Grow of Innocent People Being Executed, Judge Says
The New York Times
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
"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
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.
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outdated.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.
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
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.
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 — not too often, one
hopes, but undoubtedly sometimes."