- The Washington Times - Wednesday, July 3, 2002

U.S. District Judge Jed S. Rakoff has written a disturbingly powerful legal opinion in support of his finding that the federal death sentence is unconstitutional. While it may well be overturned on appeal to the Second Circuit Court of Appeals or beyond, staunch supporters of capital punishment's efficacy and constitutionality which is the adamant position of this page should be alert to the potential power of Judge Rakoff's legal analysis. Unlike the typical outriding opinions that surface from federal trial courts, this opinion is not merely or necessarily driven by leftish ideological predelictions. Rather, Judge Rakoff has grounded his opinion on a reasonable (if not necessarily persuasive) application of recent Supreme Court case law to a new factual reality DNA testing.
Historically, substantial changes in constitutional law often flow from the impact that important new inventions have on our understanding of how our society functions. The advent of the car, with its inherent mobility, for instance, noticeably abridged the constitutional requirement for a warrant prior to police search and seizure of crime suspects.
Judge Rakoff attempts to use the undoubted fact-finding effect of DNA testing to subvert the constitutional basis of capital punishment. In a nutshell, his argument is two-fold: 1) Recent DNA testing has revealed that innocent people are sentenced to death with materially greater frequency than was previously supposed; and 2) on the other hand, such convincing proof often does not emerge until long after the conviction. Thus, "a meaningful number of innocent people would be executed who otherwise would eventually be able to prove their innocence."
The Justice Department argued that while that may have been true in the past, DNA testing is now routinely available prior to trial, so where is the future harm? It was in response to that argument that Judge Rakoff powerfully retorted in his opinion: "This completely misses the point. What DNA testing has proven, beyond cavil, is the remarkable degree of fallibility in the basic fact-finding processes on which we rely in criminal trials." Thus, the judge reasoned, as only a small percentage of incriminating evidence is susceptible of proof or disproof by DNA-testing (eyewitness testimony, for instance, cannot be checked by DNA testing), the entire criminal procedure is too uncertain to justify leading to the one sentence that cannot be corrected: death.
Armed with this factual analysis, the judge then applied these facts to the legal standards enunciated in the 1993 landmark Supreme Court opinion on capital punishment, Herrera vs. Collins. In that case, the Supreme Court justified capital punishment's constitutionality on the factual assumption that high standards of proof and procedural protections, coupled with judicial review, post-conviction remedies and executive clemency, "rendered it highly unlikely that an executed person would subsequently be discovered to be innocent."
Judge Rakoff delivers the crux of his analysis with the triumphant assertion: "That assumption no longer is tenable." Those of us who intend to defend the constitutionality and use of the death sentence will sooner or later have to meet and defeat that argument.

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