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`No' to Death Penalty

IN its rulings this week that the Constitution does not prohibit the execution of retarded people and of minors over the age of 15, the Supreme Court correctly identified the heart of the debate over capital punishment in the United States. It's this: The death penalty does not yet violate ``the evolving standards of decency'' in America. We don't think the court was wrong in its 5-to-4 rulings as a matter of law, so much as we are saddened that the ``standards of decency'' in this country, as they apply to the death penalty, are evolving so slowly.

The real task before those of us who oppose capital punishment is not to persuade one more Supreme Court justice of the rightness of our views, nor to quarry the Constitution for yet another arcane legal theory that will thwart the legislatively expressed will of the people. Rather, our task is to work persistently to elevate the conscience of America out of its acceptance of legalized killing as a remedy for crime.

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There aren't many areas of constitutional law that are properly determined more or less by a national head count, but the Eighth Amendment's proscription of ``cruel and unusual punishment'' is such an area. Whether a practice is cruel, though subjective for an individual, can be objectively determined for a society; it's a question of usage and of measurable public opinion. And whether a practice is unusual is strictly an empirical matter.

To apply these criteria, the majority of the justices used tests that, while open to quibble, are not unreasonable. And they found that in America in 1989, there is no consensus that it's either cruel or unusual to execute vicious murderers who, in one case, have the IQ of a seven-year-old or, in two other cases, were 16 and 17 when they committed their heinous acts.

Somehow, the nation must build such a consensus. The arguments against capital punishment are no less compelling for having been made often before on this page. The death penalty, however hedged about with legal safeguards, is vengeance. It lowers society to the killer's level, compounding one wrong with another. It doesn't deter crime. The process is never foolproof, but the sanction is irremediable.

Finally, there's redemption. We believe in the innate capacity of human beings to break the shackles of evil. We believe it even for people of diminished mental capacity, and we emphatically believe it for people barely out of childhood. We would not foreclose the opportunity for moral growth, even from those who have committed great wrongs.

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