[lbo-talk] "concern"

[R]

concern, alarm and $1.50 will get this legal eagle a cup of coffee.

"The day may come..." but "that day has not yet come."  Meanwhile .... why
rush?  It's the law.

R



August 11, 2003

Federal Judge Expresses Concern About Death Penalty

By ADAM LIPTAK


A federal judge in Boston voiced alarm today that imposing the death penalty
"will inevitably result in the execution of innocent people." But he
declined to rule that that the death penalty is unconstitutional.

"In the past decade," the judge, Mark L. Wolf, wrote, "substantial evidence
has emerged to demonstrate that innocent individuals are sentenced to death,
and undoubtedly executed, much more often that previously understood."

He cited the exonerations of more than 100 people on death row based on DNA
and other evidence.

"The day may come," Judge Wolf continued, "when a court properly can and
should declare the ultimate sanction to be unconstitutional in all cases.
However, that day has not yet come."

That means the case against Gary Lee Sampson, including the capital charges,
will now to trial in September. Mr. Sampson has acknowledged responsibility
for three murders. In the space of a few days in 2001, he killed three men
who had picked him up hitchhiking.

Judge Wolf, a former federal prosecutor and Justice Department official, was
appointed to the bench by President Ronald Reagan. He appeared critical of
recent changes in the Justice Department's 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. One of Mr. Sampson's lawyers, David A. Ruhnke,
said Judge Wolf's numbers are outdated. He said the count now stands at 19
acquittals or life verdicts in the last 20 cases.
The most recent acquittals came earlier this month in Puerto Rico. Like
Massachusetts, Puerto Rico does not have the death penalty. Thirty-eight
states do.

"These recent verdicts," Judge Wolf wrote, "raise the question of whether
the Department of Justice is properly employing its stated standards in
deciding to seek the death penalty."

The acquittals and life sentences are evidence, Judge Wolf continued, of an
evolving societal consensus against the death penalty that courts may take
account of in deciding whether capital punishment violates the Eighth
Amendment's prohibition on cruel and unusual punishment.

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

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

"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 Justice Department spokeswoman did not immediately return calls seeking
comment.

Only one federal jury has sentenced a defendant to death in a jurisdiction
that does not have its own death penalty since the federal death penalty was
reinstated in 1988. That was in Michigan in 2002.

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

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




________________________

Quis custodiet istos custodes?  (Who will watch the watchers?)
    -- Juvenal's Satires, circa 110 AD