New Voices


The Emergence of Conservative Legislators and Thought Leaders as Proponents of Death-Penalty Abolition

While support for capital punishment has fallen among nearly every demographic group in the United States over the past twenty years, the emergence of conservative opposition to the death penalty has played an increasingly important role in efforts to repeal and replace the death penalty with non-capital punishments. 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 unprecedented numbers of ideologically conservative legislators to sponsor and support death-penalty repeal efforts.

In 2019, conservative legislators have sponsored death-penalty abolition bills in 11 states, including conservative-leaning states such as Wyoming, Montana, and Kentucky, and are playing critical roles in bipartisan efforts to repeal or reform capital punishment in states such as Virginia, Ohio, and New Hampshire.

An October 2017 report, The Right Way, released by the advocacy group Conservatives Concerned About the Death Penalty documents what the organization has described as “the dramatic rise in Republican sponsorship of bills to end the death penalty” and discusses the trends that it says have contribute to this rise. The data in the report reflect both the emergence of Republican leadership in bills to repeal the death penalty and increased bipartisanship in the sponsorship of these bills. Forty Republican legislators sponsored bills to abolish the death penalty in 2016, the report says, “ten times as many [who] sponsored repeal bills … in 2000.” It also reports that the percentage of repeal-bill sponsors who are Republicans has risen to 31%, a six-fold increase since 2007. The report highlights grassroots, party-level, and religious shifts in Republican views about and activism against the death penalty.

In addition to the national Conservatives Concerned About the Death Penalty, conservative anti-death-penalty advocacy groups have formed in eleven predominently Republican states. In Kansas, the state Republican Party “removed its death penalty support from the Party’s platform in 2014” in favor of a neutral position and voted down an attempt to restore a pro-death penalty stance in 2016. The report also says Evangelicals are increasingly “forsak[ing] the death penalty,” pointing to the public involvolvement of prominent Evangelical leaders opposing state efforts to carry out executions in a number of recent cases and the revised policy of the previously pro-capital punishment National Association of Evangelicals, expressing neutrality on the death penalty and acknowledging its flaws.

Public opinion polls have also observed declining death-penalty support among conservatives in the first half of this decade. In 2016, the Pew Research Center reported a seven percentage-point decline in support for capital punishment between 2011 and 2015 among respondents who described themselves as conservative Republicans. The Gallup organization has suggested that the actions of Republicans may be critical in determining the death penalty’s future. It’s analysis of its 2017 national death-penalty poll noted that “[t]hirty-one states [now 29], primarily in Republican-leaning regions, allow the death penalty. The likelihood of many of those states changing their laws hinges on whether rank-and-file Republican support for capital punishment remains high or declines in the future.”

(A. Strong, “The Cost of Death: Conservatives Take a Fresh Look at the Death Penalty,” The Christian Broadcasting Network, October 29, 2017; T. Burr, “‘Its days are numbered’: Conservative group seeks to end death penalty in states, including Utah,” The Salt Lake Tribune, October 26, 2017; J. Jones, “U.S. Death Penalty Support Lowest Since 1972,” Gallup News Service, October 26, 2017. Read the report, “The Right Way: More Republican lawmakers championing death penalty repeal,” Conservatives Concerned About the Death Penalty, October 25, 2017.

The surprise strength of the 2019 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. More than half of the Republicans in the state house voted to support the measure. In New Hampshire, bills to abolish the death penalty passed the legislature with bipartisan support in 2018 and 2019. The bills were vetoed both years, and Republican votes were critical to overriding the veto and making the repeal a reality in 2019.

In Kentucky, Montana, and Pennsylvania, Republican legislators have introduced abolition legislation and are attempting to build coalition support. In Virginia, the Republican-controlled state Senate passed a bill to ban the death penalty for people with severe mental illness and the Republican-controlled Ohio House of Representatives did the same. Conservatives have said they oppose capital punishment because of pro-life beliefs, a desire to reduce government spending, and the lack of deterrent effect.

(Reid Wilson, Red states move to end death penalty, The Hill, February 4, 2019; Ramsey Scott, Death penalty repeal heads to Wyoming Senate floor, Wyoming Tribune Eagle, February 14, 2019; Nick Reynolds, Death penalty repeal bill continues to move forward, Casper Star Tribune, February 14, 2019; Death-penalty repeal fails in Wyoming despite new support, Associated Press, February 14, 2019; Phil Drake, Panel ponders bill to abolish death penalty, Great Falls Tribune, February 18, 2019; Dan Frosch, Republicans Leading New Charge to End the Death Penalty, Wall Street Journal, February 19, 2019.)

Conservative arguments against the death penalty

The R Street Institute, a Washington-based policy think tank, has joined the growing number of conservative voices advocating for death-penalty abolition. In a commentary in the November/December 2018 issue of The American Conservative, the institute’s criminal justice and civil liberties policy director Arthur Rizer (pictured) and its Southeast region director Marc Hyden argue that “the closer conservatism remains to its core values, the more credibility it brings to the table,” and that the core values of conservatism—promoting “government restraint, fiscal responsibility, morality, and public safety”—ideally situate conservatives to “champion capital punishment’s demise.” “If conservatives want to convince others that a smaller, more nimble government is best,” Rizer and Hyden write, “then those values should be reflected in all policy areas, including the death penalty.”

Rizer’s and Hyden’s argument against capital punishment starts from the premise that “skepticism of state power is at the heart of the American identity and conservative philosophy.” This, they write, is “for good reason. The United States government has a history of incompetence and malfeasance.” Criminal justice policies, they say, should not be immune from the traditional conservative “suspicion of government”—particularly policies such as capital punishment, in which “the United States has a track record of acting in an arbitrary and biased fashion.” Addressing issues ranging from racial bias, the possibility of executing an innocent person, the costs of capital punishment, its failure to make society safer, and the mistrust of big government, the article catalogues why the authors believe conservatives should oppose the death penalty.

On race, Rizer and Hyden write: “The simple matter is that the death penalty has an extensive history of overt bias.” Despite the advances of the civil rights movement, they say, “we still have not been able to banish the bias that permeates the justice system. … Justice must not only be blind, but also color blind.” In the U.S., however, “a murder victim’s race also seems to influence whether or not the accused will be put to death,” the authors write, leaving the implication “that, at least through the criminal justice lens, some lives are more valuable than others.” The death penalty, they write, falls short on another core conservative belief, “that the government is too often inefficient and prone to mistakes.” They ask: “Why should the death penalty’s administration by government bureaucrats be any different?” Recognizing the certainty that there will be some wrongful convictions, they say the death penalty carries with it inevitably “irreversible consequences.” “Conservatives take great pride in championing the sanctity of life and respecting its intrinsic value,” but—citing historical evidence of wrongful executions and data showing that there is one exoneration for every nine executions in the U.S.—the authors say, “a death penalty system that repeatedly and unnecessarily risks innocent lives does neither.” Likewise, they say, “numerous cost studies have examined the death penalty’s expense and found that it far outweighs the price of life without parole (LWOP).… Given the death penalty’s high costs compared to LWOP, it’s clear that capital punishment is antithetical to fiscal conservatism.”

The article concludes by urging conservatives to adhere to their core values in judging the death penalty: “Conservatives should return to the root principles of liberty and dignity to ensure that the criminal justice system is fair, just, and respects life…. Perhaps more than anything else, opposition to the death penalty should boil down to a lack of faith in a woefully error-prone government. After all, how willing are you to trust your life to this system?”

(Arthur Rizen and Marc Hyden, A Dying Shame: The state is not God, and the death penalty is not infallible., The American Conservative, November/December 2018.)

With celebrated conservatives, such as political strategist Richard Viguerie and Pulitzer prize winning columnist George Will opposing capital punishment, capital punishment appears to have moved from its former status as a political wedge issue to a policy issue that is attracting bipartisan cooperation across the political aisle.