Death Penalty's Forward March

EVEN before the alleged firebomber in the recent New York subway incident could be charged with a crime, then Gov.-elect George Pataki (R) was denouncing the violence. He called it a terrorist act needing the ``strongest sentence possible - the death penalty.''

Mr. Pataki's renewed pitch for society's ultimate sanction, a staple of his campaign for governor, is being echoed with increasing intensity across the landscape - and may now become a reality in many states that don't currently have it.

As a tough law-and-order ethic takes hold in the US and Republicans take over control of many statehouses, capital-punishment laws appear ready to become even more commonplace.

Some 13 states currently have no death penalty. New York may become one of the first to exit this increasingly exclusive club.

For years, lawmakers in the Empire State have passed death-penalty statutes, only to see them vetoed by Democratic governors. Now the newly installed Pataki is vowing to follow through on his promise to sign a bill as soon as the legislature approves it.

Similarly, in Massachusetts, some analysts now believe Gov. William Weld (R), long a champion of capital punishment, may be able to push through a death-penalty bill this year - at least for some crimes. Iowa and Wisconsin, where legislatures now have GOP majorities, are also considered likely to adopt such laws.

The moves reflect the growing public popularity of the death penalty in an era when many types of crime have increased - and public fear along with it. In state after state the public demand for the ultimate punishment represents a cultural shift in expectations on behalf of a large part of US society.

In a 1971 Roper poll asking what should be the purpose of prisons, 76 percent of the respondents said ``rehabilitation.'' Twenty-three years later in a national poll by the Los Angeles Times, 61 percent wanted ``punishment,'' while 25 percent favored ``rehabilitation.'' Recent polls also show that the public distrusts the concept of parole and wants it denied to a wider range of criminals.

``It used to be that the public generally thought the death penalty was a deterrent to crime,'' says Richard Dieter, executive director of the Death Penalty Information Center in Washington. ``Now favoring it is more of a retribution argument, a life for a life. What is spurring this is the perception that crime is out of control and people want something done.''

When President Clinton signed the Violent Crime Control and Law Enforcement Act in September, the popularity of the bill reflected this changed public mood. In the new law, federal crimes that are punishable by death increased from two to 60. The last federal execution was in 1963.

Since the US Supreme Court ruled in 1976 that states could resume executions, Texas has led the way with 83, Virginia is second with 24, and Louisiana is third with 21. Across the country, the number of people on death row stands at 3,000, the most ever.

Critics say three factors temper the argument in favor of the death penalty: the costs of implementing it, the racial implications of the high percentage of blacks executed or on death row, and the number of innocent people either put to death after all appeals have been exhausted, or those who are exonerated after reaching death row.

The assertion that executions save money has been challenged by several studies. ``A state will probably spend $2 million to get one execution if all costs are taken into account,'' says Mr. Dieter, citing the costs of such things as pre-trial motions and appeals. ``People might say it's worth it, but that's $2 million not spent on police on the streets, or longer sentences or on drug rehabilitation programs.''

Among the states that have done cost studies - Florida, Texas, California, and North Carolina - all have concluded that death-penalty cases take a long time to conclude and are lawyer-intensive. Dieter says that death-penalty cases end up costing more than imprisonment for life because the annual cost for a prisoner is $25,000 on average.

The irreversibility of the death sentence mandates that the courts follow ``heightened due process.'' The cost of this mounts rapidly. At the same time those advocating the death penalty are pushing for limiting the appeals process to unclog the courts.

But if the number of death-row inmates increases, courts could easily become overwhelmed with capital cases even with streamlined procedures.

In Texas, where local judges determine counsel and fees for indigent defendants, a 1993 study concluded that the state had ``reached the crisis stage in capital representation and the problem is substantially worse than that faced by any other state with the death penalty.'' It called fees for court appointed attorneys ``absurdly low.'' Quality representation suffers under these fees, the report concluded, and defendants are rushed to judgment.

To remedy this, the University of Texas Law School started a federally financed legal office to assist the nearly 400 inmates on death row in the state.

While most convicted criminals are given the death penalty because of overwhelming evidence, a small number profess their innocence after the trial, and continue to work to free themselves.

A House Judiciary Subcommittee on Civil and Constitutional Rights released a report in 1993 that indicated the limitations in capital punishment. Since 1970 there have been 48 cases in the US in which defendants were sentenced to death but later found not guilty and released.