With Nebraska leading, conservatives reconsider the death penalty

Some observers may have been shocked when Nebraska’s GOP-controlled legislature voted for the fourth and final time to repeal the death penalty in a dramatic legislative session last week, defying the veto of Republican Gov. Pete Ricketts and making Nebraska the first conservative state to end capital punishment in 40 years.

But Marc Hyden, the national coordinator for Conservatives Concerned About the Death Penalty, a grassroots advocacy organization, was not surprised at all.

“It just makes sense to me—this is what conservatives do. We repeal government programs that are wasteful and ineffective,” he said.

Nebraska lawmakers, under the state’s unique unicameral system, had to vote for the legislation four separate times, and reach a threshold of 30 out of 49 votes to advance the bill.

“We’ve been told that the conservative position for so long is to support the death penalty. It says a lot that Nebraska lawmakers voted against the death penalty four times and that they did so overwhelmingly,” Hyden said. “This is not an outlier, this is mainstream conservatism.”

There are, in fact, indications that Nebraska’s example may soon be followed by other red states and signal a broader conservative rejection of capital punishment. Hyden and other right-leaning opponents have been persistently making the case for years that capital punishment is out of line with the conservative ideas around respecting human life, upholding fiscal responsibility and limiting the scope and power of government. More GOP lawmakers appear to be embracing that view, decades after Republicans made tough-on-crime policies, including championing the death penalty, a central part of their political brand.

“It’s important that conservatives took the lead on this and were able to speak from the perspective of conservative values in Nebraska,” said Shari Silberstein, executive director of Equal Justice USA, another organization advocating for abolishing the death penalty. “There’s been a mythology that opposing the death penalty is the purview of the left and supporting the death penalty is the purview of the right and Nebraska has helped dispel that.”

Legislation replacing the death penalty with life without parole in Montana fell one vote short of passing the GOP-controlled House, in a 50-50 vote in February. Similar bills have been sponsored this year by Republican  lawmakers and introduced in Kansas, Kentucky, Missouri and South Dakota. Some of those states have commissioned studies looking at the costs of the lengthy appeals process for death row inmates and the executions themselves given a lethal-injection drug shortage.

Daniel Lachance, an assistant professor of history at Emory University who has studies capital punishment, said the death penalty gained popularity when the public—and conservatives particularly—were looking for quick, fierce vengeance for the perpetrators of the most heinous crimes in an era, beginning in the 1970s, when violent crime was on the rise. In practice, the United States’ capital punishment system keeps convicted murderers in legal limbo for years and often puts innocent lives at risk, as the spate of death row exonerations in recent years has demonstrated.

“The death penalty was revived in a conservative moment where people didn’t trust the government to keep us safe and people were thinking that the death penalty was the ultimate justice—but ironically what happened was the death penalty became part of the big government problem,” he said. “What we’re seeing is conservatives crying uncle and saying it’s not worth it financially and not worth it to put victim’s family members through this process that can take decades.”

Lachance, however, did note that some conservative states have doubled down on their support of capital punishment—Arkansas and Utah have both proposed instituting executions by firing squad should a drug shortage prevent lethal injections from going forward. But Nebraska’s move has put the conservative case against the death penalty under the national spotlight.

“While I don’t think Nebraska is going to foreshadow an immediate or quick change in the use of the death penalty or states’ commitment to the death penalty, it’s important because it’s putting symbolically this notion that the death penalty is a big government program that really can’t be fixed in the wider national discussion,” he said. “Ultimately the death penalty’s demise is going to result from conservative disillusionment.”

Still, those looking to vanquish capital punishment once and for all still have significant political hurdles to overcome. Although executions in 2014 plummeted to a 20-year low, according to the Death Penalty Information Center, an April Pew poll found that 56 percent of Americans continue to favor capital punishment, including 77 percent of Republicans.

Silberstein nevertheless said that there is much more skepticism of the way the capital punishment system works in practice than the numbers may suggest.

“A lot of people who voted for repeal are not opposed to death penalty theoretically, but if you ask them if they support the death penalty as it works now, they do not,” she said. “As a philosophical concept they think the death penalty is fine and as a practical reality, they think it’s a mess.”

State Rep. David Moore, the sponsor of repeal legislation in Montana, said he has faced fierce resistance among some of his conservative colleagues on the issue but perhaps more tellingly, from three Democrats who voted against the bill in the House that led to its ultimate demise.

“I closed my floor speech with ‘You just need your vote your conscience.’ Unfortunately we had a few people who were more concerned with winning their next election,” he said. “It did cost me a lot of political capital and goodwill but I was willing to expend it because it’s only good if you use it for difficult policy changes.”

Kansas state Rep. Steven Becker, the sponsor of repeal legislation in his state who opposes the death penalty on religious grounds, too noted that certain Republican lawmakers continue to be beholden to the conventional thinking on the death penalty in the GOP.

“They want to avoid controversy and this is a controversial issue, and they don’t want to stir the pot. They aren’t sure what the reaction will be among their constituency—I think the hesitancy is that they’re not sure what the fallout will be,” he said. “I do think my support is gaining among colleagues, it’s just a slow journey.”