IS THE DEATH PENALTY now on death row, tried and convicted of barbarous wrongdoing in the court of public opinion, and soon to die?

The establishment media is telling us of a sea change in public opinion on this issue. Public support for using this ultimate sanction, one poll finds, has "plunged" from nearly 80 percent to a "mere" 66 percent, about two-thirds of all citizens.

A Newsweek poll out this week, however, reports that "73 percent still support capital punishment in at least some cases, down only slightly in five years." As with President Bill Clinton's policy regarding abortion, Americans want the death penalty to be legal, safe, and rare.

But the issue is rife with complex cross-currents, as I'll discuss and as this comparison with abortion suggests. The same conservatives who are strongly right-to-life on abortion tend to be strong supporters of the death penalty. The same liberals who oppose executing criminals, however guilty, tend to be strong supporters of a woman's choice to kill her unborn child for any reason, Yea unto the ninth month and with dollars taxed from those who regard abortion as murder.

So how much have American views changed during the past decade? Eight years ago, on the eve of the New Hampshire primary, notes Walter Shapiro of USA Today, Governor Bill Clinton confirmed his "New Democrat" un-liberalism by rushing back to Arkansas to affirm the execution of Ricky Ray Rector. Rector was so brain damaged that when a guard taking him to die asked why Rector had left behind a slice of pecan pie, the death row inmate replied that he would finish it when he returned to his cell. (From this, as leftist Christopher Hitchens cogently argues in his fine book No One Left to Lie to, we should have recognized a Clinton willingness even to kill to advance himself politically - an evil trait that would later play out in his bombing of a Sudan aspirin factory to push a politically-damaging scandal off newspaper front pages.)

But last week, says Shapiro, Texas Governor George W. Bush confirmed his "compassionate conservative" un-conservatism by granting a 30-day reprieve from execution to Ricky McGinn. McGinn had been convicted of the 1993 rape and ax murder of his 12 year old stepdaughter. Evidence of the murder, including her blood on an ax in his pickup, is clear. But primitive DNA testing of a pubic hair and male fluid on the girl's shorts was "inconclusive," and under Texas law the death penalty can be used only when murder is committed in connection with another felony. If a more modern DNA test fails to connect McGinn with the rape, this still-convicted murderer could escape execution.

Death penalty opponents used to plead, as the Benetton ads did, that convicted murderers and child rapists deserved mercy because they, too, were victims - of child abuse, mental impairment, a bad upbringing, or racism. And those arguments continue. The national media reminds us that black males constitute only about 6 percent of the population but are about 40 percent of the 3,600 people on death row. More than half of those awaiting execution, writes Judy Bellin of the ACLU Capital Punishment Project, are "people of color" drawn from only 20 percent of America's population.

A person's chance of "winning" in this lottery of death also depends on location, Bellin writes. Eighty-two percent of all executions over the past 20 years have taken place in only 10 states, Texas chief among them. In his less than six years as Texas Governor, George W. Bush has presided over 131 executions, an average of about one execution every two weeks.

But liberal politicians recognize the risk in opposing the death penalty. A drop in violent crime may have reduced death penalty support to 66 percent, but it remains more popular than almost any other debated government policy. Politicians know that the day after they take a strong stand to abolish it, some new ghastly crime will stoke the fires for killing the killer. (This parallels ghastly new gun crimes that provide emotional ammunition for gun control advocates.)

And all know the brutal truth, as even the menopausally liberal Jonathan Alter admits in this week's Newsweek, that "the vast majority of those on death row are guilty as hell."

What new Michael Dukakis is so principled that he or she would want to look into a TV camera during an election debate and say "No, Bernie, I would not use the death penalty even on Adolf Hitler, or on the man who raped and murdered those 40 little girls of all races in our state capital, or my wife?"

This spring the Republican-dominated New Hampshire legislature voted to abolish the death penalty, but Democrat Governor Jeanne Shaheen vetoed the bill. Hillary Clinton, sniffing the political winds, has quietly said she supports the death penalty in a state where New York voters in polls give it up to 80 percent support. And Al Gore, as the June 2 Wall Street Journal described him, has been "unusually quiet" about the issue of the death penalty.

But liberal death penalty opponents have been adopting tactics more effective than begging compassion for killers on death row. Some have appealed for that deep America virtue, fairness, by using improved DNA testing to make sure no innocent person is executed. Governor Bush has embraced this plea, as have the Republican governors of Illinois and Virginia. Nobody wants to put to death an innocent person.

But, to be clear, death penalty opponents want what they call this "primitive, savage, barbarous" punishment ended. They would want it ended even if evidence of guilt were iron-clad, irrefutable, and confirmed 20 times each day by repeated voluntary confessions by the killer. To many such liberals, new DNA testing is merely a pretext for halting executions, rather the way the Northern Spotted Owl (identical to the unendangered Mexican Spotted Owl, millions of which thrive) is merely a pretext to outlaw timber cutting.

Another emerging approach by death penalty opponents is brain scans. The idea is to require scans for brain "defects," voids, abnormalities, and the like. Where these can be found, they provide a way to argue that the convicted killer was a victim through no fault of his own. This becomes a new version of the "Twinkie" defense - his brain was addled from eating or drinking something - used successfully to escape the death penalty in a California murder case. Variants include the "Rice-a-Roni" defense, the cotton candy defense - it sent the thief's blood sugar out of control - and so forth.

Let's recognize that if you scanned the brains of 100 healthy and normally-functioning people, you would find "abnormalities" in the brains of many if not most of them. Medical science does not yet know with certainty what behaviorial abnormalities these oddities might produce. But the color brainscan pictures sure do look dramatic in a courtroom and can raise doubts in the minds of jurors, many of whom might have unscanned brain abnormalities of their own.

Like lie detectors and DNA tests, brain scanning is another way to achieve veritas ex machina, truth out of a machine. It has the added advantage of fulfilling the liberal world view that individuals are irrelevant, that we all are mere victims shaped by forces beyond our control. Joe killed not out of his own evil free will but because he was shaped by racism or drugs or living under capitalism or a rotten childhood or a strange tiny void that a scan finds in his brain tissue.

And the mere fact that Joe killed proves he is less than sane, say liberals, for what sane person kills? Therefore all death penalties are unjust. Therefore what we wrongly used to call crime is actually mental disease, which is how they treated dissidents and capitalists in the Soviet Union and treat them today with drugs and electroshock in Cuba - according to the United Nations Human Rights Commission - for the mental aberration diagnosed as "apathy to Socialism." (Elian Gonzalez has already apparently been treated with drugs for this at the Wye Plantation.) Big Brother therefore must remove our individual freedom, but in exchange he absolves us of any personal responsibility.

Death penalty opponents now also make the practical (and cunning) appeal to conservatives that extended appeals and delays make it at least four times more costly to taxpayers to execute a criminal than to sentence him to life in prison. Add to that disparities in application of the death penalty by state, region, race, and gender - that this sexist law kills mostly men, very few women - and some change seems appropriate. As Newsweek quotes Stephen Bright of the Southern Center for Human Rights, "There seems to be growing awareness that the death penalty is just another government program that doesn't work very well." (Funny, one seldom hears liberals make that argument about government social programs.)

Death penalty advocates defend this punishment with a host of familiar arguments, all of which liberals dispute. The death penalty deters potential murderers. It is just and Biblically justifiable. America's founders provided for it in our Constitution to protect society as well as individuals. And it makes sure that killers will never again be set loose like wolves into our society of sheep.

Opponents might invoke the words of the founder of Taoism, Lao Tzu, who purportedly said: "If a man does not fear death, the death penalty will not deter him. If he does fear death, it is a greater punishment to let him live."

Opponents respond to this last point by saying an alternative to execution can be life imprisonment without possibility of parole. Advocates scoff at this, riposting that those sentenced for life are often released back into society in 15 years or less - either on parole or by some technicality conjured during endless legal appeals. But, say conservatives, if some way can be found to guarantee that a criminal really, really, really will spend the rest of his or her life behind bars, this might be a plausible alternative to the death penalty.

One Lowell Ponte recommendation, half tongue-in-cheek, is this: How about "virtual execution?" Vice President Al Gore has just announced that he wants to put more and more government functions onto the Internet, letting you stand in line at your home computer instead of in some bureaucratic office. Okay, what if we have a computer-simulated execution of a convicted murderer, giving victim families and society at least some of the sense of justice and finality many say they find in the act of execution?

After this virtual execution, all the convicted person's rights of appeal are expunged. He will be put in solitary confinement, rather like the dungeons of European kings, and fed only by a robot-delivered tray delivered three times each day. He will become a non-person, never again allowed to speak with an attorney, send a letter, or make any telephone call or e-mail transmission. Nobody, neither family nor media, will be permitted to see him. A doctor once per month can issue a statement that he remains alive and well.

Unlike convicted cop killer Mumia Jamal, he will never be permitted to be a star on National Public Radio nor to give the commencement address at the same politically-correct Ohio college that requires "dating contracts" that spell out in advance what sexual acts a male student may engage in with a co-ed (or significant other?). Extraordinary information, such as the deathbed confession of another person, might free this virtually dead person. But from the moment of his virtual execution, this person will be dead to the world, yet still alive. Is that a compromise both sides could live with?

A second Lowell Ponte alternative is this: Instead of execution, why not do to the convicted murderer what urban legend says was done to Walt Disney at the moment of his death? Freeze him, cryogenically, 200 degrees below zero. Once turned into an ice cube, he would cost nothing to feed and pose no threat to any prison guard. If extraordinary evidence revealed his innocence, he could be thawed and, with luck, revived as youthful as the day he was quick frozen.

This could be far better than aging for 25 years in prison, assaulted in the shower weekly by amorous and diseased fellow criminals.

On the other hand, what might it be like to be frozen, cold beyond imagining, unable to breathe or move, yet potentially conscious or dreaming a nightmare? Would this be the ultimate in claustrophobia, worse than being buried alive, a punishment literally worse than the death penalty? How does this compare to "being put to sleep" by lethal injection, like a family dog or cat?

By today's technology, such freezing likely would be death, as expanding fluid in brain cells exploded them. When one of these blocks of superfrozen ice has lived out a "normal" lifespan of 76 years, a single hammer tap could shatter it into a thousand icy shards, like a cryogenically frozen rose.

But like the virtual execution proposed above, freezing allows a governor to argue that he has not executed the criminal - that an innocent person could, at least in theory, be brought back to life. Could both sides live with this as a compromise?

Death penalty opponents, I fear, would oppose my cryogenic "Freeze- 'em… Put-them-in-the-'Cooler'-for-life" alternative as "cool and unusual punishment."

In a future column I shall lay out several other constructive alternatives to today's use of the death penalty.

One Lowell Ponte alternative - liberal death penalty opponents, as I have argued for 20 years on talk radio, should be able to sign an agreement, wear a button, and post a sign on their homes declaring that nobody who murders them should be subjected to the death penalty. Liberal politicians in particular should put their lives where their mouths are by publicly declaring anyone who murders them exempt from this ultimate punishment.