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Judge threatens to outlaw death penalty

Judge threatens to outlaw death penalty

From Phil Hirschkorn

NEW YORK (CNN) -- A federal judge in New York has declared that he believes the death penalty is unconstitutional because it probably results in innocent people being sentenced to die.

U.S. District Court Judge Jed Rakoff offered the opinion in an 11-page pre-trial order Wednesday regarding a 1999 murder case.

"Our system of criminal justice, for all its protections, is sufficiently fallible that innocent people are convicted of capital crimes with some frequency," Rakoff wrote, "far greater than previously supposed."

Supreme Court rulings upholding the death penalty have relied on the view that it was unlikely an executed person would later be discovered to be innocent.


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But Rakoff referred to results of DNA testing over the past decade, which have led to the release of more than 80 wrongfully convicted death row inmates between 1994 and 2001. The Federal Death Penalty Act of 1994 has led to a surge of capital cases in federal court.

Convicted Oklahoma City bomber Timothy McVeigh, who killed 168 people by detonating a truck of explosives outside a federal building April 19, 1995, became the first federal inmate executed since 1963 when he was put to death by lethal injection last summer.

A second man was executed the following week, and there are now 26 inmates in federal death row.

Rakoff said that despite the high standards required to prove guilt, the opportunity for the convicted to appeal, and the possibility for clemency, the judicial system "creates an undue risk" that capital punishment would lead to the "state-sponsored death of a meaningful number of innocent people."

In the case at hand, United States vs. Alan Quinones et. al., two of the eight defendants, Quinones and Diego Rodriguez, face the death penalty for the alleged murder of a drug informant in the Bronx June 27, 1999. Their trial is scheduled to begin in September.

On the death penalty eligibility of the two men, Rakoff wrote, "If the court were compelled to decide the issue today" he would "grant the defendants' motion to dismiss all death penalty aspects of this case on the ground that the federal death penalty statute is unconstitutional."

He gave prosecutors an opportunity to present arguments on the subject before he issues his final ruling in late May.

Death penalty experts said Rakoff's opinion was a sign of the times.

A commission set up by Illinois Governor George Ryan, who imposed a moratorium on state executions two years ago after 13 death row inmates were exonerated, has recommended reducing the number of crimes eligible for a death sentence and forbidding capital punishment in cases where the conviction is based solely on the testimony of a single eyewitness.

Rakoff's order starts a process of evaluation that could lead to the Supreme Court.

"The death penalty has been ruled unconstitutional before. It starts with a judge who says, "I got a problem with this," said David Baugh, a Virginia defense attorney who specializes in capital cases.

The Supreme Court outlawed capital punishment in 1972, only to restore it four years later.

"I would not expect the Supreme Court to uphold this opinion, should it be his final ruling," said Ron Tabak, a New York attorney who chairs an American Bar Association committee on the death penalty. For the past five years, the ABA has called for a death penalty moratorium.

But Tabak said the high court's views on capital punishment were less predictable than before. He pointed to the court's willingness to hear oral arguments this year reconsidering whether mentally retarded people could be executed, a policy the court upheld as recently as 1989.

And Supreme Court Justice Sandra Day O'Connor, who has sided with the court's pro-death penalty majority, said in a speech last summer that she believes problems administering the death penalty have increased along with the rate of executions in the 38 states that impose the death penalty.

"Perhaps most alarming among these is the fact that if statistics are any indication, the system may well be allowing some innocent defendants to be executed," O'Connor said.


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