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A Southern District of New York judge on Monday ruled the federal death penalty unconstitutional, finding that it creates an unacceptable risk of executing innocent people. U.S. District Judge Jed S. Rakoff’s decision, which held that the death penalty denies due process under the Fifth Amendment, is the first to declare that the 1994 Federal Death Penalty Act violates the U.S. Constitution. In April, Rakoff said he was ready to declare the act, 18 U.S.C. �� 3591 to 3598, unconstitutional because of the high rate of reversal in capital cases and the frequency with which defendants are exonerated by DNA testing and new evidence. But the judge gave federal prosecutors a final chance to argue why they should be able to seek the death penalty against Alan Quinones and Diego Rodriguez, the two defendants in United States v. Quinones, 00 Cr. 761, who are accused of killing a police informant in a drug-related crime. Monday the judge rejected each of the government’s additional arguments — including that the issue was not ripe for review since neither man had been convicted — as unpersuasive. He concluded that the federal act is “tantamount to foreseeable, state-sponsored murder of innocent human beings.” “Implementation of the Federal Death Penalty Act not only deprives innocent people of a significant opportunity to prove their innocence, and thereby violates procedural due process, but also creates an undue risk of executing innocent people, and thereby violates substantive due process,” Rakoff wrote. James B. Comey, U.S. Attorney for the Southern District of New York, issued a terse statement in response to Monday’s ruling, saying: “As we set forth in our submissions to the court in this matter, the Federal Death Penalty Act is constitutional. In light of Judge Rakoff’s decision, we are considering our appellate options.” Federal prosecutors scrambled to change Rakoff’s mind after the judge issued his surprise ruling in April. The judge had said in that ruling that since the U.S. Supreme Court affirmed the death penalty in Herrera v. Collins, 506 U.S. 390 (1993), the fallibility of the justice system in death penalty cases had been clearly revealed by numerous wrongful convictions and errors. The judge cited “A Broken System: Error Rates in Capital Cases,” a 2000 study by James A. Liebman and his colleagues at Columbia Law School that showed an overall rate of prejudicial error of 68 percent in capital cases prosecuted from 1973 to 1995. “While recognizing that no system of justice is infallible, the majority in Herrera implicitly assumed that the high standard of proof and numerous procedural protections required in criminal cases, coupled with judicial review, post-conviction remedies, and when all else failed, the possibility of executive clemency, rendered it highly unlikely that an executed person would subsequently be discovered to be innocent,” Rakoff wrote in April. “That assumption no longer seems tenable.” In court papers filed in May, federal prosecutors argued that the constitutionality of the death penalty was not ripe for review; that the Supreme Court in Herrera understood the inherent flaws of the judicial system when it validated the death penalty; and that the studies cited by the judge were either unreliable or irrelevant. Judge Rakoff said Monday that the issue was ripe because seeking death for the defendants has “immediate practical and legal consequences” that “cannot be postponed.” In death penalty cases, the judge said, prosecutors get twice as many peremptory challenges as usual, resulting in a greater opportunity to purge the jury of jurors who oppose the death penalty for ideological reasons. Rakoff on Monday also rejected the government’s interpretation of Herrera, saying that the decision was “not informed by the ground-breaking DNA testing and other exonerative evidence developed in the years since.” The fact that at least five justices in Herrera held that executing the innocent is forbidden by the Constitution, the judge said, casts “the most serious doubt on the government’s claim that Congress … could constitutionally decide to knowingly execute a foreseeable class of mistakenly convicted but actually innocent persons in the belief that their deaths were outweighed by the potential deterring of the murders of other innocent people.” Moreover, the judge said, Herrera does not address the issue relevant in Quinones, since it simply held that a “belated or successive habeas petitioner must make a persuasive showing of actual innocence to warrant habeas relief.” DNA TESTING The judge chided the government for suggesting that Rodriguez was not entitled to the presumption of innocence for this motion, since he had allegedly confessed to the murder during questioning. Rakoff said in a footnote that whether the “government’s public reference to the proffer session violates the government’s written pledge of confidentiality will be the subject of a separate opinion of this court.” In his decision Monday, the judge also said that there is no indication that the framers of the Constitution ever considered the death penalty in a “substantive” way or regarded due process as “a static concept, fixed for all time.” “To freeze ‘due process’ in the precise form it took in 1787 would be to freeze it to death,” the judge wrote. Rakoff reserved his most harsh language for the government’s arguments on DNA testing and Liebman’s study on wrongful executions. Responding to the government’s argument that pretrial DNA testing will reduce the chance of mistaken convictions, the judge said, “this completely misses the point.” Such testing can only be used in a minority of cases, the judge said, but the larger point is that DNA suggests that future advances in science will likely expose other mistakes that led to the conviction of innocent defendants. “What is certain is that, for the foreseeable future, traditional methods and appellate review will not prevent the conviction of numerous innocent people.” ‘PERSONAL ATTACK’ Rakoff dismissed the idea that federal procedures offer greater protection than state procedures, which have resulted in all the mistaken executions on record. The judge said there was “no logical reason” for that assumption, noting that the most common cause for mistaken convictions is inaccurate eyewitness testimony. He added that the number of cases under the 1994 law — 31 sentences of death since 1995 — did not constitute a large enough statistical sample to compare adequately with other studies. Rakoff also rebuked the government for launching a “remarkably personal attack” on Liebman and his study, replete with critical press releases and statements from elected officials such as the attorney general of Montana and Florida Gov. Jeb Bush. “When it comes to something as fundamental as protecting the innocent, press releases and ad hominem attacks are no substitute for reasoned discourse, and the fatuity of the government’s attacks on Liebman’s study only serves to highlight the poverty of the government’s position,” Rakoff wrote. The New York Civil Liberties Union issued a statement praising Rakoff’s ruling, saying it confirmed “that the death penalty cannot be administered in a manner that respects the essential constitutional protections of due process.” Jean Barrett of Runhke & Barrett in New Jersey, one of the attorneys who represented Rodriguez, said, “The time has come for a real examination of the death penalty and its impact on innocent people.” Rodriguez was also represented by Don Buchwald of Buchwald & Kaufman, and Avraham C. Moskowitz of Moskowitz & Book. Kevin McNally of McNally & O’Donnell, and Lee Ginsburg of Freeman, Nooter & Ginsberg represented Quinones. Assistant U.S. Attorneys David B. Anders and Amy K. Orange represented the government.

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