” “detailed” and “careful,” the appellate court should not defer to “talismanic invocations to local experience and a sort of judicial common sense,” [Internal quotations omitted]. She has also voted to restrict the discretion of trial court judges on two other occasions so far this term: In Presley v. Georgia, Sotomayor sided with a seven-member majority, holding that a defendant was denied the right to a public trial, guaranteed by the Sixth Amendment, when his uncle was excluded from jury selection proceedings. And in Wellons v. Hall, Sotomayor sided with a five-member majority, vacating and remanding an Eleventh Circuit decision upholding a death penalty conviction, even though the trial court failed to conduct itself with “dignity and respect.” As the court described the facts:

“Only after the trial did defense counsel learn that there had been unreported ex parte contacts between the jury and the judge, that jurors and a bailiff had planned a reunion, and that either during or immediately following the penalty phase, some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts, not reported any of this to the defense.” [internal quotations omitted].

Another explanation of Sotomayor’s voting pattern may be that she was never a “tough on crime” judge in the first place. The profile emerged only as a tactic of the Obama administration and her Senate advocates to make her more palatable to Republican moderates, particularly those who were wary after the “wise Latina” comment, and her controversial and unexplained vote in the Ricci case – the New Haven firefighters case.

“There’s no doubt that Sotomayor’s experiences as a prosecutor were stressed to counter any image that she’d be a liberal justice who would be ‘soft’ on criminals,” says Chemerinsky. But the UC Irvine dean also cautions that “the one area where she may be more conservative than Justice Souter [whom she replaced] is with regard to criminal law and criminal procedure.” He added further that it was “too soon to come to even tentative conclusions.”

One of Sotomayor’s last cases on the Second Circuit suggests that she may find her home in the liberal wing of the Supreme Court. In Kelsey v. County of Schoharie, Sotomayor wrote a dissent arguing that her fellow appeals court judges had unfaithfully construed the facts from the trial court below, and argued that criminals imprisoned for a misdemeanor should not be required under the Fourth Amendment to expose their private parts in front of jail administrators during clothing swaps while entering prison.

Two sets of cases that have been argued this term will be benchmarks of Sotomayor’s evolution as a Justice. In the first, Graham v. Florida and Sullivan v. Florida, the Supreme Court is considering whether life without parole for minors is constitutional. How will Sotomayor, known as a tough sentencer, weigh the competing claims of deference to the sentence imposed by the trier of fact against the Eighth Amendments’ prohibitions on “cruel and unusual punishment?”

In the second, Skilling v. United States, the Supreme Court is considering the appeal of Jeffrey Skilling, the ex-Enron CEO convicted on 19 white collar criminal counts relating to the ENRON collapse. Oral argument on March 1 focused almost exclusively on the jury selection process in Skilling’s trial. The case will be a good barometer of how Sotomayor balances her deference to the management decisions of trial court judges against the requirements of a procedurally fair trial. Skilling’s lawyers argued at the Supreme Court that the trial court judge curtailed the jury selection proceedings, thereby denying Skilling an unbiased jury of his peers because of the wide publicity of the case and public animosity toward the defendant. (The justices may also reverse Skilling’s conviction if they find that the federal “honest services” statute under which he was convicted is unconstitutionally vague).

Judges, it may be said, wear many hats, and Sotomayor has a large wardrobe. She has been a prosecutor, a corporate lawyer, a trial court judge and an appeals court judge. She is the child of Puerto Rican immigrants and she grew up in a housing project in the Bronx. But she also attended some of the country’s most elite institutions, first as an undergraduate at Princeton and later a law student at Yale. Given this experience, it’s not surprising that her voting pattern so far defies easy characterization.

Her own words may be the best explanation. “I became a lawyer in the prosecutor’s office,” Sotomayor said during her confirmation hearings. But the lesson she drew from that experience was not the importance of locking away criminals. “When you work in a prosecutor’s office,” she told the Senate Judiciary Committee, “you understand that the law is not legal theory. It’s facts. It’s what witnesses say and don’t say. It’s how you develop your position in the record. And then it’s taking those facts and making arguments based on the law as it exists.”

Pragmatic. Detailed. Situation specific. Non-ideological. Sound like any other high-profile public figure?