UNITED STATES OF AMERICA v. ALAN QUINONES

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2002 U.S. Dist. LEXIS 7320
April 25, 2002, Decided
April 25, 2002, Filed

Judge Rakoff

The Federal Death Penalty Act, 18 U.S.C. 3591 – 3598, serves deter­rent and ret­ribu­tive func­tions, or so Congress could rea­son­ably have con­clud­ed when it passed the Act in 1994. But despite the impor­tant goals, and undoubt­ed pop­u­lar­i­ty, of this fed­er­al act and sim­i­lar state statutes, leg­is­la­tures and courts have always been queasy about the pos­si­bil­i­ty that an inno­cent per­son, mis­tak­en­ly con­vict­ed and sen­tenced to death under such a statute, might be exe­cut­ed before he could vin­di­cate his inno­cence-an event dif­fi­cult to square with basic con­sti­tu­tion­al guar­an­tees, let alone sim­ple jus­tice. As Justice O’Connor, con­cur­ring along with Justice Kennedy in Herrera v. Collins, 506 U.S. 390 (1993), stat­ed: I can­not dis­agree with the fun­da­men­tal legal prin­ci­ple that exe­cut­ing the inno­cent is incon­sis­tent with the Constitution. Regardless of the ver­bal for­mu­la employed-‘contrary to con­tem­po­rary stan­dards of decen­cy,’ shock­ing to the con­science,’ or offen­sive to a prin­ci­ple of jus­tice so root­ed in the tra­di­tions and con­science of our peo­ple as to be ranked as fundamental’-the exe­cu­tion of a legal­ly and fac­tu­al­ly inno­cent per­son would be a con­sti­tu­tion­al­ly intol­er­a­ble event.” Id. at 870 (cita­tions omitted).

To the major­i­ty in Herrera, how­ev­er, as to most judges and leg­is­la­tors at the time (1993), the pos­si­bil­i­ty that an inno­cent per­son might be exe­cut­ed pur­suant to a death penal­ty statute seemed remote. Thus, Chief Justice Rehnquist, writ­ing for the Court in Herrera, dis­count­ed as poten­tial­ly unre­li­able a study that had con­clud­ed that 23 inno­cent per­sons were exe­cut­ed in the United States between 1900 and 1987. See Herrera, 506 U.S. at 868, n.15. While rec­og­niz­ing that no sys­tem of jus­tice is infal­li­ble, the major­i­ty in Herrera implic­it­ly assumed that the high stan­dard of proof and numer­ous pro­ce­dur­al pro­tec­tions required in crim­i­nal cas­es, cou­pled with judi­cial review, post-con­vic­tion reme­dies, and, when all else failed, the pos­si­bil­i­ty of exec­u­tive clemen­cy, ren­dered it high­ly unlike­ly that an exe­cut­ed per­son would sub­se­quent­ly be dis­cov­ered to be innocent.

That assump­tion no longer seems ten­able. In just the few years since Herrera, evi­dence has emerged that clear­ly indi­cates that, despite all the afore­men­tioned safe­guards, inno­cent peo­ple-most­ly of col­or-are con­vict­ed of cap­i­tal crimes they nev­er com­mit­ted, their con­vic­tions affirmed, and their col­lat­er­al reme­dies denied, with a fre­quen­cy far greater than pre­vi­ous­ly sup­posed. Most strik­ing are the results obtained through the use of post-con­vic­tion test­ing with deoxyri­bonu­cle­ic acid (“DNA”). Although DNA test­ing is of remark­ably high reli­a­bil­i­ty, [FN1] its val­ue as a foren­sic tool in crim­i­nal inves­ti­ga­tions was not demon­strat­ed until 1985 [FN2] and its use in re- eval­u­at­ing pri­or con­vic­tions was only begin­ning at the time Herrera was decid­ed in 1993. [FN3] Yet in just the few years since then, DNA test­ing has estab­lished the fac­tu­al inno­cence of no few­er than 12 inmates on death row, some of whom came with­in days of being exe­cut­ed and all of whom have now been released. [FN4] This alone strong­ly sug­gests that more than a few peo­ple have been exe­cut­ed in recent decades whose inno­cence, oth­er­wise unap­par­ent to either the exec­u­tive or judi­cial branch­es, would have been con­clu­sive­ly estab­lished by DNA test­ing if it had been avail­able in their cases.

The prob­lem, how­ev­er, goes well beyond the issue of the avail­abil­i­ty of DNA test­ing. Indeed, the suc­cess of DNA test­ing in uncov­er­ing the inno­cence of death row defen­dants has itself helped spark rein­ves­ti­ga­tion of numer­ous oth­er cap­i­tal cas­es as to which DNA test­ing is unavail­able or irrel­e­vant but as to which oth­er tech­niques can be applied. Partly as a result, in just the past decade, at least 20 addi­tion­al defen­dants who had been duly con­vict­ed of cap­i­tal crimes and were fac­ing exe­cu­tion have been exon­er­at­ed and released. [FN5] Again, the infer­ence is unmis­tak­able that numer­ous inno­cent peo­ple have been exe­cut­ed whose inno­cence might oth­er­wise have been sim­i­lar­ly estab­lished, whether by new­ly-devel­oped sci­en­tif­ic tech­niques, new­ly-dis­cov­ered evi­dence, or sim­ply renewed atten­tion to their cases.

Moreover, even the fre­quen­cy of these recent exon­er­a­tions result­ing from DNA test­ing and from fresh atten­tion to neglect­ed cas­es hard­ly cap­tures either the mag­ni­tude of the prob­lem or how lit­tle it was rec­og­nized until recent­ly. It was not until the year 2000, for exam­ple, that Professor James S. Liebman and his col­leagues at Columbia Law School released the results of the first com­pre­hen­sive study ever under­tak­en of mod­ern American cap­i­tal appeals (4,578 appeals between 1973 and 1995). That study, though based only on those errors judi­cial­ly iden­ti­fied on appeal, con­clud­ed that the over­all rate of prej­u­di­cial error in the American cap­i­tal pun­ish­ment sys­tem” is a remark­able 68 per­cent. James S. Liebman, et al., A Broken System: Error Rates in Capital Cases (2000) at ii. No sys­tem so per­sis­tent­ly and sys­tem­at­i­cal­ly fraught with error,” id., can war­rant the kind of reliance that would jus­ti­fy remov­ing the pos­si­bil­i­ty of future exon­er­a­tion by impos­ing death.

Just as there is typ­i­cal­ly no statute of lim­i­ta­tions for first-degree mur­der- for the obvi­ous rea­son that it would be intol­er­a­ble to let a cold-blood­ed mur­der­er escape jus­tice through the mere pas­sage of time-so too one may ask whether it is tol­er­a­ble to put a time lim­it on when some­one wrong­ly con­vict­ed of mur­der must prove his inno­cence or face extinc­tion. In con­sti­tu­tion­al terms, the issue is whether-now that we know the fal­li­bil­i­ty of our sys­tem in cap­i­tal cas­es-cap­i­tal pun­ish­ment is uncon­sti­tu­tion­al because it cre­ates an undue risk that a mean­ing­ful num­ber of inno­cent per­sons, by being put to death before the emer­gence of the tech­niques or evi­dence that will estab­lish their inno­cence, are there­by effec­tive­ly deprived of the oppor­tu­ni­ty to prove their inno­cence- and thus deprived of the process that is rea­son­ably due them in these cir­cum­stances under the Fifth Amendment. [FN6]

In the instant case, the Government has announced its unal­ter­able inten­tion to seek the death penal­ty with respect to defen­dants Alan Quinones and Diego Rodriguez, the only two of the eight defen­dants orig­i­nal­ly named in this narcotics/​murder case who have not pled guilty to the under­ly­ing charges. Trial of those charges, and, if the defen­dants are con­vict­ed, of the Government’s request for impo­si­tion of the death penal­ty, is sched­uled to begin September 2, 2002. Meanwhile, the two death eli­gi­ble defen­dants have moved to have the death penal­ty aspects dis­missed from the case, on the ground, inter alia, that the fed­er­al death penal­ty statute is, for the afore­men­tioned rea­sons, uncon­sti­tu­tion­al. [FN7] The Government does not con­test the defen­dants’ stand­ing to make this motion at this time, and, indeed, it could not, for as pre­sump­tive­ly inno­cent per­sons whose death the Government has com­mit­ted to seek imme­di­ate­ly upon their con­vic­tion of the cap­i­tal offens­es here alleged, the defen­dants are already direct­ly affect­ed by the death-penal­ty poten­tial in every aspect of their defense.

On the mer­its, the Government con­cedes that research has not uncov­ered a case address­ing the pre­cise point” here raised, i.e., whether the death penal­ty violate[s] due process, and is there­fore uncon­sti­tu­tion­al, because, by its very nature, it cuts off a defen­dan­t’s abil­i­ty to estab­lish his actu­al inno­cence.” Govt. let­ter brief dat­ed March 29, 2002 at 1. [FN8] The Government asserts, how­ev­er, that the thrust of defen­dants’ argu­ment is con­trary to the posi­tions tak­en by the Supreme Court in Herrera, supra, where the Court affirmed the denial of peti­tion­er’s sec­ond peti­tion for habeas relief in which he alleged that his pend­ing exe­cu­tion in the face of new evi­dence of his alleged inno­cence would vio­late the Eighth and Fourteenth Amendments.

This Court is not per­suad­ed that Herrera pro­vides the guid­ance nec­es­sary to resolve the instant issue. Unlike the pre­sump­tive­ly inno­cent fed­er­al defen­dants bring­ing the present motion, Herrera involved a state-con­vict­ed defen­dant seek­ing a sec­ond habeas review whose proof of actu­al inno­cence” was ten­u­ous on its face‑a fac­tor that weighed heav­i­ly in the view of two of the jus­tices (O’Connor and Kennedy) who made up the five-jus­tice major­i­ty. See Herrera, 506 U.S. at 419 (O’Connor, joined by Kennedy, concurring)(“Dispositive to this case, how­ev­er, is an equal­ly fun­da­men­tal fact: Petitioner is not inno­cent, in any sense of the word.”).

Moreover, while Chief Justice Rehnquist, writ­ing for the Court, at one point states that our habeas jurispru­dence makes clear that a claim of actu­al inno­cence’ is not itself a con­sti­tu­tion­al claim,” id. at 404, this is plain­ly dic­tum, for else­where he states that “[w]e may assume, for the sake of argu­ment, in decid­ing this case, that in a cap­i­tal case a tru­ly per­sua­sive demon­stra­tion of actu­al inno­cence’ made after tri­al would ren­der the exe­cu­tion of a defen­dant uncon­sti­tu­tion­al …,” id. at 417. As with the con­cur­ring jus­tices, how­ev­er, the Chief Justice found that Herrera’s own show­ing of inno­cence falls far short of that which would have to be made in order to trig­ger the sort of con­sti­tu­tion­al claim which we have assumed, arguen­do, to exist.” Id. at 418 – 19.

Ironically, it was only a year or so after Herrera was decid­ed that the new avail­abil­i­ty of DNA test­ing began to sup­ply the kind of tru­ly per­sua­sive demon­stra­tion” of actu­al inno­cence to which Chief Justice Rehnquist had hypo­thet­i­cal allud­ed. Thus, not only did Herrera not reach the issue here pre­sent­ed, but also it was premised on a series of fac­tu­al assump­tions about the unlike­li­hood that proof of actu­al inno­cence would emerge long after con­vic­tion that no longer seem sus­tain­able. More gen­er­al­ly, as already dis­cussed, it implic­it­ly premised a degree of unlike­li­hood of wrong­ful cap­i­tal con­vic­tions that no longer seems ten­able. [FN9]

The issue-not addressed by Herrera or, so far as appears, any­where else- boils down to this. 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. Fortunately, as DNA test­ing illus­trates, sci­en­tif­ic devel­op­ments and oth­er inno­v­a­tive mea­sures (includ­ing some not yet even known) may enable us not only to pre­vent future mis­takes but also to rec­ti­fy past ones by releas­ing wrong­ful­ly-con­vict­ed per­sons-but only if such per­sons are still alive to be released. If, instead, we sanc­tion exe­cu­tion, with full recog­ni­tion that the prob­a­ble result will be the state-spon­sored death of a mean­ing­ful num­ber of inno­cent peo­ple, have we not there­by deprived these peo­ple of the process that is their due? Unless we accept-as seem­ing­ly a major­i­ty of the Supreme Court in Herrera was unwill­ing to accept-that con­sid­er­a­tions of deter­rence and ret­ri­bu­tion can con­sti­tu­tion­al­ly jus­ti­fy the know­ing exe­cu­tion of inno­cent per­sons, the answer must be that the fed­er­al death penal­ty statute is unconstitutional.

Consequently, if the Court were com­pelled to decide the issue today, it would, for the fore­go­ing rea­sons, grant the defen­dants’ motion to dis­miss all death penal­ty aspects of this case on the ground that the fed­er­al death penal­ty statute is uncon­sti­tu­tion­al. But pru­dence dic­tates that in a mat­ter of such impor­tance, the Court should give the Government-which only now has the ben­e­fit of the Court’s views on this issue-one last oppor­tu­ni­ty to be heard before a final deter­mi­na­tion is reached. Accordingly, the Government, if it choos­es, may sub­mit an addi­tion­al brief on the afore­men­tioned issue by no lat­er than May 15, to which defen­dants may respond by no lat­er than May 31, fol­low­ing which the Court will ren­der a final deter­mi­na­tion. Alternatively, if the Government prefers to treat this as a final order grant­i­ng defen­dants’ motion and pro­ceed direct­ly to appeal (assum­ing such is avail­able), it should so noti­fy the Court, in writ­ing, by no lat­er than May 1, so that a final order may be entered.

SO ORDERED.

JED S. RAKOFF, U.S.D.J.

Dated: New York, New York

April 252002

Sources

FN1. See, e.g., National Institute of Justice, Office of Justice Programs, U.S. Department of Justice, The Future of Forensic DNA Testing (2000) at 6.

FN2. See id. at 113.

FN3. See Development in the Law-Confronting the New Challenges of Scientific Evidence,108 Harv. L.Rev. 1557, 1573 – 78 (1995); see also the pro­posed bipar­ti­san Innocence Protection Act of 2001, S.486, 107th Congress, 101(a)(3)(2001); H.R. 912, 107th Congress, 101(a)(3)(2001)(Findings).

FN4. Defendants’ sta­tis­tics and sum­maries of such releas­es, derived from data kept and con­tin­u­ous­ly updat­ed by the Death Penalty Information Center at its web­site, http://​www​.death​penal​ty​in​fo​.org/​i​n​n​o​c​cases, have not been dis­put­ed by the Government on this motion. See also Ex. A to Defendants’ let­ter brief dat­ed April 11, 2002, Press Release from the Death Penalty Information Center dat­ed April 9, 2002. Cf. S.486, at 101(a)(5)(more than 80 defen­dants, includ­ing 10 who had been sen­tenced to death, exon­er­at­ed by DNA test­ing between 1994 and 2001). See gen­er­al­ly National Institute of Justice, Office of Justice Programs, U.S. Department of Justice, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial (1996).

FN5. Defendants claim that the fig­ures are even high­er, but a review of the under­ly­ing data on the web­site of the Death Penalty Information Center, supra, shows that the defen­dants’ fig­ures include cas­es in which the basis of the exon­er­a­tion is not clear­ly dis­cernible. On any fair analy­sis of the web­site data, how­ev­er, at least 20 of the 51 death-sen­tenced defen­dants who have been released from prison since 1991 were released on grounds indi­cat­ing fac­tu­al inno­cence derived from evi­dence oth­er than DNA testing.

FN6. No per­son shall … be deprived of life, lib­er­ty, or prop­er­ty with­out due process of law.…” While this lan­guage-draft­ed when cap­i­tal pun­ish­ment for such offens­es as bur­glary, arson, coun­ter­feit­ing and theft, was com­mon, see Stuart Banner, The Death Penalty: An American History (2002) at 5‑clearly implies that some cap­i­tal pun­ish­ment is com­pat­i­ble with due process, due process is, vir­tu­al­ly by def­i­n­i­tion, an evolv­ing con­cept that takes account of cur­rent con­di­tions and new dis­cov­er­ies, as well as height­ened moral aware­ness. In Herrera, the con­cur­ring and dis­sent­ing jus­tices (a major­i­ty of the Court), in describ­ing the exe­cu­tion of the inno­cent as a con­sti­tu­tion­al­ly intol­er­a­ble event, used terms like shock the con­science,” sug­gest­ing that they view it as a denial of sub­stan­tive due process.

FN7. Defendants also assert numer­ous oth­er grounds, such as under the Sixth and Eighth Amendments, for hold­ing the death penal­ty statute uncon­sti­tu­tion­al and/​or for not apply­ing it to the remain­ing defen­dants in this case. This Opinion And Order does not reach any of these oth­er grounds.

FN8. This addi­tion­al let­ter brief­ing was request­ed by the Court after the Government, in its orig­i­nal brief, sim­i­lar­ly failed to unearth any pri­or prece­dent direct­ly address­ing the afore­men­tioned issue.

FN9. As the Government notes, Chief Justice Rehnquist’s opin­ion for the Court, while acknowl­edg­ing the fal­li­bil­i­ty of any fact-find­ing sys­tem, takes solace not only in the puta­tive unlike­li­hood of fre­quent mis­takes but also in the avail­abil­i­ty of exec­u­tive clemen­cy when all legal reme­dies are exhaust­ed. In the Chief Justice’s view, Clemency … is the his­toric rem­e­dy for pre­vent­ing mis­car­riages of jus­tice where judi­cial process has been exhaust­ed.” Herrera, 506 at 411 – 12. But sub­se­quent stud­ies show that there has been a pre­cip­i­tous decline in the num­ber of clemen­cies grant­ed in recent years. As sum­ma­rized by Professor Banner: The most notice­able [change in recent years] was the sud­den decline of clemen­cy. For cen­turies gov­er­nors com­mut­ed death sen­tences in sig­nif­i­cant num­bers. That pat­tern con­tin­ued for the first two-thirds of the twen­ti­eth cen­tu­ry … [but] dropped close to zero under the new sen­tenc­ing schemes [enact­ed after 1972].” Banner, supra, at 291. This is hard­ly sur­pris­ing in an age when law and order” is a polit­i­cal issue, for the exec­u­tive branch, far more than the judi­cia­ry, is inher­ent­ly sen­si­tive to polit­i­cal pres­sure. In any event, clemen­cy has no real rel­e­vance to the issue now before this Court, for it would be unusu­al for an exec­u­tive to stay an exe­cu­tion sim­ply because proof of inno­cence might there­after devel­op; yet it is this very real pos­si­bil­i­ty, as demon­strat­ed by the emer­gence of DNA test­ing, that cre­ates the con­sti­tu­tion­al prob­lem here addressed.