TABLE OF CONTENTS INTRODUCTION 224 I. THE REPUBLICAN PARTY AND CAPITAL PUNISHMENT: A BRIEF HISTORY 226 II. THE OPPORTUNITY PROVIDED BY CONSERVATIVE CRIMINAL JUSTICE REFORM 230 III. THE CONSERVATIVE CASE AGAINST THE DEATH PENALTY 234 IV. RECENT REPUBLICAN SUPPORT FOR DEATH PENALTY REPEAL LEGISLATION 239 V. CONSERVATIVES' ROLE IN DECIDING THE DEATH PENALTY'S UNCERTAIN FUTURE 246 VI. CONCLUSION 249 INTRODUCTION
Coming into the November 2016 elections, the movement to end the death penalty in the United States had racked up an impressive series of victories, and key trends seemed to be in its favor. Eight states in the previous decade had ended the death penalty, while another four had placed a moratorium on executions. (1) After peaking in the mid-1990s, executions and death sentences steadily declined and reached record lows in 2016. (2) Public support for the death penalty also dropped by around twenty percentage points between the mid-1990s and 2016. (3) In 2015, two Supreme Court justices in Glossip v. Gross signaled that the death penalty is cruel and unusual punishment in violation of the Eighth Amendment, due to the errors, arbitrariness, and delays in its application. (4) As a dissent, it did nothing to change the legal status of the death penalty in the United States, but some observers nevertheless interpreted it as a signal of the Court's openness to consider a constitutional challenge to capital punishment in the coming years. (5)
All this momentum appeared to grind to a halt on November 8, 2016. The death penalty was on the ballot in three states: (1) California, where voters had a choice to end or expedite the death penalty; (2) Nebraska, where voters had a choice to reinstate the death penalty after the state legislature repealed it in 2015; and (3) Oklahoma, where voters had a choice to enshrine the death penalty in the state's constitution. In all three states, the option to bring back or strengthen the death penalty won. (6) Perhaps of greater long-term concern for the movement against the death penalty was the outcome of the presidential election. The unexpected victory of Republican candidate Donald Trump, an outspoken death penalty supporter who promised to expand it on the campaign trail, raised the likelihood that efforts against the death penalty would face new obstacles during his presidency. Through appointments of Supreme Court justices and cabinet posts such as Attorney General, President Trump's actions could have lasting effects on death penalty policy that expand its use. Moreover, if the administration chooses to make expansion and more frequent use of the death penalty a priority, the issue could become seen in an increasingly partisan light, as members of the President's party rally to support him on it.
This possibility presents a real risk of setting back efforts against the death penalty. If the death penalty were to become an increasingly partisan issue and the Republican Party were to prioritize its expansion, Republicans would likely find themselves with opportunities to do just that. In a continuation of recent trends, the 2016 election resulted in Republicans enjoying historic advantages over Democrats in legislative seats at the federal and state levels. (8) Given the current environment, the string of policy changes limiting or ending the death penalty in recent years is far from guaranteed to continue moving forward.
At the same time, it is not guaranteed that the death penalty will become a salient partisan issue. Recent legislative activity at the state level has shown splits in the Republican Party over the death penalty, as Republican lawmakers have emerged as leading champions of bills to end the death penalty. In fact, the history of the Republican Party shows its leaders often splitting over the issue. This Article reviews that history and, in particular, brings attention to recent efforts to end the death penalty by Republican lawmakers whose opposition to the practice is grounded in conservative values. The failure of death penalty policy to live up to key conservative principles--limited government, fiscal responsibility, and promoting a culture of life--have complicated the view that Republicans should automatically support the death penalty. As one GOP lawmaker put it, it was because of, not in spite of, his conservative principles that he worked to end the death penalty. (9) Examining the role of Republicans and conservatives in efforts to end the death penalty helps us understand how, at least in some places, debates over the death penalty avoid becoming partisan. Such lessons can prove instructive for the movement to end the death penalty in light of the current challenges it faces.
The article begins in Part I by providing a brief overview of the Republican Party's engagement on the death penalty throughout its history. Part II explains how increased interest among Republicans in criminal justice reform has created an opportunity to reframe the death penalty in a way that resonates with traditional conservative concerns. Part III outlines the conservative case for ending the death penalty. Part IV illustrates how these arguments are playing out in legislative debates by discussing the efforts of Republican lawmakers to repeal the death penalty in four red states--Montana, Kansas, Nebraska, and Utah. Part V analyzes the current challenges faced by the movement to end the death penalty in the U.S. and makes the case that key to its short- and long-term success is building support among conservatives.
THE REPUBLICAN PARTY AND CAPITAL PUNISHMENT: A BRIEF HISTORY
In 2016, both the Democratic and Libertarian Parties adopted new planks to their platforms calling for an end to the death penalty. (10) These changes to their platforms came after two decades of declining support for the death penalty in the U.S., especially among Democrats, of whom a clear majority now opposes capital punishment. (11) Among the four largest political parties in the U.S., the Republican Party is now the only one without a position against the death penalty (the Green Party has had an anti-death penalty position for many years).
The Republican Party distinguishes itself from the other parties not by simply avoiding an anti-death penalty position, but by explicitly supporting the practice. The Party's 2016 platform affirms the death penalty's constitutionality and importance in fighting crime: "The constitutionality of the death penalty is firmly settled by its explicit mention in the Fifth Amendment. With the murder rate soaring in our great cities, we condemn the Supreme Court's erosion of the right of the people to enact capital punishment in their states." (13) Given the Republican Party's reputation for advocating tough-on-crime policies, (14) its continued support for the death penalty hardly comes as a surprise, even if more political parties in the U.S. are actively calling for an end to capital punishment.
How the Republican Party and its leaders have engaged in debates over the death penalty throughout its history turns out to be far less straightforward than its platform today implies. For much of its history, the Republican Party has been split on the death penalty. When the death penalty abolition movement picked up strength in the late nineteenth and early twentieth centuries, and a number of states abolished the death penalty, the effort drew supporters--as well as opponents--from both the Republican and Democratic Parties. (15) Abolition of the death penalty in Minnesota, for instance, illustrates this point. In 1906, the Democratic Governor John Albert Johnson called on the Minnesota Legislature to abolish the death penalty. (16) His successor, Republican Adolph Eberhart, also asked the legislature to pass legislation abolishing the death penalty, which it did in 1911. (17) In Kansas, Republican Governor Edward Hoch signed legislation abolishing the death penalty in 1907, and in 1935, Republican Governor Alfred Landon signed legislation reinstating it. (18) These examples reflect the important point that, over its first hundred years, the national Republican Party never staked out a clear-cut position on the death penalty (see Appendix: Republican Party Platform Statements on the Death Penalty). As Marie Gottschalk notes in The Prison and the Gallows, "as late as 1971 capital punishment was not a signature issue for law-and-order conservatives." (19)
Support for the death penalty in the U.S. was low throughout the 1960s, dipping in 1966 to its lowest level of support (42%) recorded by the Gallup poll. (20) In this environment, embracing the death penalty did not provide an obvious political advantage, and the Republican Party avoided taking a position on the issue. But that changed by the early 1970s. In 1972, the Supreme Court issued its opinion in Furman v. Georgia, which struck down the death penalty nationally. (21) The decision came at a time of rising crime rates when Republican leaders, such as President Richard Nixon and then-Governor of California Ronald Reagan, were becoming increasingly vocal in advocating tough-on-crime policies. Nixon quickly condemned the Furman decision and argued that it still left the door open for states to bring back the death penalty, which many proceeded to do. (22) These efforts to reinstate the death penalty succeeded when, only four years after Furman, the Supreme Court opened the door again to executions in the U.S. with its ruling in Gregg v. Georgia. (23)
Shortly after the Gregg decision, the first pro-death penalty plank in a Republican Party platform appeared in 1976. It stated: "Each state should have the power to decide whether it wishes to impose the death penalty for certain crimes." (24) Over the years, the Republican Party platform became more forceful in its calls for the death penalty. By 1988, the platform called for extending the death penalty to "major drug traffickers." (25) The same year...