Death Penalty: Only for Strangers? : When the defendant is known as a person, as in the O.J. case, juries often cringe

The decision announced last week by prosecutors not to seek the death penalty against O.J. Simpson appears to spring as much from pragmatism as from any rarefied balancing of punishment against the alleged crime. Given that Simpson was an appealing celebrity with no felony record, prosecutors surely feared that seeking the death penalty could jeopardize their ability to win a conviction for the murder of his ex-wife Nicole Brown Simpson and Ronald Lyle Goldman.

The decision, apparently weeks in the making, was obviously not an easy one for prosecutors, under pressure after recent losses in several headline cases and anxious to win a conviction in Simpson’s approaching trial. The D.A.’s decision to seek life imprisonment without the possibility of parole if Simpson (who has pleaded not guilty) is convicted speaks to this nation’s ambivalent views of how best to respond to crime and our notions of appropriate punishment for criminal offenders.

The death penalty has rested uneasily on the conscience of many Americans, as it has on ours. And often, those closest to the gas chamber are most uncomfortable with execution. Members of Congress, at some distance from a criminal courtroom, extended the death penalty to more than 50 federal crimes this year. A number of state legislators, with support from Gov. Pete Wilson, have for some years sought to extend the death penalty to more state felonies, such as drive-by shootings.

But prosecutors in all but the most heinous crimes, for example those involving the torture and murder of children or the cold-blooded slayings of total strangers, often remain reluctant to seek the death penalty even where current law permits it, because juries often balk at conviction if they know the defendant may be executed. A mock jury on the Simpson case that prosecutors assembled last month in Phoenix, Ariz., showed reluctance to convict Simpson, particularly if he faced the death penalty.

We are ambivalent as well about criminal defendants themselves. There is strong, even shrill, support for the imposition of swift, certain and increasingly harsh punishment for criminals in the abstract. In fact, the D.A.’s decision in the Simpson case came the day after Gov. Wilson signed into law a bill imposing life terms for some first-time rapists; the state’s new three-strikes-and-you’re-out law is in effect. Yet when jurors come to know individual defendants during a trial, they can balk at those stiff punishments.

The Simpson case is already a symbol for what many regard as society’s failure to take seriously domestic violence against women. The prosecutor’s decision not to seek the death penalty may make this case a symbol, as well, of our conflicting feelings toward capital punishment.