Why Deep Red States Are Rethinking the Death Penalty

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AP Photo/Nati Harnik

Marc Hyden hasn't always opposed capital punishment. The first time he remembers talking about the subject he was six years old, standing on the playground of his elementary school, telling a friend he supported the death penalty because his parents were Republicans.

"It was more of a glacial change," says Hyden of his own path to opposing capital punishment. "I had always been taught that this is what conservatives do, that we support the death penalty." But as he grew older, the more and more he learned about it, the harder and harder it was for him to justify his support of the practice. "I was grasping."

Hyden has since stopped grasping. Now 31, he's one of the nation's leading conservative anti-death-penalty activists, a small but growing group that sees the death penalty as antithetical to conservative values and the cause of limited government. Expensive, inefficient, and lethal, execution has come to represent much that's wrong with big government today in many conservatives' minds-particularly millennials.

And Hyden is one of their most visible spokesmen. As the national advocacy coordinator at Conservatives Concerned About the Death Penalty (CCATDP), a project at Equal Justice USA, Hyden speaks at Republican conferences and clubs, liaises with the media, attends Tea Party rallies, and is, more generally, part of an insurgency of conservative activists seeking to end capital punishment in deep red states.

That movement has been most visible in Nebraska, where a campaign to ban the death penalty has inspired fierce debate among the state's deep red electorate. This past May, Nebraska's heavily Republican legislature voted both to pass LB268, a repeal of the state's death penalty, and override a veto from Republican Governor Pete Ricketts. But death penalty advocates like Ricketts have vowed not to go down without a fight.

On June 1, Nebraskans for the Death Penalty, a recently formed group of the governor's political allies, filed an initial petition with the Secretary of State to put a repeal of LB268 on the state's ballot in 2016. They have until August 27 to get approximately 57,000 signatures. If they get twice that number, the law will be stayed until the election.

"The governor has shown that he's pretty passionate about saving Nebraska's death penalty. I don't really understand why, personally," says Matt Maly, a coordinator for the Nebraska state branch of the CCATDP. Together with Nebraskans for Public Safety he has been working to fight the ballot initiative. According to Maly, it's still unclear whether or not the pro-death penalty group will get the required number of signatures in time.

Abolishing the death penalty, a reform wholly endorsed by Bernie Sanders, in Nebraska-a state so red that, in 2012, Mitt Romney carried 92 of its 93 counties (a majority of them by more than 70 percent)-may seem contrary to its political reality, especially in light of the attempt to put it on the ballot. But, as Maly is quick to point out, it's not.

"There are a lot of Nebraskans who don't want this-who don't want to bother with all of this effort to try and reinstate the death penalty," says Maly.

And the numbers corroborate his claims. While, nationally, only 17 percent of Republicans oppose capital punishment, in Nebraska, 40.9 percent of registered Republicans support replacing the death penalty with life without parole. Overall, 48 percent of Nebraskans would replace the death penalty and only 35 percent would keep it.

It's tempting to see Nebraska and these polling numbers as the latest, albeit unexpected, example of an increasingly liberal America-a fluke instance in which a conservative community is an early adopter of a progressive idea. But, Nebraskans are embracing abolition because of their conservatism, not in spite of it.

"Conservatives don't like big government," says Maly, "They don't like ineffective, expensive programs. And that's exactly what the death penalty is."

The mere concept of the state putting someone to death is antithetical to the principle of limited government. "There's no greater power than the power to take a life, and our government currently retains that authority," says Hyden, "If you don't trust a government to deliver a piece of mail or launch a healthcare website, why would you trust them to take a life?"

All of the evidence suggests that we shouldn't.

Since 1973, 155 people sentenced to death have been exonerated. Many of the conservative activists and activists working in red states whom I talked to said that the events their groups put on at which exonerees or their families speak about their experiences are among their most influential and well-received. Heather Beaudoin, who runs CCATDP alongside Hyden, actually got into the field after stumbling across an event with an exoneree being held at the Helena, Montana, college where she was working.

As for the cost, in 2012, an article in the Loyola of Los Angeles Law Review estimated that, between 2013 and 2050, capital punishment would cost the state of California an additional $5 billion to $8 billion. In other words: if, instead of seeking the death penalty, California just accepted a sentence of life without parole in every capital case, the state would save as much as $216 million a year, even after paying the cost of imprisoning those prisoners for the rest of their natural lives. In Maryland, a report from the Urban Institute's Justice Policy Center found that cases ending in capital convictions cost the state on average $3 million, $1.8 million more than capital-eligible cases in which the death penalty is not pursued. A 2014 report from solid red Idaho's legislature was hesitant, but said, "Simply having death as a sentencing option costs money."

In addition to state finances, local budgets are also affected. Maly likes to tell the story of Richardson County, Nebraska, which had to mortgage all of its ambulances just to pay for a capital case in a state that hasn't carried out an execution in almost 20 years.

These conservative arguments against the death penalty aren't just taking hold in Nebraska. They seem to be having an effect in other deeply conservative states, as well.

One state south, in Kansas, a repeal bill was introduced in the House this year, but it failed to advance. According to Mary Sloan, the executive director of the non-partisan Kansas Coalition Against the Death Penalty, the bill will carry over into the 2016 legislative session and is expected to have Democratic, moderate Republican, and conservative Republicans sponsors. Sloan is optimistic about the bill's chances, citing a need to focus on more immediate issues like the budget, and not a lack of support, as the reason for its failure to advance this year.

Tennessee, another conservative state, is not, as Kansas appears to be, on the brink of abolition, but it's still closer to getting rid of the death penalty than you may think. Stacy Rector, the executive director of Tennesseans for Alternatives to the Death Penalty, says a few years ago she would have said her state was a decade or so away from passing a repeal-now her best guess is three to five years.

"It feels like the speed at which things are changing has kicked into high gear," she says.

And this is a theme that almost everyone who I talked to repeated-that the tide was beginning to turn against the death penalty, and fast.

"Right now there's 19 that have repealed," says Maly, "The best case scenario is we continue to knock off states, getting rid of this wasteful program quicker and quicker. And it looks like that's starting to happen." Among the states Maly believes to be close is Kansas, but also North Carolina, Montana, Colorado, and New Hampshire. There are even nascent movements and groups appearing in states like Texas, Florida, and Alabama.

The obvious question to ask is, of course, Why now?

There's an argument to be made that it's, at least in some part, a product of generational change. The more libertarian-leanings of young Republicans are well documented. Sixty-eight percent of millennial Republicans, for example, support the legalization of marijuana, compared to just 47 percent and 38 percent of their Gen X and Boomer counterparts, respectively. The death penalty seems to be another one of those issues in which young Republicans are choosing limited government over the traditional party line.

When he goes out and talks to young people, Hyden definitely notices how receptive they are to his arguments about government overreach. "I love talking to young people," he says, "They tend to be much more skeptical of government power, in general."

But, according to Sloan, the change is in no way limited to people under 35. More than anything else, she says, the death penalty is a matter of public education, and opinion is shifting because more people are becoming informed on the ills of the system-a sentiment her counterparts from other states echoed.

"You find that when you're really able to sit down with someone and have a conversation about the way the system is actually functioning-that's where we gain ground," says Beaudoin, who works mainly with Evangelical communities, "It's no longer a conversation about the death penalty in theory."

In the end, it's a testament to the activists in these deep red states that the tide is beginning to turn. And, while the fight isn't yet over in Nebraska, it seems to have given them energy-not that they needed it.

On the day the Nebraska legislature voted to override Governor Ricketts's veto, one state south, the staff of the Kansas Coalition Against the Death Penalty was streaming coverage of the vote in their offices across the state. "All of the staff members in Topeka were watching," says Sloan, "When the governor's veto was finally overridden we were all cheering."