The death penalty is much in the news. With jurors failing to agree on a sentence for Oklahoma City bombing conspirator Terry Nichols, he will escape the maximum legal punishment for his part in the deaths of eight federal agents (though an Oklahoma jury may eventually sentence him to die if he is convicted of murdering the 160 other victims). Meanwhile, Theodore Kaczynski's Unabomber prosecution continues its halting pace toward what all must now assume will be his execution--after, of course, excruciating delays while the case is appealed to various courts. The U.S. Supreme Court has already refused the last challenge to the execution of spree killer Karla Faye Tucker, who on Feb. 3 will become the first woman to receive Texas's lethal injection--unless, that is, Gov. George W. Bush decides not to sign her death warrant.

Gov. Bush faces an enormously weighty decision, and so may take some comfort in the knowledge that signing a death warrant was a problem, too, for Abraham Lincoln. "You do not know how hard it is to let a human being die," he said, "when you feel that a stroke of your pen will save him."

Lincoln's misgivings had nothing whatever to do with the legality of capital punishment; as he read it, the Constitution gave him the power to authorize a death sentence when it gave him the power to "grant reprieves." The opponents of capital punishment would applaud his all-too-human misgivings, but deplore his constitutional judgment--which, as it turned out, is today shared by the Supreme Court.

True, the court's 1972 decision in Furman v. Georgia held that, when imposed in an arbitrary or capricious manner, th e death penalty violated the Eighth Amendment's prohibition of "cruel and unusual punishments." Because, under the state laws then in force, only an unfortunate few of those convicted of a capital crime were being sentenced to death, Justice Potter Stewart likened it to "being struck by lightning." The Constitution, he said, could not permit "this unique penalty to be so wantonly and so freakishly imposed."

But this did not put an end to capital punishment. Within a few years, 35 states rewrote their death-penalty statutes, and in 1976, in cases from Georgia, Texas and Florida, the Supreme Court upheld their constitutionality.

By narrowing the categories of murder for which the death penalty might be imposed, and by requiring separate sentencing hearings during which juries or judges would weigh evidence of aggravating or mitigating circumstances, the new laws ensured, again in Justice Stewart's words, that "sentences of death will not be 'wantonly' or 'freakishly' imposed."

But the issue of arbitrariness has not died. In 1986, Jack Greenberg, writing in the Harvard Law Review, complained that capital punishment continued to be imposed in an "infrequent, random, and erratic fashion." More recently, Hugo Adam Bedau, perhaps the nation's leading academic opponent of capital punishment, denied that the new laws succeeded in "winnowing the worst from the (merely) bad" offenders. The few actually sentenced to death--5,553 since 1976, of whom 403 have in fact been executed--are, he said, simply "the losers in an arbitrary lottery."

The opponents have now gained support from an unlikely quarter. Writing in these pages last month, Princeton Prof. John J. DiIulio repeated the lottery analogy, asserting that the administration of the death penalty in the U.S. is, and is likely to remain, "arbitrary and capricious," and thus ought to be abolished. Because he is known otherwise to be a proponent of harsh punishment, Mr. DiIulio's judgment ought to carry weight. On this subject, however, he is surely mistaken.

Rather than being arbitrary and capricious, the system now in place serves as a filter, reserving the death penalty for the worst offenders. This is demonstrably the case in Illinois. In August 1996, state prosecutors compiled a list of the 174 persons then on death row in Illinois, with a description of the murder (or murders) committed by each offender. A comparison of this information with the data on homicides collected by the FBI and the Justice Department's Bureau of Justice Statistics reveals the dramatic difference between the crimes committed by the offenders on death row in Illinois and other murderers:

• 20% of those on the Illinois death row committed murders during the commission of a rape or sexual assault, compared with well under 1% of all murderers;
• 10% of the condemned committed murders during a burglary or home invasion, compared with less than 1% of all murders;
• 13% of the condemned had murdered a child, compared with 4% of all murders;
• 37% of the condemned committed murders involving more than one victim, compared with 4% of all murders.

These statistics do not succeed in conveying the truly despicable nature of the crimes committed by those on death row in Illinois. The first offender in this (alphabetically ordered) list murdered two Chicago police officers; the second murdered a Chicago police officer by running him down with an automobile; the third beat to death an 86-year-old woman with her walking cane; the fourth shot and killed four persons during a drug-related robbery; the fifth murdered his girlfriend's 16-month-old daughter by denying her food and exposing her to subfreezing temperatures; the sixth shot to death an 86-year-old man during a robbery; the seventh, while dressed as a priest, committed a murder-for-hire of an 81-year-old widow by shooting her twice in the back of the head; the eighth, during an armed robbery, shot and killed one man and wounded another; the ninth raped and murdered a 34-year-old woman as she walked to catch a bus; and the 10th shot and killed three men in a dispute over money.

There are no barroom brawls here, no domestic disputes that got out of hand, no "heat of passion" crimes that are so common among homicides in the U.S. These are brutal, cold-blooded murders, often involving other felonies, and often committed against the most vulnerable of victims. An examination of the lists of those on death row in the other 37 capital-punishment states would probably show that they, too, reserve the death penalty for the worst offenders.

Indeed, it could hardly be otherwise. In the post-Furman era, and at the insistence of the Supreme Court, the death-penalty states have carved out from first-degree murder (already a subset of all homicides) a still narrower category of the most heinous killings and have rendered them alone subject to capital punishment. This system, which imposes the death penalty on a few hundred of the 12,000 persons convicted each year of homicide, cannot be described as arbitrary or capricious. Nor can it be described as cruel. During his four years as president, and despite his misgivings, Lincoln authorized the executions of 267 soldiers and sailors, men sentenced to death for desertion or for sleeping on watch, but none of them so deserving of death as the men on the Illinois list--to say nothing of mass murderer John Gacey; Richard Allen Davis, the killer of 12-year-old Polly Klaas; or, to bring this up to date, the notorious Timothy McVeigh.