Death Penalty Faulted

WASHINGTON -- A U.S. trial judge in New York said Monday that the federal death penalty is unconstitutional because there is an “unacceptably high” risk that an innocent person will be executed.

The ruling by U.S. District Judge Jed Rakoff has no significance beyond halting the government’s effort to bring death penalty charges against two Bronx drug dealers who allegedly tortured and killed an informant.

A federal trial judge has no authority beyond his courtroom to strike down the law, and other federal death penalty cases can proceed.

Nonetheless, the opinion by Rakoff, a 1995 Clinton appointee to the Southern District of New York, adds to the growing debate over whether capital punishment can be fairly administered.

The Death Penalty Information Center says 101 inmates sentenced to death since 1976 have been released. Many were shown to be innocent because DNA tests excluded them as suspects or witnesses recanted testimony that led to their convictions.

There is no firm evidence that an innocent person has been executed in the last two decades, however, and none of the exonerations have come in federal death penalty cases.

But in late April, Rakoff said recent revelations of innocent people on death row have shaken confidence in the entire system. He said society has been “queasy about the possibility that an innocent person, mistakenly convicted and sentenced to death, might be executed.”

That possibility is too great for capital punishment to continue, he said.

“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 already exposed,” he said. “The unacceptably high rate at which innocent persons are convicted of capital crimes” means that continued use of the death penalty “is tantamount to foreseeable state-sponsored murder of innocent human beings.”

Congress revived the federal death penalty in 1988, targeting drug kingpins. A 1994 crime bill greatly expanded the number of crimes eligible for a federal death sentence, including terrorism and airplane hijackings.

Thirty-one people have been sentenced to death under these laws, but only two have been executed: Timothy J. McVeigh, who bombed the federal building in Oklahoma City, and Juan R. Garza, a Texas drug kingpin responsible for several murders.

Currently, Bush administration lawyers are pursuing death penalty charges in Virginia against Zacarias Moussaoui, the alleged 20th hijacker in the Sept. 11 attacks.

The Justice Department is likely to appeal Rakoff’s decision to the U.S. 2nd Circuit Court of Appeals in New York.

Barbara Comstock, a Justice Department spokeswoman, said the judge’s opinion ignores Congress and the Supreme Court. “Congress passed the federal Death Penalty Act to save lives, and the Supreme Court has repeatedly said the death penalty is constitutional,” she said.

Lawyers who oppose the death penalty said Rakoff’s ruling reflects a growing skepticism about capital punishment.

“This is not the system people believed it was 10 years ago. There are few people who are still willing to indulge the assumption that there are enough safeguards to prevent an innocent person from being executed,” said George Kendall of the NAACP Legal Defense Fund in New York. “He is the first judge to say it is unconstitutional, but he won’t be the last.”

Kent Scheidegger of the pro-death penalty Criminal Justice Legal Foundation in Sacramento said Rakoff’s ruling is not likely to stand for long.

“It is not a binding precedent, and it’s not going to block enforcement of the law anywhere else,” he said. “I also think the notion that a district judge would ignore the Supreme Court on an issue like this is very strange.”

Since 1976, the high court has said that the Constitution, by its very words, permits capital punishment. The 5th Amendment says, “No person shall be held to answer for a capital ... crime” unless indicted by a grand jury, nor shall anyone “be deprived of life, liberty or property without due process of law.”