PRO: THE DEATH PENALTY A CAPITAL IDEA? EXECUTION IS OFTEN THE ONLY FIT RESPONSE.

Byline: Peter Kossoris

TIMOTHY McVeigh is scheduled to die in May for the 1995 Oklahoma City federal building bombing which killed 268 people, including 19 children, and injured hundreds more.

In 1977 in Ventura County, where I have been a prosecutor since 1966, Theodore Frank kidnapped a 2 1/2-year-old girl, raped, sodomized and tortured her for six hours. He mutilated her with a pair of vise grips, fed her alcohol and strangled her to death. Frank admitted to having molested more than 100 children over a 20-year period. He engaged in various forms of sadism and torture.

He wrote in his diary that he hurt children because he enjoyed it. Twenty-four years later, and after being sentenced to death by two separate juries, legal proceedings in his case continue in federal court.

These are but two examples of convicted murderers whose crimes are so exceptionally brutal and heinous that death is the only appropriate sentence.

Since the death penalty was reinstated in 1977, Ventura County juries have returned death verdicts in 13 cases. Among these 13 are: two defendants who each murdered three people; another who bludgeoned a retired elderly couple to death after robbing them and attempting to rape the woman; a man who attempted to rape two different women in the same night, then kidnapped the second, strangled her to death, and later boasted he had sex with her after he killed her because ``you got to get 'em before the body gets cold''; a man with 12 prior felonies who, after raping an 11-year-old girl in 1979, attempted to murder her shortly after his release from prison in 1979, then murdered, raped and robbed two other young women in a five-day period; a man who kidnapped an 8-year-old boy, handcuffed and gagged him, painfully sodomized him, suffocated him to death, then set his body on fire.

In these and other capital cases, evidence showed a total lack of remorse. I recognize that some people feel, for moral and religious reasons, that the death penalty should never be imposed no matter how horrible the crime. These are individual beliefs all persons have a right to decide for themselves.

Statistical studies vary greatly on whether the death penalty is a deterrent, with the results seemingly depending mainly on the philosophic views of the persons who conduct them. However, there are numerous reports of people (including myself) who have heard criminals state that the death penalty deterred them from committing capital crimes. Logic would suggest that the death penalty is a deterrent for some, though by no means all, capital crimes, such as crimes planned in advance for profit (i.e., armed robbery).

Death penalty opponents frequently contend that a sentence of life without possibility of parole is an adequate alternative to the death penalty. I disagree because: 1) some crimes and criminals are so heinous that death is the only just and appropriate sentence; 2) violent criminals can and do commit violent crimes in prison, including murder, against both other inmates and guards; 3) violent criminals sometimes escape and kill again (as recently happened in another state); 4) most states, including California, permit a governor to commute a sentence of life without parole to life with parole. Over a prisoner's life span, there is always a risk that a liberal governor will commute the sentence to render a defendant eligible for parole; 5) only the death penalty, if carried out, can provide true closure to the traumatized families of the victim.

Opponents cite some out-of-state cases where persons sentenced to death were determined to be innocent prior to being executed, but as one analyst noted, these cases show that the most important error rate - innocent persons actually executed - is zero.

With the advent of DNA evidence, the chances of an innocent person being executed now are virtually eliminated for cases where DNA evidence is available.

Nor does the death penalty, when applied only to the most heinous murders, represent an ``eye for an eye'' mentality. The 13 death sentences juries have returned in Ventura County in the past quarter century represent only about 6 percent of the murder convictions in that period.

While death penalty opponents frequently claim the death penalty is administered in a discriminatory fashion, they have been consistently unable to successfully prove that claim in court (that claim was made once, unsuccessfully, in Ventura County, and has never been urged again).

California's execution of Robert Lee Massie on March 27 is also a recent example of the need and justification for the death penalty. Massie went on a crime spree in which he robbed and assaulted five people.

This culminated when he fatally shot Mildred Weiss, 48, in an attempted robbery in front of her home and in the presence of her husband in January 1965. Massie said he would have shot her husband and son also if his gun hadn't run out of bullets. A Supreme Court decision nullified his death sentence.

In the summer of 1978 Massie had a parole hearing. A priest and several psychiatrists vouched for his changed character and he was released.

Apparently Massie's ``changed character'' wasn't so changed, for in January of 1979, Massie committed a liquor store robbery in which he shot a clerk and shot the owner, Boris Naumoff, to death. Two different juries sentenced Massie to death.

Obviously, had Massie's death sentence for his 1965 murder been carried out, Naumoff would not have been murdered.

Families of both of Massie's murder victims were present for his execution last month and said the execution was needed to finally bring about a personal sense of justice and closure. Mildred Weiss' son, Ronald Weiss, now 54, said he still thinks of his mother on a gurney in a pool of blood and Massie laughing and smirking at him during the trial.

Society, as well as the traumatized family members of their victims, has a right to demand that the most outrageous and fiendish of murderers receive their just deserts. If we fail to execute these brutal and unrepentant killers for their horrible crimes, we not only betray the anguished and justified calls for justice and finality from the families of their victims, but by failing to provide appropriate justice we become a less-moral and -just society.

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Drawing: THE DEATH PENALTY

Patrick O'Connor/Staff Artist