Judge Leans Toward Declaring Death Penalty Unconstitutional

A federal judge in New York said Thursday that he was on the verge of declaring the federal death penalty law unconstitutional because too many condemned inmates have turned out to be innocent.

U.S. District Judge Jed S. Rakoff issued the tentative order in a pending narcotics and murder case in which two men face a possible death sentence. If he makes the order final, the two defendants would still face murder charges but could not be executed if convicted.

At present, Rakoff’s order is not binding on any other judge. If the ruling is upheld by the U.S. 2nd Circuit Court of Appeals, it will affect federal death penalty cases in New York, Connecticut and Vermont. It would have no effect on cases in state courts in the 38 states that have capital punishment.

However tentative, the order stunned death penalty lawyers and legal scholars around the country. Some hailed Rakoff’s order as a bold move, while others decried it as absurd and predicted that it would be overturned by a federal appeals court. The order comes at a time of increased debate over the fairness of how capital punishment is administered in the United States.

“Our system of criminal justice, for all its protections, is sufficiently fallible that innocent people are convicted of capital crimes with some frequency,” wrote Rakoff, a former federal prosecutor who was appointed to the bench by President Clinton in 1996.

Innocent people are being sent to death row “with a frequency far greater than previously supposed,” Rakoff said, citing the fact that 12 men sentenced to death have been exonerated by DNA testing since 1984.

DNA testing and other innovative measures “may enable us not only to prevent future mistakes but also to rectify past ones by releasing wrongfully convicted persons--but only if such persons are still alive to be released,” Rakoff wrote.

The judge emphasized that the issue went beyond those exonerated through DNA tests. He said there had been at least 20 cases over the last decade in which defendants sentenced to death had been released from prison “on grounds indicating factual innocence derived from evidence other than DNA.”

The judge said an implicit assumption made by the U.S. Supreme Court in a 1993 ruling--that U.S. judicial safeguards made it “highly unlikely” an innocent person could be executed--is “no longer . . . tenable.”

Consequently, Rakoff said that it is possible that an individual could be executed before he had a full opportunity to demonstrate his innocence and therefore would be deprived of due process of law.

“If the court were compelled to decide the issue today, it would . . . grant the defendants’ motion to dismiss all death penalty aspects of this case on the ground that the federal statute is unconstitutional,” Rakoff wrote.

Acknowledging that “prudence dictates” he allow the government one last opportunity to be heard, Rakoff gave Justice Department lawyers until May 15 to submit additional briefs and indicated that he would issue a final ruling in June.

Rakoff acted in response to briefs filed by attorneys Kevin McNally of Frankfort, Ky., and Jean D. Barrett of Montclair, N.J., who respectively represent Alan Quinones and Diego Rodriguez, the two men the government is seeking to execute.

The Justice Department decided to seek death sentences against Quinones and Rodriguez, whose trial is scheduled to start in September, over the advice of former U.S. Atty. Mary Jo White, according to court documents.

McNally hailed the ruling. “Actually, it is a pretty simple argument,” he said. “How can a system tolerate the danger of executing innocent citizens? It was triggered by this repeated avalanche of documented cases of innocent people who had been sentenced to death.”

Neither the U.S. attorney’s office in New York nor the Justice Department had any immediate comment.

In briefs filed earlier, the government conceded that “research has not uncovered a case addressing the precise point” raised by the defense lawyers--”whether the death penalty violates due process, and is therefore unconstitutional, because by its very nature, it cuts off a defendant’s ability to establish his actual innocence.”

However, the government contended that the defense argument flew in the face of the Supreme Court ruling in the 1993 case known as Herrera vs. Collins. In that decision, the high court ruled that a state death row inmate who presents belated evidence of innocence is generally not entitled to a new hearing in federal court before being executed.

But Rakoff said the Herrera decision does not provide “the guidance necessary” to resolve the issue in this instance because at this stage the defendants are presumed to be innocent. In contrast, Rakoff wrote, Herrera already had been convicted and had a tenuous claim of innocence.

Elisabeth Semel, who runs the death penalty clinic at UC Berkeley’s Boalt Hall Law School, applauded the ruling.

“In recent years there has been a lot of discussion about the procedural aspects of how the death penalty is administered. But Judge Rakoff is talking about substantive due process--whether or not the nature of the death penalty is such that in the modern era it by definition deprives innocent people of the right to life,” Semel said.

But Rory K. Little, a professor at Hastings College of Law in San Francisco, called the ruling “absurd” and predicted that it would be overturned. “To say that the federal death penalty violates due process of law is inconsistent with prior Supreme Court precedents,” said Little, who served on the Justice Department’s capital punishment review committee from 1996 to 1997. “I think he ruled with his heart, not with his head.”

Added Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento: “The fact that a handful of people have been cleared out of many thousands sentenced to death does not change the constitutional status of capital punishment.”

Two people have been executed under the current federal death penalty law, enacted in 1994: Oklahoma City bomber Timothy J. McVeigh and Juan R. Garza, for a drug-related murder in Texas. There are 20 people on federal death row in Terre Haute, Ind.