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Judge Sotomayor on Sentencing

By "Milbarge" and "Fitz-Hume"

Prof. Berman has been blogging a bit about Judge Sonia Sotomayor's work on sentencing matters. It's no secret that sentencing law is in quite a state of flux, so any new blood could further shake things up. Plus, as Kevin Russell notes at SCOTUSBLog, many of the Booker line of cases have been 5-4 decisions, with Justice Souter in the majority. If (assuming confirmation) Justice Sotomayor takes a different view than her predecessor, then maybe Justice Breyer could lead a counter-revolution and take us out of "Apprendi-land."

Is there evidence to believe that's possible? Prof. Berman noted Judge Sotomayor's separate opinion in the Second Circuit's Cavera decision, in which the judge assessed the post-Gall landscape. My take, after a quick read, is that the Judge seems to countenance a fairly strong appellate review of sentences. I'll look forward to a more detailed analysis from Prof. Berman, but I think there's some reason to think that stricter appellate review will influence district judges to give in to what Justice Souter called the "gravitational pull" of the Guidelines.

A few other items. First, the New York Times posted a story it ran in 1992, when Judge Sotomayor took the district court bench. It included the following exchange:

What does she think of the Federal Sentencing Guidelines, which many judges resent for limiting discretion?

"I am very aware of the controversy surrounding the guidelines" and expect to "experience some dislocation with them."

Also, via Ben Smith at Politico, I notice that Sam Stein of the Huffington Post tracked down Judge Sotomayor's confirmation hearings in 1997 upon her nomination to the court of appeals. Senator Jeff Sessions (now the ranking Republican on the Judiciary Committee) and Senator Strom Thurmond asked some sentencing-related questions.

Senator Thurmond: Now another question. Do you oppose mandatory minimum sentences for drug offenses?

Judge Sotomayor: No, sir.

Senator Thurmond: Another question. Some argue that the Federal sentencing guidelines do not provide enough flexibility for the sentencing judge and some even say they should be abolished. What is your view of the Federal sentencing guidelines, based on your experience with them?

Judge Sotomayor: Thus far, sir, in the vast majority of cases, I have found the guidelines to be very helpful in giving some comfort to me as a judge that I am not arbitrarily imposing sentences based on my personal feelings. I believe that congressional sentiment, as reflected in the guidelines, is important because it permits me not to impose my personal views but to let the democracy impose the society's views.

With respect to your second point, Senator, the guidelines already provide mechanisms for departure in appropriate circumstances. In my experience, when there are principled and reasoned grounds to depart, the guidelines already permit it.

[later...]

Senator Sessions: You mentioned the sentencing guidelines that Senator Thurmond asked you about. I did notice that you had, on occasion, stated that you disagree with the mandatory minimums. Is that correct? I have heard that.

Judge Sotomayor: Sir, I do not remember ever saying that. There may have been situations in which in a particular set of facts I was unhappy with the results, but I do not believe that I have ever stated that I was unhappy with mandatory minimums as a policy question, no, sir.

Senator Sessions: I think you made a good point about the fact that, as a judge, it would be easier to sleep at night when you basically have a guideline to help you decide what the sentence should be rather than having it totally your burden from 0 to 20 years. I think, in some ways, it provides some uniformity and would be easier on a judge.

Judge Sotomayor: Unquestionably, sir.

Senator Sessions: Do you find it that way?

Judge Sotomayor: I have no idea how the judges before me ever set a consistent standard by which to sentence individuals. The guidelines do provide that framework in a very helpful way.

There's more I don't care to type out. In short, Senator Sessions asks the judge about a time she called a sentence an "abomination." Judge Sotomayor said she regretted using that word, but felt that the mandatory minimum in that case was unjust. Still, she imposed it because it was the law. She went on to note that Congress had since enacted the "safety valve" exception to mandatory minimums for certain first-time drug offenders, so others must have shared her view that sometimes the minimums were too harsh, and that the safety valve would have applied in that particular case.

Now, it's been a long time since Judge Sotomayor said any of this, and it was all pre-Booker. But combined with her Cavera opinion, it's a potentially enlightening glimpse into her view of several important sentencing issues. Again, she could well be the "swing Justice" on some of these issues (or, she could widen the margin in cases like Harris concerning the constitutionality of mandatory minimums). In addition to being the only Justice with actual experience sentencing defendants, it's also worth remembering that Judge Sotomayor began her legal career as a prosecutor in the Manhattan D.A.'s office. I'll withhold judgment pending more thorough review of her sentencing opinions on the district and circuit benches (and whatever she might have to say at her confirmation hearing). But as of now, the evidence is starting to build up that a Justice Sotomayor could augur a significant shift in the Supreme Court's sentencing jurisprudence.

Full post as published by Begging the Question on May 28, 2009 (boomark / email).