Opponents of capital punishment realized in the early 1990s that their campaign for a national ban on executions was destined to fail, at least in the short term.

        The death penalty was too popular among Americans and the U.S. Supreme Court was too conservative.

        So instead of a frontal assault on capital punishment, the opposition decided to attack the flanks, targeting what they saw as the weakest arguments in the case for the death penalty.

        If they couldn't eliminate executions, death penalty foes hoped to limit them as much as possible.

        The strategy is paying off.

        In two rulings last month, the Supreme Court handed anti-death penalty forces their biggest legal victories in nearly 25 years.

        The court banned execution of the mentally retarded and set a new national standard for sentencing inmates to death.

        The rulings follow a year of steady, significant gains by death penalty opponents. Several states have passed laws limiting the way capital punishment can be used and one state, Illinois, has declared a moratorium on executions.

        Even Hamilton County, Ohio's leader in death sentences, has seen a sharp drop in recent years in the number of inmates sent to death row.

        Death penalty foes say those developments prove they were wise to adopt a strategy that emphasized incremental reforms, although abolition remains their ultimate goal.

        “We've waged our campaigns at every level,” said David Elliot, spokesman for the National Coalition to Abolish the Death Penalty. “We try to beat back the death penalty in the courts, we lobby state legislators and we tell governors it's OK to grant clemency.”

        Supporters of capital punishment say the opposition is trying to accomplish in piecemeal fashion what it cannot accomplish with a single, broad argument against the death penalty.

        They complain that the opposition's strategy is eroding death penalty laws that most Americans — 72 percent, according to a Gallup poll in May — still strongly support.

        “They abandoned the moral argument (for abolition) because they were not winning,” said Joshua Marquis, an Oregon prosecutor who serves on the board of directors of the National District Attorneys Association.

        “There now appears to be a legal strategy of nibbling around the edges,” he said. “It's a death by a thousand cuts.”
       

Effective tactics

        The approach is similar to tactics used for years by anti-abortion activists. Unable to overcome abortion-rights sentiment among judges and the American public, the activists have sought to narrow abortion laws whenever possible.

        They have been the driving force behind restrictions on late-term abortions, parental notification laws and limits on public funding to family planning clinics.

        “They've had some success in limiting, rather than banning, abortions,” Mr. Marquis said. “It's a very good analogy for what's happening with the death penalty.”

        The strategy is based on the premise that while Americans favor capital punishment, they also worry that it may not be applied fairly, and that innocent people may end up in the death house.

        Death penalty opponents seized on those reservations. They changed their argument from “the death penalty is wrong” to “the death penalty is unfair.”

        They persuaded 16 states to bar the execution of the mentally retarded and convinced several others, including Ohio, to outlaw the execution of people convicted as juveniles.

        They also launched high-profile campaigns to publicize the release of wrongly convicted men from death row.

        “Without a doubt, all this helps us achieve the goal we're all looking for — abolition,” said Bill Gallagher, a Cincinnati lawyer and staunch death penalty opponent.

        Although they concede some of the reforms were necessary, death penalty supporters believe the opposition's real goal is to tie up the courts, delay executions and confuse the public.

        They say the legal fight over retarded inmates illustrates that confusion. To prosecutors, the court's ruling is unnecessary because most states already have safeguards that make mentally incompetent defendants ineligible for a death sentence.

        But because of the Supreme Court decision, prosecutors say, hundreds of inmates with normal intelligence will rush back to court to claim retardation, adding even more time to the 10 years an inmate typically spends on Ohio's death row.

        “It's subject to a lot of gamesmanship and a lot of fraud,” Mr. Marquis said.

        Hamilton County Prosecutor Mike Allen said death penalty critics are fighting over narrow legal issues because they have no hope of winning the larger battle for public opinion.

        “They should do the honorable thing and go to state legislatures and Congress and lobby for change,” Mr. Allen said. “But they won't because they know it would be fruitless.

        “Instead, they try to nickel and dime it to death.”

        Some of the opposition's ideas, however, have been embraced by lawmakers, the public and even prosecutors. One of the most significant is a change in sentencing laws that allows juries to recommend life without parole as an alternative to a death sentence.

        Juries across the country are increasingly choosing that option, and prosecutors often use it to avoid the time and expense of a death penalty trial.

        Since 1999, three death penalty cases in Hamilton County have ended with a sentence of life without parole.
       

Abolition unlikely

        The cumulative effect of so many incremental changes has been significant.

        Hundreds of people may leave death row because of the Supreme Court rulings, and hundreds more may avoid death sentences because of recent legal reforms.

        But despite those dramatic changes, death penalty opponents concede they still are a long way from abolition.

        “I don't see a ban on the death penalty as anything that's got a popular consensus behind it,” said Jim Wilhelm, who supervises death penalty appeals for the Ohio Public Defender's office.

        Public support for capital punishment has not dipped below 65 percent in the past decade. And the recent Supreme Court rulings probably don't represent an ideological swing by the justices.

        More likely, the court is attempting to standardize death penalty laws nationwide, not eliminate them.

        “The court is moving forward incrementally, but it is not moving toward abolition,” Mr. Elliot said. “We must go state-by-state to get it abolished.”

        It will be a long fight. Thirty-eight states allow the death penalty and only New Mexico has come close in recent years to banning it.

        Some abolitionists fear their strategy of incremental change could actually work against them when they take their fight to state legislatures.

        They worry that as laws become more restrictive capital punishment might become more palatable to Americans.

        For now, though, that's a risk they're willing to take.

        “Our hope is that the states will see more and more decisions like this one from the Supreme Court,” Mr. Gallagher said. “And they will realize the death penalty has failed.”

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