Rising Hegemon
Unfortunately, those of us that believe the death penalty is morally wrong have lost that battle and, in my humble opinion, I do not believe that it is an issue we can ever get back. So given the chance to talk about it with people that think they understand, several years ago I just shifted the debate: are you willing to kill innocent people?
George W. Bush always took solace in the fact during his watch in Texas no innocent people were sent to meet their maker. Apparently beyond reasonable doubt means metaphysical certainty to George Bush. But what brings this issue front and center today? An article in yesterday's NYT about a federal judge who had found a novel way to challenge the death penalty on constitutional grounds. The judge found that innocent people who had been put to death would lose their ability to challenge their conviction and therefore were denied due process of law.
In an opinion in April 2002, Judge Rakoff sought to take a first step toward ending the death penalty.
"We now know, in a way almost unthinkable even a decade ago," he wrote, "that our system of criminal justice, for all its protections, is sufficiently fallible."
The decision gave brief if unexpected joy to the two defendants. It drew a sharp attack from prosecutors, who called it erroneous and over-reaching; it set off debate - including scathing editorials - about judicial activism run amok; and, perhaps not surprisingly, it won some praise from defense lawyers specializing in capital cases, who kicked themselves a little for not having made such an argument before.
"I gave a speech to numerous death penalty lawyers from around the country and said, 'Why are we asleep at the wheel?' " recalled Kevin McNally, a lawyer in the case before Judge Rakoff.
The mix of joy and outrage, though, did not last. A federal appeals court overturned the ruling, although, as it turned out, the drug dealers on trial before Judge Rakoff were ultimately sentenced by a jury to life in prison without parole.
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"I've never thought that the death penalty was one of those issues that was open and shut for either side," he said.
He had concluded that a state legislature or Congress should have the right to decide if the punishment was acceptable. His was a "utilitarian kind of approach," he said, "having nothing to do with retribution or anything like that." His view, he said, was, "I'll do whatever the law tells me to do."
But in recent years, he became troubled by the implications of the increasing number of exonerations of those sentenced to death, many of them through DNA evidence.
Here, of course, I diagree with him on the issue of whether society should decide whether execution is an appropriate response to certain crimes. But I digress.
By summer 2001, even before the lawyers in his case filed legal papers challenging the death penalty, Judge Rakoff had begun his own basic research.
He focused on a controversial 1993 decision by the United States Supreme Court holding that Leonel Herrera, a Texas death-row inmate who had exhausted his appeals in a murder case, was not entitled to a new federal hearing based on a belated claim that he was "actually innocent."
Chief Justice William H. Rehnquist, in the court's majority opinion, made it clear that Mr. Herrera did not appear to be innocent. The opinion left open the possibility that "a truly persuasive demonstration of 'actual innocence' " would render an execution unconstitutional, but it made the point for the sake of argument, without conclusively deciding it.
The opinion also said that such inmates were not without recourse, as they could always seek executive clemency.
In an angry dissent, Justice Harry A. Blackmun charged that the majority was virtually endorsing the death penalty for innocent people. "The execution of a person who can show that he is innocent comes perilously close to simple murder," he wrote.
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In October 2001, the judge raised his concerns in court. Given the number of DNA exonerations in cases of wrongful convictions, he asked the lawyers whether a penalty could be constitutional if it "precludes forever" rectifying such a wrong for an innocent inmate on death row.
It was different, he said, four or five years earlier, when such mistakes seemed like "a fairly remote hypothetical."
"Now it would appear that it's neither a hypothetical nor so remote," he said.
The judge, meanwhile, pursued his research. He wanted to determine as precisely as possible how many death row prisoners had been found to be "factually innocent," as he put it in the interviews. If it were just 1 out of 100, he said, he would be less troubled.
"You can't design a system that's perfect," he said, "and due process is, by definition, what is reasonably due, not what is perfect."
He reviewed a list of exoneration cases on the Web site of the Death Penalty Information Center, a research group that says it is critical of how the death penalty is carried out. His law clerks, too, went to work. He ultimately came up with 32 cases of exonerated prisoners who, he concluded, were "factually innocent" - 12 were cleared through DNA testing and 20 through other means.
Such exonerations exposed "something pretty upsetting, if you think about its broader ramifications," the judge said in court in March 2002. "It is that our legal system is not as good in ascertaining the truth as we thought it was."
I gotta tell you, if you are the 1 in 100 who doesn't get exonerated I'll bet you wouldn't believe you had gotten all the process due you. But I digress again, and note, for the record, nobody's perfect.
In April, he took the unusual step of releasing a preliminary opinion that found the death penalty unconstitutional, but invited prosecutors to make further arguments before he rendered a final decision. If the government sanctioned executions, he wrote, knowing that the probable result would be "the state-sponsored death of a meaningful number of innocent people," did that not deprive those people of the due process the Constitution promised them?
Throughout the legal debate, Judge Rakoff maintained a silence about his own family tragedy, but that ended one day in June 2002 as he prepared to sentence a co-defendant of the two men, Janet Soto, to 20 years in prison. She had pleaded guilty to conspiracy.
In court, the prosecutor, David B. Anders, introduced Minerva Rodriguez, the victim's mother, who made an angry, almost scathing, attack on Ms. Soto. "You have no idea the pain and agony you have caused me," the mother began. "You took away my firstborn son."
After her emotional statement, Judge Rakoff, obviously moved, offered a surprising response.
"Let me say," he began, "that I understand more fully than you might realize the pain you feel."
Then, he revealed something he had always treated as a private matter, not liking to talk about it.
"Twenty years ago," he told the victim's mother, "my older brother was murdered in cold blood."
In 1985, his brother, Jan, then 44, had been killed in the Philippines - beaten to death with a piece of metal and an ice pick.
The judge said in the recent interviews that he still felt the loss deeply; that the anguish never left. "It's an unhealable wound," he said.
His brother, a graduate of the University of Chicago, was a brilliant teacher and an educational innovator who had started a school in Vermont, the judge said.
It took almost a year to make an arrest. A signed confession was lost. The murderer wound up serving a short prison term, the judge says, which convinced him that the attacker had benefited from a corrupt judicial process in Manila.
Judge Rakoff said that he never lost the sense of vulnerability that any victim feels, like the mother who had lashed out in the courtroom.
"I felt justice was not done in the case of my brother," he said, "and clearly this woman lived in fear that justice was not being done in the case of her son. I understood that completely."
He said that he did not think his brother's attacker should have been executed, but that he would have been satisfied with life imprisonment.
"The victim wants to have some reassurance that there is cosmic justice, so to speak, that things like this are recompensed," he said.
During the jury selection for the death penalty trial last June, Judge Rakoff appeared torn - questioning, even criticizing, the process while making clear that he would follow the law.
That became evident during his inquiry of one prospective juror. The juror said that although she had once been pro-death penalty, believing it was a deterrent, she had since changed her views. One factor, she explained, had been her work in prison ministries, where she had heard eloquent testimonies from inmates who had "done very bad things."
"I know too many converted prisoners," she said, adding, "I don't want to be in a place of God."
Under the law, prospective jurors who take what appears to be an absolutist position against or for capital punishment are not supposed to sit on a jury.
But after excusing the woman, Judge Rakoff told the lawyers, "I think the Supreme Court has got this whole process completely wrong." He called the woman thoughtful and conscientious, and said that in any other criminal case, she and others like her - who could favor the death penalty - were the kind of people who should be on a jury. "They come together, they reason together, they often change their mind or modify their views," he said. "They take very seriously, in my experience, the court's instructions, put aside their views and decide a case on the law."
So here's to Judge Rakoff, a judge who did the right thing. Maybe not surprisingly the judge was appointed by Clinton. In honor of a judge who took a strong and daring stand I will post his picture. (I also apologize for the length of the post).
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