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Past time to put death penalty down 

It has been 43 years since Gov. Winthrop Rockefeller commuted the death sentences of all 15 men on Arkansas's death row and expressed the naive hope that other governors would follow his example and remove the stain on the national character that he thought executions to be.

Thirty-three years would pass before another governor and another Republican, George Ryan Sr. of Illinois, embraced Rockefeller's cause. Ryan commuted the sentences of 167 men. That was the sum of Rockefeller's legacy, although other governors found ways to avoid carrying out executions.

But Arkansas, which has put 27 men to death since Rockefeller's great act of conscience, may not see another execution, and the rest of the nation, at least outside Texas and Oklahoma, may not see many. The nation's legal system has inched slowly but inevitably toward Rockefeller's conviction that state executions violate the U.S. Constitution's prohibition against cruel and unusual punishment.

Popular attitudes about the death penalty have evolved but, even now, it is hard to escape the politics of capital punishment and abolition. Rockefeller and Ryan demonstrated their fearlessness only as they were leaving office. Rockefeller had been defeated six weeks earlier, would leave office in another three weeks and would soon be overtaken by cancer and death. Ryan and scores of his associates headed for the federal penitentiary after a federal investigation turned up corruption on a colossal scale. Ryan perhaps wanted to show that he owned at least one moral imperative — the biblical injunction against killing.

In Rockefeller's case, the mass commutations were neither sudden nor surprising, although a couple of Republicans condemned him for it. He had warned before he ran for office the first time, in 1964, that he opposed the death penalty and would never carry out a single execution if people elected him. None of his opponents ever made it an issue although polls regularly showed that 80 percent of Arkansans supported executions. The man who defeated and succeeded him, Dale Bumpers, said he owed Rockefeller many things but none greater than emptying the death cells, which meant that he never had to set an execution date or act on a clemency petition.

Rockefeller's statement on the morning of Dec. 19, 1970, announcing the commutations for the men who had been sentenced to death on his watch was eloquent in its simplicity: "What earthly mortal has the omnipotence to say who among us shall live and who shall die? I do not. Moreover, in that the law grants me the authority to set aside the death penalty, I cannot and will not turn my back on lifelong Christian teachings and beliefs, merely to let history run its course on a fallible and failing theory of punitive justice."

As Rockefeller predicted, history has about run its course on the "fallible and failing theory" of justice. Eighteen states have abolished the death penalty and another 25 have not executed anyone in the past five years, evidence of both the growing opposition to it and the increasing difficulty of finding ways to kill people that courts may conclude are "humane." Moreover, 142 innocent people have been freed from death rows, owing largely to the improving science for evaluating evidence.

Like other states, the Arkansas legislature has cast about for a killing drug that won't make the condemned suffer too much. Attorney General Dustin McDaniel, who prosecutes the death penalty, told legislators last year that it looked pretty hopeless. Governor Beebe, who has expressed no personal qualms about executing murderers, said that if the legislature passed a bill abolishing capital punishment and requiring life sentences he would sign it.

Neither this legislature nor the one that succeeds it next year is apt to be the one that abolishes the death penalty. A higher power, perhaps the U.S. Supreme Court, will do that, although the Arkansas Supreme Court has shown growing reluctance to go along with capital prosecutions or legislative remedies for cruel punishment. Thirteen months ago, it declared the Arkansas execution scheme unconstitutional and told the legislature the state could kill no one else until the lawmakers had prescribed both the specific drugs and the dosage that would kill people humanely, which is an oxymoron everywhere but in the rarified quarters of the judicial system.

Arkansas and other states have used for a few years a three-drug protocol; the first two drugs, which were supposed to put the condemned man in an ethereal state so that he didn't feel great pain, can no longer be obtained because the makers and the nations that ship them will not permit the drugs to be used if they are to kill instead of to heal.

Like the judicial history of civil rights, the judicial history of capital punishment is almost make-believe. After a century or more, the courts eventually get around to a literal reading of the Constitution, and they are nearing that point with the eighth amendment, the prohibition against cruel and unusual punishment. In 1890, the U.S. Supreme Court said an execution that involved "torture or a lingering death" was cruel. Whether it was by hanging, firing squad or the electric chair it had to be quick and certain or else the state had violated the law in killing a man. Six years ago, the court rejected a blanket appeal of lethal injections because, in the amazing words of the Chief Justice John Roberts, killing a man that way did not involve "substantial risk of serious harm."

Oklahoma and Ohio experimented the last two weeks with new untested drugs to kill a couple of murderers. Both executions turned into extraordinary ordeals with one of the men screaming that he was burning and the other writhing in agony for 25 minutes. The debate over whether the men really suffered very much continued. The men actually died peacefully, one defender said, explaining that the contortions were manifestations only of the body and not of the mind.

The argument illustrates the historical absurdity of the debate. It is not the pain that is the punishment but the ending of life. Given a choice, most everyone would endure terrible pain in exchange for life. The courts will soon, finally, recognize the distinction. Also, consider that the murder rate remains unusually high only in states that regularly use the death penalty, and the number of executions each year is slumping so low that the penalty is not only cruel but has become unusual as well.

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