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CNN Live Today

New York Judge Finds Death Penalty Unconstitutional

Aired July 01, 2002 - 14:33   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.
KYRA PHILLIPS, CNN ANCHOR: More now on the death penalty ruling in New York. We've been talking about that. Joining me on the phone is James Orenstein, a former associate deputy attorney general and a member of the then-attorney general Janet Reno's committee on the death penalty.

Sir, thank you for being with us.

JAMES ORENSTEIN, FMR. ASSOCIATE DEP. ATTORNEY GENERAL: Good afternoon.

PHILLIPS: Now, this doesn't stop all death penalties throughout the country, correct?

ORENSTEIN: That's correct. It only applies to the case that's pending before Judge Rakoff and the government is still free to argue that the death penalty is still constitutional in other cases.

PHILLIPS: What's Judge Rakoff basing his opinion on?

ORENSTEIN: Well, as I understand it -- and I haven't seen the opinion itself yet -- but my understanding is he's saying we know that people are found innocent years after they're found guilty and sentences to death. What he's also finding is that the time people spend on death row, according to some studies, is less than the time it takes to vindicate themselves.

And so he's saying that the Constitution, as a matter of due process, forbids you from applying the death penalty in those circumstances because people don't have enough time to show that they shouldn't be executed.

PHILLIPS: Now, he's apparently basing this also on a report from a Columbia law professor, James Liebman. What did this professor -- what was his conclusion in his report?

ORENSTEIN: Well, there are several conclusions. The ones that are most pertinent here are that about 2/3 of all death penalties get reversed one way or another, either for legal error or because the defendant is innocent.

The other thing he's finding is that it takes a long time for the system to correct these errors -- longer, compared to other statistics, than it takes for people to actually get executed, on average. And that's, I think, what's disturbing Judge Rakoff.

PHILLIPS: Do you think this will set a precedent for other death penalty cases?

ORENSTEIN: It's certainly a precedent that defendants in death penalty cases are going to argue. The question is whether this holds up on appeal, and the government is certain to appeal it.

PHILLIPS: So you do think the federal government will appeal. Does this surprise you, this decision, today?

ORENSTEIN: Yes and no. It doesn't surprise me that a lot of judges feel a lot of discomfort with the way the death penalty is handled in this country. We're seeing that played out all over the place.

The particular reasoning he uses does surprise me a little bit. And it surprises me that he reached this now, before the defendants in front of him have actually been found guilty. Because if they're found innocent then there's no need to decide whether the death penalty can be applied.

PHILLIPS: James Orenstein, thank you.

ORENSTEIN: Thank you.

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