the puerto rican legal defense memo that you once signed on the subject. what is your thought about justice blackman's view that despite our best legal efforts, the imposition of the death penalty in the united states is not been handled fairly. >> with respect to the position in 19981 with respect to the death penalty, that was, as i noted, a question of being an advocate and expressing views on behalf of the community on a policy choice new york state was making. should we or should we not reinstitute the death penalty. as a judge, what i have to look at and realize is, that in 30 years, or 40, actually, there has been -- excuse me.

i'm sorry. enormous changes in our society, many cases looked at by the supreme court he doctoring the application of the death penalty, addressing issues of its application and when they're constitutional or not. the state of this question is different today than it was when justice blackman came to his views. as a judge, i don't -- i ruled in the abstract. i ruled in the context of a case that comes before me. and a challenge to a situation and application of the death penalty that arises in an individual case. i've been and am very cautious

about expressing personal views since i've been a judge. i find that people who listen to judges express their personal views on important questions that the courts are looking at. that they have a sense that the judge is coming in to the process with a closed mind. that their personal views will somehow influence how they apply the law. it's one of the reasons why, since i've been a judge, i've always been very careful about not doing that. i think my record speaks more loudly than i can. in fact of how careful i am about ensuring that i'm always following the law and not my personal views. >> well, the one death penalty case that you handled as a district court judge, united states versus hately, this is

after in 1983, i believe it was or 1981, i'm sorry. that you signed on to the puerto rican legal defense education fund memo, recommending that the organization oppose reinstituting the death penalty in new york after you'd done that, some years later, you were called on to rule on case involving the death penalty. despite the policy concerns that you and i shared, you denied the defendant's motion to dismiss and paved the way for the first federal death opinion alternate case in manhattan in more than 40 years. the defendant ultimately accepted a plea bargain of life. and you rejected his challenge to the death penalty found that he showed no evidence of discriminatory intent. so makes your point. whatever your personal feelings, you in this case, at the district court level, ruled in a fashion that upheld the death penalty. i guess i am trying to take it a step beyond.

maybe you won't go to where i want to take you, some nominees don't. but i guess the question that arises in my mind is, how man, like justice blackman after life on the bench, come to the conclusion that despite all our best efforts the premise of your 1981 memo is still the same, that ultimately the imposition of the death penalty in our country is too arbitrary. minorities in america today account for disproportionate, 43% of executions. that's a fact since 1976. and while white victims account for about one half of all murder victims, 80% of death penalty cases involve victims who are white. this raises some obvious questions, we have to face on this side of the table. i'm asking you if it raises questions of justice and fairness on your side of the table. >> in the heatly case, it was

the first prosecution in the southern district of new york of a death penalty case in over 40 years. mr. heatly was charged with being a gang leader of a crack and cocaine enterprise who engaged in -- if the number wasn't 13 it was very less to that, 13 murders to promote that enterprise. he did challenge the application of the death penalty charges against him. on the ground that the prosecutor had made its decision to prosecute him and refused him a cooperation agreement on the basis of his race. the defense counsel, much as you have, senator, raised any number of concerns about the

application of the death penalty and in response to his argument, i held hearings, not on that question, but on the broader question of what has motivated on the specific legal question, what has motivated this prosecutor to enter this prosecution and whether he was denied the agreement, he saw it on the basis of race. i determined that that was not the case and rejected his challenge. with respect to the issues of concerns about the application of the death penalty, i noted for the defense attorney, is that in the first instance, when that question of the affects of the death penalty, how it should be done, what circumstances warranted or don't in terms of the law, but that's a

legislative question. in fact i said to him, i acknowledged his concerns, i acknowledged that many had expressed views about that. but that's exactly what i said which is, i can only look at the case that's before me and decide that case. >> this is a recent case, before the supreme court aid like to make reference to, d.a.'s office versus osborn involving d.n.a. it turns out there are only three states in the united states that don't provide state legislative access to d.n.a. evidence that might exonerate someone who is in prison. i am told that since 1989, 240 post conviction d.n.a. exonerations have taken place across this country. 17 involving inmates on death row. the supreme court in the osborn case was asked, what about those three states. is there a federal right to

access to d.n.a. evidence for someone currently incarcerated? who questions whether or not they were properly charged and convicted. and the court said, no. there was no federal right, but it was a 5-4 case. though i don't quarrel with your premise that it's our resonsability on this side of the table to look at the death penalty the fact in this recent case, the osborn case, there was a clear opportunity for the supreme court right across the street to say, we think this gets to an are u of due process. whether someone sitting on death row in alaska, massachusetts or oklahoma where their state law gives them no access under the law to d.n.a. evidence. so, i ask you, either from the issue of d.n.a. or from other perspectives, isn't it clear that the supreme court does have some authority in the due process realm to make decisions relating to the arbitrariness of the death penalty?

>> the court is not a legislative body. it is a reviewing body of whether a particular act by a state in a particular case is constitutional or not. in a particular situation the court may conclude that the state has acted unconstitutionally and invalidate the act. but it's difficult to answer a question about the role of the court outside of the functions of the court which is, we don't make broad policies. we decide questions based on cases and the principles implicated by that particular case before you. >> i follow you. i understand the limitations on policy related questions that you're facing. i'd like to go to another area

relating to policy and ask your thoughts on it. we have on occasion every two years here, a chance to go across the street for rather historic dinner, members of the united states senate sit down with the members of the u.s. supreme court. we look forward to it, it's tradition that's maybe six or eight years old, mr. chairman, i don't think much older. great tradition. we get to meet them, they get to meet us. i sat down with one supreme court justice, i won't name this person, but i said at the time that i was chairing a crime subcommittee in judiciary and said to this justice, what topic do you think i should be looking in to as a senator when it comes to justice in the united states, this justice said, our system of corrections and incarceration in america. it has to be the worst. it's hard to imagine how it couldqé be much worse if we trid to design it that way.

today in the united states, 2.3 million people are in prison. we have the most prisoners of any country in the world, as well as the highest per capita rate of prisoners in the world. in america today, african americans are incarcerated six times the rate of white americans. now there's one significant reason for this, you have faced at least an aspect of it as a judge. that is the disparity of sen continues. i will readily concede, i voted for it. as did many members of the house of representatives, frightened by the notion of this new narcotic called crack that was so cheap and so destructive that we had to do something dramatic. we did. we put a hundred to one ratio in terms of sentencing. now, we realize we made a serious mistake. 81% of those convicted for crack offenses in 2007 were african american, although only about

25% of crack cocaine users are african americans. i held a hearing on this, and a judge walton, associate director of the office of national drug control policy testified, and he basically said that this sentencing disparity between crack and powder has had a negative impact in courtrooms across america. specifically he stated that people come to view the courts suspicion as institutes that mete out unequal justice and moral authority of not only federal courts but all courts is diminished. i might say for the record that this administration has said they wanted to change this, make it one to one. we are working on legislation to bipartisan basis to do so. you face this as a judge, at least some aspect of it. you sentenced lewis gomez, a nonviolent drug offender to a five-year mandatory minimum and you said when you sentenced him, you do not deserve this, sir, i am deeply sorry for you and your family. but i have no choice.

may i ask you to reflect for a moment, if you can, beyond this specific case or using this specific case, on this question of race and justice in america today, it strikes me, it goes to the heart of our future as a nation in whether we can finally come to grips and put behind us some of the terrible things that have happened in our history. >> it's so unsatisfying, i know, for you and probably the other senators when a nominee to the court doesn't engage directly with the societal issues that are so important to you. both as citizens and senators, and i know they're important to you because this very question you just mentioned to me is part

of bipartisan efforts that you're making. i respect that many have concerns on lots of different issues. for me as a judge both on the circuit or potentially as nominee to the supreme court, my role is a very different one. and in the luis gomez case, we weren't talking about the disparity. we were talking about the quantity of drugs and whether i had to follow the law on the statutory minimum that congress required. for the weight of drugs at issue. in expressing a recognition of the family situation and uniqueness of that case, it was at a time when congress had not recognized the safety valve for

first time offenders under the drug laws. that situation had motivated many judges and many situations to comment on the question of whether the law should be changed to address the safety valve question. then mic a statement making any suggestions to congress, i followed the law. but i know that the attorney general's office, many people spoke to congress on this issue and congress passed the safety valve. with respect to the crack cocaine disparity, as you may know the guidelines are no longer mandatory as a result of a series of recent supreme court -- not so recent but supreme court cases probably

almost in the last ten years, i think the first one was in 2000 if my memory is serving me right. or very close to that. at any rate, that issue was addressed recently by the supreme court in the case called u.s. versus kimbro and the court noted that the sentencing commission's recommendation of sentences was not based on its considered judgment that the 100 to one ratio was an appropriate sentence for this conduct. and the court recognized that sentencing judges could take that fact in to consideration in fashioning an individual sentence for a defendant. and in fact the sentencing commission in very recent times has permitted defendants who

have been serving prior sentences in certain situations to come back to court and have the courts reconsider whether their sentences should be reduced in a way specified under the procedures established by the sentencing commission. this is an issue that i can't speak further about because it is an issue that's being so actively discussed by congress and -- which is controlled by law, but as i said, i can appreciate why not saying more would feel unsatisfying. but i am limited by the role i have. >> one last question i'll ask you. i'd like to hear your perspective on our immigration courts. a few years ago judge richard posner from my home state of illinois brought this problem to my attention. in 2005, he issued scathing

opinion criticizing our immigration courts in america, he wrote, i quote, adjudication of these cases that the administrative level has fallen below the minimum standards of legal justice. end of quotement for those who don't know this judge posner he is an extraordinary man, i wouldn't know where to put him exactly on the political spectrum, because i'm not sure what his next book will be. he has written so many books, he is very gifted and thoughtful person. in 2002 then attorney general john ashcroft issued so-called streamlining regulations that made dramatic changes in our immigration courts, reducing size of the board of immigration appeals from 23 to 11. this board stopped using three-member panels and board members began deciding cases individually. often within minutes and without written opinions. in response immigrants began petitioning the federal appellate court in large numbers. in 2004 immigration cases

constituted 17% of all federal appeals up from 3% in 2001. the last year before the regulations under attorney general ashcroft. i raise this issue with justice alito during his confirmation hearing he cold me, i quote, i agree with judge posner that the way these cases are handled leaves enormous amount to be desired. what are your experiences on the circuit court when it came to these cases and what is your opinion of judge posner's oner is vairks in this 2005 case? >> there's been four years since judge posner's comments. they have to be placed somewhat in perspective. attorney general ashcroft, what you described as streamlining procedures have been by, i think, all of the circuit courses that have addressed the

issue affirmed and given chevron deference. so the question is not whether the streamline procedures are constitutional or not. but what happens when he instituted that procedure is that with all new things there were many imperfections. new approaches to things, create new challenges. there's no question that courts faced with large numbers of immigration cases as was the second circuit. i think we had second largest number of new cases that arrived at our doorstep, the 9th circuit being the first. i know the 7th had quite significantly large number. or reviewing processes that as justice alito said, left

something to be desired in a number of cases. i will say that that onslaught of cases and the concerns expressed in a number of cases by the judges, in the dialogue that goes on in court cases with administrative bodies with congress resulted in more cooperation between the courts and the immigration officials in how to handle these cases, how to ensure that the process would be improved, i know that the attorney general's office devoted more resources to the handling of these cases. there's always room for improvement. the agency is handling so many

matters, so many cases, has so many responsibilities making sure that it has adequate resources and training is an important consideration again in the first instance by congress, because you set the budget. in the what happened we can only do is ensure that due process is applied in each case according to the law required for the review of these cases. >> do you feel that it's changed since 2005? when judge posner said adjudication of these cases has fallen below the minimum standards of legal justice? >> i wouldn't -- i'm not endorsing his views because he can only speak for himself. i do know that in, i would say the last two or three years the

number of cases questioning the processes in published circuit court decisions has decreased. >> thank you very much. thank you, mr. chairman. >> thank you very much, senator durbin. i have discussed this with senator sessions and as i told him earlier, also with his request we have not fin ared the first round, once we have finished first round of questions we'll have 20 minute rounds on the second. i'm going to urge senators that they don't feel they need to use the whole round just as senator durbin just demonstrated that they not. here will be the schedule. we'll break for today, we will have -- begin at 9:30 in the morning. we will finish the first round of questions, the last round will be asked by senator franken

and then we will break for the traditional closed door session with the nominee. so for those not seen one of these before, we do this with all supreme court nominees. we have a closed session, just for the nominee. we go over the f.b.i. report, we do it with all of them. and we generally say it's routine, and justice roberts and chief justice roberts and justice alito and justice brier and everybody else. then we'll come back for a round of 20 minutes each but during that round i will encourage senators if they feel all questions have been asked, i realize sometimes all questions may have been asked but not everybody has asked all the questions. that we try to ask at least

something new. keep up the interest. and then we can determine whether we're prepared, depend can how late it is, do the panel or whether we have to do the panels on thursday. >> thank you, chairman leahy. i do think that the scheme you arranged for this hearing is good on the way we've gone forward. i thank you for that. we've done our best to be ready and in short timeframe and i believe members of this side are ready. talking of questions, autopsy no harm in asking, isn't that a legal rule to get people to reduce the time still some important questions, i think we will certainly want to use, most members want to use that 20 minutes, appreciate that look forward to being with you in the morning. >> as i say ask the question, probably violated first rule that learned as trial lawyer, you shouldn't ask a question if

you don't know what the answer is going to be. i also had other aspect where hope springs eternal. as we have whole lot of other thing going on, i hope we might. senators i am sorry that i didn't get to you but we will before we do the closed session. judge, thank you very much. >> thank you. >> stand in recess. >> woodruff: so, with that, the senate judiciary committee enters in to recess. this ends the second day of the confirmation hearings of judge sotomayor. nominated by president obama to the supreme court. we are here in the har

>> "bbc world news" is presented by kcet, los angeles. [ funding for this presentation is made possible by the freeman foundation of new york, stowe, vermont, and honolulu, the newman's own foundation, and the john d. and catherine t. macarthur foundation.] >> the first african leader to be tried by international courts calls the case against him lies. >> i never received any diamonds. is a lie. it is a diabolical lie. >> and how goldman? posted profits of $3.5 billion in -- and how goldman sacchs

posted profits of $3.5 billion in just three months. coming up later for you, a successful mission to mars. how come the astronauts never left earth? and another movie about a war in iraq. could this be the one that is the difference? hello to you. for the first time, african leaders have to answer in court for crimes against humanity. on the witness stand, charles taylor has presented his defense. liberia's former president admit that bad things happened in neighboring sierra leone. murder, torture, rape, sexual

slavery, the use of child soldiers, but he insists that he played no part. >> when charles taylor stood to swear that the talk -- at the start of the testimony, it was the first time that a former african head of state had been called to answer for charges against humanity. charles taylor has spent months sitting passively, listening to a catalog of atrocities committed in sierra leone. he repeatedly denied any involvement. >> i am the father of 14 children and grandchildren with a love for humanity. i have fought all my life to do what i thought was right in the interest of justice and fair play. i resent that characterization of me. of me.