Signs Grow of Innocent People Being Executed, Judge Says

Signs Grow of Innocent People Being Executed, Judge
Says

By ADAM LIPTAK

New York Times

http://www.nytimes.com/2003/08/12/national/12DEAT.html?
th=&pagewanted=print& position=

August 12, 2003

A federal judge in Boston said yesterday that there was
mounting evidence innocent people were being executed.
But he declined to rule the death penalty
unconstitutional.

"In the past decade, substantial evidence has emerged
to demonstrate that innocent individuals are sentenced
to death, and undoubtedly executed, much more often
than previously understood," the judge, Mark L. Wolf of
Federal District Court in Boston, wrote in a decision
allowing a capital case to proceed to trial.

He cited the exonerations of more than 100 people on
death row based on DNA and other evidence.
"The day may come," the judge said, "when a court
properly can and should declare the ultimate sanction
to be unconstitutional in all cases. However, that day
has not yet come."

Judge Wolf wrote that the crucial question for courts
was "how large a fraction of the executed must be
innocent to offend contemporary standards of decency."
His decision means that the case against Gary Lee
Sampson, including the capital charges against him,
will be tried next month. Mr. Sampson has acknowledged
responsibility for three murders in Massachusetts and
New Hampshire. Over a few days in 2001, he killed three
men who had picked him up hitchhiking.

Mr. Sampson was willing to plead guilty to murder
charges against him in Massachusetts and accept the
maximum sentence available there, life in prison
without parole. Instead, the federal government
indicted him on capital charges based on the fact that
the murders involved carjackings, a federal crime.
Judge Wolf, a former federal prosecutor and official in
the Justice Department, was appointed to the bench by
President Ronald Reagan. He appeared to be critical of
recent changes in Justice Department practices in
seeking the death penalty.

"Juries have recently been regularly disagreeing with
the attorney general’s contention that the death
penalty is justified in the most egregious federal
cases involving murder," he wrote.
In 16 of the last 17 federal capital prosecutions,
Judge Wolf wrote, juries rejected the death penalty. A
lawyer for Mr. Sampson, David A. Ruhnke, who
specializes in capital cases, said Judge Wolf’s numbers
were outdated. The count, Mr. Ruhnke said, stands at 19
acquittals or life verdicts in the last 20 federal
capital cases. The most recent acquittals were this
month in Puerto Rico, which does not have the death
penalty. Thirty-eight states do.

The Supreme Court has held that courts may take account
of evolving standards of decency in deciding whether
punishments violate the Eighth Amendment prohibition on
cruel and unusual punishment. Those standards may be
determined by looking at trends in, among other fields,
legislation and jury verdicts.

"If juries continue to reject the death penalty in the
most egregious federal cases," Judge Wolf wrote, "the
courts will have significant objective evidence that
the ultimate sanction is not compatible with
contemporary standards of decency."

That statement suggests that the Justice Department, in
seeking the death penalty more often and in more
places, may actually be engaging in a counterproductive
exercise from the perspective of supporters of capital
punishment.

Judge Wolf acknowledged that there had been no
legislative trend corresponding to the one reflected in
the recent verdicts. "However," he wrote, "the
increasing and disturbing new evidence concerning the
execution of the innocent may generate legislation and
jury verdicts which manifest a public consensus that
the death penalty offends contemporary standards of
decency and should no longer be deemed by the courts to
be constitutionally acceptable."

He also noted that the department’s policies about
whether to take into account local opposition to the
death penalty had changed. Until 2001, the policies
said the absence of a local death penalty did not by
itself justify a federal capital prosecution.

"It appears," Judge Wolf wrote, "that the fact that a
state’s laws do not authorize capital punishment may
now alone be deemed sufficient to justify a federal
death penalty prosecution."

A spokeswoman for the Justice Department, Monica
Goodling, said it had an obligation to ensure the fair
and consistent application of the federal death
penalty.

One federal jury has sentenced a defendant to death in
a jurisdiction that did not have its own death penalty
since the federal death penalty was reinstated in 1988.
The case was last year in Michigan.

The only other federal judge in Massachusetts to hear a
federal death penalty prosecution in recent years later
described what he had learned in The Boston Globe in
2001.

"The experience," Judge Michael A. Ponsor wrote, "left
me with one unavoidable conclusion: that a legal regime
relying on the death penalty will inevitably execute
innocent people â€" not too often, one hopes, but
undoubtedly sometimes."

Copyright 2003 The New York Times Company