Bruce Castor on Judge Sonia Sotomayor

A guest column by Montgomery County Commissioner Bruce L. Castor Jr., a former two-term Montgomery County District Attorney, about Judge Sonia Sotomayor's position on the death penalty and how it could impact a case involving a notorious Pennsylvania killer.

Judge Sotomayor, the death penalty and Pennsylvania

By Bruce L. Castor Jr.

Having served in law enforcement for 22 years, experience has afforded me the opportunity to observe (sometimes close up and sometimes from afar) some of the worst killers in Pennsylvania. Nearly all of my career was spent investigating and prosecuting homicides.

This fall, the United States Supreme Court will be reviewing a case of one of the Commonwealth’s “worst.”

In 1983, Joseph Kindler was convicted and sentenced to death for murdering a witness against him in a burglary. Since his conviction, Kindler escaped from jail. Not just once, but twice!

The reason Kindler's case reached the U.S. Supreme Court is a little complicated.

Basically, the Pennsylvania Supreme Court took the position that since Kindler was "on the lam" during the time within which he could have appealed his conviction, he waived his right to ask for a higher court to review his case since the time period for filing the appeal had expired. Nevertheless, the Pennsylvania Supreme Court ruled that there was sufficient evidence upon which to base Kindler's conviction and further that the death penalty was appropriately imposed under the law.

The U.S Supreme Court declined to review the Pennsylvania Supreme Court's decision. However, another federal court later ruled that it was not bound by the Pennsylvania finding that the killer had waived his appeal rights by escaping. That court went on to decide in Kindler's favor and ordered him off of death row.

The United States Supreme Court will shortly be called upon to make a decision on whether the Pennsylvania Supreme Court is the final arbiter of Pennsylvania's laws or does a federal court have the final say on the interpretation of a Pennsylvania statute.

Ultimately, whatever its decision, the Supreme Court will set a strong precedent for how our states are permitted to deter and punish violent criminals in our society.

Enter President Obama and his nominee for the Supreme Court: Judge Sonia Sotomayor.
When going through the confirmation process in the United States Senate to become a Supreme Court Justice, nominees are asked to "[s]upply four(4) copies of any reports, memoranda, or policy statements you prepared or contributed to the preparation of on behalf of any bar association, committee, conference, or organization of which you were or are a member or in which you have participated."

Judge Sotomayor neglected to include a memo she authored concerning the death penalty where she urged public opposition to the reinstatement of the death penalty in New York while she was the director of a Puerto Rican advocacy group in the early 1980s.

The memo makes a number of controversial assertions about the death penalty, including "capital punishment is associated with evident racism in our society."
Since then, Judge Sotomayor served on the federal bench for 17 years without having to address the death penalty.

What is clear is that the assertions Judge Sotomayor outlined in her memo opposing the death penalty are in stark contrast to how most Americans feel. According to recent polling, close to 70 percent of Americans support the death penalty under the proper circumstances.

What is not clear is how Judge Sotomayor will side on the Kindler case this fall should she be confirmed.

Would Judge Sotomayor side with the Pennsylvania jury, Pennsylvania law enforcement and courts that took a stand against a violent criminal and clear escape risk? Or, will she side against Pennsylvanians and allow a federal court to take a murderous criminal off death row where Pennsylvanians decided he belonged?

The beliefs of law enforcement officials match very closely with public opinion when it comes to judicial philosophy. Judges are supposed to read and interpret the law, not write the law.

Judge Sotomayor's out-of-court statements about her judicial philosophy, including her claim that the appeals court is "where policy is made" are cause for serious concern.

Furthermore, Judge Sotomayor's cases have a relatively high reversal rate. Could this be attributable to judicial activism or latent biases? The burden lies on the United States Senate to review Judge Sotomayor's judicial record. We need Senators Casey and Specter to ask the tough questions.

Combining her tendency toward judicial activism and her beliefs about the death penalty, Pennsylvanians should recognize that Judge Sotomayor's nomination will have an impact on their lives. Judge Sotomayor's opposition could swing the Supreme Court on critical issues pertaining to the death penalty.

In addition to the Kindler case, the Supreme Court will also hear two more cases pertaining to the death penalty this fall.

While these three cases should not present the opportunity to overturn the death penalty, the Supreme Court’s decisions could certainly further restrict law enforcement and the criminal justice system that we all depend on to keep our families safe.

So, please pay attention to the nomination of Judge Sotomayor and urge our United States senators to ask the questions all of us should know the answers to about her record.

She absolutely should receive a fair hearing before the Senate, but that hearing must address lingering questions of judicial activism and opposition to the death penalty. These are of concern to many Pennsylvanians and need to be fully explored.

Bruce L. Castor Jr. is a former Montgomery County District Attorney and current Montgomery County commissioner. He is a member of the bar of the United States Supreme Court, the District of Columbia Court of Appeals, and the Federal District Court. He is past President of the Pennsylvania District Attorneys' Association, a member the Pennsylvania and Montgomery Bar Associations, a charter member of the Pennsylvania Homicide Investigators' Association, and a member of Pennsylvania's Police Hall of Fame.