Bills to repeal and replace the death penalty with non-capital punishments have gained new traction across the United States in 2019 as a result of opposition to the death penalty among ideologically conservative legislators. That movement – buoyed by fiscal and pro-life conservatives, conservative law-reform advocates, and the deepening involvement of the Catholic Church in death-penalty abolition – has led to unprecedented successes in numerous houses of state legislatures and moved repeal efforts closer to fruition in a number of deeply Republican states. In 2019, conservative legislators are leading the call for death-penalty abolition in conservative-leaning states such as Wyoming, Montana, and Kentucky, and playing a critical role in bipartisan efforts to repeal or reform capital punishment in Virginia and New Hampshire.

The surprise strength of a death-penalty repeal bill in Wyoming is emblematic of the growing Republican abolition movement. There, in an overwhelmingly Republican legislature, a bill to replace the death penalty with life without parole garnered significant support from both parties and passed the state house and a senate committee before falling short in the full senate. In Kentucky and Montana, Republican legislators have introduced abolition legislation and are attempting to build coalition support, and in Virginia, the Republican-controlled state Senate passed a bill to ban the death penalty for people with severe mental illness. Conservatives have said they oppose capital punishment because of pro-life beliefs, a desire to reduce government spending, and the lack of deterrent effect. In New Hampshire, a bill to abolish the death penalty passed the legislature with bipartisan support, but was vetoed in 2018. The legislature has renewed bipartisan repeal efforts in 2019.

The Wyoming House of Representatives voted (36-21) on February 1 to pass HB 145, a bill to abolish the death penalty. The bill garnered the support of a majority of House Republicans, all the house Democrats who voted, and the chamber’s lone Independent. It then unanimously passed the Republican-controlled Senate Judiciary Committee on February 13, before being defeated in the full Senate by a vote of 12-18. In the Senate, nine Republicans and all three Democrats voted in favor of abolition. The bill was introduced by Republican Rep. Jared Olsen of Cheyenne with Republican and Democratic co-sponsors in both houses. Senate co-sponsor Brian Boner (R – Converse) said, “We have an obligation to have a justice system that is blind and based on facts, and not based on what we wished it was or what it used to be.” Olsen said he was concerned about the number of exonerations from death row. “It is way too much authority to vest in our government, and we get it wrong,” he said. Concerns about costs convinced Sen. Bill Landen (R – Casper) to vote for abolition. "I finally decided that I can't go home and feel good about explaining to people all of those myriad of cuts we've made to the state budget and then defend expenditures like this, which have gone on for years and years and years," he said. Wyoming spends an estimated $750,000 per year on legal costs associated with the death penalty, but has not executed anyone since 1992 nor imposed a death sentence since 2004.

Kentucky House Majority Whip Chad McCoy (R – Nelson) said he hopes to get support for his abolition bill from Catholic legislators who have a moral opposition to the death penalty, as well as fiscal conservatives who see it as a costly, ineffective government program. “When you talk about death penalty, a lot of people immediately want to have a criminal justice angle on it or a morality angle. And mine is purely economics,” he said. Kentucky also rarely uses the death penalty. Its last execution was in 2008 and its last death sentence was in 2014. State Representative Mike Hopkins, R-Missoula, the sponsor of Montana’s bill to replace the death penalty with life in prison without the possibility of parole, told a House committee on February 18 that the state’s death penalty was simply ineffective. The two people sentenced to death in the state have been on death row for thirty years, he said, and “there is no logical measurement that 30 years equals a death sentence. … Regardless of how you feel because of capital punishment, nobody is dying from it.”

As execution drugs have become more difficult for states to lawfully obtain and problematic executions have become more frequent, states have expanded their efforts to shield their execution-related activities from public scrutiny. In the latest episode of Discussions with DPIC, Robin Konrad, former DPIC Director of Research and Special Projects, joins Executive Director Robert Dunham and current Director of Research and Special Projects Ngozi Ndulue to discuss DPIC’s November 2018 report, Behind the Curtain: Secrecy and the Death Penalty in the United States. Konrad, the lead author of the report, is now an Assistant Professor of Lawyering Skills at Howard University School of Law. The discussion covers the recent expansion of secrecy in the use of the death penalty, the reasons for the unavailability of lethal-injection drugs, and the problems that have resulted from execution secrecy.

Secrecy policies are ubiquitous in the states that are currently attempting to carry out executions, Konrad explains. “Everybody has some type of secrecy provision” related to the sources of execution drugs or the way executions are carried out, Konrad says. Secrecy provisions conceal the sources of the drugs states obtain and the identities and qualifications of the execution team, and restrict the portions of the execution witnesses are permitted to see and hear. The podcast discusses these issues and questionable measures states have taken to hide potential problems, including Florida and Oklahoma taping down prisoners’ hands so witness cannot see them clench their fists in reaction to the drugs, and Virginia and Nebraska closing curtains to conceal how long the IV insertion process takes or the moments just before and after the prisoners’ death.

The episode also includes a discussion of the consequences of secrecy, including illegal actions that have been discovered only by accident or through investigative journalism. “We’ve seen states acting in a way that is often illegal, where we’ve seen states purchasing drugs overseas in an illegal manner from companies or individuals that are less than reputable. We've seen the prison officials driving money in the middle of the night across state lines to exchange money for drugs and drugs for money. We have seen the states using pharmacies that have had numerous violations. One pharmacy that was used by Missouri had … 1800 violations of state and federal law,” Konrad says. The podcast concludes with a discussion of the ways in which secrecy undermines democratic principles of open government and hides problematic state practices. “When we’re looking at [a] government ... for the people, by the people, the people should know what is going on and states shouldn't be hiding information about the most serious punishment that they carry out against their citizens,” Konrad says. “I don’t see how in any principled system of justice, you can sustain a system that basically is grounded in secrecy, grounded in hiding what’s going on from the public. You have to be open, you have to be honest, you have to be transparent, you have to be trustworthy,” adds Dunham.

Colorado Governor Jared Polis (pictured) has said he will “strongly consider” commuting the death sentences of the three men on the state’s death row if the state abolishes the death penalty. In a February 7, 2019 interview on Colorado Public Radio, Polis told Colorado Matters host Ryan Warner, “if the legislature sends us a bill to eliminate the death penalty in Colorado, I would sign that bill … [and] I would certainly take that as a strong indication that those who are currently on death row should have their sentences commuted to life in prison.” Polis, who voiced his opposition to the death penalty during his 2018 campaign for governor, reiterated his views during the Colorado Matters interview. “I think it’s not cost effective, I think it’s not an effective deterrent,” he said. “If the State Republicans and Democrats were to say, and I were to sign a bill that said we no longer have the death penalty in Colorado, whether it's formally in the bill or not,” the Governor said, “then I would strongly consider making sure that penalty that is no longer on the books in Colorado is not carried out for anybody who's in that process.”

Colorado’s previous governor, John Hickenlooper, imposed a moratorium on executions in 2013. Hickenlooper said he initially had supported the death penalty, but changed his views when he learned more about the issue: “My whole life I was in favor of the death penalty. But then you get all this information: it costs 10 times, maybe 15 times more money to execute someone than to put someone in prison for life without parole. There’s no deterrence to having capital punishment. And I don’t know about you, but when I get new facts, I’ll change my opinion. I didn’t know all of this stuff.” Former prosecutor and state representative Doug Friednash, who sponsored a bill to expand Colorado’s death penalty to include multiple murders committed during a single criminal episode, has undergone a similar evolution. In a February 1 op-ed in the The Denver Post, Friednash called on the legislature to repeal its capital punishment law. “Twenty-five years ago, as a freshman House Democrat, I sponsored legislation to expand the death penalty,” Friednash wrote. “I was wrong.” The law he supported was used to prosecute James Holmes, who killed 12 people in a shooting at an Aurora movie theater in 2012, and Dexter Lewis, who stabbed five people to death in a Denver bar. Juries sentenced both to life. Holmes’ case, he says, illustrates some of the problems with the death penalty – the law failed to deter Holmes and his capital trial, which resulted in a life sentence, cost taxpayers approximately $5 million. Holmes was tried in Colorado’s 18th Judicial District, where defendants are "four times more likely to face a death prosecution than elsewhere in the state.” All three of the state’s death-row prisoners are Black men who were tried in that district. Friednash concludes, “It’s time to close this chapter in Colorado’s history books. The Colorado legislature should abolish the death penalty this session. And then Gov. Jared Polis should commute the death sentences of our three death-row inmates to life without the possibility of parole.”

In a February 9 editorial, the Boulder Daily Camera also urged the legislature to abolish the death penalty. Citing the lack of deterrent effect and the high cost of capital punishment, the paper wrote: “If the worth of a public policy is its ability to achieve policy objectives, then capital punishment is a failure.” The editorial also noted “great economic, geographic, and racial disparities” in Colorado’s imposition of the death penalty. “The location of the county line in relation to a crime,” it said, “should not determine whether a defendant lives or dies, and neither should the skin color of the accused.” And in conclusion, it pointed to former Governor Bill Ritter’s 2011 posthumous pardon of Joe Arridy, who was wrongfully executed by Colorado in 1939 despite what Ritter called “an overwhelming body of evidence” that Arridy was innocent. “The state-sanctioned killing of an innocent person is more morally repugnant than the execution of a guilty one could be morally just,” the editorial board wrote. “For this reason alone — given that innocent people almost certainly die under a regime of capital punishment — Colorado should abolish the death penalty.”

In a 5-4 decision that Justice Elena Kagan characterized as “profoundly wrong,” the U.S. Supreme Court on February 7, 2019 permitted Alabama to execute a Muslim death-row prisoner, Domineque Ray (pictured), who had claimed that the state’s execution process discriminated against him because of his religion. Without explanation, the Court asserted that Ray had waited too long to challenge a provision in Alabama’s execution protocol that made a Christian chaplain part of the state’s execution team and prohibited other religious advisors from being present in the execution chamber. Ray argued that Alabama’s practice constituted an establishment of religion that discriminated against non-Christians. During federal court hearings on the constitutionality of the policy, Alabama withdrew its requirement that the chaplain be present in the execution chamber. However, it continued to reject Ray’s request that his imam—a prison-approved spiritual advisor—be permitted in the execution chamber. The U.S. Court of Appeals for the Eleventh Circuit ruled that Ray was likely to succeed on his religious discrimination claim, scheduled briefing in his case, and stayed his execution. The Supreme Court reversed, without addressing the constitutional issue.

Justice Kagan, joined by Justices Breyer, Ginsburg, and Sotomayor dissented. Quoting prior Supreme Court decisions, Kagan wrote, “‘The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.’ But the State’s policy does just that. Under that policy, a Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion—whether Islam, Judaism, or any other—he may not die with a minister of his own faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.” In asserting that its execution process complied with constitutional guarantees of religious freedom, the Alabama Attorney General’s office told the federal courts: “Like any other inmate, Ray has been and will be given opportunities to speak with his spiritual adviser, including up to the moment that he is taken into the chamber.” However, Spencer Hahn, one of Ray’s lawyers, said the prison had failed to honor that promise and that Ray lost access to his imam three hours before the execution.

Ray was convicted and sentenced to death for the rape and murder of a 15-year-old girl. No physical evidence linked him to the crimes and a sole prosecution witness, Marcus Owden, implicated Ray. In 2017, Ray’s appeal lawyers discovered for the first time that Owden—who avoided the death penalty by testifying against Ray—had schizophrenia and was suffering from delusions and auditory hallucinations when he accused Ray of the rape and murder and testified against him. Ray’s lawyers argued that the prosecution’s deliberate suppression of this evidence, despite being aware of Owden’s mental illness, violated Ray’s due process rights and entitled him to a new trial. Without comment, the Supreme Court declined to review the claim and denied a stay. Ray was the second person executed in the U.S. in 2019 and the first in Alabama.