Two years ago, a group of Republican lawmakers toured the death chamber in Oklahoma, which has been responsible for more executions per capita than any other state in the last half-century. At the Oklahoma State Penitentiary in McAlester, they took in the jet-black gurney straps, the phone connected to the governor’s office and the microphone used for last words.
“The hair rises on the back of your neck,” said state Rep. Kevin McDugle. “A few legislators couldn’t be in the room very long.”
They continued on to death row to see Richard Glossip, who has spent more than two decades in solitary confinement, facing execution for a 1997 murder. Glossip says he had nothing to do with the crime, and a growing number of conservative lawmakers believe him.
“I just remember putting my hand up on the glass,” McDugle recalled, “and he put his hand up, and I said, ‘You’ve got people fighting for you. Keep your head up, brother.’”
As Oklahoma officials seek to resume putting prisoners to death later this year, McDugle has pursued bills in the state legislature to help those on death row prove their innocence, knowing Glossip could be among the first facing execution.
“My fear is some people will be executed before we pass a bill,” McDugle said.
Glossip’s case is reaching the highest echelons of politics in a deep-red state at a time when Republicans across the country are increasingly split on the future of capital punishment. Support for the death penalty used to be popular in both parties, but over the last three decades, Democrats have turned away from the punishment, leaving Republican legislators, governors, prosecutors and judges to fight for its continued use. At the same time, a small conservative movement — including groups like Conservatives Concerned About the Death Penalty — has been openly questioning capital punishment. It’s now clear their efforts are paying off.
From left, Oklahoma state Rep. Kevin McDugle, Texas state Rep. Jeff Leach and South Dakota state Sen. Arthur Rusch have filed bills to reform the death penalty in their states. (Photo: Associated Press)
Earlier this year, Virginia became the first Southern state to repeal the death penalty after three Republicans voted with the state legislature’s Democratic majority. A Marshall Project review found that in roughly half the states with an active death penalty system, Republican lawmakers have recently sponsored or written bills to ban or constrain the punishment, or to help potentially innocent prisoners avoid it.
Although many of these bills are unlikely to pass, their sheer volume suggests a significant shift in conservative views. Some of these Republican legislators see their bills as incremental steps toward ending the punishment. But others, like McDugle, don’t want to end the death penalty — they just want to fix it.
“I want to make darn sure that if we as Oklahoma are putting someone to death, they deserve to be there,” McDugle said. “I know there is human error all the way through.”
A change in philosophy
Conservatives have been slowly turning away from the death penalty for years, as high-profile innocence cases have helped frame capital punishment as a problem of out-of-control big government.
In 1999, after a series of exonerations of people who had been sentenced to death, the Republican governor of Illinois, George Ryan, declared a moratorium on executions. At the time, Texas Gov. George W. Bush was running for president, and the national press questioned whether an innocent person had faced execution under his watch; soon after, his fellow Republicans in the state legislature voted to make DNA testing more available for prisoners.
From 2014 to 2019, Republican support for the death penalty, as opposed to life sentences, dropped from 68% to 58%, according to Gallup Polls. Republican legislators in Nebraska voted to repeal the punishment in 2015, although the state’s residents then voted to bring the punishment back.
Some lawmakers have been motivated by anti-abortion arguments about the sanctity of human life and stories of Christian redemption on death row. Others talk about the cost to taxpayers. South Dakota state Sen. Arthur Rusch previously served as a judge in a capital case. “My case cost at least $1 million if not more,” he said, noting that the court paid for counseling for some jurors who suffered from post-traumatic stress after the lengthy trial. He was elected to the senate in 2015, and has filed numerous bills to abolish or restrict the punishment; none have succeeded, he said, but each time he brings along a few more peers.
“Changing your mind on an emotional subject like this can be difficult,” said Hannah Cox, who writes columns for Newsmax, a conservative web outlet, and serves as national manager of Conservatives Concerned About the Death Penalty. She’s found that efforts to fix the system can serve as “baby steps,” as she tries to show her fellow conservatives that the system can’t be saved. “If you fix one of 13 problems with the death penalty, there are still another 12.”
Virginia Gov. Ralph Northam, seated center, displays a bill abolishing the death penalty after signing it as he is surrounded by legislators and activists at Greensville Correctional Center in Jarratt, Va., Wednesday, March 24, 2021. (Photo: Steve Helber, AP)
Of those problems, conservatives have been less likely to cite the racial disparities in capital punishment that animate many of its liberal opponents. Of the more than 2,500 people on death rows around the country, 41% are Black. In contrast, Black people make up 13% of the total U.S. population. For his part, McDugle acknowledges the disparity but said it isn’t what motivated his efforts.
“When I look at a bill, I don’t see color at all. I look at an individual and say, ‘If an individual commits a crime of this nature, should they be put on death row or not?’” he said.
Robert Dunham, the executive director of the nonpartisan Death Penalty Information Center, said it’s wrong to think that conservative lawmakers only get involved in cases where white people face execution. “Where the case looks like a 21st-century lynching, it offends conservatives’ consciences,” Dunham said, adding, “I think that the fact that extreme injustices also do happen to white capital defendants is eye-opening to people who have not appreciated the depth of the problems in capital punishment.”
Many conservatives focus on the moral calculation of who deserves the ultimate punishment. Ohio recently passed a bill, sponsored by a Republican legislator, to ban the execution of anyone with a serious mental illness. Republicans are pushing similar bills in Florida, Kentucky and Missouri.
In Texas, state Rep. Jeff Leach has filed a bill that would ban the death penalty for people who were technically “accomplices” to murders but played a minor role, including getaway drivers. Much like the Oklahomans, he was motivated by a single case — that of Jeff Wood, who was sentenced to die after his friend killed a store clerk while Wood waited outside in the car, after what they thought would be an easy robbery.
Though Wood’s case is not in Leach’s district, he wrote to the North Texas lawmaker and pleaded for help. His letter ended up on the top of Leach’s pile of prison mail, and he picked it up one day on vacation when it was too rainy to go to the beach. He’d been hoping to catch up on his backlog of letters, but Wood’s story sucked him in.
“It’s been on my mind and on my heart ever since,” Leach said. “Jeff Wood isn’t innocent, but the state shouldn’t even be considering putting him to death.”
Other lawmakers are more concerned about the risk of executing an innocent person. Texas Rep. Steve Toth, a Republican lawmaker from just north of Houston, filed a bill banning the death penalty in cases where there’s only one eyewitness and no other evidence. As a Baptist pastor, he was moved by seeing death row exonerees speak to the legislature several years ago, as well as the film “Just Mercy.”
“Even the Bible says you shouldn’t put someone to death without a corroborated eyewitness,” he said, citing the Book of Deuteronomy in the Old Testament. “If we’re going to put someone to death we need to be absolutely certain.”
Glossip case spurs action
The crime that landed Glossip on death row took place in the early morning hours of Jan. 7, 1997, at the Best Budget Inn in Oklahoma City. Sometime before dawn, owner Barry Van Treese was bludgeoned to death and left in Room 102. As the motel’s live-in manager, Glossip quickly became a suspect, and police arrested him two days after the killing.
Later, authorities realized that 19-year-old handyman Justin Sneed was the one who actually carried out the fatal beating. They arrested him, too, and under questioning Sneed confessed, but claimed that Glossip had masterminded the killing.
There was scant evidence of Glossip’s involvement, but an Oklahoma jury still found him guilty, based largely on Sneed’s testimony. In exchange for that testimony, Sneed got a life sentence, while Glossip went to death row.
An appeals court tossed out the verdict, saying Glossip’s lawyers hadn’t done a good enough job. When the case went back to trial in June 2004, it ended with the same result.
Richard Glossip at Oklahoma State Penitentiary in McAlester, Okla., in November 2016. Glossip has been on death row for over two decades. His case has motivated Oklahoma state Rep. Kevin McDugle to pursue legislation that he hopes will fix the death penalty. (Photo: Courtesy of Joe Berlinger)
In 2015, Glossip came within hours of execution before the governor called it off over a controversy involving the state’s death drugs. Since then, his case has continued attracting celebrity attention, and his lawyers say they’ve found more witnesses who could help prove their client’s innocence. Right now, they’re fighting to get access to files the district attorney’s office is refusing to turn over, but that Glossip’s team says could hold the key to proving his innocence.
A few years ago, conservative business owner Justin Jackson watched “Killing Richard Glossip,” a four-part series on Investigation Discovery, the true crime television network, and couldn’t stop thinking about it. Jackson is friends with Oklahoma Gov. Kevin Stitt, and while the two were hunting deer, he voiced his concerns. Eventually, he cold-called Glossip’s lawyer and offered his help, and started talking about the case to friends in the legislature, including McDugle.
One of McDugle’s bills would require prosecutors to share materials with defense lawyers. (Around the country, prosecutors frequently tangle with the defense over what they must share.) Another bill would allow the parole board to create a Conviction Integrity Review Unit to study innocence claims (usually these are housed in county-level prosecutor offices, although Michigan and Pennsylvania have statewide units.) The third would create a “Prosecutor Conduct Review Panel,” which would decide what evidence is potentially favorable and must be given to the defense. (Currently, prosecutors get to decide.)
McDugle failed to get these bills out of legislative committees and blamed prosecutors for undermining his efforts. He will continue to push the proposals next year but also knows it may be too late. He plans to lobby the state’s parole board directly to study the Glossip case and recommend that Stitt free him from death row. McDugle has also been swayed to advocate for a Black man on death row who maintains his innocence, Julius Jones.
Some opponents of the death penalty hope these bills will eventually bring legislators like McDugle to the conclusion that capital punishment is broken beyond repair.
“It’s easier to start naming specific policies you don’t like before getting to ‘throw the whole thing out,’” said Laura Porter, executive director of the 8th Amendment Project, which works on anti-death penalty legislation across the country. “I’ve seen that growth from an individual issue, or case, to ‘OK, I’m done with it.”
This article was published in partnership with The Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for The Marshall Project’s newsletter, or follow them on Facebook or Twitter.
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