Recent Legislative Activity

Death-Penalty Repeal Efforts Across U.S. Spurred by Growing Conservative Support

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.”

Colorado Governor Likely to Commute Death Sentences if State Abolishes Death Penalty

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.”

Bill to Abolish Wyoming’s Death Penalty Introduced with Bipartisan Support

A bipartisan coalition of Wyoming legislators has introduced a bill to abolish the state’s death penalty. On January 15, 2019, Cheyenne Republican State Representative Jared Olsen (pictured, left) and Republican State Senator Brian Boner (pictured, right), introduced HB145, which would repeal the death penalty and replace it with a judicially imposed sentence of life without parole or life imprisonment. The bill, co-sponsored by sixteen other representatives and senators, has the backing of several legislative leaders, including Speaker of the House Steve Harshman, R-Casper, and Senate Minority Leader Chris Rothfuss, D-Laramie. “You’ve got social conservatives and libertarians and that’s a little more of a mix than we’ve had before,” Olsen said. “And then if you look at the heavy hitters on the bill, we’ve got three-quarters of the House leadership on the bill.”

A coalition of outside organizations that includes he League of Women Voters of Wyoming, the Catholic Diocese of Cheyenne, and the ACLU of Wyoming also are supporting the repeal effort. The groups released a statement on January 16 calling the death penalty “a costly and unfair practice that does not enhance public safety or promote justice in Wyoming.” The breadth of the support distinguishes this year’s effort to abolish capital punishment from prior efforts over the past five years, according to Rep. Olsen. “The momentum and desire behind all those groups is just flourishing right now,” he said. “They’re coming to me every day, working different legislators and reporting back to me on what they’re doing. I think there’s a lot of outreach in the community as well. There’s a lot of momentum.”

Proponents of the bill say that Wyoming’s death penalty is impractical and costs too much. The state has only carried out one execution since 1976, and does not currently have any prisoners facing an active death sentence. (The death sentence imposed on Dale Wayne Eaton, who had been the state’s only death-row prisoner, was overturned in 2014, and federal appeals relating to that grant of relief are still pending.) Despite the rarity of the death penalty in Wyoming, the fiscal note that accompanies the abolition bill estimates it would cost the state $750,000 to maintain capital punishment in 2020. “We continue to spend hundreds of thousands of dollars every year to maintain the death penalty,” Sen. Boner said. “I believe the availability of a life without parole sentence adequately balances the need to protect public safety while recognizing the need to reduce the strain on taxpayer resources.”

The Casper Star-Tribune editorialized in 2013 that life without parole was a better option than the death penalty for many family members of murder victims. The current abolition efforts have also gained the editorial support of the Powell Tribune, which wrote on January 22 that “[i]t seems that, for all practical purposes, the death penalty has already been abolished in Wyoming.” Noting that “like anything else that involves people, [the Wyoming legal system] will sometimes get it wrong,” the paper said that when someone is wrongfully executed, “that mistake is irreversible. And it’s a risk that’s not worth taking.”

Virginia Senate Passes Bill to Bar the Death Penalty for Severely Mentally Ill Offenders

By a vote of 23-17, the Virginia State Senate has approved a bill that, if enacted, would ban capital punishment for defendants with severe mental illness. With the support of all nineteen Democratic senators and four Republicans, the bill passed the GOP-controlled Senate on January 17, 2019. It now moves on to the Commonwealth’s House of Delegates, which is comprised of 51 Republicans and 49 Democrats.  

SB 1137 defines severe mental illness as “active psychotic symptoms that substantially impair a person’s capacity to (i) appreciate the nature, consequences, or wrongfulness of the person’s conduct; (ii) exercise rational judgment in relation to the person’s conduct; or (iii) conform the person’s conduct to the requirements of the law.”However, the bill excludes disorders that are “manifested primarily by repeated criminal conduct or attributable to the acute effects of voluntary use of alcohol or any drug.”Under the proposal, the determination of severe mental illness would be made in the sentencing phase of trial, after the defendant already has been convicted. The jury (or the judge, if the defendant waives the right to a jury trial) would decide if the defendant has proven “by a preponderance of the evidence” that he or she was severely mentally ill at the time of the offense. A defendant found to be severely mentally ill would be sentenced to life without parole. The bill also provides for indigent defendants with mental illness claims to receive assistance from a mental health expert appointed by the court. 

The bill’s sponsor, Sen. Barbara Favola (D – Arlington), called the proposal “a vehicle for us to administer justice in a way that’s humane and, I would say, in a way that reflects the values of Virginians.” Sen. Scott Surovell (D – Fairfax), said the mental illness exemption would have limited impact in Virginia because of the decline in death sentences across the state, but was a necessary mental-health reform. “The reality is we have a broken mental health system in this country,” he said. “We have a broken mental health system in this state. We don’t give it enough money.” Senate Minority Leader Richard Saslaw (D – Fairfax), who called himself “a pretty strong proponent of capital punishment,” supported the bill, saying that, when it comes to defendants who are severely mentally ill, “probably we ought to think twice.”

Virginia is second only to Texas in the number of executions carried out since 1976, but it has had a sharp decline in the use of the death penalty in recent years. No one has been sentenced to death in Virginia since 2011, and just two men remain on the state’s death row. In July 2017, lawyers for William Morva, a seriously mentally ill death-row prisoner suffering from a delusional disorder that his lawyers said left him unable to distinguish his delusions from reality, unsuccessfully sought a commutation from Governor Terry McAuliffe. Previously, Governors James Gilmore and Timothy Kaine commuted the death sentences of Calvin Swann and Percy Walton, citing concerns about serious mental illness. Other states are also considering legislation that would ban the death penalty for seriously mentally ill defendants. In 2017, bills were introduced in seven states, including Virginia, calling for such measures. The American Bar Association in 2016 issued a white paper in support of a mental-illness exemption.

After Mid-Term Elections, Legislators Poised to Renew Efforts at Death-Penalty Abolition in 2019

Empowered by the results of the November 2018 mid-term elections, legislatures in at least four states are poised to renew efforts to repeal their states’ death-penalty statutes or drastically reduce the circumstances in which capital punishment is available.  State legislative and gubernatorial elections in Colorado, Nevada, New Hampshire, and Oregon have redefined the local political landscape in 2019 in ways that death-penalty abolitionists say have made those bills more likely to succeed. Colorado and Oregon already have moratoria on the death penalty, but legislators in both states are expected to move forward with bills abolishing or further restricting its use. In New Hampshire, where legislators voted to repeal the death penalty in 2018 but were unable to override a gubernatorial veto, the newly-elected legislature may now have the two-thirds supermajority necessary to override. And in Nevada, where a state court found that corrections officials had engaged in “subterfuge” in attempts to obtain execution drugs, voters elected a governor who has expressed concerns about capital punishment, and legislators say they will propose an abolition bill.

In Colorado, Gov. John Hickenlooper, who imposed a moratorium on executions in May 2013, was barred by term limits from seeking reelection. Voters elected Democrat Jared Polis (pictured, left), who said during the gubernatorial campaign that he would sign a bill to abolish or phase out the state’s death penalty, and Democrats gained control of both houses of the state legislature. Fort Collins State Rep. Jeni Arndt, who plans to sponsor the repeal bill, said she is seeking bipartisan support for the measure, noting that “If [prosecutors] can’t get the death penalty for the Aurora theater shooter, then this is a waste of taxpayer time and money.” Outgoing senate minority leader Lucia Guzman, a past sponsor of repeal legislation, said “I have worked on this issue for several years but wasn’t able to get it passed. But I think this year is going to be the year.”

Mid-term changes to the composition of the New Hampshire legislature have increased the likelihood that the Granite State will repeal its death penalty in 2019, despite another promised veto by Gov. Chris Sununu. State Rep. Renny Cushing (pictured, right), whose repeal bill received bipartisan legislative support in 2018, is reintroducing the measure in 2019. Voters elected a veto-proof majority of sixteen abolitionist senators in November. In the state house, where the repeal bill received just under the two-thirds supermajority necessary to overcome a veto in 2018, backers of abolition are optimistic they will have even more support in 2019.

In Oregon, voters reelected Gov. Kate Brown, who pledged to extend the state’s moratorium on executions, and elected Democratic supermajorities in both houses of the state legislature. With the state constitution requiring a voter referendum to abolish the death penalty, legislators are instead seeking bipartisan support for a plan to limit capital punishment only to acts of terrorism. In Nevada, Governor-elect Steve Sisolak, who defeated state attorney general and death-penalty proponent Adam Laxalt, has indicated he is willing to sign a bill to abolish the death penalty. Assemblyman Ozzie Fumo, who favors repeal, said he expects the legislature to consider an abolition bill or to request that the governor impose a moratorium on executions. “There’s a social change coming,” Fumo said. “Overwhelmingly, we’re going to see people think about it, and say this is wrong.”

2018 Midterm Elections: Governors in Moratorium States Re-Elected, Controversial California D.A. Ousted

The results of the November 6, 2018 mid-term elections reflected America's deeply divided views on capital punishment, as voters elected governors who pledged not to resume executions in the three states with death-penalty moratoriums, defeated an incumbent who tried to bring back capital punishment in a non-death-penalty state (click on graphic to enlarge), and re-elected governors who had vetoed legislation abolishing capital punishment in two other states. Continuing a national trend, voters in Orange County, California ousted their scandal-plagued top prosecutor, marking the ninth time since 2015 that local voters have replaced prosecutors in jurisdictions with the nation's largest county death rows.

In the three states with Governor-imposed death-penalty moratoriums, candidates who said they would continue execution bans or work to eliminate the state’s death penalty won easily. Tom Wolf, the Democratic governor of Pennsylvania who imposed the state’s moratorium on executions in 2015, was re-elected by with 57.6% of the vote. His challenger, Scott Wagner, who had promised to resume executions and had advocated a mandatory death penalty for school shootings, trailed badly with 40.8% of the vote. Oregon's incumbent Democratic governor Kate Brown, who continued the state’s death-penalty moratorium instituted in 2011 by then-governor John Kitzhaber, won re-election in a six candidate field with 49.4% of the vote, five percentage points higher than her Republican challenger Knute Buehler. In Colorado, Democratic congressman Jared Polis, who campaigned on the repeal of the state’s death penalty, won the governorship with 51.6% of the vote, outpacing Republican state treasurer Walker Stapleton, who received 44.7% of the vote. Democrats also took control of both houses of the Colorado legislature, increasing the likelihood that legislation to abolish the death penalty will be considered in the upcoming legislative session. Illinois Republican Governor Bruce Rauner suffered an overwhelming election defeat at the hands of venture-capitalist J.B. Pritzker. Trailing badly in the polls, Rauner tried in May 2018 to condition passage of gun control legislation on reinstatement of the state’s death penalty. Pritzker outpolled Rauner by 54.0% to 39.3%.

On the other hand, two governors who prevented death-penalty repeal bills from going into effect in their states also won re-election. Nebraska's Republican Governor Pete Ricketts, who vetoed a bipartisan bill to abolish the state's death penalty in 2015 and then, after the legislature overrode his veto, personally bankrolled a successful state-wide referendum in 2016 to block the repeal, cruised to re-election with 59.4% of the vote. New Hampshire Republican Governor Chris Sununu, who vetoed the state’s death-penalty repeal bill in March 2018, won re-election with 52.4% of the vote. In Florida, Republican Ron DeSantis won the governorship against Democratic candidate Andrew Gillum, who had pledged, if elected, to suspend executions in Florida until he was sure the death-penalty system was nondiscriminatorily applied.

Local voters in Orange County replaced District Attorney Tony Rackauckas with a political rival, county supervisor Todd Spitzer. Rackauckas has been embroiled in a scandal involving the secret use of prison informants to obtain or manufacture confessions from suspects and then stonewalling investigation of the multi-decade illegal practice.  As of January 2013, Orange County had the seventh largest death row of any county in the U.S., and since then, it has imposed the fourth most death sentences of any county. 

POLL: Washington State Voters Overwhelmingly Prefer Life Sentences to Death Penalty

A new poll of likely voters in Washington State shows that Washingtonians are nearly 3 times more likely to prefer some form of a life sentence to the death penalty as punishment for defendants convicted of murder. The poll, commissioned by the Northwest Progressive Institute (NPI), was conducted by Public Policy Polling and released on July 12, 2018. It found that 69% of likely voters in the state preferred some version of a life sentence as punishment for people convicted of murder, as compared to 24% who said they preferred the death penalty. In a statement describing the poll results, NPI said "not a single subsample within the survey favored the death penalty… not even Donald Trump voters. ... What this tells us is that there is broad agreement across the ideological spectrum for getting rid of the practice of putting convicted murders to death." The poll asked respondents: "Of the following list of choices, which punishment do you prefer for people convicted of murder: life in prison with NO possibility of parole, life in prison with NO possibility of parole and a requirement to work in prison and pay restitution to the victims, life in prison with a possibility of parole after at least forty years, or the death penalty?" The most preferred option was life in prison without parole, plus restitution, which 46% of all respondents supported. An additional 10% preferred life without possibility of parole, while 13% favored life in prison with parole eligibility after at least forty years. 8% said they were not sure. Every political demographic preferred some version of a life sentence over the death penalty: 82% of respondents who identified themselves as Democrats favored one of the life options, as did 63% of Independents or supporters of a minor party, and 54% of Republicans. 48% of respondents who said they voted for Donald Trump preferred one of the life-sentencing alternatives, as compared with 46% who preferred the death penalty. In 2014, Gov. Jay Inslee imposed a moratorium on executions, saying that "[t]he use of the death penalty in [Washington] state is unequally applied." A bipartisan bill to abolish the death penalty passed the state senate and was approved in the House Judiciary Committee in 2017, but House Speaker Frank Chopp, a Democrat, did not bring the bill to a vote in the full House before the legislature adjourned. "Five Republicans stood with us in the Senate," said Reuven Carlyle, a Democratic senator from Seattle, "but the House leadership was still unwilling to bring it to the floor." Washington's Democratic Attorney General Bob Ferguson, who along with his Republican predecessor Rob McKenna have urged legislators to repeal the state's capital-punishment statute, said he was "not shocked by the numbers." He said the public mood about the death penalty has "been changing quickly" and "we need additional legislators to help out. ... This poll will further signal to them that not only is this the right thing to do, to abolish the death penalty law in Washington state, but is precisely what the people of Washington state want and expect their legislature to do." (Click graphic to enlarge.) Washington juries have not imposed any new death sentences in more than five years and the state last carried out an execution in 2010.

Kentucky Legislature Conducts Hearing on the Commonwealth's Death Penalty

A joint committee of the Kentucky legislature conducted a hearing on July 6, 2018 on the Commonwealth's rarely used death penalty, including a presentation by supporters and opponents of a bill to abolish capital punishment. The General Assembly's Interim Joint Committee on Judiciary took testimony from prosecutors, defense attorneys, correctional officials, and legislators on issues ranging from costs and arbitrariness to the length of the appeal process. Though Kentucky currently has 31 prisoners on death row, and prosecutors across the Commonwealth have filed 52 notices of intent to seek a death sentence, only three people have been executed since 1976. The last execution took place in 2008, and only one death sentence has been imposed in the last five years. Rep. Jason Nemes (R-Louisville), one of the sponsors of a House bill to abolish the death penalty, told the committee, "Kentucky should get out of the business of killing its citizens – period." Criticizing capital punishment based on his pro-life and small government views, Nemes noted that more than 150 people have been exonerated since the 1970s after having been wrongly convicted and sentenced to death in the U.S., and 49 out of the 97 death sentences imposed in Kentucky have already been overturned. "We don’t believe the government can adequately fill potholes," Nemes said. "And if we don’t believe the government can do that perfectly, then why should we give it the power to do that which is irreversible?" Senate Minority Leader Ray S. Jones (D-Pikeville) said that infrequent executions erode whatever deterrent effect the death penalty might have. Instead, he said, the death penalty creates a "false hope of closure." Rep. John Blanton (R-Salyersville), a retired Kentucky State Police officer and an execution proponent, responded, “[t]he problem is not the death sentence, the problem is the length of time we allow these people to look for everything under the sun." "Let's speed up the process," he said. The Kentucky Department of Public Advocacy estimates the cost of the death penalty to Kentucky taxpayers at about $10 million per year. Executions have been on hold in the Commonwealth since 2010, when a state judge placed an injuction halting all executions while courts reviewed the lethal injection protocol. Andrew English, general counsel for the Justice Cabinet, said the Department of Corrections has attempted to "rewrite the regulations to achieve conformity with the court rulings," but that "[t]here’s an ever-evolving change in the landscape when it comes to federal and state courts, with the death penalty." Kentucky, like other states, has encountered problems with determining what drugs are appropriate and available for use in executions.

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