- The Washington Times - Wednesday, December 11, 2002

A federal appeals court yesterday overturned a ruling that the federal death penalty is unconstitutional, dismissing a lower court’s fear that innocent people could be executed.
“Capital punishment cannot constitute a per se violation of the due process clause,” a three-judge panel of the 2nd U.S. Circuit Court of Appeals said in reversing District Judge Jed S. Rakoff’s decision that the Federal Death Penalty Act (FDPA) violated the Fifth Amendment due process provision.
The July 1 decision by Judge Rakoff who was for seven years a federal prosecutor said the federal death penalty violates the Fifth Amendment’s due process clause because DNA testing has shown “innocent people are convicted of capital crimes with some frequency.”
“[It] is tantamount to foreseeable, state-sponsored murder of innocent human beings,” said Judge Rakoff, who was appointed by President Clinton. He noted 12 cases in which condemned state prisoners were exonerated by DNA tests, citing a Columbia University survey of state cases.
The unanimous appeals court ruling said, “It is apparent from the text of the Constitution itself that the existence of capital punishment was accepted by the Framers” who acknowledged use of the death penalty in three different places within the Fifth Amendment.
“Most importantly, the Supreme Court has upheld state and federal statutes providing for capital punishment for over 200 years, and it has done so despite a clear recognition of the possibility that, because our judicial system indeed, any judicial system is fallible, innocent people might be executed and, therefore, lose any opportunity for exoneration,” the appeals panel said.
“This is a well-deserved rebuke of a crackpot decision,” said Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, who praised rejection of claims made by Alan Quinones and Diego Rodriguez, accused in a drug-related killing.
The two face the death penalty if convicted of killing a police informant to protect their narcotics conspiracy.
Their attorneys indicated earlier they would appeal to the Supreme Court.
Chris Dunn, of the New York Civil Liberties Union, said the issue Judge Rakoff raised is “going to go to the Supreme Court whether it’s in this case or another case This is an issue that the Supreme Court will need to confront.”
Government attorneys had no immediate comment on their victory.
An important provision of the ruling rejected the prosecutors’ contention that the constitutionality of the sentence cannot be challenged before the trial is held.
The panel said capital trials are conducted differently so that a defendant has a right to attack the constitutionality of that process ahead of time.
Aside from the defendant’s fear for his life, differences in a capital trial include the number of peremptory challenges and exclusion of jurors who are conscientiously opposed to the death penalty, resulting in a jury considered more likely to convict.
State death penalty laws are not affected by the federal decisions.
Although five of the 31 convictions under the FDPA were reversed on legal grounds, none of those sentenced to death has later been found to be innocent. The only two executed under the 1994 law were Oklahoma City bomber Timothy McVeigh and drug killer Juan Garza.
The opinion written by Circuit Judge Jose A. Cabranes, also a Clinton appointee, noted that death-penalty opponents began claiming early in the 1800s that innocent people often were executed by mistake.
“[Their] argument that execution deprives individuals of the opportunity for exoneration is not new at all it repeatedly has been made to the Supreme Court and rejected by the Supreme Court,” the circuit court said.

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