The conservative case against the death penalty
Can a few thinkers convince their party that a winning GOP issue is actually a costly, ineffective, anti-life government boondoggle?
Richard Viguerie was driving last Tuesday morning to Washington, D.C., where the 80-year-old founder of ConservativeHQ.com would be meeting with about 100 like-minded leaders as part of a summit on the right’s approach to criminal justice policy. Newt Gingrich would be in attendance, along with Texas Senator John Cornyn and former attorney general Ed Meese. Given the influential guest list, you might have expected Viguerie to use the occasion to try and spread the word about one of his most deeply held ideas about criminal justice reform.
But Viguerie, who was closely involved in the recruitment of evangelicals into the Republican Party during the late 1970s and ’80s, was planning to do no such thing. Though many of the attendees were friends he’d made over the course of his long career in conservative politics, he knew most of them would not be receptive to what he had to say. The fact of the matter, Viguerie said, is that most conservatives just aren’t ready to accept his belief that the United States should abolish the death penalty.
This is not a typical position for a devoted conservative to hold. But Viguerie feels strongly about it, having arrived at it more than 35 years ago by way of his Catholic faith. Since then he has come to see the issue in broader terms, and now believes that capital punishment constitutes a violation of conservatism’s most basic principles.
Viguerie is part of a small but expanding group of conservatives publicly arguing that true conservatism points away from, not toward, the death penalty. One former NRA employee helps lead an organization called Conservatives Concerned About the Death Penalty, and has been giving speeches promoting abolition at right-wing gatherings around the country. A Republican state representative in Kentucky has introduced a bill to get rid of capital punishment in the state. Conservative commentator S. E. Cupp recently devoted her column in the New York Daily News to the idea that “conservatives...should lead the charge to abolish” the death penalty.
The argument they put forward is, overall, extraordinarily straightforward: People who share a deep worry about government overreach, who believe in the sanctity of life, and who place great importance on fiscal responsibility should not support a policy that empowers the state to spend large sums of money killing people.
“This is a program that conservatives should be uncomfortable with,” said Marc Hyden, the 30-year-old organizer at Conservatives Concerned About the Death Penalty. “The question is not whether people who commit heinous crimes deserve to be executed—it’s whether we trust the government to efficiently and effectively carry that out.”
That a conservative case for abolishing the death penalty even exists will likely come as a surprise to people who recall the last time the issue was discussed by politicians on the national stage, back in the 1980s. In those days, being in favor of the death penalty was a front-and-center pillar of conservative policy. Anyone who didn’t subscribe to it, like 1988 Democratic nominee Michael Dukakis, was portrayed as woefully soft on crime and inclined toward coddling rapists and murderers.
Politically speaking, conservatives who have come out against the death penalty are up against a lot: According to a 2013 Gallup poll, more than 80 percent of Republican voters are in favor of capital punishment. However it plays out over the coming years, the struggle to overcome that consensus will serve as a demonstration of what happens when a set of clear moral principles collides head-first with the beliefs that make up a party’s political identity.
The American tradition of executing criminals goes back to the earliest Colonial days. As Stuart Banner, a professor at the UCLA School of Law, writes in his 2003 book on the subject, capital punishment used to be doled out for a range of crimes—not just murder, but adultery, arson, and even theft. Convicts were hanged in public; ministers addressed the gathered crowds and cast the fates of the condemned as cautionary tales.
According to Stephanos Bibas, a University of Pennsylvania law professor and author of the book “The Machinery of Criminal Justice,” some of the first opponents of the death penalty in America were Quakers, who believed that societal forces should be taken into consideration when judging people’s actions, and that criminals deserved a chance at some form of rehabilitation instead of simply being executed. That point of view has more or less remained at the center of efforts to reform the country’s criminal justice system ever since, Bibas said; in the 1960s and ’70s, as liberals advocated for a less punitive approach to crime, the death penalty became a defining issue for conservatives, who positioned themselves in relation to the left as defenders of moral order and individual responsibility. “Conservatives ended up saying, ‘We mustn’t make excuses for people,’” Bibas said. “And so the death penalty became a symbol: Are we willing to hold people accountable for their actions?”
It was in this context that Marc Hyden, who grew up in a Southern family of Republican voters, came to take for granted that being pro-death penalty was a bedrock belief. As an adult, though, Hyden came to notice some gaps between the conservative principles he believed in and the actual practice of American executions.
For one thing, Hyden strongly believed government should intrude as little as possible on the lives of individuals; allowing the state to execute people struck him as the most extreme form of government intrusion imaginable. For another, he was against abortion, and he wasn’t sure how to square his belief in the sanctity of life with a policy that he knew could result in the erroneous execution of innocent people. Hyden also believed the government should be fiscally responsible. The death penalty is an astonishingly expensive public program: Because of the appeals process and the slow pace of the justice system, studies have shown, keeping convicts on death row ends up costing the state much more than locking them up in a general population prison.
What finally changed Hyden’s mind, he says today, was encountering criminology data suggesting that the death penalty does not serve as a meaningful deterrent to would-be criminals. “Deterrence was the last thing I had to cling to,” Hyden said. “I figured, even if it’s inconsistent with fiscal conservatism, even if it’s inconsistent with pro-life policies and limited government, we can save lives by deterring future murderers. And then I saw several studies that showed that’s patently false.”
In 2013, Hyden, who was previously a field representative for the NRA in Florida, went to work for Conservatives Concerned About the Death Penalty, which began as a small group in Montana before becoming part of Equal Justice USA, a bipartisan organization that advocates against capital punishment. CCADP has since recruited local advocates in places like Kansas, Tennessee, and North Carolina, and has been a presence for the past two years at CPAC, an annual meeting of conservative politicians and activists.
On the CCADP website, Hyden has collected quotes from right-wing politicians and commentators who’ve publicly supported his position, or at least expressed skepticism of the death penalty. The list includes Ron Paul, Bill O’Reilly, Pat Robertson, and George Will. Former Republican National Committee chair Michael Steele is there; so are conservative pundit John McLaughlin, quoted calling the death penalty “the biggest government waste,” and right-wing legal activist Larry Klayman, who says, “How is it that conservatives generally believe in ‘life,’ but are very willing to allow a corrupt and hugely flawed court system to condemn someone to death?”
To see this argument being made by such prominent figures on the right, and to hear people like Viguerie and Hyden lay it out logically, it almost becomes hard to understand how the Republican Party supports the death penalty at all.
And yet, roughly four in five Republican voters do stand behind the traditional arguments in its favor. The death penalty “has been an expression of society’s right to make moral judgments by imposing a punishment on a wrongdoer,” said Elizabeth Slattery, a senior legal policy analyst at the Heritage Foundation. It’s an issue largely decided by states, which fits contemporary Republican thinking, she pointed out, and the government’s right to deprive citizens of their life, with due process, is mentioned in two constitutional amendments.
To the extent that it conflicts with larger Republican principles, political-science research suggests that tension won’t be easy to resolve. The problem isn’t so much that Republican ideology is internally inconsistent—all political parties harbor contradictions—but that voters in general approach big-ticket policy questions less as a matter of principle than of cultural identity. In the case of the death penalty, it’s part of a package of issues that has defined the conservative worldview for generations, along with strong defense and an allegiance to certain time-honored American values. Its power as a badge of political identity became obvious to Hyden when he started making the anti-death penalty case in front of conservative audiences. “I have so many people come up to me and say, ‘I just didn’t know conservatives could feel this way,’” he said.
At the most individual level, there can also be a profound resistance to changing one’s mind on issues that trigger strong moral responses, like murder and retributive justice. “My emotional reaction when I hear about some of these crimes,” says Ramesh Ponnuru, “is a pro-death penalty one.” Ponnuru, a columnist at the National Review and a visiting fellow at the American Enterprise Institute who went public with his opposition to capital punishment in 2003, said it was difficult for him to work through his own moral intuitions on this point.
But Ponnuru, a Catholic who ultimately turned against the death penalty as a result of comments made by Pope John Paul II, says people who are serious about their beliefs can’t just follow their gut. “Our emotional or intuitive reactions are not a sure guide to right and wrong in matters of moral import,” he said. Most conservatives, he said, seem to feel “less of [an] imperative to interrogate our emotions on this issue and make sure that they are rationally defensible and in keeping with our other views.”
Though support for capital punishment in America has recently fallen to a 40-year-low—according to Gallup polls, 60 percent of Americans overall believe convicted murderers should be executed—Republicans are still overwhelmingly in favor of it. Even if support among Democrats, currently at 47 percent, continues to drop, it’s hard to imagine the national consensus shifting the way it has on, say, gay marriage, unless a significant number of Republicans follow suit—something not many people believe is going to happen any time soon. “It’s hard to say that they can’t do it,” said Slattery, but “it’ll likely be an uphill battle.”
Ponnuru sees at least a bit of hope in the fact that the death penalty is no longer the hot-button issue it once was—that, as he put it, there has not “been an election since 1988 when it was one of the top issues.” Today, politicians at the national level tend to address it only in exceptional circumstances, like the recent botched execution in Oklahoma. While that may sound like a recipe for stagnation, Ponnuru says these conditions may offer a chance to make it less a matter of “us and them” politics. “Once an issue drops in political salience,” Ponnuru said, “quieter reflection can take place and people can change their minds.”
Viguerie isn’t holding his breath. After going public with his anti-death penalty view in a book published in 1980, he organized a series of dinners with leading conservatives and liberals to discuss the issue about a decade ago, after David Kaczynski, the brother of the Unabomber and anti-death penalty activist, reached out to him. But after a while Viguerie mostly stopped bringing the subject up with friends and colleagues. “I’ve learned that it’s a bridge too far right now for most conservatives,” he said. Instead, Viguerie hopes to shift the conservative consensus on the related issue of America’s startlingly high incarceration rate, which he sees as the consequence of a dysfunctional government-run system that destroys families, wastes money, and fails to deliver closure to many victims’ families. Reforming that system and making the nation’s prisons more efficient was the topic of the event Viguerie was driving to in D.C., a conference organized by a right-wing think tank as part of an initiative called “Right on Crime.”
For Viguerie, it’s a first step, and perhaps a sign that ideas can change even long-held policy beliefs, if you push on them long enough. Back in the 1980s, an initiative like Right on Crime would have been as unthinkable as tough-minded, law and order conservatives turning against the death penalty. Today it has the support of prominent Republicans like Jeb Bush, a possible presidential candidate for 2016, along with Rick Perry, Grover Norquist, and Gingrich.
“We’ve come kind of late in life to realize that the criminal justice system is part of government,” Viguerie said, “and that while we hold the government’s feet to the fire in every other area, we’ve overlooked law enforcement. Once we begin to get conservatives to see that the criminal justice system is part of government...it’s going to be easier to convince them that we need to reconsider the death penalty.”