IF THE major crime bill that passed both houses of Congress never becomes law, that will be all right. The measure is a heavy-handed attempt to prove that legislators are tough on crime. It greatly expands the number of federal offenses for which capital punishment is authorized and limits existing habeas corpus rights, which now provide judicial relief in a high percentage of death-penalty cases.

A conference between House and Senate managers on this bill has not yet been scheduled, but it's probably unrealistic to hope that legislators will have a change of heart on the matter of capital punishment and go home without reaching agreement. So assuming that there will be a bill and that it will generally be bad news for opponents of the death penalty, is there anything else in the package to make it better?

There is: a provision in the House bill that received broad support even from those members who consistently voted for the harsh penalties. It seeks to eliminate all considerations of race from death-penalty deliberations. It does so by allowing a defendant who has been sentenced to demonstrate either 1) that in his jurisdiction members of one race are more frequently sentenced to death than those of another race when the circumstances of the crime are identical, or 2) that the race of the victim is the reason for disparate penalties. (In this connection, it should be noted that since the death penalty was reinstituted by the courts in 1976, not a single white person has been executed for the murder of a nonwhite.) Prosecutors would have an opportunity to prove that factors other than race led to a death penalty, but if this could not be done, the execution could not be carried out.

The attorney general, complaining that most states won't be able meet this burden, opposes the provision. He warns that many fewer people will be executed, hanged, injected or shot on court order if this new test is imposed. Fine. The White House threatens to veto the entire crime bill if this section is retained. Even better. The numerous truly terrible provisions of the bill outweigh this one concession to reason and fairness, and a veto would be welcome.