With Judge Sotomayor’s confirmation hearings set to begin on July 13, there have been many speculations as to which way the Supreme Court nominee will lean on criminal justice issues. A brief look at her experience as a former prosecutor and at some of her decisions on the bench may help to gain some insight into what type of justice may soon be taking the bench on the highest judicial body in the United States.
With respect to criminal cases, statistically, more often than not, Judge Sotomayor has sided with the government. As of 2002, of the 90 criminal law-related cases considered by the appellate panel on which Sotomayor served, she sided with the government 65 times and with the defendants or prisoners 25 times. Whatever side she has ruled for, Sotomayor has nearly always been in the majority and has dissented on a defendant’s behalf only once. Looking more closely at her record, Judge Sotomayor has some notable criminal justice rulings on the subjects of federal sentencing and the Fourth Amendment (described below). As a result of her experience as a deputy district attorney, New York criminal defense lawyers have said that she is surprisingly tough on crime for a Democratic-backed appointee.
Upon graduating from Yale Law School, Judge Sotomayor joined the Manhattan District Attorney’s Office. She remained a prosecutor there for five years, trying dozens of criminal cases and handling numerous high-profile murder and child-pornography cases.
She thereafter worked for seven years in private practice until she was nominated to the federal bench in the Southern District of New York. Finally, in 1997 she was appointed to the U.S. Court of Appeals for the Second Circuit.
In her time on the federal appellate bench, Judge Sotomayor heard over 3,000 cases and wrote about 380 opinions in which she was in the majority. Of these cases, the Supreme Court has reviewed six, reversing four and affirming two. Of the cases reversed, one was the recent, high-profile New Haven “reverse discrimination” firefighter case in which Sotomayor took part.
In sentencing William Duker in 1997, a prominent New York lawyer who pleaded guilty to over-billing the government by $1.4 million in inflated bills, Judge Sotomayor sentenced him to 33 months in federal prison, in line with the federal sentencing guidelines (as opposed to the military-style boot camp requested by the defense). 97-cr-00822-SS-1
In United States v. Bauers, Judge Sotomayor presided over a case against Paul Bauers, who committed mail fraud and identify theft when he applied for a loan in another man’s name and had a check for the loan amount, tens of thousands of dollars, mailed to him in another state. See 93 CR. 459 (S.D.N.Y. 1995). Bauers had an extensive criminal history, including two convictions for similar crimes. Judge Sotomayor decided that Bauers’ criminal history and the high likelihood of recidivism warranted an upward departure from the prison term proposed by the Sentencing Guidelines because it did not reflect the seriousness of defendant’s actual criminal history. The Second Circuit affirmed Judge Sotomayor’s ruling. United States v. Bauers, 57 F.3d 535 (2nd Cir. 1995).
And, in United States v. Heatley, Judge Sotomayor issued a ruling that allowed the first death penalty case in Manhattan in 40 years to go forward. Heatley was the leader of the Preacher Crew, a gang the authorities have said terrorized parts of the Bronx and Manhattan in a multimillion-dollar drug trafficking ring. Judge Sotomayor also decided multiple other issues in the case before Heatley pled guilty to involvement in 13 murders in exchange for a sentence of life in prison. 39 F. Supp. 2d 287 (S.D.N.Y. 1998)
On the other end of the spectrum, Judge Sotomayor has, at times, shown leniency toward criminal defendants. In 2001, in the drug conspiracy trial of Sandra Carter (wherein Judge Sotomayor returned to the federal bench to preside over the trial), she sentenced the defendant to six months in prison, far below the prison term set forth in the sentencing guidelines. Judge Sotomayor purportedly took into account that the defendant was a first time offender who made far less money than the other alleged conspirators. 1:00-cr-00317-SS-9
In U.S. v. Castellano, 820 F.Supp. 80 (S.D.N.Y. 1993), Judge Sotomayor granted a motion to suppress in a case where police inserted false information into an application for a warrant, thus misleading the magistrate judge.
In 1999, Judge Sotomayor upheld the crack cocaine conviction of Anthony Santa despite what she admitted was a “mistaken arrest.” United States v. Santa, 180 F.3d 20 (2nd Cir. 1999). Police officers were executing a warrant that had been vacated 17 months earlier, but was never deleted from the police database. The Court upheld the conviction based on an exception to the exclusionary rule where law enforcement officers rely on police records that contain erroneous information resulting from clerical errors of court employees.
In United States v. Gori, 230 F.3d 44 (2d Cir. 2000), Judge Sotomayor dissented from the majority on the subject of a warrantless search of an apartment. There, the Second Circuit reversed a district court decision that held that police officers had made constructive entry into a private residence in violation of the Fourth Amendment. The Court found that there was no expectation of privacy to what could be seen from the hall, once the door of the apartment had been opened. The court determined that because the apartment door was open, the defendants enjoyed the same expectations of privacy in the apartment as one could expect in any public place. The court found that the police conduct in Gori was reasonable.
In her dissent, Judge Sotomayor found that the majority erred in its decision to authorize intrusions into the home "without a warrant or warrant exception and based only on reasonable suspicion." Judge Sotomayor concluded that the officers either should have had a warrant or an exception to the warrant requirement in order to enter the apartment to make a felony arrest. She concluded that the defendants' Fourth Amendment rights had been violated, and that the evidence seized from the apartment should have been suppressed. Judge Sotomayor thought that the fatal flaw in the case was that the police had no probable cause to believe a crime was being committed in the apartment.
In N.G. & S.G. ex rel. S.C. v. Connecticut, 382 F.2d 3rd 225 (2004), Judge Sotomayor dissented from her colleagues’ decision to uphold a series of strip searches of “troubled adolescent girls” in juvenile detention centers. While Sotomayor agreed that some of the strip searches at issue in the case were lawful, she would have held that due to the “the severely intrusive nature of strip searches,”they should not be allowed “in the absence of individualized suspicion, of adolescents who have never been charged with a crime.” She argued that an "individualized suspicion" rule was more consistent with Second Circuit precedent than the majority's rule.
In United States. v. Howard, 489 F.3d 484 (2nd Cir. 2007), Judge Sotomayor reversed the district court’s suppression of evidence from a vehicle search. The district court had relied on the fact that there was time to get a warrant and that the owners of the vehicle, who were lured away by a police ruse, were not on notice of the search. In reversing, Judge Sotomayor’s panel opinion concluded that the vehicle exception to the rule prohibiting warrantless searches applied.
In United States v. Falso, 544 F.3d 110 (2008), a case involving crimes related to child pornography and intent to engage in illicit sexual conduct with minors, Judge Sotomayor upheld the use of evidence found in a search of the defendant’s home, even though the search warrant was not supported by probable cause. Judge Sotomayor wrote that the judge who had issued the warrant had acted in good faith, and so the evidence was admissible. She did not reach out to overturn the defendant’s conviction; she adhered to the well-established legal principle that recognizes a good faith exception to the exclusionary rule, and respected the diligence and perspective of both the judge who issued the warrant and the trial judge who allowed the evidence to be introduced.
In conclusion, the consensus appears to be that Judge Sotomayor sentenced at the high end of the sentencing guidelines (in both white collar and violent crimes) in her early career as a judge (and also, at a time when the Federal Sentencing Guidelines were mandatory, rather than merely advisory), frequently sided with the government, but at the same time also showed consideration for a defendant’s rights. Her views on the death penalty are unknown as of yet, since she did not have an opportunity to rule on the bench regarding the death penalty. One thing that does stand out is that Judge Sotomayor appears to have more experience in criminal law than any of the justices with whom she will sit if confirmed.
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