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U.S. v. QUINONES

July 1, 2002

UNITED STATES OF AMERICA
V.
ALAN QUINONES, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Jed S. Rakoff, United States District Judge

OPINION AND ORDER

In its Opinion dated April 25, 2002, the Court, upon review of the parties' written submissions and oral arguments, declared its tentative decision to grant defendants' motion to dismiss the death penalty aspects of this case on the ground that the Federal Death Penalty Act, 18 U.S.C. § 3591-3598, is unconstitutional. United States v. Quinones, 196 F. Supp.2d 416, 420 (S.D.N.Y. 2002). Because of the importance of the matter, the Court gave the Government — which now had the benefit of the Court's preliminary views — a further opportunity to be heard. Id. The Government duly submitted an extensive brief and exhibits, see Government's Memorandum of Law In Further Opposition To Defendants' Motion ("Govt. Mem."), to which counsel for the two remaining death-eligible defendants, Alan Quinones and Diego Rodriguez, responded in kind, see Defendants' Joint Supplemental Memorandum of Law ("Def. Mem."). The Court expresses its gratitude to counsel for these helpful new papers;. but after careful consideration, the Court adheres to its prior view and declares the Federal Death Penalty Act unconstitutional.

The basic reasons for the Court's decision are stated in the Court's Opinion of April 25, 2002, a copy of which is annexed hereto for ready reference; the findings and conclusions set out there are deemed here incorporated and will not be repeated at any length. In brief, the Court found that the best available evidence indicates that, on the one hand, innocent people are sentenced to death with materially greater frequency than was previously supposed and that, on the other hand, convincing proof of their innocence often does not emerge until long after their convictions. It is therefore fully foreseeable that in enforcing the death penalty a meaningful number of innocent people will be executed who otherwise would eventually be able to prove their innocence. It follows that implementation of the Federal Death Penalty Act not only deprives innocent people of a significant opportunity to prove their innocence, and thereby violates procedural due process, but also creates an undue risk of executing innocent people, and thereby violates substantive due process.

In its most recent submission, the Government raises three overall objections to this conclusion, which are here discussed in the order they appear in the Government's Memorandum:

In Point I of its Memorandum (Govt. Mem. 6-10), the Government argues that the issue of whether the Federal Death Penalty Act is unconstitutional in the foregoing respects is not yet ripe for adjudication in this case, since neither of the defendants has been convicted, let alone sentenced to death. See generally, Texas v. United States, 523 U.S. 296, 300 (1998). While the Government concedes that the fact that it has filed the statutory "death notice" seeking the defendants' execution gives the defendants standing to challenge the death penalty statute, the Government argues that for the Court to reach the instant issue before it must is equivalent to giving "an advisory opinion of the type that courts have a duty to refrain from disseminating." Govt. Mem. 3.

No one could disagree with the need to refrain from issuing advisory opinions or with the need to exercise judicial restraint, especially when declaring a statute unconstitutional. The trouble with the Government's argument, however, is that the Court must, in fact, reach the issue now, because the pendency of the death penalty has immediate practical and legal consequences in this case that cannot be postponed.

For example, with the trial of the case firmly scheduled for September 3, 2002, a jury will soon need to be impaneled that, pursuant to the Federal Death Penalty Act, will be required to determine, first, whether the defendants are guilty as charged, and then, if guilt is found, whether the death penalty should be imposed. 18 U.S.C. § 3593(b)(1) (sentence hearing "shall be conducted . . . before the jury that determined the defendant's guilt"). Under prevailing Supreme Court precedent, any prospective juror strongly opposed to capital punishment must be excused for cause from sitting on such a jury. See, e.g., Lockhart v. McCree, 476 U.S. 162, 170, n. 7 (1986) ("the State may challenge for cause prospective jurors whose opposition to the death penalty is so strong that it would prevent them from impartially determining a capital defendant's guilt or innocence"); Wainwright v. Witt, 469 U.S. 412, 424, n. 5 (1985) ("the State may exclude from capital sentencing juries that `class' of veniremen whose views would prevent or substantially impair the performance of their duties in accordance with their instructions or their oaths"); see also, Morgan v. Illinois, 504 U.S. 719, 731-734 (1992); Witherspoon v. Illinois, 391 U.S. 510 (1968). The result is to exclude from the jury a significant class of people who would be perfectly fit to serve if the death penalty were absent from the case.

More generally, the very nature of the inquiries that must be made of prospective jurors, both in pre-trial questionnaires and in voir dire at the time the jury is chosen, will be radically different depending on whether or not the death penalty is involved, thereby affecting the jurors' entire view of the case.

Further still, the number and ratio of peremptory challenges accorded the parties will differ materially depending on whether or not the death penalty is involved. In a death penalty case, the Government is guaranteed no fewer than 20 peremptory challenges, the same number as the defense, Rule 24(b), Fed.R. Crim. P.; in the absence of the death penalty, the Government has only six peremptory challenges, compared with 10 for the defense, id. Thus, in both absolute and relative terms, the Government has a considerably greater opportunity in a death penalty case to shape the jury to its preference than would otherwise be the case.

As these significant impacts of the death penalty on the pending issue of jury selection well illustrate, consideration of the constitutionality of the penalty cannot be delayed until after trial, let alone later, because "the defendants are already directly affected by the death-penalty potential in every aspect of their defense." Quinones, 196 F. Supp.2d at 419.

Moreover, the nature of the challenge to the death penalty here presented is essentially a facial challenge, so that the substantive arguments for and against the challenge will be the same at all stages of this proceeding. As defendants note, such challenges to the death penalty have uniformly been adjudicated by district courts at the pre-trial stage. See Def. Mem. 30, n. 40 (citing 16 cases); see also, e.g., United States v. Bin Laden, 126 F. Supp.2d 290 (S.D.N.Y. 2001).*fn1

In short, the constitutionality of the death penalty on the ground here under consideration is not only "ripe" for adjudication at this time, it cannot be postponed without material prejudice to the defendants.

In Point II of its Memorandum (Govt. Mem. 10-23), the Government argues that because, in the Government's view, the Framers of the Constitution, the Congress that enacted the Federal Death Penalty Act, and the Supreme Court that addressed that Act in Herrera v. Collins, 506 U.S. 390 (1993), all accepted the constitutionality of administering capital punishment despite the inherent fallibility of the judicial system, even the likelihood that innocent people may mistakenly be executed does not mean that they did not receive the process that was their due or that the statute is inherently flawed. Each component of this argument deserves attention, but each is ultimately unpersuasive.

With respect to the "Framers of the Constitution" (Govt. Mem. 10), the Government argues that, because the Fifth Amendment mandates that no person shall "be deprived of life, liberty, or property without due process of law" (emphasis supplied), therefore "the drafters of the Constitution themselves assumed the existence of capital punishment, doubtless against a backdrop in which they did not expect flawless administration of the penalty." (Govt. Mem. 11). But to "assume the existence" of the death penalty is not the same as endorsing it, and to "not expect flawless administration" is not the same as countenancing the execution of numerous innocent people.

There is, indeed, no indication that the Framers of the Constitution ever considered the issue of the death penalty as a substantive matter; they were simply concerned with extending due process to the full range of existing proceedings. As previously noted, see Quinones, 196 F. Supp.2d 418 n. 6, at the time the Constitution was drafted in 1787 the death penalty was a common punishment in the various states for a wide variety of personal and property offenses, ranging from murder and rape to fraud and theft. See Stuart Banner, The Death Penalty: An American History 5-23, 88-111 (2002). There was no reason to believe that federal actions would be any different. Consequently, in guaranteeing due process of law to all deprivations of life, liberty and ...


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