Nicole duFresne, the aspiring actress murdered by a pack of muggers on the Lower East Side, wasn’t even born when Robert Morgenthau first took the oath to become Manhattan’s district attorney.

DuFresne, a vibrant, passionate 28-year-old, was born and raised in Minnesota, worlds away from the gritty neighborhood where she was shot to death.

It’s a neighborhood that gave us the likes of Monk Eastman, Meyer Lansky, Rocky Graziano, and waves of druggies over the years, but it is slowly trying to become a pricey, trendy area.

It was still rough-and-tumble when Mr. Morgenthau first won election as district attorney in 1974.

Born into a patrician family – his father was FDR’s treasury secretary and his millionaire grandfather was President Wilson’s ambassador to Turkey – he grew up on the Upper West Side and went to public school in Harlem.

He had the connections to escape the military, but he joined the Navy and was a lieutenant commander on battleships that faced kamikaze attacks in Okinawa.

Since taking office as district attorney he has prosecuted major drug dealers, corrupt politicians, high-flying corporate crooks, child-killer Joel Steinberg, and the Central Park jogger case.

One thing he has never done – and probably will never do – is seek the death penalty.

After the Supreme Court declared it unconstitutional in 1972, New York lawmakers tried to reinstate it for years, but governors like Hugh Carey and, most notably, Mario Cuomo would have none of it.

Governor Pataki signed a new death-penalty law in 1995 – it was ruled constitutionally flawed last year and must be rewritten to take effect again – but Mr. Morgenthau has never sought to invoke it.

Over the years, Morgy, as he is popularly known, has not said he would never seek it. He is too smart for that. Unlike the Bronx district attorney, Robert Johnson, who said he would never seek it and got in trouble with Mr. Pataki, Morgy has always said he would study each murder on a case-by-case basis.

“I never say never,” the 85-year-old Mr. Morgenthau told a group of editors at the New York Post several years ago.

“But you’ll never say ‘yes’ to the death penalty, will you?” one smart-alecky reporter asked.

Morgy, who wears a hearing aid the size of a baseball, just smiled and said: “Sorry, I didn’t hear that. Next question.”

Thousands of murders have occurred in Manhattan while Morgy has been the borough’s top prosecutor. He has presided while many police officers have been viciously slain and sociopaths who would certainly have qualified for the death penalty have wreaked their havoc.

Yet Morgy has never wavered. He prefers to lock the killers away forever. “We have less murders now in this state than we had in 1937, when we had executions,” Mr. Morgenthau told the Daily News the other day.

Nicole duFresne’s killer could not face legal injection because the death penalty will not exist here again until the Legislature enacts it again, but, somewhat surprisingly in this age of revenge-seeking, her friends say she would not want her killer put to death.

Her boyfriend, Jeffrey Sparks, who was pistol-whipped just before duFresne was murdered, has said he and her family want the killer caught and locked up, but would never want him put to death.

All across America, men and women sit on death row. The overwhelming majority of them are vicious killers who should never be set free.

But in recent years some condemned men and women have been found to be innocent. It was such a scandal in Illinois that the governor emptied death row, returning the prisoners to the general population and a life behind bars.

Over the years, some innocent people have been killed in America’s death chambers. That, alone, is reason enough to abolish the death penalty.

Mr. Morgenthau is facing re-election in November. His chief opponent is Leslie Crocker Snyder, a career prosecutor and fearless judge who has locked up more than her share of thugs and killers.

She favors the death penalty – though she says it should be used only in the most heinous cases. She has picked up the endorsements of 10 police unions, possibly because of her stance on the death penalty.

If she becomes the district attorney – and if, as expected, the Legislature restores capital punishment in New York – her office will almost certainly seek the death penalty in some cases.

If Mr. Morgenthau is re-elected, his office almost certainly will not.

That, alone, is reason enough to keep him in office.