Unusual Punishment

Washington -- RECENTLY THE death penalty lost one and won one, raising anew the question of whether the issue is about legal principles or politics -- or both.New York Gov. Mario Cuomo shocked foes of capital punishment when he suddenly abandoned his long-held position that it is unethical and inhumane in favor of letting state voters decide whether to make it legal.There is nothing coy about Mr. Cuomo's change of heart; he is in a tough fight for re-election and his past vetoes of death-penalty statutes had become a contentious issue.

Maryland should change its method of execution from gas to injection to avoid costly and time-consuming lawsuits from death-penalty opponents, a state Senate committee was told yesterday.Corrections Commissioner Richard A. Lanham Sr. said other states that use gas chambers have been sued on grounds that such executions constitute cruel and unusual punishment.Mr. Lanham said he expects similar legal action here if the gas chamber is retained, even though Maryland's first execution since 1961 is at least two years away.

Alexandria, Virginia. -- These are banner days for non-smokers. To the amazement of many, smoking was prohibited at the Orioles' new stadium, even though it is open-air. Then, the Environmental Protection Agency announced that second-hand smoke is a human carcinogen, confirming that it poses a significant health risk to non- smokers.Finally, the Supreme Court last week heard the case of Helling v. McKinney, in which a Nevada prisoner claims that being exposed to cigarette smoke is cruel and unusual punishment.

Why were we denied the opportunity to see Westley Allan Dodd hanged?Why was the moment when he fell through the trap doors of the gallows last Tuesday in the state penitentiary at Walla Walla, Wash., not shown on TV?It occurred at five minutes past midnight local time, five minutes past 3 a.m. Eastern time. Small children would not have been watching.Nor was it a strictly private moment: Witnesses were invited in to view the execution.So why couldn't the entire public have seen Dodd's last moments?

In most cases, the best argument in favor of capita punishment is the person who actually ends up on the wrong end of the rope.Let's take the monster (that's the right word) they just strung up in Walla Walla, Wash. All he did was torture, rape and murder three young boys.Well, that's not all he did. He also told the world, in case the world had any doubts about him, that if ever released, "I will kill and rape again and enjoy every minute of it."Are you going to waste any tears on this creep?

The recession is so bad in Baltimoreee, the soup kitchens need soup kitchens.NOW the economic indicators are turning up. Sorry, George.Vermont's ban on smoking in prison has been reversed as cruel and unusual punishment.Cheer up. Ireland is going to get a new government.Don't worry about the return of Nazism to Germany. So far, they are only beating up foreigners, Muslims, Jews, blacks and guys in wheelchairs.

Keith Hudson got into an argument with another prisoner at Louisiana State Prison. Two correctional officers handcuffed and shackled him, removed him, unresisting, from his cell and beat and kicked him. By any definition of the word, that was "punishment." By any informed contemporary definition of the word, it was "cruel." Therefore, it seems clear to us, as it did to seven members of the most conservative Supreme Court in nearly 60 years, it was a violation of the Bill of Rights' ban on "cruel and unusual punishment."

Washington.-- The supervisor of the Louisiana prison guards told them ''not to have too much fun'' as they punched and kicked the handcuffed and shackled prisoner. It was the sort of stomach-turning scene that even when described nearly a decade later in court papers loses none of its power to provoke civilized people to reach for any remedy to redress the wrong.But a provocation is not necessarily a justification for invoking the Constitution. Constitutional rulings require reasons relating actions to principles and precedents.

WASHINGTON BIPARTISAN consensus often is the path of politicaconvenience. Today's consensus is that Judge David Souter should be confirmed as Supreme Court justice without a searching inquiry into his jurisprudential thinking, if any.Liberals have no stomach for another lynching, which consistency would require them to conduct if Mr. Souter, departing from cliches, sounds like Robert Bork. Conservatives will vote to confirm, come what may, so why risk discovering something awkward. Still, here are some pertinent questions for Judge Souter:The First Amendment protects freedom of ''speech,'' a distinctive human capacity intimately connected with reasoning, hence with self-government, which is the subject of the Constitution.