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Charles Davenport Jr. presented a strong defense of capital punishment on our Ideas front Sunday (not posted).

He based his argument primarily on public safety, citing cases where someone has killed, served a sentence in prison, then killed again.

He brushed aside objections about inconsistent application of the death penalty: "Rather than declining to execute convicted killers in order to reduce the 'unfairness' or 'arbitrary' nature of the death penalty, why not execute every individual convicted of first-degree murder? That's fair."

Charles expresses a popular sentiment. Certainly, that is an answer to the issue of consistency. In theory, it's very logical.

But, in reality, such a policy would run into major problems.

First, it would require changing state law to mandate an automatic death sentence in all cases of first-degree murder.

That law would remove all discretion from prosecutors and, most importantly, juries.

It seems a bit odd to me to argue that the death penalty serves the public interest but also seek to strip juries -- which represent the public -- from actually making the life-and-death decision in individual cases.

Jury discretion has been important in weighing the nature of particular crimes. In cases that are seen as especially heinous, juries are more apt to recommend the death penalty. Prosecutors, of course, understand that, so they are more likely to seek the death penalty in such cases. In crimes that are considered less heinous, juries usually prefer the lesser penalty of life in prison.

The problem for proponents of capital punishment is that juries increasingly do not recommend the death penalty. When they have the option of recommending a sentence of life in prison without possibility of parole, that's what they usually prefer. North Carolina law provides that option in first-degree murder cases.

What would happen if that option were removed? More killers probably would be sentenced to death. But I contend it's also likely that in many cases where juries did not think the death penalty was appropriate, they would convict on a lesser charge, such as second-degree murder, rather than first-degree murder, in order to avoid applying the death sentence.

I believe many jurors look for reasons NOT to recommend a death sentence. If they can recommend a life sentence, they'll take that option. If not, they might vote to convict on a lesser charge. If they do that, the murderer very likely will someday be released from prison. In some cases, therefore, making the law "tougher" by requiring the death penalty in Murder 1 convictions in actual application could produce softer sentences.

Lack of discretion for prosecutors also would change how they approach cases. For example, they now have a tool they can use to coax a defendant to plead guilty: They can offer a guaranteed life sentence. The defendant can take that and avoid the risk of the death penalty. If the defendant accepts the deal, everyone is spared the time and expense of a trial, appeals and so on. If the death penalty were mandatory, however, the prosecutor would either have to proceed with the trial or offer a sweeter deal: Plead guilty to second-degree murder. With resources stretched thin in many DA's offices, it might be a practical necessity at times to offer a Murder 2 plea.

Well, enough what-ifs. Let's get real. No state in the nation, North Carolina included, is going to step up the death penalty. Doing so would reverse a trend --largely driven by juries -- of forgoing the death penalty in favor of life in prison.

Still, executions continue as states slowly carry out death sentences imposed 10, 15, 20 or more years ago. Some death row inmates have been found to be innocent and released. Some win reprieves for other reasons. Many will be executed for crimes that, if committed today, would result in a life sentence, not death.

Inconsistencies abound. If inconsistent application of our most severe criminal penalty is a problem, it can be addressed in two ways. One, as Charles suggests, is to execute everyone convicted of first-degree murder. But that simply isn't going to happen.

The other is to execute no one. That is the more realistic and practical alternative.