Supreme Court

Criminal Justice Missing From Sotomayor Hearings

No one cares to discuss the Supreme Court's most important function: protecting the rights of the accused.

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Last week's confirmation hearings for Supreme Court nominee Sonia Sotomayor included much of what we expected: Probing questions from Republicans on hot-button culture war issues such as abortion, gay marriage, gun control, race, and affirmative action; and deference, deflection, and fawning praise from Democrats. Almost entirely left out of the discussion was a subject you might think has some relevance to the Supreme Court: the criminal justice system.

Determining the extent of constitutional protections for suspects and defendants may well be the Supreme Court's most important task. The framers of the Constitution thought so: four of the 10 amendments that make up the Bill of Rights lay out explicit protections for criminal defendants. Yet even though the Court has addressed a number of important Fourth, Fifth, Sixth, and Eighth Amendment cases in recent years, Sotomayor was never seriously challenged on her record of criminal justice jurisprudence. The few times these issues were broached at all, it was in the form of a friendly question from a Democrat, phrased to demonstrate that Sotomayor will be as tough on crime as any Republican appointee.

Sen. Chuck Schumer (D-NY), for example, noted with satisfaction in his introductory comments that over the course of her career, Sotomayor has "ruled for the government in 83% of immigration cases, in 92% of criminal cases." Sen. Amy Klobuchar (D-Minn.), a former prosecutor, used a portion of her Q&A with Sotomayor to highlight and praise instances in which Sotomayor was willing to excuse police officers who violated the Fourth Amendment. Democrats on the Senate Judiciary Committee also brought in law enforcement officials to testify in support of Sotomayor, including former Manhattan District Attorney Robert Morgenthau, former FBI Director Louis Freeh, and a representative from the Fraternal Order of Police. Republican members didn't call a single witness to critique Sotomayor's record on crime from the right. No wonder some criminal defense attorneys are worried.

One person neither party asked to testify is Jeffrey Deskovic, who was convicted at age 17 of a rape and murder he didn't commit. In 2000, Sotomayor and another judge on the 2nd Circuit Court of Appeals issued a curt, two-page ruling that refused to even consider Deskovic's innocence claim because his attorney filed four days late (the attorney says he was given bad information by a court clerk). "We have considered all of petitioner-appellant's remaining arguments and find them to be without merit," the opinion read. Deskovic, who had already served 10 years, went on to serve another six before DNA testing led police to the actual killer. In a moving essay earlier this month, Descovic asked to be heard.

I want my case to be a part of the national discussion. I want Senators to ask Judge Sotomayor if she stands by her ruling, and whether she would rule that way in the future. If I could I would testify at the Senate confirmation hearing, about the human impact of Judge Sotomayor's putting procedure over innocence. Thus far, however, I have gotten no response from either side on Capitol Hill.

Last month, Vice President Biden told a gathering of law enforcement organizations that Sotomayor "has got your back," a startlingly inappropriate (even for Biden) assurance about a potential Supreme Court justice. Imagine the uproar if the vice president had said the same thing to the National Association of Criminal Defense Lawyers.

But Biden isn't the only one to share that assessment. Sotomayor's confirmation has been endorsed by eight major law enforcement groups. The L.A. Times reported last month that according to former colleagues, Sotomayor's time as a "zealous prosecutor" made her into "something of a law-and-order judge, especially when it comes to police searches and the use of evidence." New York criminal defense lawyer Gerald Lefcourt said Sotomayor "always seemed to be leaning toward the government," adding that she was "very police-like. Dismissive of what the defendant had to say about anything." Slate's Emily Bazelon also reported on one extraordinary case in which Sotomayor was able to convince a more conservative 2nd Circuit judge to join her in overturning a jury verdict against an off-duty police officer accused of threatening and assaulting a truck driver, on grounds that even off-duty cops have broad powers to make arrests.

If a Republican nominee had such a criminal justice track record, leftist advocacy groups would probably be up in arms—or at least concerned. And rightly so. But even criminal justice groups have been conspicuously quiet. The American Civil Liberties Union did publish a thorough review of Sotomayor's judicial record, but has maintained a sort of passive support for her nomination. Executive Director Anthony Romero said that although "the ACLU does not officially endorse or oppose US Supreme Court candidates, I have never been personally prouder of any appointment." Romero must have a short memory. The ACLU explicitly opposed Samuel Alito in 2006, and was publicly critical of John Roberts in 2005.

This is all the more troubling given the critical role Sotomayor will likely play on key criminal justice cases during her likely tenure. In the last term alone, there were six crime cases in which the defense position won on a 5-4 vote, with departing Justice David Souter casting a vote with the majority. In one of those cases, Melendez-Diaz v. Massachusetts, the Court held that the Sixth Amendment's Confrontation Clause gives criminal defendants the right to cross-examine any forensic expert whose work is submitted as evidence, a particularly important decision given a damning report on the reliability of forensic science issued earlier this year by the National Academic of Sciences. The decision has already sent shockwaves through the criminal justice system.

But just before ending its most recent term, the Court agreed to hear a case from Virginia (PDF) that raises similar issues regarding DNA testing. This has led some Court watchers to speculate that the minority in Melendez-Diaz sees Sotomayor as a potential ally who may join them to limit the scope of—or even overturn—last term's ruling. Sen. Klobuchar did ask Sotomayor about Melendez-Diaz, but only to express her disappointment with the ruling and her hope that the Court, presumably with Sotomayor's help, will overturn it. Sotomayor gave a typical confirmaiton hearing answer, acknowleding Klobuchar's concerns, stating that Melendez-Diaz is now established law, but ultimately refraining from speculating on how or whether she might limit its impact.

The New York Times reported in January that the Court is inching ever closer to eliminating or rendering impotent the Exclusionary Rule, which bars evidence obtained through illegal searches from being admitted at trial. Chief Justice John Roberts, the paper explained, is a longtime opponent of the rule, having led a campaign to repeal it as a young attorney in the Reagan administration. Replacing Souter, a fairly reliable defender of the Exclusionary Rule, with a former prosecutor like Sotomayor will likely at least narrow the rule's application. Wall Street Journal reporters Jess Bravin and Nathan Koppel came to a similar conclusion last month, writing that while Sotomayor "stands in the liberal mainstream on many issues, her record suggests that the Supreme Court nominee could sometimes rule with the top court's conservatives on questions of criminal justice."

Content-free as they were, last week's hearings were a tidy composite of the national debate over criminal justice issues. Which is to say that there really isn't any such debate. By conventional wisdom, defendants' rights have traditionally been a concern only of the left. But you'd never know that by observing national politics. Criminal justice activists are fond of saying that Republicans are evil, but Democrats are spineless. That's not entirely accurate. Democrats such as Biden have been plenty active in dismantling constitutional protections against police power. Some of today's most draconian federal crime statutes were authored by Democrats.

Even as DNA testing has exposed serious flaws in a process once believed to be mostly (or at least tolerably) just, politics still really only affords one acceptible position on crime: We need to get tougher on it.

It's possible that worries over Sotomayor's tough-on-crime jurisprudence are misplaced. Perhaps thus far in her career, her written opinions were bound by existing case law and procedural rules, and that as a precedent-setting Supreme Court justice she'll prove to be a staunch defender of the Exclusionary Rule and the Confrontation Clause, and her sensitivity to innocence claims will be sharpened by cases like Jeffrey Deskovic's.

It's possible. The problem is that we really have no idea. Because no one bothered to ask.

Radley Balko is a senior editor at Reason magazine.

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60 responses to “Criminal Justice Missing From Sotomayor Hearings

  1. Is Joe Biden checking her out in that picture?

  2. …as far as most national politicians of either party are concerned, there’s really only one acceptable position on crime: We need to get tougher on it.

    Yes, because, clearly, we don’t have nearly enough people in prison now.

    Is there anyone else in the country who writes as well on the subjects of crime and law enforcement as Radley Balko?

  3. X, he seems to be considering a wide range of experiences with her latina mouth.

  4. Thank you Radley, for this article. Really, the criminal defense cases with the Scalia, Thomas, Ginsburg, Stevens, Souter majority are the cases that could go the other way now. Not that we know, but Democratic Senators (and VP) have been assuring us that she’ll switch Souter’s vote.

  5. “Hey chica, have you ever experienced the… wisdom of a mature train enthusiast?”

  6. Schumer needs to shut the fuck up. Since when did it become about ruling in the government’s favor? It used to be, at least for pretend purposes, about the Constitution.

    I guess that was just to damn much to ask for.

  7. What a missed opportunity for an alt-tag on that picture.

  8. Is Joe Biden checking her out in that picture?

    Must. Not. Must not.

  9. But, but…

    Democrats and Republicans are different and stuff!

  10. The fact that it isn’t discussed at all says it all.
    Its outrageous that:
    legal OTC memdicines can be labled as “bad drugs”
    that this can be done by school boards
    that principals can coduct strip searches of students who are accused of carrying LEGAL substances
    and not one senator commented upon this state of affairs…

  11. Come on, Sweet’n’Low. You know your nature demands it. Give in to the dark side.

  12. Is Joe Biden checking her out in that picture?

    Is Joe Biden checking her out in that picture?

    Must. Not. Must not.!

    FTFY, SugarFree.

  13. Is Joe Biden checking her out in that picture?

    Must. Not. Must not.

    Come on, Sweet-n-Low, I haven’t seen a disgusto sex post in a week or two. Maybe I just missed the thread?

    I have to agree with Dean, MUST! MUST!

  14. “Must. Not. Must not.”

    Perhaps she just farted.

  15. I think NutraSweet is lacking sleep and is afraid of what he might do in his current state. Sometimes, you can go too far. Well, not in my opinion, but in others’.

  16. as far as most national politicians of either party are concerned, there’s really only one acceptable position on crime: We need to get tougher on it.

    I’m curious, what is Mr Balko’s position on crime? That we should be more lenient?

    I could understand the position that we have laws against too many things that aren’t really crimes (eg, drug use), or that we’re too tough on innocent people who are accused of crimes, but too tough on crime itself? I don’t think so.

  17. Why can’t we find a qualified judge who looks like Kendra or Miss California or Mira Sorvino?

  18. Marshall Gill,

    Recent Highlights:

    Barry and Sarah

    Joe vs. The Train

    I’ve been trying to make the filth move within me. Sotomayor is so burn-victim ugly it’s hard for me to get any work done.

  19. Sotomayor is so burn-victim ugly it’s hard for me to get any work done.

    So’s Biden, though. Maybe that’s your angle.

  20. Sotomayor looks a lot like Manuel Noriega. Seriously, they could be the same person even.

  21. Have we ever seen Sotomayor’s original birth certificate?

  22. “Sotomayor looks a lot like Manuel Noriega. Seriously, they could be the same person even.”

    No. Noriega told the truth during his questioning.

  23. No. Noriega told the truth during his questioning.

    Aaaaaand SNAP.

  24. We need to separate “tough on crime” from tough on the innocent (which includes those accused until convicted).

    I’m all for being tough on crime (real crime with non consenting victims) but not this posturing bullshit our politicians do which is all about making more criminals by screwing over the innocent.

  25. No. Noriega told the truth during his questioning.

    Doh! You nailed it.

    His sister then?

  26. Suge, why does “The Blue Burro” keep popping into my head?

  27. “I’ve been trying to make the filth move within me. Sotomayor is so burn-victim ugly it’s hard for me to get any work done.”

    You are just not seeing it man. Sotomayor is the perfect lesbian top. You just need to put her over the right woman. Someone like say Dana Perino or maybe some leftwing legal hack like Emily Baylzon or Dalia Lithwick.

  28. “Have we ever seen Sotomayor’s original birth certificate?”

    I can’t believe no one noticed that. I about choked to death on my water when I read that. That is a thread winner.

  29. I’m curious, what is Mr Balko’s position on crime?

    I can’t speak for Radley, but here’s mine:

    We need to define criminality up, to involve only the use of force or fraud.

  30. SRSLY, I’m dreading the day Waxman ends up in one of Sugarfree’s stories.

  31. We need to define criminality up, to involve only the use of force or fraud.

    I agree with you, R C.

  32. Abuela locked the door behind her with a click that echoed through the attic and back into the cramped room. Sonia and Miguel stayed where they were. They longed to cuddle, to sooth each other after Abuela’s accusations, but they were afraid she would double back to catch them.

    “Hermana, ?est? usted bien?” Miguel’s eyes moved over the huddled form of his sister. Abuela had caught them kissing again and slapped Sonia cruelly.

    “Voy a estar bien, hermano.” Sonia held out her arms. As she shifted into the light Manuel could see the mark that would become an enormous bruise by morning. “Ven, Manuel. Abr?zame, estoy fr?o.” Manuel crossed to bed as quietly as he could. The ancient bedsprings protested under his weight.

    “Usted no comer sus pasteles de esta ma?ana. Usted debe mantener su fuerza hasta,” Manuel murmured. “Mi est?mago me duele cuando comen,” she whispered as she drew him close.

    Manuel could feel her breasts against him through the thin material of her shirt. Abeula had taken all her bras when they moved here. She said Sonia was too young.

    To Manuel, Sonia did not feel too young.

  33. “We need to define criminality up, to involve only the use of force or fraud.”

    Justice is like any other commodity. We only have so much of it. The more we try to do justice in many cases, the less likely we are to do justice in any individual case.

  34. SRSLY, I’m dreading the day Waxman ends up in one of Sugarfree’s stories.

    Let your dread drift free of your body, my friend.

    It has already happened.

  35. Highly disturbing, SF, where your last two were more just hilarious.

  36. As far as the Waxman one? More awesome than I could’ve imagined.

  37. Marshall Gill,

    Recent Highlights:

    Barry and Sarah

    Joe vs. The Train

    I’ve been trying to make the filth move within me. Sotomayor is so burn-victim ugly it’s hard for me to get any work done.

    Thanks SF, you have reconfirmed my faith in human depravity.

  38. Still think she would have made a better lesbian.

  39. Don’t worry, John. You’ll get your wise Latisbian story eventually.

    Something about a pock-marked face sliding across a swollen clitoris has to shake loose eventually.

  40. Something about a pock-marked face sliding across a swollen clitoris has to shake loose eventually.

    Edward James Olmos?

  41. I have faith in you SugarFree.

  42. The first Sotomayor post, in case you missed.

    Absolutely the last link to something I wrote. I’m starting to feel like a Gawker property link-whore.

  43. Sheer genius, SF.

  44. The most disturbing thing is that all those links work.

  45. The most disturbing thing is that all those links work.

    My powers are vast and sundry.

  46. “You are just not seeing it man. Sotomayor is the perfect lesbian top. You just need to put her over the right woman. Someone like say Dana Perino or maybe some leftwing legal hack like Emily Baylzon or Dalia Lithwick.”

    Butches are bottoms. Fems are tops. Despite being Counter-intuitive, it’s fairly universal.

  47. GD,

    But what if Sonia is the fem of the relationship? [shuder]

  48. Suge, could you please please please do something with Sotomayor and Lyle Lovett?

  49. http://www.thepetitionsite.com/3/impeach-obama

    Follow the link above if you would like king obama impeached…if we get lucky maybe we can get all of the decisions he has made since he became king repealed including nominating the racist “wise latina”…………again impeach obama http://www.thepetitionsite.com/3/impeach-obama

  50. My powers are vast and sundry.

    Yes, but your power to repulse is beyond measure. Remind me to never get on SF’s bad side, it doesn’t end well.

  51. But what if Sonia is the fem of the relationship?

    So who would be/could be the butch? Reno?

  52. “I’m curious, what is Mr Balko’s position on crime? That we should be more lenient?”

    Well, Tulpa, I fail to see how criticizing the stupid cliche “getting tough on crime” is a ringing endorsement for criminal activity. Under this line of thinking, criticizing the label “war on terror” would be the equivalent of saying that terrorism is good.

    I can’t speak for Mr. Balko, but presumably one lesson to draw from that statement is that empty rhetoric is no solution to a problem. How does one get “tough on crime”? Do we seek out crime where ever we can find it and then punish it? No. The statement is usually a cover for protecting overzealous DAs who argue for narrow interpretations of the statutes and constitutional rights, who overcharge every crime to satisfy their constituents who elected them, and to beef up wonderful causes like drug law enforcement. The same statement can be found to be a justification for protecting shit-bag cops against excessive use of force claims. Or perhaps to elected judges who surely didn’t run on the “pro 4th Amendment” ticket?

    Let us not forget that the Constitution applies to everyone, guilt or innocence notwithstanding. Until we magically transport ourselves into a land where we can readily identify “real criminals” (by say, an id badge pinned to their shirts), getting tough on crime is going to mean that a lot of innocent people are going to suffer as well. It will also help sustain bad legislation and policy (war on drugs, anyone?).

  53. We need to define criminality up, to involve only the use of force or fraud.

    Q: Where does blackmail fit on that scale? Blackmail does not have to involve force or fraud. Should it be a crime?

  54. “In 2000, Sotomayor and another judge on the 2nd Circuit Court of Appeals issued a curt, two-page ruling that refused to even consider Deskovic’s innocence claim because his attorney filed four days late (the attorney says he was given bad information by a court clerk).”

    Is it a libertarian principle to let people off from court filing deadlines? Being strict about deadlines isn’t being tough on crime, it’s just being tough–provided the judge is equally strict with prosecutors when they miss their deadlines.

  55. Blackmail involves the indirect use of force. You pay or the blackmailer turns you in to the criminal justice system which involves institutionalized force.

  56. What about theft or other property crimes? Those fit under neither category. Nor do certain forms of manslaughter, for that matter (like vehicular). Fraud or force certainly isn’t inclusive enough.

    Sadly, I do agree somewhat with Undemanding. That is, unless, the statute gave the judge discretion to consider the claim even though it was late. Moreover, wasn’t Sotomayor supposed to have some EMPATHY? oh wait.

  57. Speaking of the rights of the criminal/accused, has anyone seen this story of convicted ‘rapist’ Eric Frimpong?

    http://sports.espn.go.com/espn/news/story?id=4300383

    I thought contributors to Reason might find this an excellent story.

  58. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp. I’m not concerned that Mr. Crumb will go to hell or anything crazy like that! It’s just that he, like many types of religionists, seems to take it literally, take it straight…the Bible’s books were not written by straight laced divinity students in 3 piece suits who white wash religious beliefs as if God made them with clothes on…the Bible’s books were written by people with very different mindsets…in order to really get the Books of the Bible, you have to cultivate such a mindset, it’s literally a labyrinth, that’s no joke

  59. My only point is that if you take the Bible straight, as I’m sure many of Reasons readers do, you will see a lot of the Old Testament stuff as absolutely insane. Even some cursory knowledge of Hebrew and doing some mathematics and logic will tell you that you really won’t get the full deal by just doing regular skill english reading for those books. In other words, there’s more to the books of the Bible than most will ever grasp.

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