The Right Side of Death

Why some conservatives are changing their minds on capital punishment

The march away from support for capital punishment was a long time coming for Ron Paul. Years ago, the Libertarian-turned-Republican then-member of Congress claimed to favor the death penalty. In 1980, he moderated his position, saying his feelings were "not so clearly defined" as they once had been. Then, in 2007, he announced that he'd had a change of heart and could no longer sanction executions "for federal purposes." But he took care to reiterate that it was merely the federal death penalty he opposed.

That was then. Now, his home state of Texas is preparing to put to death convicted murderer Scott Panetti. In recent weeks, Paul has helped to lead the charge against Panetti's execution, which was scheduled for mere hours from now until the 5th Circuit Court of Appeals stayed it minutes ago to give the court time "to fully consider the late arriving and complex legal questions at issue in this matter."

Paul's evolution on the issue is not necessarily surprising. He has long been something of a libertarian conscience for the Republican Party, urging fiscal discipline and military nonintervention. Libertarians tend to be against capital punishment.

What is surprising is the list of conservative leaders who have joined Paul in asking Texas Gov. Rick Perry to reduce Panetti's sentence to life in prison. Individuals like tough-on-crime former Virginia attorney general Ken Cuccinelli, and Gary Bauer, president of the faith-and-families group American Values, recently signed a letter to that end. They note that "we must be on guard that such an extraordinary government sanction not be used against a person who is mentally incapable of rational thought."

There's some evidence the larger conservative movement is also rethinking its knee-jerk support for the death penalty. In 1994, Republicans favored the practice by an enormous 73-point margin. Twenty years later, that gap has narrowed by 19 points; a fifth of Republicans now say they're "not in favor" of the death penalty for convicted murderers.

But there are idiosyncrasies about the Panetti situation that could make it a poor bellwether. One reason so many people are objecting to this particular execution is that the inmate is believed to suffer from severe mental illness. Per the letter asking for a commutation:

Mr. Panetti [is] one of the most seriously mentally ill prisoners on death row in the United States. Rather than serving as a measured response to murder, the execution of Mr. Panetti would only serve to undermine the public's faith in a fair and moral justice system.

There's a laundry list of reasons to believe Panetti is mentally impaired, including a history of hallucinatory episodes, some leading to forced hospitalizations, that predated his crime by more than a decade. He chose to represent himself at trial and then proceeded to babble incoherently, sleep through important testimony, and attempt to call Jesus Christ to the stand. "This was no act cooked up to get him off of murder charges," wrote several signatories of the letter in a subsequent op-ed for The Washington Times.

The thought of executing a man under these circumstances is clearly disquieting to many people. But some of the conservative leaders voicing concern in this instance nonetheless say they support capital punishment as a general rule. They see the Panetti case as an exception because they believe it would be a "miscarriage of justice" to put to death someone so clearly mentally unsound—not because they believe the death penalty is inherently unjust.

There's a problem with that type of hairsplitting, however: It trusts government with the awful power to separate the truly insane from the fraudsters. The same government that conservatives routinely blast as incompetent, that brought us Internal Revenue Service targeting of Tea Party groups, and that has repeatedly deemed the schizophrenic Panetti fit for both trial and execution.

A resounding lack of faith in government to get things right on matters of life and death is a common theme among conservative anti-death penalty activists. "The greatest authority you can give government is the power to take someone's life. I think conservatives are more and more leery of the government exercising that," says Pat Nolan, who works on criminal justice issues for the American Conservative Union (ACU). "As one of my friends says, 'Do we really expect the people who run the post office to be able to determine guilt or innocence very well, and to have somebody's life depend on it?' And I guess nowadays it would be the people who designed Obamacare—would we trust them with a person's life?"

An organization called Conservatives Concerned About the Death Penalty (CCADP) has been making the rounds at right-of-center conferences, working to attract more GOPers using just such an argument. "If you think about the death penalty, it's everything that's not conservative," Marc Hyden, one of the group's national advocacy coordinators, tells me. "I can't think of a bigger government program than one that can kill you. So once we're able to educate conservatives about the death penalty, we're starting to see they're more open to opposing it."

It's not at all clear that conservatives' attitudes are headed for a tipping point. In the poll linked earlier, three out of four Republicans still say they're in favor of the death penalty. Will a majority ever switch sides to oppose it? "Frankly, we're a long way from there," says the ACU's Nolan. "But among conservative leaders there's more and more concern, and I think they will help prompt discussion among conservatives so that it won't just be a lockstep support of this awesome power being ceded to government."

CCADP's Hyden seems even more optimistic. "Conservatives, many of us used to support the death penalty," he says. "We thought the one thing that government could do properly was kill people. We've found out they can't even do that correctly."