Capital punishment and politics reconciled


Washington -- RECENTLY THE death penalty lost one and won one, raising anew the question of whether the issue is about legal principles or politics -- or both.

New York Gov. Mario Cuomo shocked foes of capital punishment when he suddenly abandoned his long-held position that it is unethical and inhumane in favor of letting state voters decide whether to make it legal.

There is nothing coy about Mr. Cuomo's change of heart; he is in a tough fight for re-election and his past vetoes of death-penalty statutes had become a contentious issue. The imperative of political survival loomed larger than moral conviction.

Not long ago a different sort of public figure, moving toward retirement, took the opposite course, dropping his past acceptance of the death penalty to warn that it is inconsistent with the Constitution.

Supreme Court Justice Harry Blackmun, who recently left the high bench, concluded that the courts had failed to develop adequate legal protections to guarantee that the penalty could be applied fairly and accurately. Therefore, he said, "I feel morally and intellectually obligated simply to concede that the death penalty experiment has failed."

Mr. Blackmun felt no political pressure and was free to listen solely to his conscience.

Their contrasting conversions have something to do with the fact that Mr. Cuomo is first and foremost an elected politician and Mr. Blackmun an appointed judicial veteran. But it is Mr. Cuomo who philosophizes grandly on the sanctity of life, while Mr. Blackmun is a pragmatist who sees the death penalty not as inherently wrong but as unworkable.

What these men are really telling us is that capital punishment is not a simple issue. It cannot be pigeonholed as merely a mean-spirited political gambit or an unarguable moral question. It is something of both, fraught with emotional, philosophical, intellectual and practical baggage.

I happen to believe that a cold-blooded killer waives the right to constitutional protection against cruel and unusual punishment, extended to citizens who do not take the lives of others. I have no moral problem with the state's authority, within the appropriate legal framework, to permanently rid society of its most despicable predators.

Until now, Mr. Cuomo has so disagreed with my view that 12 times he vetoed legislation that would have legalized capital punishment in New York.

He made a big thing of doing this on moral principle, since most state polls have shown that New Yorkers back the death penalty 3-to-1, in about the same ratio as voters nationwide.

He tried to retain a tiny shred of dignity by proposing to leave the issue up to a voter referendum rather than acknowledging that he had made a full-scale capitulation to political reality. But he was fooling no one. If he really cared what the voters wanted, he could have registered his own misgivings but let the legislature have its way years ago.

The fact is this country is outraged about the spread of crime and violence and expects both elected officials and the courts to crack down on the guilty.

Capital punishment is not the only answer and may not even be very useful, but it is symbolic of an official attitude that says crime is being taken seriously.

And symbols matter. They are tangible, unlike long-term

anti-crime programs and policies that are difficult to measure and evaluate.

Predictably, emotional excess results. Congress over-reacted by including in the crime bill -- now in conference -- a federal death penalty for more than 50 crimes of widely varying horribleness.

President Clinton is said to be uncomfortable with such an outlandish expansion of the death penalty, but there is no sign that he will veto it.

And symbolism has its limits. In reality, juries are loathe to impose the death penalty and often opt for a less severe life sentence instead. In California, for instance, prosecutors rarely seek the death penalty in spousal murder cases, suggesting that O.J. Simpson would never be executed even if found guilty of murdering his ex-wife and her friend.

Those killers who do go to death row frequently stay there for a dozen years or more while they exhaust the lengthy appeals process. From 1981 to 1991, there were just 154 executions. Now roughly 3,000 convicted killers are sitting on death row.

But executions are generally well-publicized, generating demonstrations outside the prisons.

So the message gets out that society is prepared to take the ultimate revenge against those convicted of killing others. No one has ever proved whether this threat acts as much of a deterrent. But it suggests to ordinary people who would never dream of hurting a fly that the state is, after all, not totally helpless in the face of demonstrable evil.

Marianne Means is a syndicated columnist.

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