THAT THE death penalty has again become routine in this country is clear from the almost negligible attention that executions now receive. It is also clear from the ever-increasing numbers of executions. This year, according to the Death Penalty Information Center, states executed 98 people. That is the highest figure since the death penalty was reinstated in 1976, and a sharp increase over last year's 68. Nearly one in six people executed since 1976, in fact, were executed this year. Texas alone managed to kill, on average, almost three persons per month, while closer to home, Virginia executed 14. The combination of the higher body count and the apparent public apathy is cause for concern.

This is, of course, the outcome the death penalty's proponents have long sought. The death penalty is now simply a part of our criminal justice system: a possible punishment for a class of heinous crimes, widely accepted, and relatively uncontroversial when it happens. The debate over it is, at this point, stale. Proponents have made amply clear that neither moral objections to the state's killing some of its citizens nor the possibility of innocent people being put to death concerns them much. The death penalty has become, in many states, an assumption, rather than a policy that requires continuing justification.

The frustrating aspect of this regularizing of executions is that it has happened even as the fallibility of the criminal justice system has become ever more evident. In addition to the 98 executions, this past year saw eight persons freed from death row after having their flawed convictions overturned. And over the past several years, DNA evidence has sprung dozens of innocent people from prison.

All of this should make us wary of irreversible punishments such as death. Nobody can honestly say with confidence that all of the 598 people executed since the death penalty's relegalization were guilty. And that begs the question--the one death penalty advocates are generally unwilling to address--of what frequency of error we are willing to tolerate in order to preserve capital punishment.

The answer might be difficult were there some obvious benefit--beyond the psychological satisfaction of retribution--to the death penalty. But the evidence that we gain anything tangible is scant. It offers, rather, a toughness that is impossible to apply in a fair and equitable manner. The continued expansion of the death penalty in the face of its obvious failure as a tool of justice is part of a more general failure of imagination in criminal justice policy under which we prefer toughness to effectiveness. It is long past time to revisit this principle.