From the WSJ Opinion Archives
OUTSIDE THE BOX
The Rakoff Rule
A judge makes the perfect the enemy of the Constitution.
Maybe it was the heat, or the giddy prospect of a long weekend, or that the U.S. Supreme Court had finishing its scholarly work for the year and might not be paying attention. But all of a sudden it was fun-and-games time in the federal courts.
First, the Ninth Circuit Court of Appeals ruled that the Pledge of Allegiance, which nearly all of us have been saying all of our lives, is unconstitutional since it mentions God. Even the Senate couldn't handle that, and voted unanimously to condemn it. Our money mentions God too ("In God we trust"), and then there is the singing of "God Bless America"; perhaps they will soon be verboten as well.
Then came Judge Jed Rakoff in the Southern District of New York, who ruled that the federal death penalty is unconstitutional. Editors at the New York Times gave the game away, warning that "this ruling may sound eccentric--the East Coast version of last week's decision against the Pledge of Allegiance," before concluding that "Judge Rakoff is right."
The judge held that since "cutting off the opportunity for exoneration . . . is tantamount to foreseeable, state-sponsored murder of innocent human beings," the death penalty cannot stand. If there is any risk that a jury may erroneously convict an innocent person and condemn him to death, the judge concludes, society must not allow the jury to do so. He believes that in the distant future "techniques or evidence that will establish [a convict's] innocence" may come along, and convicted criminals have the right to wait for that.
Never mind that the Constitution's Fifth Amendment twice mentions the possibility of the taking of an accused party's life (no person shall twice be put "in jeopardy of life or limb," nor "be deprived of life, liberty, or property without due process of law"); the judge simply says this doesn't count. It may say that, Judge Rakoff admits, and we know that the death penalty was common for a variety of crimes when the Constitution was written in 1787, but we know that the framers "were simply concerned with extending due process to the full range of existing proceedings."
And "while it is true that none of the 31 persons so far sentenced to death under the Federal Death Penalty Act has been subsequently exonerated . . . the sample is too small and the convictions too recent to draw any conclusions therefrom." In other words, it doesn't matter that the innocent aren't actually being convicted.
To put the matter in perspective, a 1989 study by the Criminal Justice Legal Foundation of 100 death penalty cases which reached the 11th U.S. Circuit Court of Appeals found only one in which there was any evidence that might support a claim of innocence. Nor have anti-death-penalty analysts been able to come up with a single innocent person executed in at least the last 35 years.
As John DiIulio noted several years ago, in 1990 the average time behind bars for murders was 8.6 years, and over the 20 years from 1977 to 1996, the ratio of murder victims (police know of about 700,000 murders) to executions was about 1,000 to 1. It is not as if America is or has been on a binge of execution madness.
But Judge Rakoff's decision raises a point worth considering: If he were right, how would the Rakoff rule work in real life? If there is a risk that innocent people might be killed because of actions taken by the government, should we as a society stop our government from doing those things?
What kind of things? Well, war often takes the lives of innocent civilians--as we recall from World War II and just last week in Afghanistan. So should the federal courts ban war, even though the authority of the federal government to wage it is also written into the Constitution?
Or take the converse of Judge Rakoff's murder concerns: Some years ago a Stanford Law Review article determined that 810 convicted murderers had killed an additional 821 people following their release from prison. Should all murderers have been held permanently to save the lives of these 821 innocents?
According to the National Highway Traffic Safety Administration, 383 people died in 1995 as a result of police chases of criminal suspects, including 126 innocent bystanders. Should we apply the Rakoff rule and prohibit police from pursuing perps until we can guarantee a zero innocent citizen death rate?
The Institute of Medicine estimated that tens of thousands of innocent people die in U.S. hospitals each year because of "preventable medical errors." That is a horrible statistic, and hospitals obviously should strive to reduce it to zero. In the meantime should the Rakoff rule be applied to ban surgery?
For that matter, as the result of laws requiring lighter vehicles to reduce the environmental consequences of the burning of gasoline--the Corporate Average Fuel Economy standards--several thousand people will die in accidents who would have lived if they had been in heavier cars. Should the Rakoff rule apply here too?
The point is, perfection in any endeavor is a practical impossibility. Our government should require the best technology and the fairest procedures available in waging wars, setting standards for surgeons and policemen and trying people accused of the intentional killing of other, innocent people. Requiring perfection, as Judge Rakoff does, is fine for philosophers and academics but not of much help in day to day life or questions of crime and punishment. Especially when the Constitution says otherwise.
Mr. du Pont, a former governor of Delaware, is policy chairman of the Dallas-based National Center for Policy Analysis. His column appears Wednesdays.
