Sotomayor, pointing out that the prevalence of override in Alabama may be due to politics, wrote that giving unilateral death-sentence power to judges who are seated through partisan elections "casts a cloud of illegitimacy over the criminal justice system".
It is actually a form of mandatory sentencing, power akin to parliament-imposed jail terms.
Prosecutors prefer the current system of mandatory terms because it gives them most of the real sentencing power.
The Supreme Court this week will consider whether to reverse a troubling 2002 decision that allowed judges greater sentencing power in certain circumstances.
But if history is any guide, judges will continue to use their sentencing power relatively sparingly, specialists in sentencing law said.
Chief Justice William Rehnquist, hardly a coddler of criminals, warned members of Congress that limiting judicial sentencing power along these lines "would seriously impair the ability of courts to impose just and responsible sentences".
The military police roamed the countryside they were not allowed to stay in one place for more than two days in a row to catch military and, eventually, civilian offenders and to use their sentencing power to inflict punishment, for which there was no appeal.
"Magistrates themselves have lighted on increased sentencing powers … as the answer to their problems.
I've long supported reform of the criminal justice system, and tougher sentencing powers to act as a deterrent.
Magistrates may also convict by a majority, the judges pointed out, although their sentencing powers are limited.
The results reflect the limited sentencing powers of the magistrates courts, which cannot pass a sentence of more than six months for an individual offence.
