Utah County Attorney’s Rejection of Death Penalty Reflects Broader Conservative Movement Away from Capital Punishment

When Utah County Attorney David Leavitt (pic­tured) announced on September 8, 2021 that his office would no longer pur­sue the death penal­ty, his deci­sion to do so was emblem­at­ic of a broad­er shift in con­ser­v­a­tive think­ing on the death penal­ty. The Republican dis­trict attor­ney from ​“a deeply con­ser­v­a­tive” coun­ty that gave Donald Trump a 41-per­cent­age-point mar­gin of vic­to­ry in the 2020 pres­i­den­tial elec­tion joined what the Wall Street Journal describes as ​“a grow­ing move­ment of con­ser­v­a­tives across the coun­try push­ing for an end to capital punishment.”

In a November 20, 2021 analy­sis, Journal reporter Laura Kusisto found that ​“Mr. Leavitt isn’t alone as more Republican law­mak­ers and pros­e­cu­tors are aban­don­ing [sup­port for the death penal­ty] and champion[ing] an end to capital punishment.” 

Republican “[p]oliticians and pros­e­cu­tors say the shift is dri­ven in part by con­cern about the cost of cap­i­tal cas­es, which has bal­looned as the appeals process has grown more exten­sive,” Kusisto reports. ​“The exon­er­a­tion of dozens of death row inmates [also] has led to con­cern about whether the state can be trust­ed to decide mat­ters of life and death.”

Leavitt, the son of a long-time Republican state leg­is­la­tor and broth­er of a three-term Republican gov­er­nor, is no polit­i­cal rad­i­cal. He cit­ed his belief in lim­it­ed gov­ern­ment, con­cerns about the enor­mous resources required to pros­e­cute a death penal­ty case, and the worth­less­ness of cap­i­tal pun­ish­ment as a crime-fight­ing tool. ​“Pretending that the death penal­ty will some­how curb crime is sim­ply a lie,” Leavitt said in his pol­i­cy announce­ment. ​“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 Wall Street Journal analy­sis places Leavitt’s deci­sion in the con­text of con­ser­v­a­tive oppo­si­tion to the death penal­ty across the coun­try. When Virginia abol­ished the death penal­ty in March 2021, three House Republicans joined their Democratic col­leagues in vot­ing for the abo­li­tion bill. In New Hampshire, the sup­port of many Republican leg­is­la­tors was nec­es­sary to over­ride the governor’s veto and repeal the death penal­ty in 2019. In Ohio, a pend­ing repeal bill was intro­duced by a bipar­ti­san slate of spon­sors and Utah Republican leg­is­la­tors have said they will be spon­sor­ing a bill in the 2022 leg­isla­tive ses­sion to replace its death penal­ty with a sen­tence of 45 years to life in prison for aggravated murder.

In 2019, the Wyoming House of Representatives approved a bill to abol­ish the death penal­ty, with the back­ing of a major­i­ty of House Republicans. The bill unan­i­mous­ly then passed the Republican-con­trolled Senate Judiciary Committee before it failed in the Senate, where it nev­er­the­less drew sup­port by 1/​3 of Senate Republicans. Public opin­ion polls also found declin­ing sup­port for cap­i­tal pun­ish­ment in oth­er con­ser­v­a­tive strong­holds. An October 2021 Oklahoma poll report­ed sup­port down ten per­cent­age points, from 74% to 64% since 2014. A Texas poll in April 2021 report­ed sup­port down twelve per­cent­age points since 2015, from 75% to 63%. An Ohio poll, released in January 2021, found that more than half of Republican reg­is­tered vot­ers who had been pro­vid­ed infor­ma­tion on inno­cence, costs, and oth­er death-penal­ty issues favored replac­ing cap­i­tal pun­ish­ment with life without parole. 

The ​‘Repeal and Replace’ Effort in Utah

Leavitt’s death-penal­ty oppo­si­tion has been echoed by oth­er lead­ers in Utah. The same day he announced his office’s new pol­i­cy, two Republican leg­is­la­tors, State Representative Lowry Snow (R – St. George) and State Senator Daniel McCay (R – Riverton) announced that they will be intro­duc­ing a bill in the 2022 leg­isla­tive ses­sion to repeal and replace Utah’s death penal­ty. Rep. Snow, a for­mer death-penal­ty sup­port­er, said his fel­low Republicans have been open to his argu­ments for repeal. ​“They’ve been opposed to it, like I was before,” he said. ​“I’m see­ing a shift in those positions.”

Republican Salt Lake County District Attorney Sim Gill, who rep­re­sents the state’s most pop­u­lous coun­ty, joined Leavitt and two Democratic dis­trict attor­neys in sup­port­ing the repeal bill. Their endorse­ment was fol­lowed in October by a vote of the Utah County com­mis­sion­ers urg­ing that the death penal­ty be repealed and replaced. Commissioner Amelia Powers Gardner point­ed to the exces­sive finan­cial bur­den of cap­i­tal pun­ish­ment, not­ing that a sin­gle cap­i­tal case can cost $2 mil­lion, or about 2% of the county’s annu­al bud­get. Leavitt had raised sim­i­lar con­cerns. His office has more than 4,000 cas­es to han­dle, he said, and a sin­gle death-penal­ty case required four attor­neys. Other pros­e­cu­tors in the office could han­dle as many as 125 cas­es. ​“We had spent such an enor­mous amount of mon­ey and resources away from the oth­er cas­es we should be focus­ing on,” he said.

Previously, Brett L. Tolman, who served as U.S. Attorney for the District of Utah under President George W. Bush, and for­mer Salt Lake City Police Department chief Chris Burbank joined a group of near­ly 100 law enforce­ment lead­ers who wrote to the Trump admin­is­tra­tion seek­ing to halt the fed­er­al exe­cu­tion spree. ​“Many have tried for over forty years to make America’s death penal­ty sys­tem just,” their let­ter said. ​“Yet the real­i­ty is that our nation’s use of this sanc­tion can­not be repaired, and it should be ended.”

Former Utah pros­e­cu­tor Creighton Horton, who also now oppos­es the death penal­ty, summed up the change he has seen, say­ing that a deci­sion like Leavitt’s would once have been ​“polit­i­cal sui­cide.” The recent actions of Utah offi­cials, as well as con­ser­v­a­tive leg­is­la­tors in numer­ous oth­er states, have shown that is no longer true.