The last time I wrote about the death penalty, I defined it as a political “third rail” in Utah.
A third rail is the electrified piece that powers subway trains. Touch it and you die — or your political career dies, to continue the metaphor. Utah lawmakers stay healthy by leaving capital punishment untouched.
Or so I thought.
I’m no longer so sure.
In the space of only a few hours this week, two Republican state lawmakers announced they were co-sponsoring a bill that would remove death as a sentencing option in murder cases, and then David Leavitt, the Republican county attorney in Utah County — possibly the reddest jurisdiction in America — announced he was swearing off seeking the death penalty in any criminal case, period.
That includes the current trial of Jerrod William Baum, accused of slitting the throats of a young couple and tossing them in a mine shaft. Leavitt filed a motion to withdraw the state’s intention to seek capital punishment in that case.
What in the name of Gary Gilmore is going on here? Two Republicans might be an anomaly, but three could signal a movement, and the bill also has the support of the Libertas Institute, a libertarian-leaning think tank.
Next year’s legislative session just got a lot more interesting.
The problem with any discussion about the death penalty is that it tends to pit technical and academic arguments against the gruesome details of murders so heinous, depraved and downright evil that the perpetrator seems something less than human.
It’s hard to sound convincing about the need for justice, rather than revenge, or about the possibility of judicial error against someone whose gut instinct is to be glad the world could be rid of a killer.
And yet a more fundamental, philosophical inconsistency is at play that seldom gets much attention. If conservatives have a healthy distrust of government power, why would they willingly grant governments the power to take someone’s life?
One of the co-sponsors of the bill unveiled Wednesday, Rep. Lowry Snow, R-St. George, reminded the Deseret News and KSL editorial boards that the justice system is imperfect. “We’re asking juries to make decisions of life or death with the very best knowledge that they have available,” he said, noting this depends on the evidence available at trial and the abilities of the attorneys involved.
“It’s the only penalty that I’m aware of in a criminal case, that we say we’re going to do to the perpetrator what you did to the victim,” Snow said, adding, “With government overreach, making decisions on our behalf … maybe they shouldn’t be making a decision on who lives and who dies.”
Earlier this year, the Death Penalty Information Center said it had catalogued 185 people who were sentenced to death since the late 1970s and then exonerated, often through the use of DNA evidence. Statistically, it’s safe to say at least some people also have been wrongly executed.
So, is Utah ready for this? Will three prominent Republicans and a libertarian-leaning think tank have enough sway to turn off the juice to this third rail?
Gallup has polled on this issue going back to the 1940s. The nationwide trend in recent years has unmistakably been toward less acceptance of capital punishment, but a 2020 survey still found 55% in favor. It’s unclear whether that trend is mirrored in Utah, but Connor Boyack, president of the Libertas Institute, said in his experience the more people know about the death penalty, the less they support it.
Snow and his co-sponsor, Sen. Dan McCay, R-Riverton, argue that the death penalty is, at best, a false promise. It gets bogged down in never-ending appeals while giving perpetrators undue publicity at every turn — publicity that hurts victims, forcing them to relive the horrors their loved ones endured again and again. They argue about the need to protect the judicial system from committing the ultimate error of taking an innocent person’s life. They argue about the cost to taxpayers, and even mention a spiritual aspect to their growing opposition.
And yet, many online commenters on the news stories fall into familiar patterns in favor of death as a just reward, and of finding ways to speed up the process. Little doubt exists about the guilt of the seven current death row inmates, many said.
But the bill would not apply retroactively to those seven. They still would have a date with an injection or a firing squad.
Snow, McCay and Leavitt have mounted strong conservative arguments for abandoning capital punishment. If arguments alone carry the day, Utah soon could become a trend-setter among conservative states.
Jay Evensen is the Deseret News’ senior editorial columnist.