A U.S. district judge in New York ruled yesterday that the federal death
penalty is unconstitutional because it creates "undue risk" of executing
innocent defendants, the latest sign that DNA exonerations of death row
inmates have begun to affect the way courts and legislatures think about
In telling federal prosecutors that they may not seek the death penalty
for two heroin dealers accused of murdering a government informant, Judge
Jed S. Rakoff wrote that wrongful death sentences are more common than
Congress believed when it passed the death penalty law in 1994.
Now, he wrote, it is "fully foreseeable that in enforcing the death
penalty, a meaningful number of innocent people will be executed who
otherwise would eventually be able to prove their innocence."
And that, said Rakoff, an appointee of President Bill Clinton, is
"tantamount to foreseeable, state-sponsored murder of innocent human
The ultimate impact of Rakoff's decision is highly uncertain. It would
appear to run counter to the last quarter-century's worth of Supreme Court
precedent, which has sought to regulate the death penalty but consistently
treated it as a constitutional form of punishment. However, anti-death
penalty organizations greeted Rakoff's order as more evidence that their
cause is gaining momentum, at least symbolically.
The Bush administration said yesterday it is reviewing Rakoff's ruling,
but legal analysts regarded an appeal as a near-certainty.
"The determination of how to punish criminal activity within the limits
of the Constitution is a matter entrusted to the democratically elected
legislature, not to the federal judiciary," said Justice Department
spokeswoman Barbara Comstock. "Congress passed the Federal Death Penalty
to save lives, and the Supreme Court of the United States has repeatedly
said the death penalty is constitutional."
Kent Scheidegger of the Criminal Justice Legal Foundation, a
Sacramento-based nonprofit group that supports capital punishment, said
Rakoff is "essentially saying the Constitution requires certainty of guilt
before we can execute anyone, and that is not the law."
Rakoff implied his decision could be overturned, either by the New
York-based U.S. Court of Appeals for the 2d Circuit, or by the Supreme
Court. "[N]o judge has a monopoly on reason," he wrote, noting that he
"fully expects [my] analysis to be critically scrutinized."
The decision comes soon after the Supreme Court abolished capital
punishment for the mentally retarded -- in part, the high court said,
because retarded defendants may be particularly susceptible to wrongful
conviction or sentencing.
The ruling also follows death penalty moratoriums in Illinois and
Maryland, and comes as the Senate Judiciary Committee is preparing to vote
on a bill sponsored by Sen. Patrick J. Leahy (D-Vt.) that would promote
access to DNA evidence and legal counsel for both state and federal death
"These decisions spotlight various flaws in the death penalty system,
the flaws add up to a system that is broken," Leahy said yesterday.
"More so than at any other time since the early '80s, there are people
all stripes in legislatures and courthouses thinking about the fact that
we've got a problem here," said George Kendall, assistant counsel of the
NAACP Legal Defense and Education Fund, which opposes capital
Though the wrongful convictions it cited were in state cases, Rakoff's
order applies only to the federal system. There are 27 convicted murderers
on federal death row.
Attorney General John D. Ashcroft has been aggressive in seeking the
death penalty in federal cases, having ordered prosecutors to ask for
capital punishment in 20 of 45 possible cases through March 1, frequently
Rakoff, who said in his 1995 Senate confirmation hearings that he would
follow Supreme Court capital punishment precedent and that the death penalty
"does not in any way offend my personal feelings," announced on April 25
intention to strike down the federal death penalty, but gave Justice
Department lawyers one last chance to persuade him not to.
The government argued that DNA testing is now available to defendants
prior to trial, thus reducing the future risk of wrongful convictions; that
there was no evidence that any of the federal defendants convicted so far
was actually innocent; and that the Supreme Court had ruled in 1993 that
death row inmates raising last-minute claims with new evidence of their
innocence should face an "extraordinarily high" burden of proof.
Rakoff countered that not every case turns on physical evidence; that
federal cases were as vulnerable to error as state cases; and that most
the justices involved in the Supreme Court's 1993 ruling had agreed that
executing the innocent would violate the Constitution.
In recent days, the Supreme Court rebuffed a case based on another common
criticism of the federal death penalty -- that it is racially biased.
A 2000 study by the Clinton administration's Justice Department found
that 80 percent of federal death penalty prosecutions involved minority
But in a two-page unsigned opinion issued Friday, the court, without
published dissent, ruled that an African American facing capital punishment
in a federal case in Michigan could not press a racial bias claim because
these statistics do not prove that federal prosecutors had shown any
differential treatment toward defendants in cases similar to his.