Why Supporting the Death Penalty Goes Against Conservative Values

Back in the 1970s and 1980s, crime rates were spiking in the United States. In response, both the Left and Right in the U.S. took a "tough on crime" approach in which tougher sentencing was seen as a solution to a dire problem. The strict sentencing and mass incarceration have shown their uglier unintended consequences, which would help explain why prominent figures on the Left and Right have been denouncing "tough on crime" policy in recent years. As nice as it is to have clarity on such an important issue, there is one issue within criminal justice policy that is lagging a bit: the death penalty. At the same time, support for the death penalty has declined from its 83 percent peak in 1993 to 54 percent in 2021, according to Gallup. The Pew Research Center puts support for the death penalty in the U.S. at 60 percent. In any case, there is still a fair majority that supports the death penalty. 

That is why it was intriguing to come across an article published earlier this month from Left-leaning news site Vox about how Republicans are becoming increasingly anti-death penalty. Looking at the Pew findings (see below), there remains a staunch majority of Republicans who support the death penalty, at 77 percent. Such red states as Kentucky, Georgia, Missouri, and Kansas are looking to curtail or eliminate the death penalty (Vox). The Utah legislature made an attempt to repeal the death penalty, although it was rejected by the majority of the state legislature. 

This trend on the Right to be more anti-death penalty is captivating because being pro-death penalty has been a notoriously conservative stance as long as I can remember. As such, this particular question wanted me to dig into why this is happening. I am sure that there are those on the Right who have done some soul-searching and realizing something incongruent with their other conservative beliefs and their position on the death penalty. I am neither speaking as someone who is conservative nor is pro-death penalty. At the same time, I used to be conservative and I used to be pro-death penalty. I understand the arguments in no small part because I used to make them myself. That is why I want to look at the death penalty from a conservative vantage point and outline facets that show why the death penalty is at odds with conservative values. 

1. Innocence and Error Rates. The government is run by people, and thus, is prone to error because humans are fallible. Here are some payment error rates from government programs: 25 percent error rate with the Earned Income Tax Credit [EITC], 21.4 percent for Medicaid, and a 10.7 percent improper payment rate for unemployment insurance. Since the government is fallible, why do pro-death penalty conservatives suddenly believe that the government is going to be flawless when it comes to the death penalty? Is it simply because it is a policy idea that these conservatives happen to like? The government does not magically give us what we want because it is appealing to our moral sensibilities. The truth is that government also makes mistakes when it comes to the death penalty. The risk of executing an innocent person is real, whether a wrongful conviction is brought on by a mistaken eyewitness, an overzealous prosecutor, an incompetent defense attorney, coerced confessions, scrupulous jailhouse snitches, or botched forensics. In addition to the 186 individuals that have been exonerated since 1973 (Innocence Database), the National Academy of Sciences made a conservative estimate that 4.1 percent of those prosecuted under the death penalty are innocent (Gross et al., 2014). Not only does the government wrongly execute people from time to time, there are times where the errors take place with the execution itself. According to University of Amherst professor Austin Sarat, 276 executions, or 3.2 percent of executions, between 1890 and 2010 were botched. 
• We are talking about a literal matter of life and death. One mistaken execution is too many, never mind an erroneous conviction rate greater than one in 25. If conservatives find comparable improper payment rates unacceptable with various government programs, they should a fortiori be all the more outraged with the death penalty's erroneous conviction rates. 
2. The death penalty is not shown to deter crime. One of the main arguments that the pro-death penalty side uses is that the death penalty is a deterrent, particularly for would-be criminals who are thinking about committing heinous crimes. The issue is that there is not evidence showing that the deterrent effect exists. The National Research Council reviewed more than three decades of evidence and were unable to find credible evidence that the death penalty deters. The studies the NRC analyzed that claimed a deterrent effect were considered flawed since they did not take non-capital punishments, e.g., life without parole, into account. The Brennan Center for Justice released a report to figure out what caused the decline in crime in the 1990s and 2000s (Roeder et al., 2015; p. 43). Among the Brennan Center's findings was that there was no evidence that the death penalty contributed to this decline. 
• If the death penalty were as unambiguously as much of a deterrent as proponents believe, the evidence would be there. I know there are multiple factors that can attribute to the murder rate. However, it becomes difficult to argue that the death penalty is such a strong deterrent when the murder rate of death penalty states consistently remains higher than the rate of non-death penalty states (Death Penalty Information Center; Federal Bureau of Investigation). 
• My final point has to do with expert opinion. Yes, the following data come from 2009 since that is the most recent polling available. At the same time, both criminologists and police chiefs at this time overwhelmingly believed that the death penalty does not act a deterrent. 
• Deterring future crimes is one of the main arguments used by proponents of the death penalty. The lack of evidence for a deterrence effect means that the death penalty is not keeping us safer. 
3. The death penalty collides with a pro-life stance. Not everyone on the Right holds to an anti-abortion stance, but most do. As of 2021, 74 percent of Republicans identified as pro-life (Gallup). The premise behind the pro-life stance is the belief that human life is sacred. Those who are against abortion argue that personhood is [one of] the main considerations for their anti-abortion position. If applied consistently, advocating for the totality of life would include accused murderers. Since alternatives such as life without parole (LWOP) can adequately punish without making the permanent decision of ending a life, a pro-lifer should prefer LWOP over the death penalty. 
• It presents a moral conflict to consider oneself pro-life but support a practice that literally has the word "death" in its name. The moral qualm from a pro-life stance is more pronounced when considering the erroneous conviction rate or that the death penalty has not been shown to protect more lives, as previously detailed. 
4. High cost of death penalty goes against fiscal conservatism. I wrote about the fiscal costs back in 2014, but it is worth a bit of an update. In 2017, the Oklahoma Death Penalty Review Commission found that capital cases cost over three times the amount of non-capital cases. For Nebraska, that would be a difference of $1.3 million between a capital case and a non-capital case. A fiscal impact report from the State of New Mexico calculated that it would cost the State an additional $7.3 million over the first three years of implementation. Susquehanna University also calculated the extra cost of a capital case, which is $1.12 million [in 2015 dollars] (McFarland, 2017). It makes sense that a capital case would cost more. There are greater expenditures in a capital case, ranging from more lawyers, witnesses, experts, and pre-trial motions, as well as a more extensive jury selection process and a separate trial for sentencing. Those are the costs before accounting for the lengthy and costly appeals process. 
• Looking at the death penalty from a strictly fiscal lens, a capital case is a bloated, inefficient program that drives up the costs of law enforcement. These are dollars that could go elsewhere in law enforcement, such as numerous unsolved homicides, violence prevention programs, services for victims' families, or modernizing crime laboratories. They could go to other programs, as well as helping reduce government debt. The cost of implementing the death penalty is more startling when you consider that the death penalty has taken innocent lives or that there is no evidence that it keeps us safer. 
5. Limited government. For those who are limited-government conservatives, the main premise is to restrain government power to make sure it does not overreach. Just read the amendments in the Bill of Rights and you can see a pattern of limiting what a government can and cannot do. Limited government also implies that the government still has some powers, including prosecuting murderers, arsonists, rapists, and fraudsters. Even in a pursuit of justice for victims of the most heinous of crimes, we need to limit the power of government. The death penalty is state-sanctioned power over life and death. As Lord Acton once wrote, "Power corrupts and absolute power corrupts absolutely." How is supporting the death penalty congruent with supporting limited government? 
• Giving the state a power that potent and that fatal is the opposite of being for limited government. There are nonlethal methods that are less costly (see previous point) and still deliver justice, which means that the size of government stays smaller as a result of not having the death penalty.

Postscript

The death penalty comes with multiple issues from a conservative point of view. If conservatives were to apply its criticism of government inefficacy consistently, they would scrutinize the death penalty as much as they scrutinize government welfare programs, unemployment insurance, and numerous government regulations. The costliness of the death penalty alone should make a conservative cringe. Combining that with conviction error rates, the percentage of botched executions, and the lack of evidence on deterrence should make that cost all the more unjustifiable. The fact that the death penalty is not proven to save lives makes the "pro-life/pro-death penalty" moral stance all the shakier. And how can a conservative maintain a limited government stance while supporting a Big Government policy that is inefficiently run and makes mistakes? I hope that support for the death penalty continues on a downward trend and that conservatives contribute to that decline.