The federal death penalty was declared unconstitutional Monday by a New York judge who said it creates “undue risk” of executing innocent people. U.S. District Judge Jed Rakoff is the first judge to declare the 1994 federal Death Penalty Act unconstitutional.

The judge told federal prosecutors they could not seek the death penalty for two alleged heroin dealers accused of murdering a government informant. He cited DNA testing, which has proved the innocence of 12 death row prisoners. Altogether, 101 prisoners have been exonerated from death row.

Monday’s decision follows two major legal blows to the US death penalty system last week. Just days after the Supreme Court ruled it is unconstitutional to execute mentally retarded convicts, the court declared that it is also unconstitutional for judges to decide death penalty verdicts without juries.

Rakoff wrote that if the death penalty is enforced, “a meaningful number of innocent people will be executed who otherwise would eventually be able to prove their innocence.” And he called that “tantamount to foreseeable, state-sponsored murder of innocent human beings.”

The ultimate impact of yesterday’s decision is unclear. Only two people have been executed under federal law so far, including Oklahoma City bomber Timothy McVeigh.

But if the case were upheld, the reasoning would also apply to state death-penalty cases. 784 people have been executed under state laws since the death penalty was reinstated in 1976. Altogether, more than 3700 people await execution on death row today. Today we are going to talk to two former death row prisoners who were freed after DNA evidence proved they were innocent of their crimes.

Guests:

• Ron Tabak, New York Lawyers Against the Death Penalty. He is also co-chair of the American Bar Association’s death penalty committee, which called for an executions moratorium in 1997.
• Kirk Bloodsworth, first death row prisoner to be exonerated from death row because of DNA evidence. Bloodsworth served nine years, including time on death row, before he was freed based on DNA evidence in 1993. He is currently a commercial fisherman; he is speaking to us from his boat off the east coast of Maryland.
• Ray Krone, 100th prisoner to be exonerated from death row since 1976, the year the US death penalty was reinstated. Krone was convicted of sexually assaulting and killing a cocktail waitress in Phoenix, Arizona. The main evidence was a bite mark on the woman’s breast that allegedly matched his teeth. He was imprisoned for ten years and sat on Arizona’s death row for three years. In April, when the prosecution and a new judge finally allowed DNA tests, they cleared him and implicated the guilty man.
• David Kaczynski, New Yorkers Against the Death Penalty and brother of Ted Kaczynski, the so-called “Unabomber”, a Harvard-trained former mathematician who mailed bombs to universities and airlines that killed three people and injured 17. In his Unabomber manifesto, Kaczynski blamed technology for social ills and claimed the government and political leftists wielded too much power. David Kaczynski fought hard to show that his brother was mentally ill to dissuade federal prosecutors from seeking to execute him. In return for a guarantee that he would not be executed, Theodore Kaczynski pleaded guilty and is serving a life sentence.

Related links:

• New Yorkers Against the Death Penalty
• Death Penalty Information Center