CON: THE DEATH PENALTY A CAPITAL IDEA? EXONERATIONS PROVE SYSTEM ISN'T PERFECT.

Byline: Elisabeth Semel

THIS country's long-overdue debate about capital punishment was ignited by the persistent stream of exonerations in death penalty cases - 96 since 1973 - that caused many Americans to question the reliability of these near-fatal judgments.

Some insist these Death Row exonerations prove the ``system'' works. On the contrary, courts have been responsive in many cases only because of the tenacity of those who challenged the system - journalists, students, clergy and volunteer lawyers.

Discomfort about the continued imposition of the death penalty is finding expression in legislatures from Virginia to Texas. Polls reflect a significant decline in support for capital punishment and a rise in favor of a moratorium.

Yet some proponents continue to engage in fear-mongering to avoid a sober, factual and, yes, painful discussion about the death penalty.

No doubt about it. Timothy McVeigh's scheduled execution May 16 is a made-to-order opportunity to perpetuate myths that 1) the death penalty is consistently imposed and carried out on the ``worst of the worst''; 2) it is the only sure way of protecting us against the most dangerous individuals and deterring others from killing; and 3) it is what all victims' families want and need to relieve their suffering.

After more than two decades as a California criminal defense lawyer, I spent the past several years enlisting pro bono lawyers to represent Death Row prisoners in the South, where more than 80 percent of all U.S. executions occur.

The insidious troika of race, place and poverty continue to be the real decision-makers of who lives and who dies.

Prosecutors, defense lawyers and judges know that the judicial system has no reliable or consistent means of marking for death only those who are guilty of the most awful murders and avoiding the execution of those who are not guilty or less culpable or whose crimes, by some undefinable measure, are less horrible.

When it comes to innocent people who were wrongfully convicted of capital murder, DNA has been responsible for only a small percentage of the exonerations. Fewer than 10 percent of the 96 death penalty exonerations were the result of DNA testing.

A Washington Post editorial observed, ``The newfound enthusiasm among some capital punishment supporters for DNA testing is welcome, but it is also an inadequate response to the systemic failures that lead to wrongful convictions. ... It offers, rather, a window on the system's performance, and the view through that window has not been pretty.''

After reviewing dozens of capital cases, Supreme Court Justice Ruth Bader Ginsberg recently said, ``People who are well represented at trial do not get the death penalty.''

Most jurisdictions not only tolerate representation by the bottom of the professional barrel, they encourage it. Comparisons of the resources available to the prosecution and defense in capital cases show disparities that consistently and overwhelmingly favor the state from the beginning to the end of the process.

The failure to provide competent and adequately compensated counsel at all stages of a death penalty case topped the list of reasons for the American Bar Association's 1997 call for a moratorium on executions.

Last year, a Columbia University study concluded that grossly ineffective lawyers were responsible for the majority of serious legal errors in capital cases. Misconduct by police and prosecutors accounted for the second most common errors.

A real adversary on the other side of the table, every step of the way, is indispensable to ferreting out government abuses.

It has been said before, but bears repeating: The statistical correlation between race and the imposition of the death penalty is greater than that between smoking and heart disease.

In 1990, the General Accounting Office analyzed 28 of the dozens of studies on race and the death penalty that it considered to be the most empirically sound. It found that race of the victim is the most influential factor in a prosecutor's decision to seek capital punishment.

A decade later, the statistical evidence is equally damning. Even though more than half the murder victims in the nation each year are black, more than 85 percent of those sentenced to death were convicted of killing whites.

A 1997 report for the ABA expanded on the GAO's review, using data from three-quarters of the states with prisoners on Death Row. In 93 percent of those states, there is evidence of race-of-victim disparities. In nearly half, including California, the race of the defendant was also a predictor of who was sentenced to die.

Last fall, the Department of Justice's first survey of the federal death penalty revealed that, despite regulations designed in part to guard against racial bias, the nation's capital punishment system was marked by racial and geographic disparities. At the time of the report, 15 of the 19 Death Row prisoners (79 percent) were men of color and only four were white. Since 1988, over 75 percent of federal death prosecutions have been brought against minority defendants.

Study after study has failed to find any credible evidence that the death penalty is a deterrent. The few that purport to show some deterrent effect have been discredited by researchers, including a panel appointed by the National Academy of Sciences.

A random survey of police chiefs and county sheriffs ranked the death penalty last among seven possible ways to reduce crime.

In almost every death penalty state, life without possibility of parole is the alternative punishment. California juries have been given that option in capital cases since 1977 and not one person serving life without parole has had his or her sentence commuted.

The assertion that all victims' family members speak with one voice is among the most exploitive and disingenuous arguments by capital punishment proponents.

Since 1976, Murder Victims Families for Reconciliation has delivered the message, ``Not in Our Name,'' advocating programs that reduce the rate of homicides and promote crime prevention, and opposing the death penalty as an instrument of vengeance, rather than healing.

Bud Welch, whose daughter, Julie, was killed in the Oklahoma City bombing, writes, ``Revenge and hate are the reasons 168 people died that day in 1995. I oppose the death penalty absolutely, in all cases, because in all cases it is an act of revenge and hatred.''

As May 16 draws close, we owe it to ourselves to answer the question Welch asks, ``How much killing and how much revenge are we prepared to live through?''