goodwin-liuAs noted in today’s San Francisco Chronicle, a group of district attorneys from California is opposing Goodwin Liu’s nomination. Their letter to the Senate Judiciary Committee asserts that Professor Liu “would vote to reverse nearly every death sentence.”

The district attorneys are acting in concert with the Criminal Justice Legal Foundation (CJLF), which similarly claims that Professor Liu is “intensely hostile to capital punishment,” “will vote for the murderer on every remotely debatable point,” and “is ready, willing, and able to seize on every excuse to reverse a capital sentence and to brush aside every reason to affirm one.”These critics have manufactured their claims out of whole cloth.

Professor Liu has never written an academic paper on capital punishment (indeed, on any area of criminal law).  Nor has he ever suggested that he disagrees with the Supreme Court’s jurisprudence upholding the death penalty as constitutional under the Eighth Amendment. The sole source for both the district attorneys and the CJLF is a fourteen page “issue brief” that Professor Liu and a co-author wrote for the American Constitution Society analyzing then-Judge Samuel Alito’s record in capital punishment cases.

The issue brief does not express an opinion on the propriety of the death penalty as a constitutional or a policy matter.  Rather, it critiques Judge Alito for his “disturbing tendency to tolerate serious errors in capital proceedings” and his “unbroken pattern of diluting norms of basic fairness.”In other words, Professor Liu’s position on the death penalty boils down to this: “[C]apital cases require judges to exercise utmost care and vigilance in ensuring due process of law.”

Especially in an era when over 250 convicted inmates have been exonerated by DNA evidence, does that viewpoint make Professor Liu an “extreme outlier”?  Hardly.  Justice Sandra Day O’Connor, a conservative jurist who frequently voted to uphold death sentences on the Supreme Court, has made essentially the same argument.  In a highly-publicized speech in 2001, she “questioned the fairness of the death penalty and raised the possibility that innocent people had been executed.”

Also, it is noteworthy that Professor Liu has the support of the California Correctional Peace Officers Association, the union for the state’s prison guards.  That group says that Professor Liu would “further the cause of justice and follow the law and Constitution for all parties . . . including crime victims and peace officers.”

Critics of Goodwin Liu have made the baseless accusation that he is “intensely hostile to capital punishment” and an “extreme outlier” on the issue.  As noted earlier, their only basis for this claim is a misreading of an issue brief, coauthored by Professor Liu, which critiques then-Judge Samuel Alito’s record in capital punishment cases.

The issue brief demonstrates that, if anyone is an outlier, it is Alito – not Professor Liu. In several cases closely examined by Professor Liu, Alito’s position to uphold a death sentence was at odds with the Supreme Court or his own colleagues on the circuit court (including several former prosecutors appointed by Republican presidents).  Specifically:

  •        In Rompilla v. Horn, the Supreme Court reversed Judge Alito’s decision rejecting a defendant’s claim of ineffective assistance of counsel. The Supreme Court (including Justice Sandra Day O’Connor) held Judge Alito’s position to be “objectively unreasonable” under “clearly established law.”
  •        In Riley v. Taylor, the Third Circuit reversed Judge Alito’s decision rejecting a claim of racial discrimination in the selection of a defendant’s jury.  Notably, the en banc court – a majority that included three Republican appointees – criticized Judge Alito for “minimizing the history of discrimination against prospective black jurors and black defendants.”
  • ·       In Smith v. Horn, Judge Alito dissented from a ruling by two of his colleagues, each a former prosecutor nominated by President Reagan, that the trial court’s jury instructions were improper.  Judge Alito called the majority’s decision “shocking,” “dangerous,” and “an injustice,” even while conceding that aspects of the jury instructions were “inadvisible” and “ambiguous.”  He also relied on an argument not raised by the government, an approach which the majority feared would “subtly transform our adversarial system into an inquisitorial one.”
  • ·       Even when Judge Alito’s position prevailed – in the en banc ruling Flamer v. Delaware – there was a substantial dissent by four of his colleagues, including two former prosecutors appointed by Presidents Reagan and Bush.Moreover, Professor Liu’s characterization of Justice Alito’s jurisprudence has proven accurate following Alito’s elevation to the Supreme Court.

In all but one case involving a divided panel of the Court, Justice Alito has sided with the government and has minimized procedural safeguards for defendants in capital cases.  For example, in Abdul-Kabir v. Quarterman, Panetti v. Quarterman, and Kennedy v. Louisiana, he dissented from rulings of the Court supported by conservative Justice Anthony Kennedy.

In short, Professor Liu can hardly be tagged an extremist based on his criticism of Justice Alito’s record in capital cases.  It is not an extreme position to require that the government impose the death penalty consistent with basic constitutional safeguards, such as due process of law and the right to counsel.  Indeed, it is a position embraced by conservative Justices Sandra Day O’Connor and Anthony Kennedy.