Federal Judge Says Death Penalty May Be Unconstitutional

July 7, 2008 - 8:20 PM

Capitol Hill (CNSNews.com) - Cases of death row inmates being freed by DNA evidence prove that innocent people have been and could be executed, according to a 1995 Clinton appointee to the U.S. Court for the Southern District of New York.

U.S. District Court Judge Jed S. Rakoff has given the Justice Department just over two weeks to convince him not to rule that the federal death penalty is an unconstitutional denial of the Fifth Amendment right to "due process."

"The inference is unmistakable that numerous innocent people have been executed whose innocence might otherwise have been similarly established, whether by newly-developed scientific techniques, newly-discovered evidence, or simply renewed attention to their cases," Rakoff said in a ruling issued Thursday.

Although the Supreme Court ruled 5 to 4 in 1993 that the death penalty was constitutional, because the probability of an innocent person being executed was "remote," the judge says much has changed since that time.

"Evidence has emerged that innocent people - mostly of color - are convicted of capital crimes they never committed, their convictions affirmed, and their collateral remedies denied, with a frequency far greater than previously supposed," he wrote. "[Therefore] that assumption no longer seems tenable."

Based in part on a review of Internet news reports of death row inmates being freed by DNA evidence, Rakoff said science could save the lives of accused criminals "only if such persons are still alive to be released."

He found reports of 20 inmates who were released from death row as a result of non-scientific evidence and 12 others who were proven to be "actually innocent" by DNA testing.

Federal prosecutors had no comment on the ruling, which gives them until May 15th to try to change the judge's mind in his decision to forbid the death penalty in the upcoming capital murder trial of two men charged with killing a police informant. Eight other co-defendants have already pleaded guilty to involvement in the crime.

The Capital Punishment Project of the American Civil Liberties Union applauded Rakoff's action.

"Given our country's disturbing track record of sentencing innocent people to death, Judge Rakoff is right to have serious concerns about the application of the death penalty," according to Diann Rust-Tierney, director of the project. "There are too many problems in too many states for anyone to be comfortable with the way the system is working."

She points to former death row inmate Ray Krone, who served 10 years in an Arizona prison for a 1991 murder he did not commit. Krone was convicted twice based on bite marks found on the victim's body, and the testimony of a forensic dentist. DNA evidence conclusively proved earlier this month that he did not commit the crime.

"It's the final end, it's too late, and it's the ultimate travesty to kill an innocent person," Krone told the Arizona Republic after his release. He says he does still support capital punishment in cases of treason, however.

Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee says Krone's case points out the flaws in the current application of the death penalty.

"The system did not work for Ray Krone in his first trial, or in his second. We know that it has innocent victims," Leahy said. "Ray Krone lost 10 years of his life while Arizona's women were endangered because the wrong man was in jail."

The Illinois Commission on Capital Punishment recently completed its investigation, ordered after Republican Governor George Ryan halted executions in that state. The Ryan Commission identified more than 275 people who have been sentenced to death since Illinois re-instituted the capital punishment in 1977. Of those, 12 have been executed and 13 have been released.

"All 13 cases were characterized by relatively little solid evidence connecting the charged defendants to the crimes," the commission found. "In some cases, the evidence was so minimal that there was some question not only as to why the prosecutor sought the death penalty, but [also] why the prosecution was even pursued against the particular defendant."

But supporters of the death penalty say the Supreme Court is unlikely to overturn its own ruling based on the errors of lower courts.

"He won't have a leg to stand on, on appeal," said Dr. H. Sterling Burnett, senior fellow with the National Center for Policy Analysis, a Dallas-based public policy think tank.

"Even if they agree that there are problems with the risk to innocents, I think the Supreme Court would say that the punishment itself is not cruel and unusual," he added. "At best, it would call for more care in the kinds of evidence that must be shown to get a death penalty conviction."

Burnett acknowledges that applying the death penalty in cases with only circumstantial evidence does present potential problems.

"Maybe there should be some kind of requirement of direct involvement, or forensic evidence, or DNA evidence for the death penalty but the question is," he continued, "'If it raises doubt as to his or her guilt at the penalty stage, shouldn't it also raise doubt as to his or her guilt, per se?'"

Burnett says he has no real quarrel with those who oppose executing wrongfully convicted defendants, but he questions the motives of some death penalty opponents who have jumped on the "wrongful execution" bandwagon.

"If the argument is, 'Because there's a chance of executing the innocent, we just shouldn't have it at all,' I just have to ask, 'What about in cases where there is no doubt that they're guilty?'" he asked.

"If there's no question about it, would you then accept capital punishment? If you wouldn't accept it, then you're not worried about the innocent," Burnett concluded. "You just don't like capital punishment and you're using the fact that we may make some mistakes to cover that."

E-mail a news tip to Jeff Johnson.

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