Federal district court judge Jed S. Rakoff wrote in an opinion last week that he was prepared to toss out the death penalty eligibility of Alan Quiñones and Diego Rodriguez, two alleged drug dealers from the Bronx, who are scheduled to go on trial in September. Federal prosecutors say the men belonged to a heroin and cocaine ring that sold large quantities of drugs and murdered an undercover police officer.

They asked Judge Rakoff to certify the case as a death penalty case, but Rakoff said a 1993 U.S. Supreme Court ruling upholding the federal death penalty relied on the assumption that it was highly unlikely that an executed person would later be discovered to be innocent.

"That assumption no longer seems tenable," Rakoff said in his opinion.

He pointed to a Columbia Law School study in 2000 that found the rate of prejudicial error in the capital punishment system is 68 percent, and cited more than 30 cases in the last 10 years in which death row inmates were exonerated and freed.

In short, the whole landscape has changed since 1993, partly due to the relatively new science of DNA. "We now know, in a way almost unthinkable even a decade ago, that our system of criminal justice, for all its protections, is sufficiently fallible that innocent people are convicted of capital crimes with some frequency," Rakoff said.

A system that runs the risk of executing innocent people renders the federal death penalty statute unconstitutional, he said.

In 1993, an incredulous Chief Justice William Rehnquist rejected a study that concluded that innocent people had actually been executed. Recent evidence suggests he was wrong. This month, the 100th death row inmate since 1973 was found innocent and released from prison, in Arizona. A small portion of these reversals was due to DNA evidence, but the DNA cases have sparked reviews of many more cases by dedicated lawyers, journalists and university students, leading to even more death row inmates being freed.

The reasons for the reversals included insufficient evidence, perjury by witnesses, unreliable eyewitness testimony, suppression of evidence by prosecutors, new evidence that exonerated the accused and discovery of the real perpetrator.

And this leads us to conclude the unthinkable: that innocent people have actually been executed.

Judge Rakoff's argument is simple: The modern death penalty has been in effect for 25 years. Yet there've been repeated, well-documented instances of innocent citizens sentenced to death, and who sometimes came within days of being executed. It's inevitable that innocent people have been or will be executed under this system, and since it's so flawed and execution is irreversible, we can't continue.

"It's unprecedented," Kevin McNally, director of the Death Penalty Information Center in Washington, said of Judge Rakoff's ruling.

"I think you're going to see other judges deal head-on with this shocking reality of the modern death penalty. They can't turn their heads as easily and ignore the fact that the system has repeatedly malfunctioned."

Now Judge Rakoff has stepped up to the plate. He gave prosecutors several weeks to come up with arguments challenging his opinion before he issues his final decision next month.

Even if his current opinion stands, it won't be binding on other federal courts, and appeals courts could overrule it. But count him as one judge with the courage to state the obvious: We can't tolerate a system that plays so fast and loose with people's lives.

Copyright © 2002, Newsday, Inc

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