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At Last, a Bipartisan Argument Against the Death Penalty

Western state lawmakers from both parties are making a pragmatic case for abolishing capital punishment.

BRENDAN SMIALOWSKI/AFP/Getty Images

When the Wyoming Senate rejected a bill last week that would abolish the state’s death penalty, most of the national attention focused on comments by a single lawmaker. “The greatest man who ever lived died via the death penalty for you and for me,” Lynn Hutchings, a Republican state senator, reportedly said. “Governments were instituted to execute justice. If it wasn’t for Jesus dying via the death penalty, we would all have no hope.” Her unusual rationale for opposing the bill quickly went viral.

What’s more remarkable is that Wyoming legislators came so close to scrapping capital punishment at all. The state House of Representatives passed the bill in a 36-21 vote earlier this month. Though similar measures had been introduced in recent years, none of them advanced past their initial vote on the house floor. Almost all of those votes came from Republican lawmakers, who hold a supermajority in both chambers of the state legislature, and with the blessing of some party leaders.

Opponents of the death penalty often make a moral case for abolition. In Wyoming, fiscal considerations also held sway. The state hasn’t executed anyone since 1992, and the last death-row prisoner had his sentence overturned in 2014. Nonetheless, the state still spends hundreds of thousands of dollars on the system each year. “It’s worthless,” Jared Olsen, the bill’s sponsor and a Republican, told Wyoming Public Radio. “All we do is spend [millions] of taxpayer dollars on it, and I think that’s a burden that the taxpayers have shouldered for too long.”

Wyoming isn’t the only state in the American West that’s moving toward abolition. Lawmakers in Colorado, Montana, Nevada, Oregon, and Washington—including many Republicans—are also considering bills that would abolish or effectively end capital punishment in their respective states, and at least some appear likely to succeed. The same ethical issues raised elsewhere in the country—wrongful convictions, racial disparities, the morality of the state taking a human life—still carry weight in the West. But there also seems to be a simple pragmatism to it: Capital punishment is expensive, increasingly complicated, and already moribund, so why not finish it off?

To say these states currently have the death penalty is somewhat misleading. The death penalty is illegal in 20 states, either because the legislature abolished it or the courts forbid it, and most of the other 30 states no longer practice it. Fewer than a dozen states regularly carry out executions, and even in those states, juries are sentencing fewer people to death. Justice Anthony Kennedy’s retirement last year all but guaranteed that the Supreme Court won’t abolish capital punishment for at least a generation, and yet the system seems less stable than ever.

There are myriad causes for the death penalty’s decline since the late 1990s, when executions peaked. Violent crime dropped precipitously over the past 25 years, reducing the number of defendants charged with offenses that might qualify for it. The Supreme Court shrank that pool even further in 2002 by forbidding the execution of people with intellectual disabilities and those who committed crimes as juveniles in 2005. In 2008, the court explicitly limited capital punishment only to crimes “in which the life of the victim was taken.”

External factors also played a role. Prosecutors sought fewer death sentences than they did in the tough-on-crime era of the 1980s and 1990s, and juries handed them down less frequently. Defendants who are sentenced to death go through a complex appellate process in both the state and federal courts, which can last years or even decades. Executions have become harder to perform as well. Under pressure by activists, U.S. and European drug manufacturers stopped selling lethal-injection drugs to the states over the last decade. While some states have found willing providers of those drugs, others have begun exploring alternative execution methods or simply given up. (In the latest example, the South Carolina Senate approved a bill last month to bring back the electric chair and allow firing squads, too.)

In some Western states, lawmakers would be finishing what the other branches of government started. Washington’s state Senate voted to repeal its capital punishment statute last week after the state Supreme Court struck down the death penalty in 2018. The judges had pointed to evidence that it was being imposed in a racially discriminatory manner. Washington Governor Jay Inslee, a Democrat, had already imposed a moratorium on executions in 2014, citing concerns about “too many flaws in the system.” One of those flaws was the geographic disparity in how local officials wielded it. “The use of the death penalty in this state is unequally applied, sometimes dependent on the budget of the county where the crime occurred,” he said.

Lawmakers in some states have been vocal about their frustrations with the current state of affairs. Almost 80 prisoners await execution on Nevada’s death row, though none have been put to death since 2006. “We waste so much money pretending to be harsh on crime and putting people into custody and telling them we’re going to kill them, and it never ever happens,” Ozzie Fumo, a Democratic state assemblyman who introduced the bill, told the Las Vegas Review-Journal. “This bill will just codify what the will of the people is, and it’s to stop this absurdity.” With Democrats in control of both legislative chambers and the governor’s mansion for the first time since the 1990s, the bill has a reasonable chance of becoming law.

Nevada, like many states, has struggled to carry out executions in recent years. To circumvent the pharmaceutical industry’s ban on supplying drugs for lethal injections, state officials last year proposed the use of fentanyl to kill prisoners instead. The powerful opioid is responsible for thousands of accidental deaths by overdose every year in America; Nevada hoped to intentionally use it toward the same end. The first inmate to face the procedure was going to be Scott Dozier, a convicted murderer who intentionally waived his appeals in 2017 so the state could put him to death. Legal challenges from the ACLU and a pharmaceutical company effectively halted the state’s plan last year. In January, Dozier committed suicide in his cell.

Some state lawmakers have argued that abolition merely would codify the status quo. The Montana state public defender’s office told state lawmakers at a hearing last week that the state spent almost $1 million every legislative biennium on legal costs for the two capital cases it was currently taking part in. The state hasn’t executed a prisoner since 2006. “It is another form of life in prison that just so happens to cost the state of Montana a lot more money than regular life in prison without the possibility of parole,” Mike Hopkins, a Republican state representative who introduced the abolition bill, told his colleagues at the hearing.

Pragmatic opposition to the death penalty is also bringing pragmatic solutions to end it. Oregon voters entrenched capital punishment in the state constitution in 1984, thereby preventing the legislature from abolishing it entirely. To circumvent that, state lawmakers are mulling a plan to effectively scrap the death penalty by sharply restricting the crimes for which it can be sought. Oregon Public Broadcasting reported in October that one proposal would only authorize the death penalty for homicide as a result of domestic or international terrorism. While this wouldn’t count as outright abolition, it would effectively end the practice until state voters get an opportunity to finish the job.

This isn’t strictly a Western trend. While abolition seems far from imminent in most Midwestern and Southern states, which continue to carry out executions at a steady pace, Republican lawmakers in Kansas and Kentucky have begun making the fiscal case against capital punishment. There are also Western states that have bucked the trend: California voters backed a ballot initiative in 2016 that would accelerate executions rather than end them; the state has more than 700 prisoners on death row, but hasn’t performed an execution since 2006. But after decades of moral opposition to the death penalty, and growing outrage over its racially disproportionate application, a more succinct rationale seems to be resonating beyond the political left: It’s just not worth the hassle.