Capital Punishment Is on the Rise; California on Verge of an Execution

CALIFORNIA'S move toward its first execution in 25 years is reviving the emotional debate over capital punishment in America.

Barring any last-minute reprieves, Robert Alton Harris will be put to death in the gas chamber at San Quentin prison next month.

In the 16 years since the US Supreme Court reinstated capital punishment, 166 people have been executed in 18 states. Critics worry that the resumption of executions in a bellwether state like California will add credibility to a punishment that they consider barbaric.

California would be one of only a handful of states outside the South to use the death penalty since it was reinstated by the United States Supreme Court in 1976. The state is also significant because it has 327 inmates on death row, the second highest number after Texas.

"When California executes its first person, it is making a very important statement that capital punishment is mainstream," says John Poulos, a law professor at the University of California at Davis, who has represented death-row inmates.

"It is no longer largely confined to some Southern states known for their harsh system of justice," he says. Public opinion in favor

Supporters see the pending execution as a sign that the criminal justice system is finally catching up with the public will - that a punishment which is appropriate and which opinion polls show people heavily favor may once and for all be carried out.

"No one should rejoice in the taking of any human life," says state Attorney General Dan Lungren. "But we live in a society of laws where convicted criminals must face the consequences of their crimes."

Mr. Harris, convicted in the 1978 killings of two teenage San Diego boys, is scheduled to go to the gas chamber April 21. Although he has survived four previous execution dates, and his lawyers are trying to make it a fifth, experts see little chance of another judicial reprieve. Absent that, his lawyers will seek clemency from California Gov. Pete Wilson (R), though that is unlikely given Mr. Wilson's support of capital punishment. More than the South

The South leads in numbers of executions, with Texas (46), Florida (27), Louisiana (20), and Georgia (15) at the top. Other states are joining the list. Delaware last week executed a man for the first time in 46 years. Oklahoma put two people to death earlier this month, and the first execution in modern times in Arizona is scheduled for April 6, though delays are still being sought.

"What's happening is that after a stall through the late 1980s, the number of states with at least token executions has expanded in the last year and a half," says Franklin Zimring, a law professor and death-penalty expert at the University of California at Berkeley.

Other states continue to debate the idea. Gov. William Weld (R) of Massachusetts, for instance, has caused a stir by proposing the death penalty for his state.

Some scholars such as Mr. Poulos believe the number of executions will rise in the next few years. He attributes that to more states considering using capital punishment, more cases moving through the system, and recent Supreme Court rulings that have limited avenues for appeals.

"The number of executions has not quantitatively taken off, but that is not unthinkable anymore," concurs Mr. Zimring.

Even though the number of people on death row has been rising, the number of executions has remained fairly stable. One reason is the elaborate appeals process and the painstaking review usually given to capital cases.

Supporters of the death penalty are seizing on the Harris case to renew their plea for changes. They want more streamlining of the federal appeals system to avoid last-minute and multiple petitions.

In the 13 years that Harris has been on death row, his case has bounced back and forth between the state and federal judiciary, making it to the US Supreme Court four times. Attorney General Lungren sees the case as a glaring example of the "abuse of the appeals process."

Governor Wilson says delays built into the system mock the public's demand for the death penalty and undermine its deterrent effect.

Critics respond that capital punishment doesn't deter crime - which some scholars back up - and assert that no safeguard in the system is too much when a person's life is at stake.

"If the government is going to have the right to do this, at a minimum [it] better be able to show that this is the appropriate person and the appropriate punishment for the person," says Diann Rust-Tierney, head of the American Civil Liberties Union's capital punishment project. US standing alone

Other foes will be raising moral questions in the weeks ahead and pointing out that the United States is the only Western democracy to still impose the death penalty.

They will have a tough sell. Polls have shown that 3 out of 4 Americans favor capital punishment, and the numbers are usually higher in California. While critics believe the ambivalence runs deeper than the surveys suggest - and an execution here will reveal that - others expect the dominant reaction to be a collective "about time."