“Today’s decision, in our view, elevates judicial distaste for the death penalty over the legislative will.” That was the dissent of Judge Robert Smith, joined by Judges Victoria Graffeo and Susan Read, in last week’s 4 to 3 ruling of the state Court of Appeals voiding the state’s death penalty law. “The majority’s decision is based on nothing but its own policy judgment,” Judge Smith wrote. He wrote, “The majority’s holding contradicts the view of the United States Supreme Court, and it is supported by no precedent in this or any other jurisdiction.”

There will no doubt be calls for Governor Pataki and the state Legislature to move swiftly to redraft the law to comport with the court’s ruling. Our own view is that they should move slowly.

Not because prosecutors and judges and juries should not have the penalty available in unusually horrible crimes with unusually clear evidence; they should. But so that before the law is redrafted, Mr. Pataki has the chance to replace one of the four judges in the majority with someone more sensible. The checks and balances run in both directions.