Since 2009, the Georgia Tea Party has held biweekly meetings in Cobb County, an affluent Atlanta suburb that has voted Republican in nine of the past ten national elections. One winter night, the group invited an unlikely guest speaker, a young activist named Marc Hyden. He came to give a presentation against capital punishment, a policy most in attendance endorsed. “Nearly all of us are what you might call traditional conservatives on this issue,” Steve Covert, a member of the advisory board, said. “We just believe that the death penalty is justified if someone is convicted of premeditated murder. To me, it’s the right thing to do if someone takes a life.”
“State Death House Prison, Carson City, Nevada,” by Stephen Tourlentes, from his series Of Length and Measures, which documents prisons in the American landscape. Courtesy Carroll and Sons, Boston
The Tea Party rents its space, a bare-bones room that was once used to store auto parts, from the Roswell Street Baptist Church. Roswell belongs to the Southern Baptist Convention, a denomination that adheres to a harsh interpretation of biblical doctrine on execution. (Genesis 9:6: “Whoever sheds the blood of man, by man shall his blood be shed.”) A crowd of about thirty people — mostly white, mostly middle-aged — settled into folding chairs. To start, they said a prayer, and then recited the Pledge of Allegiance.
Hyden was called to the front. He is thirty-two, with close-cropped brown hair and a ready smile. He wore one of the thirteen suits that he has acquired over a decade in politics. He runs 6.2 miles three times a week, so he’s thin and fit, but he still has the fair skin of an indoor kid — he spends his spare hours reading Roman history. He lives in Acworth, a few exits up I-75, and opened with a neighborly greeting. Before he’d begun giving talks like this, he told the room, he’d worked for the National Rifle Association. “I’m a conservative,” he said. This, as always, put his audience at ease.
Hyden grew up defending a state’s right to kill. He spent most of his childhood in suburban Tennessee, where his father, Robert, worked as a pastor and then became a major-crimes detective. The entire Hyden family firmly supported the death penalty — during those years, most Americans did. In 1988, Michael Dukakis sank his presidential bid with a dispassionate response to a debate question about punishing his wife’s theoretical murderer. When Bill Clinton ran for president in 1992, he scrapped his previous opposition to capital punishment and established his tough-on-crime bona fides by returning to Arkansas to oversee an execution. (The condemned man was Ricky Ray Rector, who had killed a police officer.) In the White House, Clinton went on to push a crime bill that vastly increased the number of offenses eligible for capital punishment under federal law. During his reelection campaign, he released an ad promising that he would “expand the death penalty. That’s how we’ll protect America.”
But by the time Hyden got to college, in the early 2000s, public opinion on capital punishment was beginning to shift. Nonprofits like the Innocence Project were using DNA analysis to free the wrongly convicted. The horrors of lives circumscribed by false imprisonment, and the poignancy of triumphant releases, were covered widely in the press, displaying the justice system’s fallibility. According to the latest count, since 1973 there have been nearly 160 people sent to death row and then exonerated. In 2014, the National Academy of Sciences estimated that 4 percent of prisoners sentenced to death are innocent; however, the academy also noted that the true number would remain a “dark figure” — “not merely unknown but unknowable.”
When Hyden saw reports like this, he’d return to a question that had troubled him from a young age: What did God think of the executioner? Was he not a murderer? And, he began to consider, the danger of killing a possibly innocent person clashed with his belief in the sanctity of life. He opposed abortion; if life was sacred, the death penalty couldn’t be pro-life. He also wondered whether capital punishment could be compatible with his ideal of small government. “There’s really no greater power than the power to take life, and currently our government can kill its citizens,” he said. “I don’t think there’s anything limited in that.”
For a fiscal conservative, the high costs of capital trials presented another dilemma. In Texas, the state with the busiest death chamber, the expense of a capital case is roughly three times as much as imprisoning someone in a single cell for forty years. In Nebraska, the capital system costs taxpayers $14.6 million annually. And enforcing the death penalty in Florida comes to $51 million a year above lifetime imprisonment. Such price tags could exhaust a jurisdiction’s entire budget. In 2013, Clallam County, in Washington (population 72,000), laid off 15 percent of its workforce to fund a death-row retrial, at a cost of a million dollars. In Imperial, California, a budget officer spent three days in jail for refusing to pay for a capital trial that would bankrupt the county; the budget officer’s case wound up coming to half a million dollars, and the original defendant was ultimately acquitted. Hyden was appalled to learn that other counties were going so far as to pay for capital trials by raising taxes.
After graduating, Hyden traversed the South working on G.O.P. campaigns. In 2012, after finishing a congressional race in North Carolina, he took a position as a field representative for the N.R.A. in Florida. One day near the end of the year, he was at home browsing conservativejobs.com when he spotted an unusual ad. An advocacy group that he’d never heard of, Equal Justice USA, was looking for candidates with “experience” and “comfort working with conservatives” to join a national campaign to “expand understanding of the death penalty’s flaws.” The project was called Conservatives Concerned About the Death Penalty. Around twenty-five people applied. But Hyden was the jackpot. “I will never forget the phone interview,” Heather Beaudoin, the national organizer for Conservatives Concerned, told me. “This guy was not messing around. He had a real conservative background. Gosh, he had come from the N.R.A.”
Sketch of a cell by a man who has been on death row for more than thirteen years, from Black Is the Day, Black Is the Night, a self-published book by the photographer Amy Elkins. Courtesy Amy Elkins
As the group’s political spokesman — his official title is conservative-outreach specialist — Hyden has been on the road for four years, pitching the abolition of capital punishment in America’s least liberal corners. Facing his audience in Cobb County, he didn’t focus on the vulnerability of offenders with mental illnesses or the iniquities against the poor and people of color. Instead, after telling the Tea Partiers where he used to work, Hyden opened up a PowerPoint with quotes from other “conservatives who are coming out.” There was Oliver North (“There are very serious questions about the justice of the death penalty”) and Michael Steele (“I do not support the death penalty”). He flipped through pictures of Anthony Graves, who was freed after eighteen years on death row, and Carlos de Luna, who was executed by the state of Texas even though another man confessed to the crime. Hyden explained the procedures of a capital conviction and the lengthy appellate cycles, which can drag on for decades, costing more with each passing year. Between 1978 and 2011, he continued, California spent $4 billion to execute thirteen people — a stunning fiscal burden. The state now leads the nation in the number of inmates on death row: 748. When he finished, he looked out at the group and asked, “Do you trust the government to fairly administer the death penalty?”
The crowd raised their hands in a vote. “The room was split half and half, and two or three people said he’d changed their minds,” J. D. Van Brink, the Georgia Tea Party chairman, said. Hyden told me that was standard. “There’s always at least one, usually more depending on the size of the group, that comes up to me afterward and says they changed their mind.”
Donald Trump delivers a dystopian vision of crime and punishment. As the “law and order” candidate, he revived a proposal that he’d made in 1989, when he took out full-page newspaper ads advocating the death penalty for the Central Park Five — teenagers who had been convicted of a rape for which they were later proved innocent. During his campaign, he promised to issue an executive order mandating capital punishment for anyone who killed a police officer, assuring a crowd in New Hampshire, “It’s gonna happen. Okay? We can’t let this go.”
Though the Supreme Court has ruled against mandatory death sentences, President Trump is certain to have a lasting impact on capital punishment, since he already has a chance to appoint a new justice. Over the past four decades, the Court has diminished the number of offenders eligible for the death penalty — no one with mental retardation, no one under the age of eighteen, only the “worst of the worst” — and in 2015, Justice Stephen Breyer’s landmark dissent in Glossip v. Gross indicated an opening to consider the constitutionality of the practice itself. But it’s safe to assume that any Trump nominee would reinstate a 5?4 conservative split and favor executions as law. His choice of attorney general — Jeff Sessions, who represented Alabama in the Senate for twenty years and opposes reducing mandatory minimum sentences — suggests that the Justice Department could pursue more aggressive penalties generally than it has in the recent past, including capital punishment. At the same time, the Food and Drug Administration could loosen restrictions on the importation of lethal-injection drugs, enabling states that are running low on supplies to proceed with more executions.
Yet by every measure, the death penalty is in decline. It has been abolished in more than a hundred countries worldwide, and a Pew poll found that American support has dropped to about 50 percent — its lowest level in forty years. Fewer death sentences are being handed down, and fewer executions are taking place. Prisoners can spend more than two decades waiting to be put to death, and in some places they are more likely to die from natural causes or suicide. In 1999, the modern peak in American executions, ninety-eight prisoners on death row were killed. Last year, the number was twenty.
The death penalty is sanctioned under federal and military law, and by thirty-one states, each of which individually determines the factors that qualify a capital offense. Was the crime “especially heinous, cruel, or depraved”? Was the victim a child or a peace officer? Tennessee law identifies twenty capital offenses; Texas has ten. District attorneys are left to decide when to pursue a death charge, and for more than a decade, they have become increasingly reluctant to do so, in part because it is an expensive, time-consuming affair. Capital cases require more preparation than regular trials, and most defendants are poor, leaving taxpayers responsible for funding both the prosecution and the defense. Moreover, courts are encouraged to provide a high level of scrutiny — “super due process” — and to grant capital defendants multiple attorneys, plus specialists, investigators, and an automatic appeal.
The Supreme Court ruled the death penalty to be unconstitutional in 1972, though the justices didn’t agree on a rationale, and in 1976, after William O. Douglas was replaced by John Paul Stevens, the Court upheld new state laws that allowed executions. The decision, in Gregg v. Georgia, resulted in capital trials being split into two parts. The first, known as the guilt phase, is a regular criminal trial. The second, the sentencing phase, is a separate trial entirely, to determine whether a person deserves to die. The sentencing trial, held before the same jury as the first, allows the defense to present mitigation — details that might rescue the defendant from the flattening facts of the crime.
When faced with a compelling defense, a jury will often choose life. I have worked as a mitigation specialist and have seen how effective this persuasion can be. During a trial I worked on three years ago in Wyoming, the jury returned a guilty verdict in about an hour. Filing into the courtroom for the sentencing hearing, they looked implacable; I felt certain that they would decide to execute my client. But the man’s family and friends spoke about the abuse and poverty he suffered as a child; an expert witness explained that a community that did not recognize mental illness had allowed the psychological unraveling that precipitated his crime to remain masked for years; a video was played of his young son describing how he dearly missed his father. The testimony was enough to persuade the jury not to kill him — he was sent to prison for life without parole.
In the high-profile case of Dylann Roof, the white supremacist who was convicted in December of murdering nine parishioners during Bible study at the Emanuel African Methodist Episcopal Church in Charleston, South Carolina, Roof insisted on representing himself in his sentencing trial and declined any testimony relating to his mental health. His rejection of an attorney’s help was extremely unusual, and a defense based on his troubled mental state might have been his only hope. After a three-hour deliberation, in what was the first capital trial involving the federal hate-crimes law, the jury returned a verdict that he be executed. (There will probably be years of appeals, but with a state trial still to come, his fate appears sealed.) Even some of his victims’ families said that they hadn’t wished for a death sentence.
In 1973, David Keaton was the first person in the United States to be exonerated from death row. Photograph by Edwin Tse
When a jury condemns a defendant, the execution itself can be impractical to carry out. One reason is that protection from “cruel and unusual punishment” was enshrined in the Eighth Amendment. Hangings have mostly been phased out, and reports of prisoners’ bodies writhing, smoking, and occasionally bursting into flames rendered the electric chair virtually — though not entirely — obsolete. By the mid-Nineties, lethal injection was widely adopted as a seemingly peaceful alternative. But recently the global supply of lethal-injection drugs has been running low, and some prisons have resorted to creative cocktails, with grave results. In 2014, Clayton Lockett was administered an untested batch of drugs by a doctor at the Oklahoma State Penitentiary. He convulsed for forty-three minutes before dying. The incident sparked national outrage, even though it was hardly the first time an execution had gone awry. In Gruesome Spectacles, Austin Sarat, a professor of jurisprudence at Amherst College, recorded seventy-five earlier cases of prolonged or otherwise flawed executions using lethal injection, and concluded that it is more likely to be botched than any other method. The reality of condemnation by the justice system ultimately torpedoes the fantasy that there might be such a thing as a civilized form of killing.
Equal Justice USA, Hyden’s employer, has been fighting against capital punishment since 1990. The group originated in College Park, Maryland, with a broad mission of reforming the criminal-justice system, but ultimately fixed its sights on the death penalty. In 2004, Shari Silberstein, a young documentary-film maker, took over the organization and later moved it to New York, where Equal Justice successfully campaigned to abolish executions. The group’s work has helped do the same in Maryland, New Jersey, Illinois, Connecticut, and Delaware. There are now seventeen people on staff, and much of their budget — which totals a little more than $2 million — comes from large progressive philanthropies.
When I visited their headquarters, in a converted loft in Brooklyn, I found evidence of the group’s modest origins. The team gathered for a meeting around a coffee table draped in an Indian tapestry. A puckered poster for The Hurricane, the Denzel Washington biopic about a boxer wrongly accused of homicide, stared down as staffers munched on bagels. Silberstein told me that they try to balance their lefty affiliations with new conservative donors, who sometimes grumble about being on the same list as George Soros. A couple of years ago, Susan Sarandon — an anti-death-penalty activist since she played a spiritual adviser to a condemned inmate in Dead Man Walking — agreed to sign on to an Equal Justice petition. Silberstein welcomed the star power and dashed off an enthusiastic note to the organization’s subscribers, but a few of them were rankled. “Susan Sarandon is the epitome of radical liberal thought that is extremely abhorrent to me and my colleagues,” one emailed back. “Sorry, but I won’t be agreeing to ‘Stand with Susan Sarandon’ anytime soon.”
Equal Justice knew that finding common ground with conservatives might be difficult, but believed it would be vital. After Silberstein moved the group to New York, one of her first hires was Laura Porter, a lawyer and community organizer, who told me that she had an “obsession with finding ways around the polarization in the country.” One night, Porter happened upon a TV-news interview that featured an evangelical pastor who spoke against racial disparities in sentencing. She was moved. “I grew up Jewish in Massachusetts with Dukakis” — a family friend, Porter said. And yet the pastor sounded so much like her. “Why aren’t we talking to evangelicals?” she thought.
Silberstein had been having similar ideas. While fewer Americans overall condone capital punishment today, some 72 percent of Republicans still do, and 83 percent of executions occur in the heavily conservative South. A recent poll, however, revealed a promising sign among practicing Christians (those who attended a service at least once in the month before the survey): nearly half of the boomers said they supported the death penalty, but among the millennials, only 23 percent did. Silberstein saw potential. “There was a real opportunity to bridge between left and right,” she told me.
In 1990, Sabrina Butler was convicted of murder and child abuse in the death of her nine-month-old son, Walter, and sentenced to death. She was exonerated in 1995. Photograph by Edwin Tse
They decided to start with themselves. Silberstein and Porter began attending dinners hosted by Richard Viguerie, a prominent Republican fund-raiser and outspoken death-penalty adversary. (“Would Christ pull the lever and execute somebody? I don’t think so.”) Viguerie made his name pioneering political direct mail for G.O.P. causes. But among his fellow Republicans he felt alone on capital punishment. He’d started organizing the dinners at his office, in northern Virginia, as a bipartisan salon, where Republicans and Democrats could come together and discuss reform. Over Chinese takeout, Viguerie told Silberstein and Porter that he believed change could not happen until the right assumed the mantle. “Liberals cannot lead,” he said. “Conservatives feel they would turn most people in prison loose, and we just don’t trust them to make the right decisions.”
While Equal Justice was meeting with Viguerie, one of its partners — the Montana Abolition Coalition — was launching a bipartisan campaign on the other side of the country. Heather Beaudoin, then a recent college graduate who had worked at the National Republican Congressional Committee, had just been hired. Beaudoin, an evangelical, believes that God called her to help stop executions. In 1998, when she was thirteen, she learned that Karla Faye Tucker, a convict in Texas who had undergone a jailhouse conversion to Christianity, had been put to death. “This woman really seemed to have turned her life around and was doing good things in the prison,” Beaudoin recalled. “Even as a child, I just thought that that doesn’t make sense. They’re working on her. We’re taking away her life, and why do we need to do that?”
Beaudoin had always struggled to communicate with other conservatives who opposed the death penalty. Lawmakers who held her position were sometimes grudgingly signing on to Democratic proposals. “It didn’t feel like there was really any platform or way for us to get involved, because people didn’t necessarily agree for the same reasons or they didn’t necessarily feel comfortable at the same table as some progressive counterparts,” she told me. When she applied for a job with the Montana Abolition Coalition, she figured that the organizers wouldn’t want someone with “all of this Republican stuff on their résumé.” Instead, they were thrilled.
Equal Justice had now found a door to the Christian right. Porter flew out to Montana to meet Beaudoin and guide her through meetings with G.O.P. and religious leaders. Following Viguerie’s advice, she made sure that Beaudoin was the mouthpiece. Conservative legislators were receptive to her message, and Beaudoin began to speak at local Pachyderm Clubs, where Republicans convened. Just about every time, she said, someone would say that she had swayed his opinion. Conservatives Concerned was born as a forum for this emerging group of allies.
As the project expanded, Beaudoin dedicated herself to sitting down exclusively with religious organizations. In 2010, she met with a superintendent of the Assemblies of God denomination, who a year before had written to Montana’s judiciary committee to protest a repeal of capital punishment. By the time their conversation was over, he told her that his faith in redemption had compelled him to reconsider; he recanted to the committee. And in 2014, Beaudoin gave a presentation to the National Association of Evangelicals, a group representing 45,000 churches and millions of congregants, which has for decades backed capital punishment. Several months after the meeting, the board issued a statement affirming “conscientious commitment of both streams of Christian ethical thought” — an unprecedented gesture toward sparing the lives of people on death row.
Perhaps the most encouraging sign came from Beaudoin’s father, a farmer and rodeo champion. Throughout her childhood, he had supported capital punishment, but after hearing his daughter out, he started advocating for abolition. “He is totally against the death penalty now,” she said. “He did a complete shift.”
Each year, Hyden works a booth at the Conservative Political Action Conference, in Washington, D.C. The conference hall, in a sprawling convention center in National Harbor, overlooks the Potomac. In the basement, Conservatives Concerned shares real estate with stalwarts like the Heritage Foundation and the N.R.A. On the second floor there is a section called Radio Row, cordoned off for live broadcasts. One afternoon at the conference last March, Hyden made his way to an interview with the host Lars Larson. Larson, a steadfast Republican whose eponymous show is syndicated on more than a hundred stations, was the loyal opposition.
Applause from the main room, where a crowd was roaring for Ted Cruz, filtered into the hallway as Hyden passed young women in nude heels and elephant-patterned miniskirts, and old men wearing navy suits. When he arrived at the radio booth, Larson was finishing up with Stacey Dash, the actress and Fox News contributor. Dash stood to leave, and Hyden took her place in the guest chair, preparing to get grilled.
Larson smiled. “So we’re going to talk death penalty, one of my favorite subjects,” he said. He had a wide, protruding chin and a wave of black hair combed across his forehead. He wore a dark suit with an American-flag pin on the lapel.
Hyden chuckled. “We always have fun.”
Larson turned to his microphone to start the interview. “Marc and I have talked before, because Marc is a conservative who does not believe in the death penalty and I’m a conservative who does. So, Marc, take your best shot.”
Hyden leaned forward into his own mic. “There’s an inherent risk to killing or taking innocent life when you give an error-prone government the power of death, and because of that, as a pro-life person, I think that’s unacceptable,” he said. “It risks innocent life, and I don’t think it’s the proper role of government, especially when you have other options.”
As the conversation continued, Larson pressed him: “Cite for me in the modern era of the death penalty — the last forty-five or fifty years — one case where the government has actually executed a factually innocent person.”
“Well, the criminal-justice system doesn’t exist to go back and look at those cases, so it’s impossible to actually prove that.”
“I don’t think that’s true.”
“It is very true.”
“I don’t think you can cite a single case where the evidence even suggests that we executed an innocent person,” Larson said.
Randal Padgett spent five years on death row. He was exonerated in 1997. Photograph by Edwin Tse
I noticed color in Hyden’s cheeks — Larson was blatantly, exasperatingly wrong. Hyden had the names from his regular presentation, but now, with the chance to make a wide appeal, he wanted to make a bigger point. “There’s many cases where there’s serious doubt regarding their innocence,” he said.
“If you’re telling me that you can only have the death penalty if we have a hundred percent certainty that it cannot ever be used on somebody who’s not guilty, then we would never have that penalty,” Larson said. “And then I’d ask you, should we lock somebody up if we can’t be absolutely certain they’ve done what they did?”
“There is some collateral damage when it comes to life without parole,” Hyden said. “You run a risk of wrongful convictions, but they have the rest of their lives to prove that they’re innocent.” His tone sharpened. “You execute someone, you can’t bring them back from the grave.”
Jay Sekulow, the chief counsel for the American Center for Law and Justice and an adviser to Equal Justice, told me that opposition to capital punishment has been an ongoing, if repressed, feature of conservatism. “It’s the old story of ‘You’re not the only one that thinks this way,’ ” he said. Now, he went on, “If you say you’re conservative and you’re opposed to the death penalty, people don’t go, ‘Oh, that’s like being a vegetarian for meat.’ ”
Some Republicans need only to watch their colleagues come out of the shadows. In May 2015, David Burge, a former Republican congressional-district chairman in Georgia, surprised his friends with an op-ed in the Atlanta Journal-Constitution: “As a conservative, I expect my government to find the most cost-effective means to achieve its goals, and life in prison without parole offers a far more cost-effective and speedy, yet still serious, punishment than the death penalty.”
A rangy, soft-spoken man with a swoop of silvery hair, Burge had read about Hyden’s work, and contacted him before he wrote his editorial. When I visited him at his office, he told me that he had quietly opposed the death penalty for decades. After law school, he spent a year as a “death clerk,” reviewing capital cases for a federal appellate judge in Atlanta. “This sounds cool,” he’d thought. But his enthusiasm faltered when the judge handed him two murder cases that were uncannily alike, both involving “mean white rednecks” and drug deals that fell apart. One of the men was sentenced to death, the other was imprisoned for life.
Burge drafted an opinion on the life case in an afternoon; he finished the death case six weeks later. “A month and a half of my time versus an afternoon for what to me were identical crimes just didn’t make any sense,” he said. And yet he felt that Atlanta was no place to address such concerns. “That was a very strong law-and-order time period, and I just kept my mouth shut. I was very Republican. Never said it to much of anybody and just kept my views to myself for twenty, thirty years.”
Burge felt safe to speak out after watching the culture shift in Georgia and across the country. Last March in Utah, Steve Urquhart, a Republican state senator, sponsored a bill to abolish the death penalty. It went further than predicted, clearing the Senate before stopping shy of a vote in the House. The real surprise was Urquhart’s sponsorship — a year before, he had backed a bill to resurrect firing squads. He had changed his mind, he told reporters, after a conversation with a fellow conservative over dinner.
Recently, Nebraska almost became the first red state in four decades to ban executions. An opening came when Colby Coash, a Republican senator, lent his support to a long-running effort by a “left of San Francisco” Independent named Ernie Chambers. Chambers is the longest-serving member of the state’s legislature and the only African American. Year after year, he had presented some version of the same abolition bill, thirty-five times, but got only a few votes out of committee. “He was dogged,” Coash told me.
In 2015, he approached Chambers with an idea to cosponsor his bill. Coash had supported the death penalty until his freshman year at the University of Nebraska–Lincoln, when he joined friends at the state penitentiary to count down a midnight execution. He was raised Catholic, but he hadn’t seriously considered the punishment before. In the prison parking lot, a large crowd had gathered. He told me that he remembers people standing on one side of a makeshift fence, clutching candles and praying, and on the other side, a group partying to a live band, drinking beer, and shouting the minutes to “fry time” into a megaphone. Coash was standing with the fry-time crowd. But he was shaken, and told himself that he would never be on that side of the fence again.
Coash thought he knew how to get his Republican colleagues on board. Like most states, Nebraska was hardly using the death penalty; there were ten people on death row, but the state hadn’t carried out a lethal sentence since 1997. Most of the inmates awaiting execution had died of natural causes. Instead of deploying the left’s narrative — “You’re targeting poor people, you’re targeting black people” — he started to talk about “broken government,” he told me. “And weren’t we sent here to get rid of things that were broken?” Coash’s argument started to take hold, and the bill passed with a bipartisan supermajority, overriding a veto from Pete Ricketts, Nebraska’s Republican governor.
Conservative lawmakers in at least eleven other states had tried and failed to pass similar repeal measures in recent years, and Coash began fielding requests to explain how he’d done it. In August, he was invited to speak about the death penalty at the state legislators’ conference, in Chicago. At a breakfast meeting with Eddie Lucio Jr., a pro-life Democrat in the Texas Senate, Coash advised, “Wherever it says ‘death’ in your bill, don’t cross it out. Leave it in. Add ‘by incarceration.’ ” Coash pointed to his temple. “It does something here when you have the word ‘death,’ ” he said. “So then you can go back and say, ‘Yeah, that guy’s gonna die.’ ” Lucio started to laugh. Coash continued, “He’s gonna die in his ten-by-ten cell walking circles.” The men shook hands. “That is a great, great recommendation,” Lucio said.
But the victory lap was premature. Governor Ricketts and his father, Joe Ricketts, the billionaire founder of TD Ameritrade, spent $400,000 to fund a public referendum on capital punishment. In November, Nebraskans backed Donald Trump for president, and they also voted to reinstate the death penalty. Voter referendums bolstering a state’s right to kill passed in California and Oklahoma too.
I called Coash. “The effort that the legislature went through, it was still worth it,” he said. “We had a conversation with Nebraskans about the efficiency of the death penalty, and the flaws in it.” But in recent months, there had been a series of violent crimes around the state, and the abundance of news coverage had been alarming enough to precipitate a return to the status quo. “Unfortunately, it was too hard to convince Nebraskans that we’re better off without it.”
Hyden and his fellow activists maintain that, because capital punishment is regulated by the states, it is destined to disappear from the country in phases. “Progress doesn’t happen in a straight line,” Silberstein told me. “I think there’s been so much momentum away from the death penalty over the past twenty years, one moment in time doesn’t change that.” They pointed out that, on Election Day, voters in counties nationwide picked reform-minded prosecutors — including three from jurisdictions with the most death-penalty cases. Hyden expects Republicans in Utah, Kansas, and Montana to push repeal measures in upcoming legislative sessions, and said that Equal Justice has no intention to shift its strategy under Trump. “Most of the change we’re trying to effect is at the state level,” he said. At the national level, no president has ever come out against executions while in office. “It’s one pro-death-penalty president replacing another, one pro-death-penalty attorney general replacing another pro-death-penalty attorney general,” he added. “So it’s hard to see how that changes things.”
In June, I took a last trip to Atlanta to visit Hyden and to meet his father, Robert, who had moved the family to Georgia when Hyden was in high school. He had gotten a law degree and was now working in Cobb County as a criminal-defense attorney. We stopped by his office, in a modest brick building in the town of Marietta, where Hyden often sets up to work beside him. A sign at the back entrance read innocent clients please use the front door. The interior was decorated with eighteenth-century American antiques.
I wanted to know what Hyden’s father thought about his job. When we arrived, Robert was sitting at his desk, dressed in a crisp white shirt and a tie. A little fan whirred at his feet. He told me that he had come a long way on capital punishment in recent years, but he still believed that it had a place. In a case of treason — which, in his view, was graver than any murder because it was “the murder of an entire nation” — the death penalty ought to be enforced “strictly.”
Hyden, who had taken a seat across the room, jumped in. “I understand the knee-jerk reaction, the gut feeling to that, but when it comes to the criminal-justice system, there has to be some sort of purpose. Is the purpose just retribution?”
Robert shifted in his chair. “That is one issue that he and I have had with each other,” he said. “I don’t think it’s a knee-jerk reaction. I think it is a very legitimate reaction to what can happen to a country. Someone who has committed treason, my attitude is, the chances of us rehabilitating him to anything is null and void. It’s nil.”
Hyden didn’t like to disagree with his father. “Let me clarify,” he said. “Me and him both agree that there’s just certain crimes that violate any sort of trust, at least me personally, to where I don’t feel comfortable with them ever being rereleased into the general public. And life without parole — that’s exactly what it means.”
Robert nodded. “I’m in line with that. But I also understand how society can think that there are those that maybe need to be put to death.”
Later, we headed to the Hydens’ house to collect guns for a trip to the shooting range. In the living room, Robert gave me safety instructions, offering what he said was the cardinal rule: don’t point at anything you don’t intend to shoot. Father and son like to go to the GA Firing Line, in a nearby strip mall. “When you put the headphones on, it almost kind of quiets your mind,” Hyden told me.
Hyden got into his car, a red Mustang, and I rode with Robert, following behind. I asked him about the political divide on gun control, which to me didn’t seem so different from the schism over the death penalty. “I have no desire, honestly, to hurt anybody — I really don’t,” he said. “But on the other hand, I’m going to protect my wife, my family. I’m going to do what any other person would do.”
When I mentioned this to Hyden, he told me, “I would agree with him. The last thing I want to do is hurt somebody. Life is a wonderful thing.”
