COLUMN ONE : Executions: Who Dies and Why? : Discretionary judgments affect the way capital punishment laws are imposed state to state and county to county. Inconsistencies abound.

In striking down capital punishment laws as unconstitutionally cruel and unusual 18 years ago, the U.S. Supreme Court ruled that the statutes were being arbitrarily and capriciously enforced.

As a practical matter, only one in 100 killers was--and still is--being chosen to die.

For the late Justice Potter Stewart, figuring out which one was about as easy as predicting who was going to be “struck by lightning.”

But the court refused to endorse state laws that would have solved the problem by rigidly requiring that all killers who acted with premeditation be put to death. Instead, it backed laws that left room for mercy and provided only vague guidelines for prosecutors and jurors.

Discretionary moral judgments have remained at the core of the Death Row selection system and have led to inconsistencies. These inconsistencies have been viewed by death penalty supporters as inevitable and tolerable, and compared by opponents to a “cruel lottery” or “crap shoot.”

Anecdotes abound of killers in California and elsewhere who have committed horrible crimes and been sentenced to life imprisonment, while others who have committed arguably less horrible crimes have been sentenced to die.

Consider, for example, Hillside Strangler Angelo Buono, who was convicted of kidnaping, torturing and killing nine young women, and given a life sentence.

Then consider Robert Alton Harris, who kidnaped and shot to death two teen-age boys, and may become the first person executed in California in 23 years. A federal judge has stayed Harris’ execution indefinitely, but the state has asked the U.S. Supreme Court to allow the execution to go ahead as scheduled on Tuesday.

Who was worse--Buono or Harris?

Harris, at one point, raised such a question in an unsuccessful appeal to the U.S. Supreme Court, asking that it order lower courts to systematically compare the cases of those who were sentenced to die to the cases of those who were not.

The Supreme Court declined, declaring in 1984 that “any capital sentencing scheme may occasionally produce aberrational outcomes. Such inconsistencies are a far cry from . . . major systemic defects.”

The Supreme Court was not unanimous in its decision, however. Justice William Brennan, a death penalty foe, said the court was “simply deluding itself.” He said the death penalty was being administered in as arbitrary a fashion as ever.

But some death penalty advocates say “So what?” They argue that it is irrelevant if some murderers happen to get a break and are spared death.

Brennan said the gravest inequity was racial discrimination.

By the time of Harris’ challenge, the court had already struck down the chief instrument of this kind of discrimination--laws of some Southern states that permitted the death penalty for rape and which were overwhelmingly applied to black men in rapes of white women.

But a report released in February by the General Accounting Office, the investigative arm of Congress, showed that discrimination persists. The GAO reviewed 28 academic studies, conducted in different parts of the country from 1972 to 1988, and found “a pattern of evidence indicating racial disparities in the charging, sentencing and imposition of the death penalty.”

Almost all of the studies, the GAO said, found that “those who murdered whites were . . . more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistent . . . across states.”

One of the few studies the GAO considered that did not find racial disparities applied to California and was conducted by RAND Corp. researchers working under contract to state and county prosecutors. “It may be that California is somewhat different than other places,” said research psychologist Stephen Klein, one of the RAND study’s authors.

Overall, researchers say, there are about 20,000 killings a year in the United States, about 10,000 convictions and 300 sentences of death. Not all states have capital punishment.

The death penalty is reserved for certain types of killers--generally those who kill on purpose and under “special circumstances,” such as for financial gain, or while lying in wait, or during the course of a robbery, burglary or rape.

Still, the death penalty could be applied much more often than it is.

In robberies where murders occur, for example, there is often more than one criminal involved and thus more than one person who may be eligible for the death penalty. But for a prosecutor, “what’s important is that you score one touchdown” in the form of a death sentence, said Franklin R. Zimring, UC Berkeley law professor and a capital punishment expert.

Frequently, a race ensues in which the robbers try to be the first to point the finger at an accomplice and make a deal with the prosecutor to testify in return for leniency.

Sometimes, Zimring said, it never becomes clear whether the person who got leniency or the person on trial for his life actually pulled the trigger.

Zimring said 80% of all killings involve acquaintances or intimates, but that the 20% involving strangers tend to dominate the nation’s Death Rows.

He said that characteristic reflects society’s greater fears of strangers: “If a guy gets killed by his wife, we’re not worried, because we’re not married to his wife.”

In California, as in most of the 37 states that now have the death penalty, district attorneys have virtually unfettered discretion in deciding whether to charge a first-degree murder defendant with one of the 19 “special circumstances” that is almost certain to apply to his case. These special circumstances would make him eligible for the death penalty or life in prison without possibility of parole.

However, prosecutors say they are reluctant to overdo it.

Los Angeles County Asst. Dist. Atty. Curt Livesay decides who is charged with special-circumstances offenses. He said his office files murder or manslaughter charges in about 1,200 killings a year, but most of these are “at the low end--friends killing friends or relatives killing each other.”

In 13 years, Livesay said, his office has filed only 1,200 special-circumstance murder cases, pursued only 600 of those, sought the death penalty, as opposed to life without parole, in 240 of those, and persuaded juries to impose a death sentence in only 80 cases.

Livesay, who said that his own deliberations are complex, described one simple rule of thumb: If a 19-year-old with no previous record robs a liquor store, struggles with the proprietor and kills him, perhaps because the teen-ager’s gun discharged accidentally, it is probably not a death penalty case. On the other hand, if the 19-year-old robber had an extensive criminal record, had the proprietor kneel and then shot him in the head, it probably would be a death penalty case.

Outside of Los Angeles County it is typically the elected district attorney, rather than one of his assistants, who makes the final decision, and standards differ widely from county to county, according to California Supreme Court Justice Allen E. Broussard.

In upholding the death sentence in a Tuolomne County case of a 20-year-old who shot a fisherman in the back of the head while robbing him, Broussard warned of a problem. “We have in effect 58 death penalty laws,” or one for each county, he said.

“Under the guidelines established in most of the urban counties, (this) murder . . . would not have been prosecuted as a capital case,” he wrote.

A Death Row inmate from Merced County has based his pending appeal to the California Supreme Court in part on a survey of scores of arguably more horrible cases in which murderers were sentenced to life imprisonment.

California is not alone in having difficulty distinguishing which murderers should get life and which death.

Tommy Morris, a death penalty advocate and member of the Georgia Board of Pardons and Paroles, spoke of the problem in a 1987 interview with the Atlanta Constitution. “Any rational, reasonable person,” he said, “ought to be able to take 100 life and 100 death cases and shuffle them, and come back and place those cases back in the category they originally came from. And I’m saying it can’t be done. . . . When you look at death versus life cases, there’s not a heck of a lot of difference in most of them.”

There are even more dramatic inconsistencies between states. The late John Kaplan, a Stanford University law professor, once observed that John Spenkellink, the first man to be put to death in Florida since that state resumed executions in the late 1970s, could have been convicted only of second-degree murder or voluntary manslaughter had he been tried in California.

“The bottom line point,” said New York lawyer Ronald J. Tabak, a death penalty foe who chairs an American Bar Assn. committee on capital punishment, “is that your chances of getting selected for the death penalty depends to a large extent on who the prosecutor is, how close to the election the prosecutor is, how white or otherwise prominent your victim is, and a variety of other factors that don’t have to do with how terrible you are, or how terrible your crime is, compared to other crimes.”

But Kate Canlis, director of the California Dist. Attys. Assn. said she is unsympathetic to that point of view.

“I don’t believe standards vary greatly,” she said. “All of the people who are tried as capital murderers are the worst of the worst,” selected by prosecutors who “sort of know intuitively . . . who to single out.”

“I know the kind of case when I see it,” she said, explaining that it generally involves a defendant with a violent history who deliberately chooses to kill in an especially “cold and callous” manner.

The fact that prosecutors or juries have decided to show mercy and spare the lives of others convicted of similar crimes is irrelevant, she said. The relevant factor, she said, is whether the death penalty is a legally suitable punishment for any individual crime.