NEW YORK (AP) A federal appeals court Tuesday firmly rejected a lower court's conclusion that the federal death penalty was unconstitutional, declaring that only the Supreme Court can change ''well-settled'' law.
The 2nd U.S. Circuit Court of Appeals reached deep into history books to show that Judge Jed S. Rakoff had not found new legal territory when he ruled the death penalty amounted to the ''state-sponsored murder of innocent human beings'' because so many death row inmates are later exonerated.
Rakoff ruled July 1 in a case brought against two men in a drug-murder conspiracy.
The appeals court, though, noted that European nations from which the United States derived its laws recognized in the 1700s that capital punishment carries the risk that innocent people will be executed.
In the 1800s, abolitionists argued that the killing of innocent people was reason to shelve the death penalty, the appeals court said.
''Since that time, there has been a prodigious scholarly debate over whether the likelihood that innocent people will be executed justifies abolition of the death penalty,'' it said.
Still, the appeals court said, the Supreme Court for more than 200 years has repeatedly left death penalty laws intact even as it recognized that ''because our judicial system indeed, any judicial system is fallible, innocent people might be executed and, therefore, lose any opportunity for exoneration.''
The appeals court said Congress also fully considered the issue before enacting the 1994 Death Penalty Act.
''Binding precedents of the Supreme Court prevent us from finding capital punishment unconstitutional based solely on a statistical or theoretical possibility that a defendant might be innocent,'' the appeals court wrote.
In its 35-page ruling, the appeals court said there was ''no fundamental right to a continued opportunity for exoneration throughout the course of one's natural life.''
Defense lawyer Kevin McNally promised to appeal, noting that the appeals court wrote that ''if the well-settled law on this issue is to change, that is a change that only the Supreme Court is authorized to make.''
''We are going to appeal, which is basically what the court said we need to do. All the court said is that this is an old debate and while there is new evidence, the only court that can look at the new evidence is the Supreme Court, which is fine,'' he said.
''If we were going to lose, then this is what you'd want them to say,'' McNally said in a telephone interview.
Prosecutors declined comment.
Rakoff was the first federal judge to declare the federal law unconstitutional, saying too many innocent people have been executed. His ruling energized death penalty challengers. The National Association of Defense Attorneys and the American Civil Liberties Union Capital Punishment Project submitted papers on appeal.
Chris Dunn, a New York Civil Liberties Union attorney, said the issue is ''going to go to the Supreme Court whether it's in this case or another case.''
''There has been a revolution in the exoneration of death penalty defendants in the last 10 years,'' Dunn said. ''This is an issue that the Supreme Court will need to confront.''
In his ruling, Rakoff had said he based his findings on studies of state death penalty cases, because the number of federal death sentences 31 was too small to draw any conclusions.
Only two people, Oklahoma City bomber Timothy McVeigh and drug killer Juan Garza, have been executed under the federal law, enacted in 1994. Of the remaining 29, five were reversed. The government said none of the 31 defendants was later found to be innocent.
The federal death penalty is separate from state laws; Tuesday's ruling had no effect on them. Thirty-eight states allow capital punishment, although some have not executed anyone for many years. The governors of Illinois and Maryland have placed moratoriums on executions in their states.
Rakoff's ruling came during the pretrial phase in the case of Alan Quinones and Diego Rodriguez, alleged partners in a heroin ring. They are accused of torturing and killing informant Edwin Santiago in 1999 and have pleaded innocent. Trial is set for March 10.
