A few years ago, any state ending the death penalty struck most political observers as an extraordinary event. Following Gregg v. Georgia (1976), which ended a four-year hiatus on capital punishment nationally, state after state reinstated the death penalty. This trend continued into the 1990s, as even deep blue states like New York brought it back. In this environment dominated by tough-on-crime rhetoric, a state ending the death penalty seemed impossible.
That changed in 2007, when New Jersey became the first state since Gregg to repeal the death penalty legislatively. After New Jersey, other states – New Mexico, Illinois, Connecticut, Maryland – followed suit. With each state that repealed the death penalty, it became less of a surprise. But one development this year caught people off guard: a legislature in a red state, Nebraska, voted to scrap its death penalty.
This move piqued the interest of commentators as diverse as George Will and Rachel Maddow. The news prompted The Daily Show to send a reporter to Nebraska to “investigate.” When interviewed by The Daily Show, the lead Republican sponsor of repealing Nebraska’s death penalty, Senator Colby Coash, explained to a skeptical reporter that it was because of, not in spite of, his conservative principles that he led the effort. In particular, this aspect of the Nebraska campaign – legislators ending capital punishment for conservative reasons – has fascinated and perplexed observers.
Specifically, the conservative case against the death penalty consists of three principal arguments: the death penalty’s incompatibility with (1) limited government, (2) fiscal responsibility, and (3) promoting a culture of life.
First, at its most basic level, the death penalty represents an expansion of government power. Capital punishment involves not just removing violent individuals from society, but taking the additional step of killing them after they have been incarcerated. With modern prisons, the government has available non-lethal means to keep society secure without resorting to executions. Furthermore, giving government the power to execute leads to abuse of this power in the form of executing likely innocent individuals and botched executions. After such mistakes, states have turned to keeping secret the details of executions, which only leads to more errors and abuse.
Second, the death penalty costs states millions of dollars more than incarcerating someone for life. Studies in over a dozen states have reached this conclusion. Because of wrongful death sentences and other errors, the courts require extra due process in capital cases. Therefore whenever prosecutors seek a death sentence, they set in motion a longer, more complex, and costlier legal process. Justifying this expense proves difficult when there is no credible evidence that the death penalty has any impact on murder rates. Moreover, most death sentences are overturned, which means that states often spend extra resources on what ends up being a life without parole sentence.
Third, the Catholic Church and others have questioned the death penalty’s place in a society that values life. The over 155 wrongful death sentences and subsequent exonerations nationwide make clear that the death penalty threatens innocent life. Even for those guilty of grave crimes, their lives have value and there remains the possibility of redemption, which an execution unnecessarily cuts short.
These reasons, of course, do not persuade all conservatives. One objection raised is that, by definition, conservatives support the death penalty. Even if someone is Republican, pro-life, and fiscally conservative, they lose their conservative credentials by opposing the death penalty. But making capital punishment a litmus-test issue proves difficult to defend because it disqualifies as conservative no small number of figures – Robert George, Abby Johnson, Ron Paul, Ramesh Ponnuru, Jay Sekulow, and others – well respected by various conservative constituencies. This view also puts a movement committed to religious liberty in the uncomfortable position of expelling from its ranks those deeply opposed to the death penalty on religious grounds.
Another objection appeals to tradition: capital punishment has existed in America since its founding, and thus the conservative position is to support it. This argument, however, takes a selective view of history. Yes, executions have occurred in America since the 1600s, but at the same time the Founding Fathers expressed reservations about capital punishment and were influenced by the criminologist Cesare Beccaria, who condemned the practice in his treatise On Crimes and Punishments. In this environment, some states dramatically restricted the crimes eligible for the death penalty in sharp contrast to England’s Bloody Code, which designated a long list of property crimes as capital offenses. Later in 1846, it was an America state (Michigan) that became the first English-speaking territory to abolish the death penalty.
Experimentation by the states has demonstrated that – contrary to some doomsday rhetoric – repealing the death penalty does not lead to disaster. Currently, 19 states have abandoned the death penalty, with another four implementing a moratorium on executions. Massive crime waves have not resulted. In fact, states without the death penalty have lower murder rates on average than states with it. People in states without the death penalty appear content with the status quo, as they support life without parole over the death penalty by a wide margin.
There is a cogent conservative case, then, for ending the death penalty. It will be interesting to see if its impact in Nebraska was an anomaly or part of something larger. Developments elsewhere suggest the latter. Last month the National Association of Evangelicals changed its pro-death penalty position of over 40 years, and now recognizes that Christians have legitimate reasons to oppose capital punishment. In Kansas, the state Republican Party dropped its pro-death penalty plank from its platform, while the College Republicans called for the death penalty’s repeal. Legislatures in other red states like Montana have come close to ending the death penalty.
As evidence of the death penalty’s brokenness has become harder to ignore, support for its repeal has grown across the political spectrum. If that trend continues and ending the death penalty increasingly becomes a bipartisan cause, its days almost certainly are numbered.
Ben Jones is a campaign strategist for Equal Justice USA (EJUSA) and works in support of Conservatives Concerned about the Death Penalty (CCATDP), a project of EJUSA. Mr. Jones was the Executive Director of the Connecticut Network to Abolish the Death Penalty, successfully repealing capital punishment there in 2012.