Capital punishment -- Bay State backers are ready to try again

FEW issues have sparked longer or more heated debate among Massachusetts lawmakers than capital punishment. Although proponents of the death penalty lost their battle at this year's legislative sitting, they will be back in January with no less fervor. They may be convinced that sending first-degree murderers to the electric chair will make the commonwealth a safer place, but clearly there are not enough state legislators who share that view.

A ``yes'' vote might be within reach in the 160-seat House of Representatives, but capital-punishment boosters are far short of the mark in the Senate. A two-thirds vote will be needed in both chambers because Gov. Michael S. Dukakis has made it clear he will veto such a statute if it should reach his desk.

Those who suggest that Governor Dukakis might change his stance and either go along with a death-penalty measure or perhaps allow it to become law without his signature are overlooking his long-held philosophical conviction that capital punishment is wrong. He has remained firm throughout his political career on that matter.

During his first term as governor, 1975-78, he rejected such legislation. And before then, including his eight years as a state representative from Brookline, he was a staunch foe.

The Senate's 20-to-18 rejection of the latest proposal on Oct. 1 has spared the governor the potentially awkward position of being blamed for thwarting efforts to bring back the electric chair.

His critics, especially would-be challengers for the governorship in next fall's election, would be delighted to have the governor forced to come to grips with the death-penalty question.

A veto might lessen his popularity with many voters, since public-opinion samplings in the Bay State indicate that close to two-thirds of the people favor reinstituting capital punishment.

On the other hand, were Dukakis suddenly to accept the idea, his foes would surely have a field day questioning his motives.

Since 1986 will be a gubernatorial election year, Dukakis critics can be expected to work particularly hard to put a death-penalty bill on his desk early next year so they can get as much political mileage as possible out of placing him in an uncomfortable position.

Instead of wasting their time trying to pass a measure that is all but sure to be vetoed, lawmakers genuinely bent on bringing back the death penalty might be well advised to check out the language of any such proposal with the Massachusetts Supreme Court.

That judicial panel, it should be noted, last October struck down as unconstitutional a two-year-old law that had a similar intent.

It would make little sense to enact another capital-punishment statute, with or without gubernatorial approval, without first making sure it would be likely to survive a court challenge.

The legislature has the right to ask the Supreme Court for an advisory opinion on pending legislation, in which a question of constitutionality is involved. Lawmakers pushing for revival of the death penalty, as well intentioned as they may be, are hardly qualified to make such a determination.

Sen. Paul J. Sheehy (D) of Lowell, to his credit, tried to get his colleagues to send the proposal to the high court to make sure it met state constitution standards. The failure of that move cost the senator's support and made possible the legislation's defeat.

This spared the House hours of oratory over the basic question of whether the death penalty would, as its backers contend, prevent murders.

More than a few death-penalty advocates concede, usually quietly however, that were such a measure put back on the books executions would still be few and far between.

Capital-punishment foes, many of whose objections are on moral grounds, question how effective such a measure would be in preventing slayings, since those who commit such crimes do not expect to be caught.

In fairness to both sides of what seems likely to be an ongoing issue in Massachusetts, neither appears to have solid, or at least recent, statistics to support its position. Certainly there is nothing to suggest that the 37 convicted murderers executed in the commonwealth between 1930 and 1947, when the last took place, had any impact on making the state a safer place.

Although capital punishment remained on the books in Massachusetts into the 1970s, six successive governors -- members of both parties and of various religious faiths -- sidestepped using the electric chair. Often they instead commuted a murderer's sentence to life imprisonment.

They were simply unconvinced the death penalty was right.

Because 38 other states have death-penalty laws of some type does not mean Massachusetts should follow suit; and if it did, it would do more than perhaps provide a false sense of accomplishment.