around the bar
August 3, 2009

Sotomayor Will Bring New Perspective on Death Penalty to Supreme Court, Say Panelists

How could the changing composition of the court, domestic and international law, popular opinion and exonerations affect how future death penalty cases are decided?  Experts in the field, including former U.S. Solicitor General Paul Clement, came together to read the tea leaves during  “Future of the Death Penalty in the United States Supreme Court,” a Saturday panel program at the ABA Annual Meeting.

All of the panelists, Clement; Henderson Hill, of the Center for Death Penalty; Andrew Pincus, a U.S. Supreme Court practitioner; and Ronald Allen, professor of law at Northwestern University, agreed that Supreme Court Associate Justice nominee Sonia Sotomayor will bring a new perspective to the courts due to her background as a prosecutor and trial judge.  Several panelists noted that Sotomayor is likely to be surprised by the poor quality representation documented in many state death penalty appeals.

There also was consensus that the Kennedy v. Louisiana ruling indicates that the Court will continue upholding death sentences for non-murder crimes. Two other heavily discussed trends were the possibility of future limits on capital punishment of the mentally ill, and the continued citation of foreign law in briefs filed with the court. Clement noted that, in particular, having the United States meet its treaty obligations regarding foreign nationals who are sent to death row remains a thorny and unresolved issue.

The program was organized by the ABA Death Penalty Representation Project. The project is focused on raising awareness about the lack of representation available to death row inmates, recruiting competent volunteer lawyers and offering these volunteers training and assistance. The project also works for systemic changes in the criminal justice system that would assure those facing death are represented at all stages by qualified, adequately compensated counsel.