Appeals Court Overturns Decision Striking Down U.S. Death Penalty

The federal death penalty is constitutional despite the “theoretical possibility” that an innocent person might be put to death, a U.S. appeals court in New York ruled Tuesday.

The 3-0 decision overturns a July ruling by a federal trial judge who struck down the penalty because of the “unacceptably high risk” that mistakes will be made.

The ruling clears the way for the Justice Department to press for death sentences in a handful of federal cases.

Congress revived the federal death penalty in 1994. Since then, 31 people have been sentenced to die on federal charges, and two have been executed: Oklahoma City bomber Timothy J. McVeigh and Texas drug kingpin Juan Garza, who ordered several murders.

Tuesday’s decision also brushes aside what some death penalty foes saw as a promising new line of attack on capital punishment.

More than 100 inmates who were condemned to die by the states since 1976 have had their sentences reversed, and a smaller, but significant number of them have been shown to be innocent of the crime that sent them to death row.

This error rate has shaken the confidence of some officials, and U.S. District Judge Jed Rakoff said it was reason enough to outlaw death sentences.

“There is no reason to believe the federal system will be any more successful at avoiding mistaken impositions of the death penalty than error-prone state systems,” he wrote. The continued use of the death penalty “is tantamount to foreseeable state-sponsored murder of innocent human beings.”

The judge did not suggest the two defendants before him were innocent. The pair -- Alan Quinones and Diego Rodriguez -- were charged with being heroin distributors who tortured and murdered an informant.

Rakoff struck down the death penalty in a pretrial motion. But the U.S. 2nd Circuit Court of Appeals said his position had been repeatedly rejected by the Supreme Court.

“The argument that innocent people may be executed -- in small or large numbers -- is not new; it has been central to the centuries-old debate over both the wisdom and constitutionality of capital punishment,” wrote Judge Jose Cabranes. If the death penalty itself is to be rejected as unconstitutional, “that is a change that only the Supreme Court is authorized to make,” he said.

All nine justices of the Supreme Court say capital punishment is constitutional.

By its very words, the Constitution permits the practice, they say. The 5th Amendment says, “No person shall be held to answer for a capital or otherwise infamous crime” unless indicted by a grand jury, nor shall anyone be “deprived of life, liberty or property without due process of law.”

University of Michigan law professor Samuel Gross, who argued the New York case, said he remained hopeful the high court will reconsider the issue.

“Thanks to DNA, it is a new world. We have learned we regularly sentence to death people who are innocent,” Gross said. “We hope the court will take up that challenge.”

But Kent Scheidegger, legal director of the Criminal Justice Legal Foundation in Sacramento, praised the appeals court for rejecting the ruling.

“This is a well-deserved rebuke of a crackpot decision,” he said.