Judge Finds Federal Execution Unconstitutional

By Gail Appleson, Law Correspondent

July 1, 2002

NEW YORK (Reuters) - A trial judge on Monday declared the federal death penalty unconstitutional, calling it tantamount to "state-sponsored murder of innocent human beings."

The ruling by U.S. District Judge Jed Rakoff, the first to find the federal death penalty unconstitutional, is likely to be appealed.

Although it is unclear whether the decision will be upheld, legal experts said Rakoff presented a unique analysis based on due process violations that will open the door to a serious challenge to the federal death penalty.

Rakoff cited research that shows evidence of a person's innocence often does not emerge until long after a conviction and it is foreseeable that death row inmates could be executed before they have a chance to exonerate themselves in violation of due process.

"I think it is absolutely compelling," said Laurence Tribe, a constitutional law professor at Harvard University. "This decision was powerfully reasoned, and whatever the public reaction, it is bound to get a serious hearing before the 2nd Circuit Court of Appeals and the Supreme Court."

Rakoff's ruling only applies to the case pending before him. But if the U.S. 2nd Circuit Court of Appeals upholds the ruling, it could stop federal executions in New York, Connecticut and Vermont.

It has no impact on state courts in the 38 states that have capital punishment. Compared with state executions, federal executions are relatively rare in the United States.

Since the death penalty was reinstated in 1976 a total of 784 people have been executed under state laws and two under the 1994 federal death penalty laws, including Oklahoma City bomber Timothy McVeigh last year. Twenty five inmates are now on federal death row.

"The unacceptably high rate at which innocent persons are convicted of capital crimes, when coupled with the frequently prolonged delays before such errors are detected...compels the conclusion that execution under the Federal Death Penalty Act...denies due process and, indeed, is tantamount to foreseeable, state-sponsored murder of innocent human beings," said Rakoff.

However, James Comey, Manhattan U.S. attorney, said his office maintains that federal executions are allowed by the U.S. Constitution and is considering its appeal options.
"As we set forth in our submissions to the court in this matter, the Federal Death Penalty Act is constitutional," he said.

Tracey Meares, a law professor at University of Chicago, said she had doubts that the Second Circuit would uphold the ruling but said even if overturned, Rakoff had paved the way for other challenges.

"It certainly opens the door for the next litigants...It's not an issue that will go away," she said.

Death penalty opponents hailed the ruling as a sign of that the nation's judiciary was beginning to follow their views.

"Judges are starting to realize what many people in the American public realize ...The system is irreparably flawed," said David Elliot, spokesman for the National Coalition to Abolish the Death Penalty.

"It's been proven that the death penalty is reserved for people of color, people who can't afford a good lawyer, people who are on the margins of society," he added.

Two states, Maryland and Illinois, have already declared moratoriums on executions pending review of the system's fairness on racial and geographic grounds. The American Bar Association has supported a moratorium on federal executions since 1997.

Last month, the U.S. Supreme Court ruled that executing the mentally retarded violates the constitutional ban on cruel and unusual punishment in a landmark ruling striking down laws in 20 states.

By a 6-3 vote, the nation's highest court said a national consensus had emerged to declare unconstitutional such executions as excessive punishment, based on evolving standards of decency.

In the case before Rakoff, two alleged drug dealers are scheduled to go on trial in Manhattan on Sept. 3 for the killing of a government informant. Prosecutors planned to seek the death penalty if the men were convicted.

When Rakoff issued his preliminary finding in April, he gave prosecutors time to file papers challenging his reasoning. However, the judge soundly rejected their arguments.
In one of the government's challenges, prosecutors argued that the U.S. Congress that enacted the Federal Death Penalty Act in 1994 fully debated whether the act should go into effect despite the risk that innocent people might be killed.

"Congress determined that enactment was warranted, based at least in part upon a balancing of a defendant's rights against the rights of innocent victims," prosecutors argued.

But Rakoff said the government's showing in support of these claims was "wholly inadequate.