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Faith and fiscal responsibility cause many conservatives to change their view of the death penalty

By Kevin Davis

June 1, 2015, 5:20 am CDT

If ever there was a case for the death penalty, the rape and murder of 11-year-old Sabrina Buie in rural North Carolina in 1983 surely was it for those who supported capital punishment.

The girl’s battered and unclothed body was found in a soybean field near her home. The community was sickened, frightened and wanted swift justice. Two days later, police arrested two teenagers who confessed under intense questioning. One got death; the other life.

Then last September, Henry Lee McCollum, 50, on death row for 30 years, was exonerated after DNA evidence pointed to another man who lived a block from where the girl’s body was found. The man had admitted to committing a similar rape and murder around the same time.

McCollum’s half-brother, Leon Brown, 46, sentenced to life for having a role in the crime, also was released. Both men, who are mentally disabled, recanted their confessions many times, saying they implicated themselves under pressure from police.

If ever there was a case against the death penalty, opponents say, that was it. The difference is that now, 30 years later, many of those calling for an end to capital punishment in North Carolina are conservative Republicans who once supported it. “It’s an amazing case. We would have killed an innocent person,” says Ballard Everett, a Raleigh, North Carolina, Republican political consultant and coordinator for North Carolina Conservatives Concerned About the Death Penalty.

Conservatives coming out against capital punishment are part of a broader movement among conservatives who are supporting criminal justice reform policies once largely the domain of liberal-minded politicians.

Everett, who has worked on behalf of Republican candidates for more than 40 years, is trying to drum up Republican support for anti-death penalty legislation that would replace capital punishment with life without parole. Life in prison, he reasons, still supports Republican ideals for a law-and-order society that punishes criminals.

Some prominent North Carolina Republicans have joined Everett’s anti-death penalty group, including a former state auditor, assistant commerce secretary, GOP leaders from several counties, a Republican Party general counsel and even a former police chief.

But it’s still an uphill battle to end the death penalty in a state where last year the legislature, with strong Republican support, passed a law to resume capital punishment after years of legal delays. North Carolina has close to 150 inmates on its death row.

Everett hopes to stop the state from resuming executions by creating awareness about problems with the death penalty—problems like those that lead to wrongful convictions, such as in the McCollum case. He also cites the high costs associated with capital punishment—an issue that seems to resonate better with conservatives.

“We’re small, but we’re growing and the subject is something people are talking about,” Everett says. “We want to at least put something on the table to get people talking and raise awareness. We think if we can get legislation introduced, we can start the discussion.”

A MOVEMENT EMERGES

Everett’s group is part of the fledgling national organization Conservatives Concerned About the Death Penalty. The group started out in Montana and has expanded to other states. It has since joined with Equal Justice USA, a national bipartisan organization that opposes capital punishment.

“We had been building some relationships with conservative groups, and what we were hearing over and over again was they thought they were the only ones with this view,” says Shari Silberstein, executive director of Equal Justice USA. “It seemed there was a movement and there was a critical mass.”

Equal Justice provides staff for the group, and through its connections and website it has helped spread the message to a national audience. Though the anti-death penalty group is coordinated by conservative members on the Equal Justice staff, Silberstein likes to avoid political labels. “We see ourselves as an independent organization, nonpolitical,” she says. “We have always been able to work across the aisle.”

Conservatives Concerned About the Death Penalty is led by Marc Hyden, a conservative Christian who used to work for the National Rifle Association. Hyden’s position has shifted radically from his younger days. “For a long time I supported the death penalty. I thought some people deserved to receive death for some of their crimes and I thought it deterred crime,” he says. “And I’m kind of ashamed to say that I accepted sometimes innocent people likely would be killed by the state.”

The McCollum case in North Carolina underscores that killing innocent people is a real possibility. “Stories like these—they bother you. You see how easily an innocent person can be executed by the state,” Hyden says. “It’s very hard to support the death penalty and accept the risk and be pro-life.”

Hyden tries to persuade other conservatives that they can hold on to their conservative beliefs, especially the belief that government is too big, and still be opposed to the death penalty. “The conservative thing to do is to oppose it,” he says. “There is no bigger government program than one that can kill you.”

Spreading the message can be tricky, and Hyden has ventured into some very conservative territory. He recently spoke to organizations that included Tea Party groups in the South and took a trip through Florida’s Panhandle. “I’ll tell you, with some of these conferences I go to, I get a little nervous,” he says. “I just didn’t know how my peers would accept me.”

But he often winds up surprised. “A lot of them are seeing the other side of it and seeing that it’s inconsistent with their core principles,” Hyden says. “I believe this change, this growing skepticism of government, has really paved the way for us.”

Other conservatives, including national commentators, have joined in. Columnist George Will criticized the death penalty after the “Central Park Five” were cleared of rape charges in 2013. Will wrote that this “failure of the criminal justice system buttresses the conservative case against the death penalty: Its finality leaves no room for rectifying mistakes, but it is a government program, so … .”

Conservative commentator Ramesh Ponnuru wrote: “On the core issue—yes or no on capital punishment—I’m with the opponents. Better to err on the side of not taking life.”

And former United States Marine Corps Lt. Col. Oliver North, a member of the Reagan administration who testified during the Iran Contra affair, said he believes the death penalty should be abolished and the justice system overhauled.

FISCAL CONCERNS

Such skepticism of government has driven another movement among conservatives who are looking at broader criminal justice policies to keep more people out of prison—a traditionally liberal position. Right on Crime, a conservative policy group based in Austin, Texas, advocates keeping nonviolent offenders out of prison, reducing sentences and creating more accountability through community-based programs and drug treatment. The theory is that it will help reduce the cost of incarceration.

Right on Crime’s position is supported by a report released earlier this year by the National Research Council that says U.S. incarceration rates have more than quadrupled in the last four decades, straining state budgets while having a minimal impact on crime.

Across the country, spending on corrections has outpaced budget increases for nearly all other government services, according to the report. It’s the third-highest category of general fund expenditures in most states.

Even the conservative Koch brothers—owners of Koch Industries—have joined in, contributing to a new coalition that includes both conservative and liberal organizations pushing for criminal justice reform. The group, the Coalition for Public Safety, includes such diverse organizations as the American Civil Liberties Union and Americans for Tax Reform, and it hopes to reduce prison populations, end overcriminalization and help reduce recidivism.

Right on Crime says that examples already abound in which conservative states have taken measures to reduce prison populations and put the brakes on spending to build more prisons:

• In 2010, South Carolina Gov. Mark Sanford signed a bill that overhauled the state’s sentencing and corrections policies, diverting nonviolent offenders from prison to community-based programs to make room for violent and dangerous criminals. The measure is expected to save more than $350 million.

• In 2011, Kentucky—which had one of the nation’s fastest-growing prison populations—passed the Public Safety and Offender Accountability Act, which aims to stop that growth by diverting minor drug offenders to probation and treatment and putting only the most serious offenders in prison.

• In 2012, Georgia passed a major reform package that reserves the state’s prison space for the most serious offenders and offers community supervision alternatives for low-level offenders.

• Serious crime in Texas has dropped by 12.8 percent since 2003, when the state began spending more on drug rehab programs and reduced sentences for lesser drug offenses.

Even conservative governors are shifting their views. Former Texas Gov. Rick Perry won a national award for his support of drug courts, and Gov. Bobby Jindal backed legislation to boost Louisiana’s drug rehab programs and make some nonviolent offenders eligible for early release.

While Right on Crime believes in steering nonviolent offenders away from prison, it still maintains a tough stance on crime for violent offenders and career criminals. The organization has not, however, taken a position on death penalty reform, as its members are divided on the issue, according to a spokesman.

While conservatives have had successes in reforming prison sentencing policies, death penalty reform has moved more slowly. Since 2007, five states that once executed the condemned have abolished the death penalty; the latest was Maryland in 2013. Legislatures in at least nine states, including conservative ones such as Kentucky, Mississippi and Wyoming, currently have death penalty repeal measures under consideration.

MORATORIUMS AND MORALS

Though conservative opposition to the death penalty has been a slow-growing movement, it appears to be picking up. It was sparked 15 years ago when then-Illinois Gov. George Ryan—a Republican and once a supporter—put a moratorium on the death penalty after 13 wrongful convictions came to light in that state. “I have grave concerns about our state’s shameful record of convicting innocent people and putting them on death row,” he said at the time. “I cannot support a system which … has proven to be so fraught with error and has come so close to the ultimate nightmare: the state’s taking of innocent life.”

For many reasons, support for the death penalty has been declining steadily. It was at an all-time high of 80 percent in 1994, according to the Gallup polling organization, and now is at its lowest point in 40 years at about 60 percent. More than a dozen states have abolished the death penalty and others have imposed moratoriums, as Ryan did.

While it may be true that some conservatives are rethinking their position and going so far as to support abolition of the death penalty, some remain skeptical about the extent of the movement.

“I don’t think the polling reflects a shift in thinking about how many people believe whether the death penalty is morally correct,” says Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation in Sacramento, California. “What I think is happening is that there is a fatigue factor, that there are more people believing the problems won’t be fixed and they’re giving up.”

Moreover, Scheidegger believes the movement of so-called conservatives to become anti-death penalty is exaggerated. “It’s a strategy of the other side to find people who fit that mold and promote them,” he says. “Every great once in a while you get a murder victim’s family member who says they are opposed and they get lots of support and exposure. Now they’re trying the same thing with people they identify as conservatives.”

In Scheidegger’s home state of California, which has more than 750 inmates on death row, no one has been executed since 2006 because of legal challenges to lethal injection procedures. To complicate matters, a federal judge declared the death penalty unconstitutional last year because of decadeslong delays before executions are carried out.

Scheidegger says the delays are part of the problem. His organization led an unsuccessful effort to put a measure on last year’s ballot to speed up those executions. “I think we have a need to get these judgments carried out in a reasonable time,” he says, “because public support will erode if we do not.”

It’s also costing taxpayers too much because of what he calls unnecessary litigation. “It is presently very expensive because we spend many years and many dollars litigating over and over again issues that only need to be litigated once,” Scheidegger says. “Specifically, issues that go to whether a murderer should or shouldn’t be sentenced to death as distinguished [from] issues of whether or not he is actually a murderer. The sentencing issues should only be litigated once.”

Kentucky Rep. David Floyd, a Republican, also is concerned about the cost of death penalty litigation, but at the same time realizes that many cases are legitimately being overturned because of wrongful convictions. Cost may be a factor, but he also sees it as a moral issue. “It was a faith-based decision,” he says. “All human life has breath, God breathed life, and you shouldn’t take a life.”

Faith is taking a more prominent place in the anti-death penalty movement. The National Coalition to Abolish the Death Penalty recently recruited conservative religious groups to lobby for an end to capital punishment. The coalition includes such groups as Sojourners, the Catholic Mobilizing Network and the General Board of Church & Society of the United Methodist Church.

BIBLICAL CONCERNS AND BIAS

Jim Wallis, president and founder of Sojourners, said at a press conference in December that he believes many conservative Christians are voicing their opposition because capital punishment conflicts with biblical teachings.

Beyond reasons of faith, Floyd says the system is clearly broken, and that evidence shows the death penalty is biased through race or class. “Therefore it’s unequal and not consistently applied and not constitutional,” he says. “There is something wrong.”

Support for the death penalty among Republicans, while still high, has declined from 85 percent to 76 percent in the past decade, according to Gallup. And the 35 executions in 2014 were the fewest since 1994.

Part of the reason may be that judges and juries have been more reluctant to impose death sentences, which have declined by 77 percent, according to a report by the Death Penalty Information Center.

Richard Dieter, senior program director of the center, attributes much of the shift to the connection between the Catholic faith and conservative politics. “It’s about the fundamental right to life,” he says. “If you have a respect for life itself, then the death penalty doesn’t fit.”

But beyond faith and politics, Dieter believes people have seen how badly capital punishment has been carried out. “The death penalty has been consistently pointed out to be flawed and inefficient and not a form of swift and sure punishment,” Dieter says. “Nobody supports the death penalty for the innocent—and clearly there’s a risk.”

Larry Marshall, a Stanford University law professor who has dedicated most of his career to representing the wrongfully convicted, attributes the shift to the Marshall hypothesis, named after U.S. Supreme Court Justice Thurgood Marshall. He said that support for the death penalty comes from a lack of knowledge about it. Marshall believed that if people had more information about the death penalty, they would be less likely to support it.

“If people come to understand the issue of arbitrariness, the racial issues and the whole range of flaws, they would not support the death penalty,” Marshall says. “I think his hypothesis is being borne out as people find out about these flaws.”

Marshall was with Northwestern University Law School’s innocence program when then-Gov. Ryan created a blue ribbon commission to investigate the state’s administration of the death penalty. “His willingness to act on the messages that came out of that commission really gave license to a lot of people in the political world to voice and pay attention to an issue that they had been reluctant to take on,” Marshall says.

After that commission submitted its report, Ryan decided to grant clemency to all inmates on Illinois’ death row, a decision he knew would cause an uproar among conservative politicians. “A lot of politicians thought it was political suicide,” Marshall says. “Everybody thought you can’t touch this one.”

Ryan’s message was that the capital punishment system was broken. “Our capital system is haunted by the demon of error,” Ryan said, “error in determining guilt and error in determining who among the guilty deserves to die.”

And that’s just what happened in North Carolina.

UNAVOIDABLE MARGIN OF ERROR

“We can tinker all we want, but we will never be able to rule out error—and that’s scary,” says Gretchen Engel, executive director of the North Carolina Center for Death Penalty Litigation, whose lawyers worked on behalf of McCollum for nearly 20 years. “Obviously this case is a poster child for abolishing the death penalty.”

McCollum’s exoneration was a long time coming. With all appeals exhausted, the North Carolina Innocence Inquiry Commission, an independent state agency created to consider claims of innocence, began examining the case in 2010.

Investigators discovered that DNA evidence from the crime scene linked another man to the rape and murder. He was a known sexual predator with a long criminal history, including a similar crime that occurred a month after McCollum and Brown, his half-brother, were arrested.

Armed with the new evidence, lawyers with the Center for Death Penalty Litigation went back to court. Superior Court Judge Douglas Sasser declared McCollum and Brown innocent and ordered them freed.

“I think this case illustrates that even though he was represented with some of the best lawyers, we couldn’t help him,” Engel says. “It took the Innocence Inquiry Commission to come in and find that evidence. We are all grateful we have such a commission.”

Vernetta Alston, one of McCollum’s lawyers, remains troubled that other wrongfully convicted people might not be so fortunate to have outside agencies look into their cases. “Who else is on death row simply because they didn’t have enough resources? Just that possibility undermines the credibility of the death penalty,” she says. “The flaws in the system are infuriating. The work that we are doing is urgent.”

Although she’s aware that conservatives in her state are reconsidering their position on the death penalty, Alston sees much work to be done. “Whether North Carolina abolishes it, I can only hope,” she says. “I hope cases like this will drive the point home.”

This article originally appeared in the June 2015 issue of the ABA Journal with this headline: “Political Shift: Faith and fiscal responsibility cause many conservatives to change their view of the death penalty.”

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Kevin Davis is a freelance journalist based in Chicago.