The New Republic

At this weekend’s Conservative Political Action Conference, reeling from its demographic drubbing in last year's elections, the American right—or part of it, at least—is chewing over how to align itself with the nation's evolving mores. And much has been made of their efforts to expand the tent. Maybe undocumented immigrants, for example, shouldn't be deported on sight? And is it possible that gays, too, should have the right to marry? 

The convention floor, however, harbored evidence of a less-discussed shift. A small band of conservatives had taken up a cause that's historically been championed by liberals: abolishing capital punishment. Conservatives Concerned About the Death Penalty, an offshoot of the non-partisan Equal Justice Center that started out as a group in Montana, is making its CPAC debut this year, and they say they've found a warm welcome. 

"I don't know how the death penalty became a conservative issue," says Marc Hyden, the group's youthful advocacy coordinator. "The quote I've been hearing most is, ‘Where have you been for so long?’"

Surprisingly, that seemed to be true: Many people in the exhibit hall that afternoon agreed that the death penalty—when described as the purest manifestation of state power and free spending run amok—had probably outlived its usefulness. 

"Government having the power of death over someone makes you uncomfortable," said Daniel Ruoss, vice chairman of the Young Republicans National Federation’s Florida Chapter, as if he hadn’t considered the question before. "I'd hear them out."

And yet, none of the organizations I talked to were willing to get behind the abolitionists entirely. They fear losing some of their traditional base, even if they stand to gain new constituents. It’s a familiar paralysis, one that has gripped the party on issues like gay rights and immigration: How does the GOP expand its tent while not ticking off its loyalists in the process?

Hyden and company have a lot of history to undo. The tough-on-crime ethos, of which capital punishment is an essential ingredient, has been deeply ingrained in the Republican psyche for decades. It still is, if the Maryland House of Delegates' Friday vote to repeal its state death penalty is any indication—only two Republicans joined the majority. Three out of four conservatives support the death penalty, according to Gallup's most recent numbers.  

But opposition among conservatives has become conceivable these days, with crime on the decline and state budgets under stress. Conservatives Concerned About the Death Penalty’s literature casts capital punishment in classic small-government terms: It’s a wasteful program administered “arbitrarily and unfairly” and sometimes even inaccurately, while doing little to protect the public. CCATDP’s staff will argue it’s morally wrong, seeking to fold death penalty opposition into the definition of what might make someone pro-life, and emphasizing that more killing doesn’t help the families of victims cope with their loss. "There is no closure," says Jon Crane, who joined the effort after covering death row cases as a television reporter in Florida. "Nothing changed once the smoke cleared. There was still the same grief." 

A broader movement of conservatives has taken up some of those arguments to push for reform of the criminal justice system. Since 2010, a Texas-based group called Right on Crime has been making the conservative case for reduced sentencing, treatment over incarceration, and other longtime priorities of liberal reformers—all cast in terms of an out-of-control government spending wildly and stripping individual rights. 

"Conservatives are waking up to the terrible power of prosecutors," Pat Nolan, vice president of Prison Fellowship Ministries, said during a CPAC panel discussion. "The power we give to government to put somebody in prison is the greatest power we cede to government. Think about it. They take away your home, they take you away from your family, your work. You're placed in confinement with no choice over how where you live, with whom you associate, what you eat, and—in a very dangerous place—they strip you of your ability to defend yourself... Like any government agency, prisons have expanded like a bureaucracy." A bureaucracy full of union thugs, he adds later. 

Arguments for prison reform are gaining steam among conservatives. Right on Crime has a long list of high-profile backers, and opposition to “overcriminalization” even made it into the 2012 GOP platform. They don’t talk much about how racial injustice is baked into the system—NRA president David Keene’s examples of the victims of excessive sentencing included Martha Stewart and former senator Ted Stevens, not Mumia Abu Jamal. Still, they do realize this is one small-government initiative that, unlike various Republican versions of entitlement reform, could broaden the party’s appeal to Hispanics and African Americans. "There are lots of communities across the country who would be surprised to know it was our movement that wanted to protect them," says Marc Levin, director of the Center for Effective Justice at the Texas Public Policy Foundation and organizer of the Right on Crime initiative. 

But the death penalty? Levin isn't so sure. 

While pushing for greater use of DNA evidence to prevent wrongful convictions, Right on Crime hasn't taken a position on capital punishment, since the fiscal impact is small compared to the prison system overall—executions are crazy expensive, but cost tens of millions per year rather than the tens of billions spent keeping people behind bars. "The death penalty is primarily a moral issue," Levin says. "The costs are truly secondary." 

The same is true of Prison Fellowship Ministries, which told me that the death penalty debate was “well served” on both sides without them getting involved, and Americans United for Life, which isn’t going near it. Even though Legal Fellow Kelsey Hazzard says she's personally opposed to capital punishment, it's just not worth it for abortion rights activists to get involved. "It's on the decline in most states, so it doesn't have the same urgency as abortion," she says. 

Hazzard has hit on a central challenge for the conservative anti-death penalty people: Perversely, the very fact that fewer executions happen every year means that very few Americans actually have contact with people in the system. Lack of personal experience makes capital punishment a harder cause for rallying voters than, say, gay rights or pot decriminalization—especially when taking a position either way could be divisive. That's true even with natural allies, like the younger libertarian followers of Rand Paul, who favors reforming the prison system. 

"I don't know anybody who's been sentenced to death, but I do know a lot of gay people," says Edward King, director of programs and operations at Young Americans for Liberty. He says he's against the death penalty, but YAL hasn't taken a position. "It's one of those things where everyone has an opinion on it either way, but it's not something people vote on." ¹ 

And so, even on an issue that can be argued in wholly conservative terms, the right may find itself unable to change a long-held position out of fear of how its dwindling base might react. That’s not just a disservice to the thousands of people—a disproportionate number of them black—still languishing on death row. It’s a disservice to a party that’s desperately in need of reinvention, but lacks the will and courage to bring it about.

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