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Alito's Rulings on the Death Penalty

By Jeralyn, Section Sam Alito
Posted on Wed Nov 02, 2005 at 11:29:00 AM EST
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The Philadelphia Inquirer has an article today about Judge Alito's rulings in death penalty cases. Frequent Talkleft commenter and appellate whiz Peter Goldberger, who went to law school with Alito and practices in the Third Circuit is quoted.

Lawyers familiar with the Third Circuit said that when it comes to death-penalty cases, Alito doesn't bend over backward to find errors just because it is a capital case - and he doesn't shy away from granting relief when he believes it is appropriate.

"He doesn't have a fixed opinion," lawyer Peter Goldberger said yesterday about how his former Yale Law classmate might view death-penalty cases if confirmed as a Supreme Court justice.

A former 3rd Circuit judge who served with Alito, says:

Timothy K. Lewis, a former Third Circuit judge and ardent death-penalty opponent, said that although he had never discussed capital punishment with Alito, he believes that Alito's "natural inclination toward judicial restraint" means that he would only reluctantly interfere with a death sentence.

"What that means in a death-penalty context is perhaps a tendency to require that it be a very convincing case of ineffective assistance, or something the state had done wrong, before interfering with that process," said Lewis, who now practices law in Pittsburgh.

Another capital defender says:

Lawrence Lustberg, a New Jersey defense lawyer who handles capital appeals and is well-versed in the Third Circuit's approach to cases, said he believed that Alito's conservatism would make it unlikely for him to interfere much with death sentences.

"He is likely to decide with those who have been inclined to uphold death sentences, and who construe the death penalty very broadly," Lustberg said.

One Alito-authored opinion upholding the death penalty was reversed by the Supreme Court. As to cases in which he ruled in favor of murder defendants, the Inquirer reports:

He was on a three-judge panel that ordered a new penalty hearing in a York County case, and this year, he was part of a panel that upheld a ruling that a death sentence was unconstitutional. In two cases involving convicted murderers serving life sentences, he sent cases back for lower-court hearings so defendants could raise jury issues.

I would just add that Alito's background as a lawyer was only as a prosecutor and attorney for the Government. As I've said before, in those positions, one looks for the law that supports his side. I think Justices to the Supreme Court should view cases through the lens of the Constitution, not the Government.

I hope Senators question him closely on death penalty and wrongful conviction issues before determining he's the man for the job.

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    Alito's Rulings on the Death Penalty | 13 comments (13 topical)
    Re: Alito's Rulings on the Death Penalty (none / 0) (#1)
    by cpinva on Sat Dec 17, 2005 at 01:05:41 PM EST
    i fail to be persuaded. many articles, cass sunstein's in the WP, among others, referrence alito's scholarly and respectful dissents. while the entire body of judge alito's work on the bench, and elsewhere, should be examined, his dissents are the most telling, in terms of ascertaining his judicial philosophy. i believe this to be true of any judge at the appelate level. a review of these appears to show a judicial philosophy, visa vie constitutional interpretation, that well qualifies him, as a magistrate on the king's bench, circa 1370. his opinions on dissent, most egregiously casey, place him squarely in the "unfettered power of the central government" camp, whether that central government be federal or state. while this would put him in the alexander hamilton branch of the founding fathers, jefferson disagreed. hence, the year-long struggle to produce a constitution both camps could live with, and the requirement that the first ten amendments be part of the original document. judge alito falls well outside that "originalist" mainstream. as to the question of why he would be qualified to sit on the federal circuit court of appeals, but not on the USSC, the answer is simple: there is no appeal from the USSC, he isn't as dangerous.

    Re: Alito's Rulings on the Death Penalty (none / 0) (#2)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:41 PM EST
    I agree. Alito's "originalism" and "restraint" means that he believes in the law for the sake of the law (and those who make the law), whereas he fails to see that the law should be introduced, and then interpreted, for the sake of the people. I think that is a misguided approach to the Constitution as well as to the other legislative acts. It is this philosophy, which places a human being second to the strict letter of the law, that leads Alito to rule against the rights of women, against the rights of workers, and agaist the rights of defendants facing the capital punishment. I strongly oppose such a philosophy. While I have my reservations towards Sandra Day O'Connor, I believe she has in herself enough compassion to see the human side of the case. Alito, with all due respect, lacks this trait of character - this is my opinion from what I have learned about him so far. And to have O'Connor substituted for Alito - it pushes the Court in a direction which is more and more out touch with reality.

    Re: Alito's Rulings on the Death Penalty (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:41 PM EST
    Watch for Alito's rulings on abortion and marriage. Latest reports are that he rules that traditional marriage rights trump other considerations, and that fathers must be notified because they have a legal interest what happens to a fetus. See today's NY Times story on Alito rulings

    Re: Alito's Rulings on the Death Penalty (none / 0) (#4)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:41 PM EST
    Well these cases presented by the NYT are not a smoking gun. This father notification issue is from Casey and we all know the case. Apparently Alito learned a lesson after the Supreme Court didn't agree with his dissenting opinion. I think we will find that, since Casey, Alito has been very careful with cases explicitly related to the right to have an abortion - that is he applied the precedents, but declined to share his views on the topic. Of course this will change if he becomes a Justice :P - at last he will be able to notify the American people of his convictions, and I bet he is eager to do so ]:->. As far as the other cases mentioned in the NYT are concerned, they are really about immigration - the abortion issue is in the background, but I wouldn't make much of it. For me, these "Chinese problems" are ambiguous. It is the question of policy - if the United States want to become a haven for people repressed by the communist authorities, than many individuals may come, because China has really a biiiiig population and almost everybody there is affected by the regime. So I would be cautious... Having said that, a clear decision should be made - either let these people in, or not. The marital criterion is not the one I would put in place - it discriminates against other people equally hurt, but without a formal recognition of their relationship. I see the marriage as a voluntary and official form of relationship between two persons, which the state should neither reward in any special way, nor punish.

    Re: Alito's Rulings on the Death Penalty (none / 0) (#5)
    by Peter G on Sat Dec 17, 2005 at 01:05:41 PM EST
    Sebastian again oversimplifies Judge Alito: "Alito's "originalism" and "restraint" mean that he believes in the law for the sake of the law (and those who make the law), whereas he fails to see that the law should be introduced, and then interpreted, for the sake of the people. I think that is a misguided approach to the Constitution as well as to the other legislative acts. It is this philosophy, which places a human being second to the strict letter of the law, that leads Alito to rule against the rights of women, against the rights of workers, and against the rights of defendants facing capital punishment. I strongly oppose such a philosophy. (a) Where is your evidence for the charge of "originalism"? I'd like to see it. (b) I do see the tendency you observe in many of Judge Alito's opinions, but not so consistently as to constitute a "philosophy." Please consider and try to explain for me his opinion for a ten-judge majority in Thomas v Comm'r of Social Security, 294 F3d 568 (2002). Alito wrote the opinion refusing to apply the literal language of the Social Security Act and its implementing regulations, which would have required the court to say that a former elevator operator was not disabled (and thus ineligible for benefits), because she was physically able to do her former job -- even though the former job no longer existed in the economy. Read it. Three judges -- two of them among the courts most liberal -- dissented on the ground that the court unfortunately had to follow the statute as written and to defer to the administrative agency's strict interpretation in case of any doubt. The government appealed to the Supreme Court. In an opinion by Justice Scalia, the court unanimously reversed Judge Alito's opinion, Barnhart v Thomas, 540 US 20 (2003), agreeing with the "liberal" 3d Circuit dissenters that deference to the agency's interpretation of the law they had to administer determined the correct result in the case. So, in this case, Alito favored the disabled worker, a woman, over the government, and against the language of the statute, and the Supreme Court reversed him. Knee jerk explanation, please?

    Re: Alito's Rulings on the Death Penalty (none / 0) (#6)
    by ras on Sat Dec 17, 2005 at 01:05:41 PM EST
    Peter G, Always a pleasure to read your comments. BTW, I think Sebastian was just using the term "originalism" very loosely as a generalized synonym for judging based strictly on the law, aot the more precise - if I understand the term properly myself - judging based strictly on the (hopefully) apparent intent of the law when it was originally passed. Is that about right? But your broader pt is a good one: Alito does appear to be a fair-minded judge, and knee-jerk criticism is unfounded. Demonization also, I think, splits the Dems by encouraging emotional calls to filibuster the "extremist," calls that would likely lead either to the end of fb's in general, or a serious rift in the party over the issue. Those who come to believe Alito a dangerous extremist may well leave the party if it does not even attempt a fb.

    Re: Alito's Rulings on the Death Penalty (none / 0) (#7)
    by wg on Sat Dec 17, 2005 at 01:05:42 PM EST
    Well I read both opinions and I find Alito's position technically correct, no need to invoke special inclination on Alito's part to favor disabled workers. Specifically he found her entitled because she could not perform any job other then her old which "no longer existed in significant numbers in the national economy". The SC found that the fact that the only job she could perform "did not exists in significant numbers" was irrelevant. Per their reading of statues that stipulation applied only to other jobs not her former one. The language of 423(d)(2)(A) is muddy enough to permit either interpretation, technically speaking. We'll need something better than this. Sebastian's "... he believes in the law for the sake of the law (and those who make the law) ... " cannot be ruled out yet.

    Re: Alito's Rulings on the Death Penalty (none / 0) (#8)
    by wg on Sat Dec 17, 2005 at 01:05:42 PM EST
    (sample questions for Alito) There is a consensus among both your supporters and doubters. They all claim you hold deeply conservative views. Given that views especially those deeply held tend to color decisions, could you share some of them with us? (he's been all his life on the government side, prosecutor first, judge later, lets see if he realizes that there is another side to the equation, the private citizen who nominally has similar standing in the overall order of things) You appear to have zero experience defending private citizens against the state. With your extensive prosecutorial background why should we believe you will give the other side their due deference? On issue of "private citizen vs the government" broadly understood as issues regarding privacy, police, prosecutorial powers, surveillance, courts, etc. there is a sense the government gained significantly in recent times. Do you agree? Roughly 90% of cases in federal courts are effectively decided by federal prosecutors with courts having little to no input to the process. From your judicial experience do you consider it a healthy situation? Prison population in this country is the highest in the world, per capita and in absolute terms. What are your thoughts on it? We execute people in this country. Most of the rest of the world doesn't. Your comments as a private citizen not a judge, please. The court to which you have been nominated have been widely criticized for allowing citizens of this country to be held in government detention for over four years without access to courts. How do you feel about it? and so on ...

    Re: Alito's Rulings on the Death Penalty (none / 0) (#9)
    by Dadler on Sat Dec 17, 2005 at 01:05:42 PM EST
    Peter G, Has Alito, in your dealings with him, shown a willingness to say, in effect, "Boy, was I wrong on that one, what an idiot, let's amend this"? Genuinely curious. Is he self-deprecating in the least? Also, your point about Alito's ruling for the disabled woman, I have a strong hunch, simply evidences that there is something resembling a sentient human being lurking under his skin. And, like all of us, there arise certain cases, for certain personal reasons, that we relate to and sympathize with deeply, and to which we will give more attention and consideration. The ol' human factor. In that case, it seems to be operating. In too many others, it seems turned off completely.

    Re: Alito's Rulings on the Death Penalty (none / 0) (#10)
    by wg on Sat Dec 17, 2005 at 01:05:42 PM EST
    I was skeptical initially but willing to give him the benefit of doubt, this "Alito's Dissents Show Deference to Lower Courts" article in the NYT did it for me, the gentleman is imho unfit for the job. The picture that emerges from their analysis is that of somebody reflexively siding with police and prosecutors most of the time. Generally supporting broad government powers wherever he could. Deference to what he called "the good faith judgments of other participants in the justice system, including police officers, prosecutors, prison wardens, trial judges and juries". Accepting him will mean more strip searches of citizens (including 10 year old girls) by police, security, school or mall guards, condoning widespread police brutality, five year sentences with daily rectals for your grandmas for voicing outrage at the treatment received in airports, same with nuns, harsh drug sentences on police hearsay/setups, physical and psychological abuse in prisons, supporting Stasi like powers/methods of the FBI and similar agencies, military style assaults on public gatherings, more robocops in the streets, etc, etc. Nothing will be done to reverse the sense of essentially total impunity pervading most of the police departments in this country. Lets face it, the killing by police in this country is unprecedented by international and historic standards including Nazi Germany. In my neck of the woods barely a week or two goes by w/o them killing somebody. It is Mr. Alito and his colleagues on the bench and in prosecutorial offices that makes this possible. Approving him will mean all this atrocity will go on abated. He deserves a fair hearing and an opportunity to sell himself to the Senate but not the approval imho.

    Re: Alito's Rulings on the Death Penalty (none / 0) (#11)
    by wg on Sat Dec 17, 2005 at 01:05:42 PM EST
    .. unabated ..

    Re: Alito's Rulings on the Death Penalty (none / 0) (#12)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:05:44 PM EST
    Peter G, I put "originalism" and "restraint" in quotation marks in order to show how Alito is sold to the public by his supporters on the radical right. My intention was to voice my concerns on what this judge really stands for. Perhaps I overstated a bit, and these concerns could have been misunderstood as certitude. I try to be fair towards this man, and that's why I have my doubts - especially when I see how he is hailed by the radicals. Either they are really stupid, or Alito is really their man. I don't think there is a third option. But coming back to my previous post, I explained what kind of "originalism" and "restraint" (for which he is credited by some) I find deeply disturbing and wrong. I said that it was wrong to look at the law for the sake of the law. Your example - Thomas v Comm'r of Social Security - is very good. I have read both the opinion of the Circuit Court and the unanimous opinion of the Supreme Court, and I must admit that I strongly favor the reasoning of Alito - in spite of the fact that he was later overturned by the Justices. Alito appears to have an open mind. Those liberals who worked with him confirm it, and I would very much like them to be right. I hope they are... But this tendency to place provisions of the law over the problems of the people is also visible in his rulings and it is troublesome (regardless of whether it constitutes "philosophy" or not). For instance: Glass v. Philadelphia Electric Company, 34 F.3d 188 (3d Cir. 1994). For me there was a serious issue when the negative evaluation of Glass' work was talked about, while Glass was not allowed to present his version of the story. It doesn't seem fair at all, and Alito was unwilling to see that. He acknowledged that "reasonable minds can differ [on the question]" but he sided with a judge against the plaintiff, not the other way round... One issue before I finish. Let's clear something up. You wrote: So, in this case, Alito favored the disabled worker, a woman, over the government, and against the language of the statute, and the Supreme Court reversed him. Knee jerk explanation, please? That's obviously true exept for one thing - Alito didn't rule against the language of the statute in this case. He ruled against administrative regulations which were derived from that statute. He argued that the statute was misinterpreted, not that it was wrong.

    Re: Alito's Rulings on the Death Penalty (none / 0) (#13)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:06:13 PM EST
    My comments on "Radio Times" on Nov. 1 were mentioned in a post entitled "One Law Clerk's View of Alito" (Nov. 3). Below is a much fuller account. From 1996 to 1997, I was privileged to clerk for a judge on the U.S. Court of Appeals for the Third Circuit. Over the course of that year, my judge sat on a number of cases with Judge Samuel A. Alito, Jr. One of these cases stands out in my memory and gives me pause when it comes to Judge Alito’s commitment to judicial restraint. Clifford Smith had been convicted of first-degree murder in Pennsylvania state court and had been sentenced to die. He was asking the federal courts to grant him a new trial on the ground that the trial judge’s instructions to the jury had erroneously lightened the prosecutor’s burden of proof, making it easier for the jury to convict him of first-degree murder and therefore render him eligible for the death penalty. His argument was rejected in the federal district court and he appealed to the Third Circuit. Now, in a case of this sort, any prosecutor worth his or her salt would immediately consider making two interrelated procedural arguments. First, the prosecutor should have first determined whether Smith had “exhausted his state remedies” by raising the issue at every stage of the state proceedings. Relatedly, the prosecutor should have looked to see whether Smith had failed to object at trial, and therefore whether there was a “procedural bar” to his raising the issue in federal court. In this case, however, the prosecutor never raised these issues: not in the federal district court; not in their briefs in the Third Circuit; not even when it came time to orally argue the case on appeal. Not once before the decision was rendered did the terms “exhaustion of state remedies” or “procedural bar” enter into the case. But that did not stop Judge Alito. When a majority of the court granted Smith a new trial, Judge Alito dissented, raising the two grounds that the prosecution itself had never bothered to raise in any court. Moreover, since the prosecutor never put the court on notice that Smith might not have properly raised the legal issue in the state courts, the prosecutor never pointed out in the record where the judges might look for this omission. Without guidance from the attorneys, Judge Alito must have undertaken the onerous task of poring through every page of the record to determine that Smith had never brought this legal issue to anyone’s attention. That is, since the lawyers for the State of Pennsylvania were unable or unwilling to do their job, Judge Alito would do it for them. Unlike Judge Alito, the other two judges on the panel were unwilling to independently conjure up arguments on the State’s behalf and then search through the record for facts that would support such arguments. The majority justifiably excoriated Judge Alito for his activist approach to judging in this case. They wrote: [W]here the state has never raised the issue at all, in any court, raising the issue [ourselves] puts us in the untenable position of ferreting out possible defenses upon which the state has never sought to rely. When we do so, we come dangerously close to acting as advocates for the state rather than as impartial magistrates. (emphasis added). Judge Alito’s approach in Smith’s case exemplifies a judicial attitude unfortunately all too common in criminal appeals, in which the judge sees himself or herself, not as an impartial and detached arbiter, but as an adjunct of the prosecutor’s office, doing whatever is necessary to preserve convictions. Every litigant expects and deserves to be treated equally with his or her adversary in the eyes of the judges who hear the case. When a judge puts a thumb on the scale on the side of the prosecution in criminal cases, by weaving out of whole cloth arguments that the prosecution, by design or neglect, has not made, and by ferreting out facts in the record to support these arguments, it is a most virulent form of judicial activism. Such activism is no more acceptable than that represented by the anti-death penalty judge who takes up the task of poring through the record in a death penalty case to discern facts and formulate arguments helpful to the defendant, but which his own attorneys have not raised, in a desperate attempt to save his life. I do not doubt that Judge Alito has excellent credentials. I do not doubt that he is a very nice man. But given my experience with him, I very much doubt that he truly practices judicial restraint, at least in criminal cases.

    Alito's Rulings on the Death Penalty | 13 comments (13 topical)