Posted by Jonathan Adler:
Sotomayor, *Santa* and Souter:
http://volokh.com/archives/archive_2009_05_31-2009_06_06.shtml#1244300583
A [1]story in yesterday's WSJ headlined "Nominee's Criminal Rulings
Tilt to Right of Souter" suggested that Judge Sonia Sotomayor could be
more "conservative" than Justice Souter on criminal justice issues.
While this is certainly possible, and I would not be surprised to see
some differences between Sotomayor and Souter on criminal law issues,
I am not sure that the primary case relied upon in the WSJ story
supports its conclusion.
According to the story,
While Judge Sonia 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.
The Supreme Court's five conservatives in January held that it was
acceptable for prosecutors to use evidence seized by police who
mistakenly thought they had a warrant to arrest a suspect.
Justice David Souter dissented, as did the other liberals on the
court. But Judge Sotomayor, nominated to succeed Justice Souter,
ruled in favor of the police in a similar case 10 years ago. In
that case, the judge upheld an arrest and search that never would
have happened if police and court officials had kept accurate
records. . . .
In the Fourth Amendment case in 1999, Judge Sotomayor ruled against
Anthony Santa, who was sentenced to 30 months after officers in
Spring Valley, N.Y., arrested him and found 2.95 grams of crack
cocaine.
Mr. Santa's lawyer said the arrest and search were improper,
because officers were acting on a warrant from a neighboring town
that had been canceled two years earlier. The Supreme Court had
earlier ruled that such mistakes didn't invalidate evidence if
court officials were responsible. The issue of responsibility was
in dispute in this case, but Judge Sotomayor's ruling assumed the
police had acted appropriately and upheld the sentence.
The [2]White House talking points on Justice Sotomayor also point to
this decision as evidence of her "sensible practicality" on criminal
justice issues.
Does Judge Sotomayor's decision in [3]United States v. Santa support
the claim that she would be to Justice Souter's right on criminal law
issues? I don't think so. As I read it, Judge Sotomayor's Santa
opinion was a straighforward application [4]Arizona v. Evans, a 1995
decision in which the Supreme Court held, 7-2, that the exclusionary
rule did not apply to evidence obtained in violation of the Fourth
Amendment where the police relied, in good faith, on erroneous
information provided by court employees. Justice Souter joined the
majority opinion in Evans, and also joined concurring opinions by
Justices O'Connor and Breyer, the former of which was explicitly cited
by Judge Sotomayor in Santa.
The suggestion that Santa indicates Judge Sotomayor would be to
Justice Souter's right comes from Justice Souter's dissent in
[5]Herring v. United States, a case decided this past January. [For
more on Herring, see Orin's posts [6]here.] In Herring, Justice Souter
dissented from the Court's holding that the Evans exception applies
when police rely upon erroneous information in a police database.
While there are similarities between Herring and Santa, and Justice
Souter joined [7]Justice Ginsburg's Herring dissent that echoes her
reasons for dissenting in Evans, Justice Souter also joined [8]Justice
Breyer's separate dissenting opinion distinguishing Herring from Evans
on the ground there are reasons to distinguish police reliance upon
police errors and judicial errors in this context. Judge Sotomayor
also relied upon this distinction in her Santa opinion, in which she
wrote (citing Evans):
where, as here, "court employees were responsible for the erroneous
computer record," and "[t]here is no indication [in the record]
that the arresting officer[s] w[ere] not acting objectively
reasonably when [they] relied upon the police computer record,"
Evans instructs that "the exclusion of evidence at trial would not
sufficiently deter future errors so as to warrant such a severe
sanction."
Does this mean that replacing Justice Souter with Judge Sotomayor will
have no effect on criminal law? Not necessarily. One area where the
switch could have a significant effect is criminal sentencing. Justice
Souter joined the Court's five-justice majorities in the
Apprendi-Booker line of cases holding that judges may not increase
criminal sentences based upon facts not found by the jury "beyond a
reasonable doubt." These were all 5-4 decisions, but did not split the
Court along traditional ideological lines. Rather, the Court split
between formalists and pragmatists. In these cases Justice Souter
joined Justices Stevens, Scalia, Thomas and Ginsburg (save for part of
Booker in which Ginsburg flipped), so if, as a Justice, Sotomayor is
more "pragmatic" than Souter on sentincing issues (perhaps due to her
time as a trial court judge), it might have a significant effect on
this area of the law, but I don't think we should chracterize this as
a shift in a more "conservative" or "liberal" direction.
Finally, in looking at how Judge Sotomayor might address criminal
justice issues once confirmed to the Court, I also found this tidbit
from the WSJ interesting.
Michael Bachner, a New York defense lawyer who has handled trials
and appeals before Judge Sotomayor, senses a divide in her criminal
jurisprudence. She can be "very tough" on white-collar defendants
from privileged backgrounds, but is "more understanding of
individuals who grew up in a tougher circumstance."
References
1. http://online.wsj.com/article/SB124415867263187033.html
2.
http://www.whitehouse.gov/the_press_office/Background-on-Judge-Sonia-Sotomayor/
3. http://bulk.resource.org/courts.gov/c/F3/180/180.F3d.20.98-1566.html
4. http://www.law.cornell.edu/supct/html/93-1660.ZS.html
5. http://www.law.cornell.edu/supct/html/07-513.ZS.html
6. http://volokh.com/posts/chain_1223137259.shtml
7. http://www.law.cornell.edu/supct/html/07-513.ZD.html
8. http://www.law.cornell.edu/supct/html/07-513.ZD1.html
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