A Capital Issue : The politics of the death penalty.

JUST a few months ago, it was possible to think that capital punishment was-pardon the pun-a dead issue in American politics. So completely had the pro-execution side triumphed, so undebated was the subject in mainstream politics, that when George W. Bush and other Republicans referred to "the death penalty," they were usually talking about the estate tax. (That's a "death penalty" Republicans oppose.) But all of a sudden, the politics of the issue appear to have changed-and not in Bush's favor.

There are two major reasons the death penalty has resurfaced as an issue after a decade of dormancy. The first is that the Democratic party is increasingly reliant on black voters. In 1998, Democrats ran an often demagogic campaign to persuade blacks that Re publicans posed a threat to their civil rights; high turnout among black voters in key races fueled the Democrats' surprisingly strong showing in the elections that fall. (One of the architects of that campaign, Donna Brazile, was picked to manage Al Gore's presidential campaign on the strength of its success.) Making an issue of alleged racial biases in the application of the death penalty could help Democrats stage a reprise.

The second reason the death penalty is now an issue is that the Republican presidential nominee is the governor of the state that leads the nation in number of executions-and leads it by miles. Since the Supreme Court lifted its ban on the practice in 1976, about a third of all the nation's executions have taken place in Texas. That ratio has held under Gov. Bush, and the absolute number of executions has been rising nationally. Since 1995, 126 prisoners have been put to death in Texas. That's out of a total of 625 executions in the country during the entire period since 1976.

For a lot of people, statistics like these are cause to cheer Bush for showing energy in the executive. Democrats could use them, however, to argue that Bush has been reckless. Even more, they could be used to paint a scary picture of Texas under Bush: a place where the rivers are dirty, the slums are crowded, people bring pistols to church, and barbarism is the prevailing culture.

So a conjunction of circumstances-the Democrats' need to mobilize the black vote, and their opportunity to slam Bush-has made it tempting for the Democrats to raise the death penalty as an issue. They would never have dared do so ten years ago, though, even had similar conditions obtained. Back then, the Democrats were seen as soft on criminals generally and on the death penalty in particular. In order to combat this perception, Bill Clinton went so far as to interrupt his presidential campaign to go back to Arkansas to preside over the execution of Rickey Ray Rector, who was brain-damaged (as a result of having shot himself after shooting a police officer and another man). Through that move and others, the Democrats have now reestablished their credibility with the public on crime.

Public opinion has also shifted on the topic itself. A Gallup poll in February found that support for the death penalty, while still high at 66 percent, had dropped to its lowest level in 19 years. (Support peaked in 1994, at 80 percent.) Part of the explanation is probably that people no longer feel as threatened by crime now that crime rates have fallen. Also, opponents of the death penalty have been able to focus the public's attention on cases in which innocents have been on death row-and thus on the possibilities that some have actually been executed and others are still slated to die.

A new book, Actual Innocence, argues that poor administration of capital punishment has made miscarriages of justice shockingly common, and that many death-row inmates would be exonerated by DNA evidence. Illinois governor George Ryan, a Republican, announced a moratorium on executions in his state in January, after it was shown that more inmates on death row had been exonerated than executed since the state instituted the death penalty. Other states and the federal government are considering moratoria. A recent movie, The Green Mile, also dealt with innocents awaiting execution.

The economic boom may also be affecting public attitudes; wealth can lead people to adopt sunnier and less retributive outlooks, and diminish their appreciation of the fact that life sometimes requires tough choices. The public approves of capital punishment in theory, but it might well recoil if it were applied routinely-as presumably it would need to be to yield the deterrent effects that are an important argument for it. The finality of the death penalty has always been a key issue in the argument about it: Proponents value its conclusiveness, but opponents fear the possibility of a mistake. The latter sentiment may be ascendant.

In the discussion of the changes in public opinion on capital punishment, one factor has been curiously overlooked: Pope John Paul II's opposition to it. One reason for the neglect is that there is some dispute about the precise meaning of his statements, including how authoritatively he intends them to be taken. But it is clear that he is narrowing the circumstances under which Catholics can in good conscience support the death penalty-and it is likely that he will narrow them even more in the future. The effect of this shift is only beginning to be felt. In America, Catholics do not differ substantially from non-Catholics in their views on capital punishment. They may, however, be more squeamish about it in practice, more receptive as a matter of sensibility to an attack on Bush as blood thirsty. If so, that would be a particular problem for Bush, given the importance he rightly attaches to attracting Catholic voters.

The Pope has also influenced conservatives who are not themselves Catholic. For that reason, among others, support for the death penalty on the right is less monolithic than it used to be. George Will wrote a column on Actual Innocence in which he pronounced the current flaws in the administration of the death penalty "intolerable." Pat Robertson just came out for a moratorium.

The stage appears to be set for Al Gore to "triangulate" on the issue. He could explain that he supports the death penalty in principle but has grave concerns about how it is being implemented. He could furrow his eyebrows as he notes that the penalty should not be applied indiscriminately-adding sadly that it is being so applied in some places. Let the nightly news connect the dots.

A few Bush missteps have made him more vulnerable to such a strategy. There was his ghastly remark, quoted in a profile by Tucker Carlson in Talk last summer, making fun of Karla Faye Tucker after she had been executed. (The fact that Texas executes women will, in itself, rub some people the wrong way.) There was his apparent amusement when he was asked during a primary debate about court-appointed lawyers for death-row defendants (some of the lawyers fall asleep during the trials). The impression this creates undermines Bush's professions of compassionate conservatism and reinforces Democratic complaints that he's not serious enough for the presidency. The late-night talk-show hosts are making jokes about Bush and the death penalty: Jay Leno says that Bush's idea of conservation is to use solar power to fry criminals.

Bush has dealt with criticisms by saying that he is executing the laws of his state. A board makes the ultimate decisions about granting clemency; Bush can merely stay an execution for a month. But that explanation sidesteps Bush's responsibility for the entire criminal-justice system through the appointments he makes and the legislation he proposes. Besides, he hardly wants to call more attention to the weakness of his office as governor of Texas.

The better response for Bush would be to remind everyone that supporters of the death penalty are trying to uphold the same value as are opponents: the dignity of human life. (That's why the question is so vexed.) He can point out that lightning strikes more people in Texas than the death penalty does; that Texas executes in fewer than 3 percent of murder cases. It might also be wise to use some rhetoric pitched to Catholic sensibilities, just as Bush's speechwriters quite consciously echo papal language when Bush is making remarks on poverty, the elderly, or abortion. Other supporters of the death penalty can make the argument that DNA evidence will make capital punishment less risky in the future; and that the exoneration of individuals on death row proves that the appeals process already works.

Then again, Gore might decide not to make capital punishment an issue at all. The risks are considerable. There is still that 66 percent support for it; and crime still ranks as a high priority for the public, if not quite as high as it used to be. It would be easy for Gore to overplay his hand. Triangulation is not as easy as Clinton makes it look. Painting Bush as a brute would require a delicacy from Gore for which he is not noted. But don't be surprised if Gore tries anyway.