The Supreme Court said Monday that Arkansas won't be able to execute two of its death-row inmates. And a growing number of conservatives, who see the death penalty as an anachronistic, religiously hypocritical and big-government waste of money, are just fine with that.
In fact, the extreme nature of Arkansas' efforts to execute eight inmates over a week and a half — after going 12 years without an execution — could even underscore anti-death-penalty conservatives' argument about why it should be abolished.
And what conservatives think about the death penalty matters perhaps more than it does for any other political faction: Public support for the death penalty and actual executions is at or near a 40-year-low. But Republicans control a majority of state legislatures and governor's mansions, so any movement to actually undo it will likely be driven by conservatives.
For the most part, the GOP in Arkansas fully supports the efforts of Gov. Asa Hutchinson (R) to execute these inmates before a lethal injection drug expires.
— Leslie Rutledge (@AGRutledge) April 18, 2017
But to growing numbers of conservatives on the fence or opposed to the death penalty outside Arkansas, what he's doing feels like it belongs in the 1990s rather than today's society, where life without parole is an option.
“For me, both as a fiscal conservative as well as a person of faith, we've evolved to a point in society where it's not necessary,” said longtime Georgia state Rep. Brett Harrell (R), who just unveiled his opposition to the death penalty.
In January, Harrell helped announced the formation of Georgia's branch of Conservatives Against the Death Penalty, a faction of a national group formed in 2013 that has now expanded to 11 states and counting, including in very red states such as Utah, Kansas and Nebraska.
But Arkansas is drawing the attention of even pro-death-penalty Republicans. Marc Hyden, with the national branch of Conservatives Against the Death Penalty, said he's in contact with national tea party leaders who are privately put off by the rush to execute in Arkansas. They're not necessarily changing their minds about it, but there's a sense that the state's rush to execute these men feels unnecessary, he said.
“I think the inevitable is the death penalty will, at some point, become a thing of the past,” Hyden said.
In Georgia — which led the nation in executions last year — Harrell agreed that there are more conservatives wary of the death penalty than those who publicly say so. When he acknowledged he had changed his mind about the death penalty, “nearly a dozen” of his Republican colleagues privately told him: “Good job. I believe the same thing.”
A messy, headline-grabbing legal battle in Arkansas could further prod them to oppose it.
“There's a growing number of people who are stereotypically pro-death penalty who are beginning to reconsider the issue,” Harrell said.
Support for the death penalty is no longer a given in red states. Over the past two state legislative sessions, GOP lawmakers in an unprecedented 12 states have sponsored or co-sponsored legislation to repeal the death penalty. Some of them have gotten close.
In Utah last year, a repeal bill passed the state Senate and a House committee. For the first time in the modern era, Missouri's full state Senate debated the issue.
In 2015, Nebraska, a technically nonpartisan but politically conservative legislature, became the first red state in 40 years to repeal it. In Kansas, the Republican Party removed the death penalty from its platform. The National Association of Evangelicals switched its 40-year position on support for the death penalty to a stance that acknowledges evangelicals may oppose it. (In Arkansas, more than two dozen evangelical leaders urged Hutchinson in a letter to stop the executions.)
Conservatives' reasoning for opposing the death penalty generally falls under at least one of three arguments:
1. It's not consistent with their antiabortion (that is “pro-life”) beliefs. (“Many people argue in the pro-life movement,” Harrell said, “at the beginning of life that the image of God is present at the moment of conception, and therefore we should do everything in our power to preserve life.")
2. It's not fiscally sound and not consistent with conservatives' small-government policies. (“I’m thinking that it’s wrong for government to be in business in killing its own citizens,” Utah state Sen. Steve Urquhart (R), who sponsored the repeal bill there, told The Fix.)
3. Life in prison without parole is bad enough.
Reconsidering the death penalty is far from the consensus view among Republicans. Nebraska voters reinstated the death penalty in November after a campaign funded in part by the state's billionaire governor. The 2015 state legislative session was overwhelmingly supportive of the death penalty, famously underscored by Utah legalizing death by firing squad.
It's likely Arkansas won't be the last major battle for opponents of the death penalty. But even (and sometimes especially) in the face of a rush of executions, their movement is gaining momentum. Given the political makeup of the United States and declining public support for the death penalty, it's one to watch.