Why Conservatives Are Seeing the Light on Capital Punishment and Why They Should

Posted in: Criminal Law

When he was a young firebrand in 1994 leading a group of recently elected insurgents in the House of Representatives, Newt Gingrich confidently proclaimed that he could build an enduring Republican majority. To do so he said Republicans needed to promise two things: to keep taxes low and death sentences high by aggressively supporting capital punishment

With respect to the second of those promises, Gingrich was building on lessons Republicans had learned in presidential campaigns going back three decades to the 1964 candidacy of Barry Goldwater.

Be tough on crime. Stoke fear. Appeal, in coded and in not so coded ways, to racial resentment. Divide and conquer. Talk up capital punishment as often as possible. That was the conservative playbook.

But recent developments in states like Utah and Ohio and at the national level show some significant fraying around the edges in support for capital punishment among even the most ardent conservatives. This marks an important development in capital punishment’s modern history and points to the success abolitionists have had in reframing the debate about the death penalty.

Conservatives are articulating a forceful critique that generally aligns with the more familiar progressive anti-capital punishment position.

And a few are taking a leading role in efforts to secure abolition.

Let’s start with Utah.

On January 18, two Republican legislators introduced a bill that would end the death penalty for so-called aggravated murders that are committed after May 4, 2022. In addition, their proposal says it cannot be imposed for any crimes where prosecutors do not file a notice of their intention to seek a death sentence by that same date.

This legislation would not change the sentences of the people now on Utah’s death row, but it would mean that this very conservative state, which gave former President Donald Trump 58% of the vote in the last election, would join Virginia and other states that have ended capital punishment in the last decade.

This prospect would have been unimaginable at the time Gingrich heralded the death penalty as central to Republican orthodoxy.

Representative V. Lowry Snow, a long-time death penalty supporter and pro-life legislator, explained why he is co-sponsoring the new Utah repeal legislation. The terms sound very familiar among long-time abolitionists.

“The reality is, of our system, in our state, in other states, it’s not a perfect system,” Snow explained. “But when we impose a death sentence, it is a perfect sentence. There’s nothing that is left after a person’s life is taken. It’s final. There is no way to correct that.”

The legislative initiative in Utah is supported by a broad coalition of business leaders and follows the September announcement by Republican David O. Leavitt, Utah County Attorney, that his office would not initiate any new capital prosecutions.

At the time, Leavitt said that “[T]he resources that I’ve committed to seeking the death penalty have limited this office’s ability to assist and care for victims of other crimes.…” And, mounting a frontal assault on one of the GOP’s longtime capital punishment mantras, he observed that “Pretending that the death penalty will somehow curb crime is simply a lie. What I have witnessed and experienced since deciding to seek the death penalty is that regardless of the crime, seeking the death penalty does NOT promote our safety.”

The effort of these staunch conservatives builds on similar developments on Ohio. Unlike Utah, which has seven people on its death row, Ohio’s is one of the largest in the country. And while Utah has not carried out many executions in recent years, Ohio has carried out 56 since 1976.

Last July, two Republicans, long-time death penalty supporters, introduced bills in the Ohio House and Senate to end capital punishment in that state. At the time they did so, they highlighted the fact that many death row inmates across the nation had been exonerated and said they feared that Ohio might put an innocent person to death.

They also took note of the death penalty’s arbitrary and discriminatory application. As Rep. Jean Schmidt, one of the bill’s sponsors, put it, “We recognize that people that are of color, people that have less means, tend to end up on death row more so than people with means or higher education.”

Finally, they appealed to their fellow Republicans’ rhetorical commitment to fiscal prudence. They referenced a report that the death penalty system “costs the state about $16.8 million a year, and incarcerating inmates for life is considerably cheaper than executing them.”

The drive to end Ohio’s death penalty also got a boost when two of that state’s former Republican Attorneys General and former Governor Bob Taft penned an opinion piece saying that the time has come to stop executing people.

The conservative initiatives in Utah and Ohio followed efforts to end the death penalty by conservative legislators during recent legislative sessions in Kentucky, Missouri, Georgia, Kansas, Pennsylvania, and Washington State.

Conservative efforts made a difference in pushing abolition over the finish line in states like Colorado, New Hampshire, and Virginia.

They contributed mightily to legislative repeal of capital punishment and an override of the governor’s veto in Nebraska in 2015. Bills they sponsored passed one house of the legislature in Montana in 2015 and in a previous effort in Utah in 2016.

Where they are not yet comfortable opposing the death penalty outright, conservative state legislators have taken the lead in pushing for limits on its use, including banning the execution of anyone with a serious mental illness.

As important as they are, these Republican second thoughts about capital punishment have not yet found their way to the base of the party. A 2020 Gallup Poll reports that while 39% of Democrats and 54% of independents support the death penalty, 79% of Republicans express similar sentiments.

And Donald Trump’s shameful federal execution spree at the end of 2020 and the start of 2021, as well as the staunch support for the death penalty among the Supreme Court’s most conservative justices, signal there is a long way to go in the effort to forge a nationwide, bipartisan coalition to end the death penalty.

But some very prominent conservatives, including people like Jay Sekulow who led the defense in Trump’s second impeachment trial, are coming to recognize that supporting the death penalty does not sit easily with their pro-life commitments and their belief in limited government.

As Hannah Cox, national manager of Conservatives Concerned About the Death Penalty, explains, conservatives “pride themselves on limited government, useful and effective application of tax dollars and protecting the sanctity of life. When you look at the death penalty, it’s not doing any of those things. It’s a very big government program, it wastes millions and millions, and those resources are not spent on anything to deter crime.”

Even Newt Gingrich has acknowledged that he is “more open” to the abolition of the death penalty. As he put it in 2015 after hearing the Pope’s denunciation of it in a speech to Congress, “I very deeply believe we need to profoundly rethink what we’ve done over the past 25 years in criminal justice.” He cautioned that “You do want to be careful not to execute somebody who you find later on, as we’ve found, to be innocent.”

If Gingrich can reconsider his previous bloodthirsty embrace of capital punishment, then there is hope that many other conservatives will soon join their colleagues in Utah and Ohio in leading the way toward the death penalty’s end.

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