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Why some Republicans are turning against the death penalty

Published By Vox on March 8, 2022
Ron Ferguson In The News

It’s rare for a politician to admit they were wrong. But Jean Schmidt will own up to this: She used to support the death penalty.

In 2001, Schmidt was an Ohio state representative when the legislature debated ending the use of the electric chair. Schmidt, a Republican, argued on the house floor that even if the electric chair was on the way out, the death penalty was still necessary as a deterrent to, and a punishment for, the worst kinds of crimes. “I was just very, very forceful about keeping it,” she says.

Times have changed — and so have her feelings about capital punishment. Schmidt, who went on to serve in Congress from 2005 until she was defeated in a 2012 primary, ran for the state house again in 2020 and won. One of her primary motivations for coming out of retirement was trying to end the state’s death penalty. “I’m a true conservative, a Trump supporter all the way,” she says, “and I have changed my mind on this.” She thinks other Republicans are ready to change their minds, too.

Schmidt, along with a Democratic cosponsor, introduced legislation last year that would end the death penalty in Ohio. The bill is currently working its way through committees. A similar bill has been introduced in the state’s senate, and a survey of 44 Ohio state lawmakers from the final week of February showed that 46 percent of Republican lawmakers felt that the state should eliminate the death penalty, while 38 percent of Democrats said the same (and half of the Democrats polled were undecided).

Supporters of the legislation expect it to pass sometime in the next year or so; they say it’s not a matter of if, but when. “I have no doubt that the votes are there,” says Rep. Ron Ferguson, a Republican cosponsor of the bill. “I think we’re going to get it done because of how many people from across party lines support this bill.”

State Sen. Nickie Antonio, an Ohio Democrat, has been introducing a death penalty repeal bill every legislative session since she was elected in 2010. This time, she thinks, will be different. “I’m really very optimistic,” she says, “because we have the largest number of Republicans who have joined Democrats on the bill.” It’s also the first time, she says, that bills with both Republican and Democratic cosponsors have been moving through the state house and senate simultaneously.

“When you have this much bipartisan support for something, you get to peel off that layer of partisan partiality, move that aside, and take a look at: What are we really doing here? It’s hard to do that, especially in this climate right now that is so divided.” Some of the conservative lawmakers, she says, are people she’s been talking to about the issue for years. “There’s been a lot of conversation and movement” in the party, she says.

At the national level, Democrats opposing the death penalty are still largely on their own. President Joe Biden’s Justice Department enacted a moratorium on federal executions, and his campaign said he would work to pass legislation ending the federal death penalty, but legislation introduced by Democrats in the House hasn’t yet made it out of committee.

On a state level, though, Ohio isn’t an anomaly. Republicans are leading or cosponsoring efforts to repeal or limit the death penalty in Kentucky, Georgia, Missouri, Kansas, and Pennsylvania (another bill introduced by GOP lawmakers in Utah was narrowly defeated in committee last month) and an advocacy group, Conservatives Concerned About the Death Penalty, has been highlighting the growing numbers of Republicans speaking out against it.

The efforts represent one of the few remaining issues where some conservative and libertarian lawmakers can find common ground with their liberal and progressive counterparts.

“Things are pretty divided, but thankfully this is an area where it does feel like an exception,” says Jamila Hodge, executive director of Equal Justice USA, which has worked on death penalty repeal efforts in several states, “maybe because it’s easier to tie the issue directly to the conservative value of being pro-life and coupling that with fiscal restraint.”

Proponents of the bills believe it makes sense to have conservatives take the lead in red states. In more liberal-leaning states, Ferguson says, it might not be necessary, “but here, you just have to or it’s not going to happen.”

For decades, polls have shown, the majority of the American public has supported the death penalty. In recent years, however, opinions have started to change. Gallup has tracked a decline in public support for capital punishment, from a record high of 80 percent in the mid-1990s to 54 percent in October 2021. Much of the change has come from Democrats, as growing awareness of racial inequities and the proliferation of DNA evidence has made clear that the criminal justice system is unfairly enforced and sometimes condemns the innocent.

Only 46 percent of Democrats currently support capital punishment, according to a 2021 survey from Pew Research Center. Yet the numbers show some movement on the Republican side, too: In June 2021, according to the Pew Research Center, the number of Republicans supporting the death penalty had declined seven percentage points over the previous two years. During the same period, GOP lawmakers in Colorado and New Hampshire played a role in the successful repeal efforts in their states. They’ve done it by making arguments that other conservatives can get behind.

For Schmidt, that has meant sharing her personal evolution on the issue. “For a long time it gnawed at me, being pro-life,” she says, “that I was willing to let somebody be killed.”

After leaving Congress, Schmidt met Sister Helen Prejean, the Catholic nun who has worked with people on death row, and has become a leading death penalty abolitionist. Schmidt found her arguments — that the death penalty is contrary to Catholic teachings and basic humanitarian principles — difficult to ignore.

Not long after, the former Congresswoman met Joe D’Ambrosio, an Ohio man who was convicted of murder and spent two decades on death row before he was released because a judge found that prosecutors had withheld evidence in his trial. Meeting D’Ambrosio was transformative. “It wasn’t until I met Joe that I truly met someone who was innocent. It was like a smack in the face,” Schmidt says. “We really have people who are innocent on death row. This isn’t a storybook.”

By the time Dzhokhar Tsarnaev was on trial for the Boston Marathon bombing, Schmidt — who ran the marathon and spent a few anxious minutes at the finish line waiting for her sister after the bombs went off — realized she couldn’t support the death penalty even in the extreme cases where she might have previously thought it was necessary. (Tsarnaev’s death penalty was thrown out by a federal appeals court in 2020, only to be reinstated last week by the Supreme Court.)

It’s the pro-life argument that Bernard Smith, a retired federal prosecutor who has been working on the repeal effort with Ohioans to Stop Executions, finds conservatives are especially receptive to. Smith has been giving talks to Catholic groups about Pope John Paul II’s teachings about the death penalty, and the Church’s blanket opposition to the death penalty under Pope Francis. He thinks that getting conservative Catholics on board is mostly a matter of educating them about the position of the Church.

“There are a lot of Roman Catholics living in Northeast Ohio,” Smith says. From his home in Akron, he’s trying to mobilize them to get in touch with their lawmakers. “We’re better situated now to get it done than we’ve ever been,” he says. If Roe v. Wade is overturned, Rep. Ferguson says, it could be another opportunity to convince his colleagues that now is the time to abolish the death penalty: “I’d be articulating to my colleagues that if we really want to be a pro-life state, let’s be a pro-life state,” he says.

It’s not the only argument they’re making. Schmidt and Ferguson are also emphasizing that the death penalty is too costly and that it doesn’t deter crime, and they’re seizing on public dissatisfaction with the government.

“I barely trust the government to deliver the mail, let alone make a decision on executing a human being,” Ferguson says. “That seems to resonate quite a bit with everyone from progressives to staunch conservatives and everyone in between.”

Ohio Governor Mike DeWine, a Republican, declared an “unofficial moratorium” on capital punishment in the state in 2020, telling the Associated Press that lawmakers would need to find a new alternative to lethal injection. The state hasn’t executed anyone during his time in office. He also seemed to show some openness to the anti-death penalty movement’s arguments, saying that he was “much more skeptical about whether it meets the criteria that was certainly in my mind when I voted for the death penalty and that was that it in fact did deter crime, which to me is the moral justification.”

Schmidt says that working with Democrats has been majorly beneficial in trying to build support for the measure. “It makes the lift a whole lot easier when you’ve got people on the other side of the aisle supporting your effort,” she says. “You can figure out where the commonalities are. There will be naysayers within your own caucus and on the other side of the aisle, but you can make sure their issues are addressed because your joint sponsor has an inside track to what their caucus is thinking, just as I have an inside track to my colleagues in the house.”

The ability to work on bipartisan legislation is one advantage, she says, of working in a state legislature instead of Congress, where the ideological lines are more rigidly established and lawmakers rarely work across partisan lines. Schmidt says she’s already working on other bipartisan legislation — including increased access to breast cancer screenings and public safety initiatives — and hopes to do more.

She also thinks that voters are ready to have this debate. She pointed to polling that showed that 48 percent of Republicans favored the idea of replacing the death penalty with life without the possibility of parole. The bill does face powerful opposition, including from prosecutors who want to keep capital punishment, and recent efforts in other states show how difficult convincing the public can be. In 2016, voters in Nebraska chose to repeal their own state legislature’s death penalty ban. That same year, voters in both Oklahoma and California both voted to affirm their state’s death penalty policies.

Still, Schmidt is hopeful Ohio can become the 24th state to abolish state executions. When she speaks about the death penalty repeal, she sounds like a true believer. “Every life is sacred under the eyes of God,” she says, “no matter how much we do in our life that’s horrific.”

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