DURING the past 15 years, those who would abolish capital punishment in the United States have rested their hopes on the legal system. And they have pretty much been disappointed. The US Supreme Court has consistently maintained that the death penalty is not, in and of itself, a violation of the Constitution's Eighth Amendment, which outlaws ``cruel and unusual punishment.''
The Court, however, has been extremely sensitive to procedures in capital cases, especially those that might be vulnerable to racial or other discrimination. And it has sometimes overturned individual sentences that it felt were arbitrarily or capriciously imposed.
Of late, jury composition and the mental state of the convicted have played an important role in adjudicating death-penalty-related cases. For example, last term the Supreme Court -- in what abolitionists consider a strong rebuff -- flatly rejected the concept that barring from jury panels those who would never vote for the death penalty under any circumstances unfairly forces defendants to face ``conviction prone'' panels.
But the justices did show concern about possible juror prejudice by ruling that capital punishment defendants accused in interracial crimes should be permitted to question prospective jurors about their views on race.
And the Court -- in what legal scholars are calling a completely novel holding -- has also barred the execution of a condemned prisoner who has become ``insane'' on death row, at least until it is ascertained that the accused is once again mentally competent.
This term -- in what some opponents of capital punishment are calling their ``last, best chance'' to set aside the death penalty through the judicial process -- the Supreme Court will examine whether this ultimate sentence is imposed more often when the murder victim is white rather than black.
Two cases challenging Georgia and Florida laws raise this issue. Both are scheduled for hearing on Oct. 15. In these cases, the justices are being asked to set guidelines establishing how much statistical evidence of racial disparity in applying the death penalty is enough to show a violation of the Eighth Amendment's guarantee against cruel and unusual punishment.
In the Georgia case, McCleskey v. Kemp, lawyers for Warren McCleskey, a black convicted of killing a white police officer, have offered evidence showing that those who kill whites receive the death penalty in that state substantially more often than those who kill blacks. Further, they claim, when the victims are white, black defendants are three times more likely than white defendants to get a death sentence.
In 1985, a federal appeals court rejected the idea that these data were sufficient to invalidate Georgia's death penalty. In fact, the appellate court ruled that proof of ``disparate impact'' alone does not warrant such action, unless it is so great that it ``compels'' the conclusion that race bias is intentional.
Mr. McCleskey, in bringing the case to the Supreme Court for review, stresses that an individual defendant should not have to show personal discrimination in order to challenge what he sees as ``systematic'' racial discrimination in the way the death penalty is administered.
A ruling, expected by mid-1987, will be significant for many of the more than 1,500 prisoners on death rows across the nation. And should the justices invalidate the Georgia law on the basis of racial bias, it would almost certainly prod similar litigation in 35 other states that impose capital punishment.
Such a decision, however, would run against the tide nationally, where the public mood now seems to be in favor of the death penalty.
In fact, in California, efforts to remove state Supreme Court Chief Justice Rose Bird and some of her judicial colleagues have centered around this issue. Justice Bird has been an avid opponent of executions and has voted against them in almost every capital case she has reviewed.
Regardless of the outcome of McCleskey v. Kemp, it might be useful to explore paths other than the courtroom to finally resolve the issue of capital punishment.
One appropriate move might be the appointment of a blue-ribbon commission -- to examine not only the fairness of the death penalty and its effectiveness in deterring crime but also the more basic issue of prisoner rehabilitation.
Just-retired US Chief Justice Warren Burger, who often voted for capital punishment, recently admitted he was personally troubled when he took such action.
Perhaps Mr. Burger and former Associate Justice Arthur Goldberg -- representing the conservative to liberal spectrum -- would be appropriate candidates to jointly head this panel.
Granted, the appointment of such a commission might not be politically expedient at this time. Regardless of one's views on imposition of the death penalty, however, the growing national desire to curb violent crime seems to dictate this kind of action.
A Thursday column