A welcome decision.

Byline: The Register-Guard

The federal judiciary has taken a few bites out of capital punishment this season. It's to be hoped the bites are just the appetizer for the ultimate entree: elimination of the death penalty altogether.

First, the U.S. Supreme Court declared the execution of the mentally retarded to be unconstitutional. The high court followed that ruling with another saying that only juries, not judges, could impose the death penalty. And now comes U.S. District Court Judge Jed Rakoff in Manhattan, who ruled recently that the federal death penalty act itself violates the Constitution.

The judge's decision came in a case involving two men indicted on federal charges in a drug-related murder in June 1999. The two have not yet gone to trial, so there was no question before Rakoff as to whether they had been wrongfully convicted. The U.S. attorney handling the case declined to seek the death penalty, but she was overruled by U.S. Attorney General John Ashcroft.

In finding the 1994 federal law unconstitutional, Rakoff cited the growing number of exonerations of death row inmates through DNA testing and other evidence. The exonerations, the judge said, demonstrated "an undue risk of executing innocent people," which he declared a violation of the constitutional right of due process. That, he said, made capital punishment "tantamount to foreseeable, state-sponsored murder of innocent human beings."

The judge added: "What DNA testing has proved beyond cavil is the remarkable degree of fallibility in the basic fact-finding process on which we rely in criminal cases. Yet, for all this alleged due process, the result in each and every one of these cases (12 death row inmates cleared through DNA testing) was the conviction of an innocent person who, because of the death penalty, would shortly have been executed."

The judge's bottom line is that the death penalty places the lives - not only the freedom, but the lives - of innocent people at risk.

While the Justice Department is sure to appeal the judge's ruling - Ashcroft seems as fond of the death penalty as he is opposed to Oregon's physician-assisted suicide law - it's never been a secret that capital cases are all too often improperly or unfairly handled. Innocent people have been put to death. Minorities are more likely to be sentenced to death than whites. Legal representation for capital defendants is often less than adequate. And it's morally wrong for the state to deliberately kill someone.

So Ashcroft is free to appeal. Maybe, just maybe, the case will wend its way to the Supreme Court, where, if justice is indeed to prevail, the whole notion of capital punishment will be put to rest.