New York, Dec. 10--(AP) A federal appeals court upheld the federal death penalty Tuesday, firmly rejecting a lower court's conclusion that it was unconstitutional and declaring that only the Supreme Court can change "well-settled" law.

The three-judge panel of the 2nd U.S. Circuit Court of Appeals reached deep into history to show that Judge Jed Rakoff found no 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's July ruling was issued in a case involving two men charged in a drug-murder conspiracy.

The appeals court 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, which abolitionists have argued since the 1800s was a reason to shelve the death penalty. Since then, the appeals court said, the Supreme Court has recognized that risk but repeatedly left the death penalty intact "because our judicial system - indeed, any judicial system - is fallible."

In its 35-page ruling, the appeals panel in New York 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. "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."

Prosecutors had no comment on the ruling, said Marvin Smilon, a spokesman for U.S. Attorney James Comey.

The ruling does not apply to state death penalty laws. 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.

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.

Rakoff's ruling came during the pretrial phase of 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.

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