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A New York judge declared the federal death penalty unconstitutional saying that "too many innocent people have been sentenced to death." The court concluded that an increasing number of innocent people are sentenced to death frequently and that often, proof of their innocence "does not emerge until long after their convictions."

"U.S. District Court Judge Jed Rakoff issued a 28-page ruling reaffirming his earlier opinion that the death penalty act violated the due process rights of defendants.

The federal government was expected to appeal the ruling, which would not affect individual states' death penalty statutes." Read the full story Judge Declares Death Penalty Unconstitutional (Post, July 1).

Father Robert F. Drinan, S.J., LL.B., LL.M., professor of law at Georgetown University and an expert on the death penalty and constitutional law, will be online Tuesday, July 2 at 2 p.m. EDT, to discuss the ethics of capital punishment.

Submit your questions and comments before or during the discussion.

Drinan expertise covers constitutional law, legal ethics, international human rights. He has received twenty-one honorary degrees, including Georgetown, Loyola (Chicago), Villanova, Syracuse, and Santa Clara. He has served as a visiting professor at four American universities and as the Dean of the Boston College Law School. He has served ten years in the United States Congress as a Representative from Massachusetts, where he was a member of various committees and the chair of the Subcommittee on Criminal Justice of the House Judiciary Committee.

He is a regular contributor to several law reviews and journals of policy and opinion and the author of many books including "The Mobilization of Shame: A World View of Human Rights" (Yale University Press, 2001); "The Fractured Dream" (Crossroad, 1991); "Stories From the American Soul" (Loyola U. Press, 1990) and "Cry of the Oppressed: The History and Hope of the Human Rights Revolution." He is currently serving as a member of the ABA House of Delegates and is a past-chair of the ABA Section on Individual Rights and Responsibilities. In addition, he serves on the Board of Directors of the International League for Human Rights, the Lawyer's Committee for International Human Rights, the Council for a Livable World Educational Fund, Americans for Democratic Action, and the NAACP Legal Defense and Educational Fund.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

Herndon, Va.: Father Drinan: I support the death penalty with a huge "but" -- only if it is applied fairly and consistently. With the huge number of separate legal jurisdictions in the U.S., is this even a possibility?

Father Robert F. Drinan: Yes. The decision that we are talking about in NY applies only to the 33 men on death row in a federal prison in Indiana. So, I don't think it has application beyond that except that the persuasiveness -- that everyone will be looking at the decision.

San Mateo, Calif.: The death penalty is neither cruel or unusual. How can this argument even be used?

Father Robert F. Drinan: The judge in New York who said that the death penalty is unconstitutional did not reach the decision if it violated the Eighth Ammendment. The judge concluded that due process is not fulfilled in the way that the death penalty is now administered. Consequently we should look at the new facts that Judge Rakoff has set forth -- 68% of all of the appeals of a death penalty sentence over the last 30 years have been reversed. Let me put it graphically: there have been 4500 appeals of a death sentence between 1973-1995 -- almost 70% have been reversed. For that reason, the judge says that the death penalty violates due process.

Arlington, Va.: Fr. Drinan,

As someone who is morally opposed to the death penalty in all circumstances I was naturally heartened by the recent Supreme Court decisions. How much should we read into these decisions in terms of a long-term trend?

Father Robert F. Drinan: I think at least it is the beginning of a long term consequences. The Supreme Court ruled 7-2 that retarded persons may not be executed -- that revolves at least 200 people on death row that claimed that they are mentally retarded. Furthermore, the U.S. Supreme Court said that no death penalty can be handed down unless the jury, and not merely the judge, unanimously recommends the death penalty. As a result, I think these two decisions along with the district court judge in New York may mean that the death penalty is living on borrowed time.

Springfield, Va.: What is the Church's view on this decision, given that the objection to the death penalty is not based on executing the innocent -- rather as seeing it as unacceptable punishment for country's that can adequately detain its criminals? (Where the death penalty is only acceptable for a nation that cannot otherwise protect innocent citizens from criminals).

Father Robert F. Drinan: The Catholic Church is very clear that it opposes all forms of the death penalty. Consequently, the Catholic Church filed a brief in the Supreme Court decision last week and it set forth the reasoning of the Church -- it opposes the execution of a person of a mentally retarded. The Catholic Church, along with every religious body in America, is opposed to the death penalty.

Bethesda, Md.: I know that Catholic and Jewish religious doctrines are against the death penalty? Is this true for most religions?

Father Robert F. Drinan: I think that most religions are opposed to the death penalty. It may be some evangelical Christian groups in America that may still approve the death penalty. They reason that the death penalty is permissible because it was allowed in the Old Testament. I think however, that hte World Counsel of Churches -- which represent most religious bodies, protestant bodies and orthodox religions --are opposed to the death penalty. That may be the reasons that all European countries and Latin American countries have abolished the death penalty. It is significant that every Catholic nation has abolished capital punishment.

Bethesda, Md.: What do you think is the best moral or ethical argument against the death penalty?

Father Robert F. Drinan: There are many moral arguments against the death penalty.
I think the best is that the command in the bible that no one shall take the life of another. For some time, people have been reasoning that we can take the life of another if he has taken another human life. That argument has almost disappeared in the Christian community.

Maryland: In debating the death penalty, I've often suggested life imprisonment with no parole as an alternative. But most people I know don't trust our justice system to keep lifers from being paroled. They assume that people convicted of first-degree murder are out on the streets in a few years. Do you think the death penalty would lose a lot of its support if public confidence in the justice system was restored?

Father Robert F. Drinan: Yes. If people knew that this individual who recklessly took a life is behind bars forever with no possiblity of parole, then they would not be in favor of the death penalty. All of the polls suggest that. Some people wonder whether this can be achieved - namely if these people will remain in prison forever. It can be achieved and should be utilized as a substitute for the death penalty.

Ironically, the cost of carrying through on a death penalty case is about $2 million and the cost of the lawyer and courtroom escalate. It costs about $25,000 a year to keep a prisoner. As a result, the cost of imprisoning someone for life is often far less the cost of carrying through an execution.

Orono, Maine: What I don't understand is this: how can something be illegal or unconstitutional in one circuit and not in another? I thought the whole point of the Constitutional system is that there is ONE federal standard. But, this court ruling sugests that isn't the case.

Is the Supreme Court likely to take an appeal without an explicit, contradictory ruling from another court?

Father Robert F. Drinan: It's complicated but in the U.S. we have two different jurisdictions -- the federal and the different states. We all want to keep that. The decision in New York applies to one individual who allegedly committed a murder. He is being detained along with others in Indiana. There are however 3700 prisoners in the state jails awaiting execution. As a result, even if the U.S. Supreme Court abolished the death penalty, which they won't do, it would not be necessarily applicable to the 38 states that do allow the death penalty.

Arlington, Va.: The foes of the death penalty have had an awfully good week, with Ring saying findings on charges that lead to death have to be made by the jury and the other about not executing the mentally retarded. Does this mean that there is a general acknoledgement that the way the death penalty, it has no deterrent effect in the sense that it executes so many so removed from public view that there really is no public debate. That is, why kill them to make a point if no one notices? Perhaps now they will. Hopefully, the next step is for the Senate not to confirm judges who believe it's right to kill. At least one on the Eleventh Circuit did execute people for a living before taking the bench.

Father Robert F. Drinan: I think this reader talks about the discussion that is now going on about the death penalty. I think this discussion is healthy and that is the way that our moral standards should be reached and echos a worldwide discussion on the death penalty. We should note that the U.S. is the only major nation, aside from China, that still executes people. All our friends and allies have abolished it - Canada, all the European nations.

Fairfax, Va.: Do you feel as sorry for the victims as you do for the killers?
You say you don't want innocent people put to death. You don't want guilty people put to death either, do you?
I'm sure your plan to stop killers from killing would be to ban the private ownership of guns, thereby ensuring only cops & criminals would have them. Kind of like it is in DC now.
By the way, how did you feel about Tim McVeigh's execution? I don't remember very many in the media feeling sorry for him.

Father Robert F. Drinan: This is a complicated question about the victim's of the murderers. Everyone feels for them and our hearts and prayers go to the victimes of Timothy McVeigh. Some people have proposed that the victims should have a place in administration of justice. This issue brings us back to the central moral question --"Are we allowed as human beings to kill someone because he/she killed another person?" Many people feel that this reduces us to the status of another killer.

Arlington, VA: Fr. Drinan, what is your reaction to Part II of the Liebman study "A Broken System" out of Columbia? It seems to demonstrate through econometric analysis that capital punishment is inherently flawed and unjust.

Father Robert F. Drinan: The Liebman studies demonstrates precisely that. The study is at the basis of a new decision by Judge Rakoff in New York. The Liebman study is a result of years of research by lawyers and social scientists -- it demonstrates once again that the death penalty is cruel, unpredictable and unjust. Furthernore, that study along with the decision of Judge Rakoff demonstrates that the death penalty is even more unjust at the federal level that a conviction for the death penalty can be allowed on uncorroborated testimony of one accomplice. That is a much lower standard than virtually all the states. Furthermore, federal law allows convictions based soley on circumstational evidence -- again states do not have that low standard. That is why Judge Rakoff took the testimony of the distinguished academic group from Columbia University and decided that the death penalty denies due process and is the equivalent to a state sponsored murder of an accused person.

Reston, Va.: The judge said "too many innocent people have been sentenced to death." Is there on online resource that attempts quantify the judge's claim? How about DNA testing in cases where people were executed but maintained their innocence until death? Is that done when possible to verify the reliability of the state's execution process?

Father Robert F. Drinan: The best source of information that I know is the Death Penalty Information Center in D.C. That agency is quoted and relied upon in the decision by Judge Rakoff. I rely on the information of that group and they are able to lead you to finding on more information and databases of what is available.

Laytonsville, MD: Like the 9th Circuit's ruling in the Pledge case last week, this District Judge's ruling on the federal death penalty will most certainly be dead on arrival at the next appellate level. I admit I haven't read the opinion yet (I will), but I doubt that it's even consistent with prevailing Supreme Court
holdings.

Should the public believe that the judges in these cases actually came to scholarly and just opinions or are they just grandstanding in high profile cases?

Father Robert F. Drinan: Federal judges do not grandstand. The Ninth Circuit in California may be more liberal than other federal judges but they like all of us are searching for the just solution for the just treatment of those who commit murder.

Bethesda, MD: Do you think the death penalty is a deterrent to criminals? Assuming your answer is no, could it become an effective deterrent if it were applied fairly and uniformly, ie anyone convicted of 1st degree murder is sentenced to death, and the penalty is carried out in a reasonably short amount of time. As it is now, these young punks already have cousins and friends in jail for killing, jail doesn't scare them. Perhaps it would be a different story if their murdering thug friends were executed within a few years of committing their crimes..

Father Robert F. Drinan: There's no reliable evidence that the death penalty deters people from killing another individual. Any person who does in fact kill someone has to some extent lost rationality. He or she is acting on impulses that might be irresistable. A person who murders does not think that they might be executed for the crime. A certain insanity overtakes them in their act. As a result, no one who has studied the death penalty has concluded that capital punishment does deter even if the death penalty is carried out fairly and in due process.

Riverdale Park, Md.: Hello Father Drinan,

Supreme Court justice Antonin Scalia, a devout Roman Catholic, claims that Pope John Paul II hasn't categorically forbidden Roman Catholics from practicing or supporting the death penalty. Capital punishment, according to Scalia, isn't inconsistent with church doctrine.

What are the prospects that John Paul II or his successors will stengthen the church's opposition to the death penalty?

Father Robert F. Drinan: Justice Scalia has announced on many occasions his support for the death penalty. The Catholic Church, not only the Pope, has condemmed the death penalty. This is to some extent binding on all Catholics. Justice Scalia has wrongfully stated that a Catholic who disagrees with that must resign from the bench. I think that is bad law and bad theology. Justice Scalia has been wrong theology and law before, it may be that he will revisit this question and offer his view.

Washington, D.C.: RE: Your comment in a previous answer about the death penalty living on "borrowed time."

Let's be honest here, Father...the recent Supreme Court rulings, as well as the decision yesterday on -federal- sentences all have limited applications in scope.

Many of the death penalty opponents came out last week and admitted that there are many issues yet to be litigated (retroactivity, to name one) that indicate that the rulings are not as sweeping as some whould have it. And certainly the District Court ruling yesterday applies only to federal prisoners.

Some tweaking of the law here? Sure, but this is not a wholesale invalidation of statutes like we saw in the Furman decision in the early 70's.

Father Robert F. Drinan: I agree in part with that. But what I suggested that the death penalty may be living on borrowed time, I looked at the whole world. The United Nations has issued several convenance on human rights and they do not specifically outlaw the death penalty but courts that have attributed them are moving in the direction of banning the death penalty. The Supreme Court in South Africa banned the death penalty in the new South Africa. The vote was 11 to 0. Amnesty International is working diligently to ban the death penalty around the world. Consequently, I think that the death penalty is being reexamined everywhere and it may be banned in the near future.

Washington, DC: Since the Court considers current practice in determining what's "unusual," might the fact that all other Western democracies (the people we consider ourselves most like) do not have a death penalty, and so it IS unusual outside of a few states in the U.S., be persuasive, as international norms become more and more relevant?

Father Robert F. Drinan: The U.S. Supreme Court has not looked at the consensus on the death penalty in the world. It may be that they feel that they should confine their rulings on the Constitutional principles in the U.S.

Omaha, Nebraska: Having graduated from Omaha's Creighton University I always appreciate hearing a jesuit's view.
Do you think there is any circumstances where you would see the necessity for capital punishment?

Father Robert F. Drinan: I think that we all agree that if someone attacks you or someone tries to kill you, you may act in self defense and you might kill him. That is self defense and not murder. Killing is justified in war if that is the only way to protect lives.

Northern Virginia: I am opposed to the death penalty. However, I feel it is somewhat hypocritical of me to oppose the death penalty and support our nation in war. How is the death penalty any different from the U.S. killing Al Qaeda and the Taliban? And how we can we oppose the death penalty yet justify the deaths of innocent civilians that our military actions cause?

Father Robert F. Drinan: That is a good question. It may be that we may eventually abolish war as a legitimate defense. I know that the Catholic Church is moving in that direction. There has been a long tradition of pacifism in the Catholic Church -- some feel that pacifism is the best response of what Christ and the church's teachings.

I don't think that 9-11 changes the basic morality of the death penalty. Obviously the U.S. has the right and the duty to apprehend those who did this awful deed. But the whole argument about the morality of the death penalty has not changed.

Washington, DC: Hello Father,
How does one reconcile "an eye for an eye" and "to forgive is divine?"

Father Robert F. Drinan: The eye for the eye is in the Old Testament and I'm not certain it means that you can kill another individual. Aside from that, the morality of the world is improving. We now condemn slavery, we think that cruelty to children is always wrong and torture is condemned under any circumstance. As a result, we look at an eye for an eye and say that is no longer good morality.

Fairfax, VA: Our embracement of the death penalty is disgraceful. Especially in light that mistakes have been made.

Do you think our society will ever elevate to the level of the Europeans and Canada on this subject? Or are we just going to hold tight to a punitive (even if it is the wrong person someone has to suffer) mindset?

Father Robert F. Drinan: I hope that the U.S. will move in the direction of Canada. Several years ago, Canada abolished the death penalty.
Sometime after that the conservative government returned to power and wanted to reinstate the death penalty. But the conservative parliament refused and the death penalty is still abolished in Canada.

Since the abolishment of the death penalty in all 11 provinces, murder has decreased.

washingtonpost.com: Thanks for all your questions. That wraps up today's discussion.

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