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Death-penalty dilemma

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WASHINGTON — Justice Sandra Day O'Connor's candid expression of doubts about the fairness of the death penalty merely echoes those of a growing number of Americans concerned that innocent people have been put to death in far greater numbers than anyone expected or the average prosecutor is willing to admit.

These concerns have multiplied with the steady improvement of science that has led to the exoneration of a number of death-row inmates and the belief there could be considerably more who would be cleared by sophisticated DNA analysis if a test were granted automatically as called for in pending legislation.

The fact that a swing-vote justice has openly discussed her feelings, if nothing else, brings an element of uncertainty to the Supreme Court's support for continuation of capital punishment. Her vote, in fact, could shift the balance away from the controversial penalty that has the solid backing of four of her conservative colleagues.

This is significant at a time when there have been growing protests at home and abroad about capital punishment. Also, when the court begins its fall term in October, on its agenda will be two significant death-penalty cases — one in North Carolina and the other in Virginia. In the North Carolina case, the court is being asked to exclude the execution of the mentally retarded; in the Virginia matter, it will decide whether to throw out a death sentence because the defense lawyer also had once represented the murder victim.

Obviously weighing heavily on the public's conscience is the capriciousness of the conviction and sentencing process, ranging from incompetent defenses to overzealous prosecutions to the failure of judges to properly instruct juries about their options in these cases.

This all plays out against a growing realization that if science can prove that 90 people since 1973 were wrongly sentenced to death, there must have been more who never got the chance to prove it. It is, of course, a frightening statistic that no civilized nation can tolerate.

Whatever the court ultimately decides about capital punishment, there can be no excuse for not adopting mandatory DNA testing of the accused whenever that is a possibility — particularly for those who are now on death row and suddenly can take advantage of scientific advances that didn't exist at the time of their convictions. Arguments that it costs too much or that this policy would flood the courts with frivolous claims by the obviously guilty aren't good enough.

There are instances of inhuman behavior that mitigate for the most stringent punishment possible. The Oklahoma City bombing is one. There could be no rehabilitation of a Timothy McVeigh whose crime was so heinous as to be a blight on everything decent. But the dilemma over when the crime demands that the ultimate penalty should be exercised is not an easy one. Whatever the outcome of this exceedingly thorny issue, every step should be taken to assure that the innocent aren't deprived of their lives.

That, it seems to me, is about what O'Connor was saying in her candor, unusually refreshing for a Supreme Court justice.