It was a snowy, windy, frigid spring day in Cheyenne, and we were freezing, standing on a sidewalk outside the Wyoming Supreme Court. The carillon of a nearby church began to chime precisely as Marguerite Herman, a veteran lobbyist with the League of Women Voters of Wyoming, announced that the press conference would begin.
“Welcome, everyone, on a very gray, overcast day,” Herman began cheerfully as the bells continued to ring. “We’re all here, bright and full of hope because we are looking forward to the 2020 legislative session to finally get a repeal of the death penalty in Wyoming to the governor’s desk.”
It would be the second time in as many years that opponents of capital punishment here would make a push for repeal. The press conference had been organized to announce a statewide education campaign to get out the word as to why the death penalty should be eliminated. During the 2019 legislative session, the abolition effort — spearheaded by Rep. Jared Olsen and Sen. Brian Boner, both Republicans — had come tantalizingly close to fruition before the full Senate shot it down. Olsen was undeterred; he has vowed to bring the measure back next year and is convinced that it can succeed.
The 32-year-old, ruddy-faced representative is a lawyer with a libertarian streak. He’s been in the Legislature for three years and has focused largely on bills to create business and banking opportunities around cryptocurrency. It was Herman, a local Catholic leader, and Sabrina King, director of campaigns for the American Civil Liberties Union of Wyoming, North Dakota and South Dakota, who approached him about taking on the abolition legislation. Until then, Olsen told the roughly two-dozen people gathered outside, he had been a proponent of capital punishment. Then he started doing research. He contemplated the morality of it. He learned that more than 160 defendants sentenced to death across the country had been exonerated, a fact that he found unconscionable. And he learned just how much money Wyoming — the least populous state in the nation — was spending to defend the practice: roughly $1 million a year in a state that has not executed anyone since 1992. None of it, Olsen decided, made any sense — and certainly not to a fiscal conservative wary of government overreach. The state had spent millions, he told the crowd, “fruitlessly trying to defend a broken system.”
“As we educate people and they learn about those exonerees, they learn about the moral considerations, they learn about the unfairness in how the death penalty is applied, I think that minds and hearts will change,” Olsen continued. There’s a strong majority in the state House in favor of abolition, he noted, and just two additional votes in the Senate would get the bill through to the governor. “If we educate the people, we educate our representatives. And if we do all of that, the days of the death penalty are absolutely numbered. And in 2020, we will abolish the death penalty in Wyoming.”
The politics in Wyoming reflect a nationwide sea change in anti-death penalty advocacy. Abolition there has become a solidly bipartisan issue, with conservative lawmakers increasingly focused on the death penalty as a fiscal nightmare — often noting, correctly, that it is far more financially prudent to sentence a defendant to life in prison, avoiding the costly staffing and court scrutiny that comes with a death sentence. Atop that foundation, some lawmakers, like Olsen, are more vigorously embracing and speaking out about the other troubling aspects of capital punishment that have long formed the backbone of the abolitionist movement: the moral ramifications, the ongoing victimization of the families of the murdered who twist in the wind as the wheels of justice turn slowly forward, and the disturbing frequency with which we incarcerate — or even execute — people for crimes they did not commit.
We came to Cheyenne as part of a larger project, seeking to put this phenomenon in historical context. For more than three years, The Intercept has been compiling a dataset of individuals sentenced to death dating back to July 1976 — when the U.S. Supreme Court ushered in what is commonly known as our “modern” death penalty era. Just four years earlier, in Furman v. Georgia, the Supreme Court had ruled that capital punishment was unconstitutional as applied throughout the United States, describing it as arbitrary and capricious. “These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Justice Potter Stewart famously wrote.
As states rewrote their death penalty statutes to comply with Furman, some — including Wyoming, which passed a new law in 1973 — sought to make death sentences mandatory for certain crimes as one way to impose uniformity. Others designed bifurcated trials in which mitigating factors would be weighed against aggravating factors to decide whether a defendant should die. In 1976, the Supreme Court upheld the latter sentencing scheme in a landmark decision, Gregg v. Georgia. Executions resumed the following year.
As the 40-year anniversary of Gregg approached in 2016, however, it was clear that the death penalty retained the same arbitrariness that led to Furman in the first place. The aggravators that were supposed to narrow death sentences to apply to the “worst of the worst” were instead expanded in many states, vastly widening the net of death-eligible cases. Decades of studies consistently found capital punishment to be biased against the poor and marginalized, with a disproportionate impact on people of color. Who gets a death sentence today is determined not by the heinousness of their crime, but by the jurisdiction where it was committed.
The dataset contained some startling numbers when it came to race. In the country’s leading death penalty states, racial disparities appear to be getting larger even as new sentences decline. We were particularly struck by places like Colorado, so emblematic of capital punishment’s racial and geographic disparities that not only are all three men sitting on death row black, but they all went to the same high school.
The data also more starkly exposed another familiar aspect of the death penalty’s failures: the huge number of death sentences that will never lead to an execution. The single largest group of people in our dataset is no longer on death row. More than 2,000 have been resentenced and hundreds have been released. Hundreds more have died awaiting execution; dozens have killed themselves.
Wyoming’s experience with capital punishment, while limited, still falls firmly within this framework: Since 1976, four people have been sentenced to death. Just one person was executed, in 1992. Two cases were reversed and ended in life sentences. One man is ostensibly still on death row. While his sentence was overturned in 2014, prosecutors are again seeking approval to kill him. The case remains pending.
Since the summer of 1976, just 20 percent of the death-row population has been executed, while 43 percent are no longer on death row. The majority of these people have been resentenced to lesser prison terms. Hundreds have been released from prison altogether.
Although the biggest gains for abolitionists this year have come out of California (where the governor declared a moratorium) and New Hampshire (which overrode a governor’s veto to abolish the death penalty), we’ve watched repeal efforts take root away from the coasts, in western states that many would assume to be unlikely contenders for abolition. Repealing the death penalty has become a recurring theme in places like Utah, Montana, Idaho, Colorado, Nevada, Nebraska, and, of course, Wyoming — where the efforts of Olsen and an ideologically diverse group of colleagues and supporters got as near to passage as has ever happened in this deep-red state.
We wanted to talk to people on the ground and on all sides of the issue: policymakers, activists, and individuals who have been directly impacted by capital punishment. So we hit the road, traveling to four states — Wyoming, Colorado, Nevada, and Nebraska — each of which in recent years has seen increased and often intense advocacy and debate around capital punishment. We wanted to know not only what is behind the momentum for change, but also what has stopped it — and what people think it will take to finally eliminate the death penalty, particularly as elected officials in many western states are gearing up for legislative sessions that begin in January 2020.
Wyoming was the last stop on our trip. After the press conference, Christopher Xanthos of Cheyenne’s Christian Orthodox church played with his young son and pitched snowballs across the state Supreme Court’s blanketed lawn. Xanthos was jazzed — excited to get the word out and help push a repeal bill across the finish line. Like the rest of the crowd, he felt confident that bipartisan strength and enthusiasm would lead to repeal. The mythos of Wyoming’s independent, suffer-no-fools cowboy culture is real, he added. The state can serve as a pioneering model, especially for red states. “It’s an exciting time in Wyoming,” he said. “If we can effect this change in Wyoming, the repercussions of that will be great.”
The energy in Wyoming was a jarring contrast to where we had just been a day earlier. We’d driven up from Denver, where the atmosphere among abolitionists was morose. This was ironic: If there was any state that had appeared perfectly poised to pass a repeal bill in 2019, it was Colorado. Democrats had a majority in the Legislature, and the new governor, Jared Polis, had indicated that he would sign the measure.
But that didn’t happen. Instead, for the fifth time since 2000, the bill flamed out — in spectacular fashion. While Wyoming’s failed repeal effort sparked optimism about the future, in Colorado, where all the stars had seemed aligned, we found bitterness and tension — and a cautionary tale of how power and competing personal agendas could hijack policy reform.
We’d been following the trajectory of the latest Colorado repeal effort since before setting off on our trip. It started off strong in the early spring, only to wind up on a roller coaster of recrimination, and ended with one of its sponsors, freshman state Sen. Julie Gonzales, tearing up on the floor as she announced on April 2 that she was pulling the measure from consideration.
We wanted to know why things had gone so unexpectedly awry, so we headed to Denver, arriving just before the weather turned cold and snow began to fall. It was at the tail end of the state’s legislative session, lawmakers were working overtime as they sped toward the May 3 closing day, and it was proving tricky to pin down interviews. Lawmakers were amazingly elusive — a situation exacerbated by the confusing layout of the state’s capitol and the cagey response of legislative aides when we inquired about the location of a particular member’s office. (They didn’t like to give out that information, we were told, because of unspecified “security” concerns.)
Nonetheless, after hunting through narrow hallways and up and down steep flights of steps, we finally found the office of state Sen. Angela Williams, a Denver Democrat who, with Gonzales, had sponsored the 2019 repeal legislation. We were early for our appointment, so we occupied a couple of chairs wedged into a hallway corner. A few minutes later, Williams strode toward us in a smart green suit accented with dangling green glass earrings and vivid blue nail polish. Her hair was cropped and sleek. She had a calm, rather dispassionate air and spoke evenly despite the drama that had just unfolded at the capitol.
Williams was elected to Colorado’s House of Representatives in 2010. She was the first black woman to serve as the majority caucus chair. Among her major accomplishments before winning a Senate seat in 2016 was a package of reforms titled “Rebuilding Trust Between Community and Police,” inspired by the constant news of police shootings of black men across the country. The legislation was initially met with resistance, not only from law enforcement, but also from members of the Senate, which was under Republican control at the time. But Williams impressed many of her colleagues by working across the aisle to win votes. “There was a lot of education to people who don’t represent communities like mine,” she said. In the end, “out of 15 bills, we passed 11 of them with bipartisan support.”
To Williams, abolishing the death penalty is an extension of these kinds of criminal justice reforms. “When you represent a district that is so diverse as mine, this actually affects the people in my district,” she said. She recalled when her own son was coming of age and constantly getting traffic tickets. “He and any young black man can slip into the system. And that’s why we’ve got to fix this whole broken part of the justice system.”
Williams’s perspective on the death penalty was also shaped by a catastrophic event in her home state of Oklahoma. When Timothy McVeigh blew up the Alfred P. Murrah building in 1995, she was working at the YMCA of Metropolitan Denver. Like the Oklahoma City building where 19 children were killed, her workplace had a child care center; she remembers being heartbroken as she visited the Oklahoma City Memorial and Museum, where a child’s shoe is on display. But she also questioned whether executing McVeigh would solve anything: “Does putting someone to death for their crimes of this magnitude really bring any relief to the victims?”
In Colorado, where all the stars had seemed aligned, we found bitterness and tension — and a cautionary tale of how power and competing personal agendas could hijack policy reform.
With practically no executions and only three people on death row, Colorado is not exactly a poster child for capital punishment. Yet it offers an uncanny portrait of the way that death sentences are increasingly concentrated in isolated clusters. In a state as white as Colorado, it would also be hard to come up with a scenario that more plainly illustrates the death penalty’s race problem. Of the three people on death row at the maximum-security prison in Cañon City, each one was prosecuted by the same district attorney’s office. All three of them went to the same high school. And all three of them are black.
Two of these men were convicted of killing a man named Javad Marshall-Fields, along with his fiancée, Vivian Wolfe, in 2005. Marshall-Fields’s mother, Rhonda Fields, became a vocal victims’ rights activist. In 2007, she was appointed by the governor to the Colorado Commission on Criminal and Juvenile Justice. In 2010, the same year Williams arrived at the capitol, Fields won a Democratic seat in the state House. In 2016, both women were elected to the state Senate.
If there was a single figure standing in the way of abolition in Colorado, we were repeatedly told, Fields was that person. Although Williams did not immediately refer to her by name, it was clear that she agreed. “I think that, No. 1, we have a very rare situation here,” she said, “because we have a member of the Legislature whose family has been affected by a heinous crime.” To Williams, there is no reason a repeal bill should not have been able to pass otherwise. “I think that her situation puts up a huge barrier.”
Williams said that she had tried to be sensitive to Fields, approaching her when she decided that she was going to bring the bill in November 2018. “She just said she couldn’t support it,” Williams said. “And I said, I realize you cannot support it. I’m not asking you for your vote. I’m trying to be respectful of you, so you don’t hear it any place else.” That same month, a story in the Colorado Independent announced a plan by Fields’s colleagues “to capitalize on the blue wave that swept Colorado in November’s midterm elections,” quoting outgoing Democratic state Sen. Lucía Guzmán, who said, “I think this year is going to be the year.”
But while the lawmakers sought to frame the issue “as a moral, rather than a partisan, decision,” according to the Independent, the death penalty bill was branded a Democratic prerogative from day one. By the end of March, it was “on life support,” the news site reported. Legislators who had previously signaled their support for abolition appeared to get cold feet. Several cited concern over the process, which had been inexplicably rushed.
Williams said there were two legislators who had committed to voting on the bill, only to later flip. She wasn’t surprised, she said sternly. But she was disappointed. “Because usually when you give your word in this building, it’s all you have. And you keep it.”
We knew we had to talk to Fields. The problem was finding her. She did not respond to repeated emails and, as was the case during most of our time under the state’s gold dome, it took a long search to find her office.
Photos: Rachel Woolf for The Intercept
The room was large and airy, with images of iconic civil rights and feminist leaders adorning the walls and a framed poster from Barack Obama’s first inauguration. Fields was not there. As we were leaving a note on her desk, she walked in. She wore glasses, a sweater set, and a breezy indifference to our presence. Let’s just go ahead and talk now, she said when we told her what we wanted, moving to a speaker behind her desk that piped in sound from the Senate floor.
We were blunt: We’d been told that her opposition had derailed the repeal effort. She disagreed. “No, because I didn’t lobby anybody,” she said. “I just stood on my own truth.” Fields said she understood that there are “disparities” in how the death penalty is meted out — and she is used to standing opposite civil rights groups and church leaders who argue for its demise. “But what I know is that the three people who are on death row are there for murder; and two of the people who are on death row are there for killing my son. And they happen to be black. And they were found guilty.”
That the proposed legislation wasn’t retroactive — and thus, wouldn’t impact the sentences handed down to her son’s killers — had not impressed Fields. If the death penalty wouldn’t be good for “future crimes,” she asked, why would you consider it acceptable for someone already on death row? Besides, she noted, the governor had indicated that if the measure were to pass, he would grant reprieves to the men convicted for her son’s death.
Polis hadn’t even consulted her, she went on, a vein of frustration and anger creeping into her voice. “So, he already staged the battle,” she said, and “he did so without talking to the victims.” She’d heard about it through the media. “I have a right to know when you’re going to take that kind of action on the offender, and I didn’t have that courtesy. And his office,” she said, striking her foot against the floor loudly three times, “is right here, underneath me.”
She said she came into work on a Monday only to learn that the death penalty bill would be considered in committee; the next day, there was a press conference about it and on the third day, the hearing. There was no chance for proponents of capital punishment to mobilize and have their voices heard, she said. “That’s what democracy is all about, giving people a fair shake, giving the opportunities to hear the arguments.”
What is clear is that Fields felt slighted by the process and, regardless of whether she actively campaigned against the measure, that dudgeon drove an iron spike through the bill. But while she is no doubt one of the most famous and powerful crime victims in the state, Fields was not the only person at the capitol who could speak from personal experience.
We finally met up with Julie Gonzales on a crisp Sunday morning in her office, which is just across the hall from Williams’s office. The walls were adorned with an autographed portrait of Dolores Huerta, a purple “Trans ALLY” sign, and a white board featuring a quote from activist Alicia Garza: “Intersectionality is about making sure that you don’t have to leave ANY PART of yourself behind.”
Gonzales, a former community organizer, had never really thought about the death penalty until a few years ago, when her fiancé got a call from the police: They’d finally found his father’s killer and would be able to close the long-unsolved crime. “That’s when I really for the first time … had to think very deeply about where I stood on the issue,” she said. She concluded that it just wasn’t an appropriate punishment — even though not everyone in her fiancé’s family felt that way.
It was that experience in part that prompted her to sponsor the repeal legislation. Gonzales had intended to file the bill herself, but when she went to do so, she learned that Williams had beat her to it. She figured they could work together. But that ended up being more complicated than she’d anticipated. “What I will say,” she said, cautiously, “I was very deferential in the process this year.” In other words, she’d allowed Williams to take the lead, which turned out to be a tactical error. And it was clear that she also felt the bill rollout was rushed and put Fields on the defensive. “I come out of grassroots organizing,” she said, “so for me, it has always been really important … to convene tables where people who are often not heard do have a seat at the table and a voice in the process. We may not agree on everything, but that act of being heard is really important.”
She intends to carry the legislation again in 2020.
“I am appalled — and it’s fine for you to print this — I’m appalled that a Democratic-majority Legislature failed in their responsibility to move this state forward,” said Guzmán, the former state senator. “They failed, I believe.”
We were sitting in the living room of Guzmán’s pink Victorian home, on a corner of a historic district in north Denver. A coffee table was stacked with books, and Guzmán’s elderly black lab sat on the Persian rug at our feet.
Guzmán, an ordained Methodist minister originally from Texas, spent years in the state Senate, holding the seat now occupied by Gonzales, and fighting for abolition. She brought a powerful perspective to the issue: Her father was murdered in 1975. “I think my own grappling with my father’s death was one of the major instigators of my understanding that killing someone who kills somebody doesn’t really do anything,” she said.
Guzmán followed the fight at the capitol closely, albeit from afar. “At first, they wanted me to go down and testify, and I thought about it, and I thought, No, you know, my time there is finished.” Besides, the judiciary committee was Democratically controlled, so they did not need her to advance it. What they did need was to form a united front on the bill and seek out allies where they could.
“If we continue to kill people who kill people, we don’t move forward as individuals nor as societies.”
Guzmán became concerned as she watched events unfold. Neither the president of the Senate nor the majority leader appeared to be leading the effort. “I just know that Senator Williams, from the very beginning, said, ‘Actually, I’m running the bill. I’ve got the title, I’m doing it.’” To Guzmán, the bill suffered for having “the wrong set of leaders.” Guzmán had endorsed Gonzales, praising her work as a community activist, but the freshman senator had no experience working with caucus members — and no “buy-in” with conservative members who might have been convinced to sign on.
Finally, Fields “has to be dealt with,” Guzmán said. That means embracing her, but not letting her hijack the effort in the name of all victims. Most importantly, repeal had to be about more than political gamesmanship. “It’s a big deal. It’s not a poker game. It’s not, you know, ‘I drew some good cards here, so I win this time.’” Abolishing the death penalty “should be about improving our societies,” she continued. “If we continue to kill people who kill people, we don’t move forward as individuals nor as societies.”
By the end of April, Nevada Assembly Member Ozzie Fumo, a Democrat from Las Vegas, was busy rushing toward the end of the state’s biennial legislative session. He was also frustrated. One of his bills, a measure to repeal the death penalty, hadn’t even gotten a hearing. Political observers blamed it on nearsighted politics. Democrats had seized control of the capitol, including the governorship, and there was a fear that passing the repeal too soon would make them all look too liberal, particularly approaching the 2020 election cycle.
Repeal bills have been filed regularly over the last decade or so, creating a steady press that seems to be catching on. Fumo said more Republicans are coming to the table and that polling numbers are trending toward abolition. So why not give it a hearing? “Even if it didn’t get a vote or if it died in the Senate or the governor said he wasn’t going to sign it … at least the conversation happened, and people were going to be educated about it,” he said. “On both sides.”
To Fumo, there are a multitude of reasons that Nevada should repeal capital punishment. There’s the cost, the necessary but lengthy appeals process, the unacceptable likelihood of wrongful convictions. And then there are the families of victims. It’s a fallacy, he said, that the death penalty brings closure to the families of the murdered. “The person on death row sometimes outlives the parents or siblings or spouses and survivors of the victim,” he said.
Fumo was on the Assembly’s judiciary committee the last time a repeal bill came up. It was March 29, 2017, and the committee met that day solely to consider AB 237, which would eliminate capital punishment and apply retroactively, clearing the state’s death row, which, according to The Intercept’s dataset, currently houses 78 people.
Among those at the hearing that day was Cynthia Portaro. It was just one day shy of the sixth anniversary of her son Mike’s murder. She was there to testify in favor of the bill.
On March 30, 2011, Mike, a 22-year-old aspiring musician, was selling tickets to his upcoming show when he was gunned down in his car in the parking lot of a Las Vegas brewery. The man who shot him had been sitting outside the brewery, smoking a cigarette. He walked up to Mike, shot him multiple times, and took off in his car.
It was 3:30 a.m. when the cops came knocking on Portaro’s door. She knew someone was dead — she just didn’t know who. Three of her five children were home; Mike and his brother and their father were all away. “I never even fathomed it would have been one of my kids,” she recalled this spring, sitting with her dog outside a Starbucks on a busy boulevard that cuts through the city’s west side.
With the help of surveillance video and DNA on a cigarette found under Mike’s body, the cops arrested 22-year-old Brandon Hill. He was charged with murder and the Clark County District Attorney’s Office said it would seek the death penalty.
Portaro’s family, mired in grief, supported the move, but Portaro couldn’t bring herself to attend the hearings that endlessly postponed the trial. Her husband attended every one. The case slogged through the court system for more than three years. In the meantime, tragedy again struck the family: Portaro’s daughter was killed in an ATV accident; then, in November 2014, Portaro’s husband died.
It was just after her husband’s death that Portaro got a call from the DA’s office: Hill would go to trial three months later, in February 2015. Portaro was overwhelmed. “In four years, I’ve lost my son, my daughter, and my husband. Now I have to go sit through this.”
Court was undeniably difficult. She found it hard being there, looking at the back of Hill’s head. But she also realized that she was not filled with “anger or hostility,” she said. “Was I upset at what happened? Yes. I was totally devastated.” A woman of deep faith, Portaro listened to her conscience and said she heard God. “Is all this worth … another death?” she recalled thinking. “If he gets the death penalty, what’s going to happen? They’re never going to execute him. He’ll be on there forever. I don’t want that.” She called her sons; they agreed that the death penalty should come off the table.
“If he gets the death penalty, what’s going to happen? They’re never going to execute him. He’ll be on there forever. I don’t want that.”
The next time she walked into the courtroom, she approached the prosecutor (who happened to be a family friend) and said they needed to talk. She says he told her that if they were going to do so in private, they would have to get approval from the judge to delay the trial — the sentencing hearing was about to begin — and take Hill and his attorney with them. Fine, Portaro told him. She remembers going into a room. What’s up? the prosecutor asked. “I said, ‘I want you to remove the death penalty.’” At first, silence, then revolt. You can’t do that, she says he told her. They got into a brief verbal tussle. “Then I just looked at him and I said, ‘This is what I want; this is what Mike would want.’ He goes, ‘OK. I will.’”
Hill’s family was stunned. They hugged Portaro. They were a good family, Portaro thought. Hill was given 28 years to life.
Shortly after the sentencing, Portaro received a letter in the mail. It was from Hill. “I know that I’m the last person that you would want to hear from,” the letter began, “but I just wanted to tell you that I really am sorry for what I did. I’m not apologizing about what happened just because of the fact that I’m going to prison, but I’m apologizing because I hate to see the pain that I’ve caused not only in your family, but in my family as well.” If Hill could trade his life for Mike’s, he would, he wrote. One day, he hoped that Portaro could forgive him.
Several months later, through a twist of fate, Portaro met a woman in Utah who worked in the Clark County jail and had supervised Hill while he awaited trial. When the woman realized who Portaro was, she embraced her, crying. And she had a story to tell: The letter Portaro received from Hill had been written well before she had asked that his life be spared. He’d been on drugs and as soon as he sobered up, the woman told Portaro, he was overcome with remorse. Portaro took it as a sign — one of several she would receive after the trial — that she’d done the right thing.
Portaro’s testimony before the committee was emotional — and notable: Portaro was the only victim’s family member to voice support for the bill. The other family members who testified were staunchly against repeal. Many had flown up from Vegas at the behest of elected DA Steve Wolfson, who, predictably, was also against abolition.
And then there was Scott Coffee, a 23-year veteran of the Clark County Public Defender’s Office who many consider to be the state’s leading expert on the death penalty — in part because Clark County, which includes Las Vegas, is the epicenter of capital punishment in Nevada. According to The Intercept’s data, of the 164 individuals condemned to die in Nevada, 118 of them come from Clark County.
Coffee ran the committee through a series of sobering facts, including that since 2005, Clark County had filed notice that it would seek the death penalty in 175 cases — a staggering number for a county with a population of roughly 2 million. While many people think that the extra costs associated with seeking the death penalty are related to post-conviction appeals, that is simply untrue. Instead, it is a prosecutor filing a notice of intent to seek the death penalty that jump-starts an elaborate and expensive legal machine. From the outset, additional lawyers must be assigned to the case, experts must be hired, and an extensive investigation of the defendant’s background must be undertaken. Merely filing those 175 cases as death-eligible costs the county an extra $70 million, Coffee told the committee.
Of those cases, 60 percent would be settled by a plea to a lesser charge, causing many to wonder whether the DA charged death as a bargaining tool, not because he really thought they were death-worthy cases. This is an issue that comes up in nearly every death penalty jurisdiction in the country. On average, just a third of the death penalty cases that actually go to trial in Clark County end up in a death sentence.
And then there’s the fact that no one in Nevada has been executed since 2006, because the state has been incapable of securing drugs to use in its lethal injection protocol — a persistent problem across the country.
Of the 164 individuals sentenced to death since 1976, there have been just 12 executions — 7 percent of death-row prisoners over a 40-plus-year history of capital punishment. And of those, 11 have “volunteered”: given up their appeals and asked to die.
Nevada has the highest rate of volunteers in the country, in large part, many say, because of the bleak conditions both inside and outside the prison, which is isolated in the high desert. “The numbers are staggering, even if you’re in favor of the death penalty,” Coffee said. Nonetheless, the state recently spent nearly $1 million to renovate its death chamber to make it compliant with the Americans With Disabilities Act. If the state doesn’t use it for executions, officials have suggested that the space could be used for meetings between death-row inmates and their lawyers.
Not to be outdone, several prosecutors pushed back against Coffee’s assessment, suggesting that it was at best inaccurate. They argued that there was no additional cost associated with trying a death case — and they cast doubt on the state’s own audit of the system, which estimated the extra cost as at least $500,000 per case. The money to prosecute capital cases comes out of the DA’s existing annual budget, so nothing to see here, Wolfson said. And the prosecutors bristled at the notion that the death penalty might be racially skewed; Wolfson’s underling, Christopher Lalli, used a mind-bending, apples-to-oranges argument comparing the race of those sentenced to death in Clark County over a number of years to the race of individuals arrested for murder across the U.S. in a single year to conclude that, if anything, the death penalty in Clark County was biased against white men.
Over lunch in late April at a popular Thai food spot blocks from his office in downtown Las Vegas, Coffee recalled Lalli’s argument as “bizarre” and totally misleading. He rattled off additional stats about the state’s death machine that hardly inspire confidence, including that just over 50 percent of death penalty convictions have been reversed by the courts. According to the Nevada Supreme Court, prosecutorial misconduct played a part in nearly half of the capital cases it has overturned.
There’s absolutely no reason to think that the problems have been or could be fixed, he said, and he doesn’t understand why prosecutors like Wolfson (who worked as a criminal defense lawyer for more than two decades before being elected DA) don’t understand this. In his office after lunch, Coffee pulled up an elaborate spreadsheet he uses to track all of the state’s death cases. They’re color-coded, with red denoting a case that has been reversed on appeal. The further you go back in time, “you can see how it starts to flush,” he said. “The longer these cases are pending, the more likely they are to be reversed. We didn’t do a very good job back then — and it’s tempting to say we do a much better job now. But that’s not realistic.”
Standards evolve, he said, noting that it was once perfectly legal to send kids to death row and to execute people with mental disabilities. What is acceptable has “always been a moving standard,” he said. “So to think that what we’re doing now is going to be acceptable 10 years from now, or 20 years from now, is pretty naive.”
The problem with capital punishment in Nevada isn’t merely a modern one. Nevada’s death penalty machine has long been plagued by faulty lawyering, arbitrary prosecution, and challenges with actually carrying out executions — all evidenced in meticulous records dating back to the early 1860s, kept at the state archives in Carson City, just steps from the Legislature, should anyone care to look.
Anderson was executed roughly a month later. The first drop from the gallows didn’t work, and onlookers tried to stop the executioners from trying again but were held back by guards. Anderson had to be dropped three times before he finally died.
In 1921, Nevada became the first state in the country to legalize use of the gas chamber, an execution method that lawmakers thought to be more humane. The state sought to buy hydrocyanic gas from the California Cyanide Company of Los Angeles, but the company balked, worried about being complicit in the killing, according to “Images of America: Nevada State Prison.” Ultimately, an employee of the prison and his wife set off on a clandestine road trip to California to purchase the gas. Knowing that they would face opposition along the way, the couple changed license plates several times and successfully avoided a roadblock erected by abolitionists before delivering the gas to the death house in Carson City.
In present-day Nevada, securing pharmaceuticals to carry out executions has proven equally difficult. In 2016, the state put out 247 requests for proposals to drug suppliers; none responded.
At the Nebraska State Capitol on the morning of April 25, state Sen. Ernie Chambers began a speech he has delivered almost every year for the past 40 years. “I know that there are people who will be against this bill no matter what,” he said. “Nothing I say is going to change anybody’s mind. But I have to do everything I can as long as I’m in the Legislature to stop the state from killing its residents.”
At hand was LB44, a bill to abolish the death penalty. In his four decades as a member of Nebraska’s unicameral Legislature, Chambers had brought such a bill every year. Twice he succeeded, only to face a governor’s veto; the first time was in 1979. But in 2015, powered by a bipartisan coalition that passed an abolition bill by a vote of 32 to 15, lawmakers overrode a veto by Republican Gov. Pete Ricketts, making Nebraska the first conservative state in the country to abolish the death penalty in 40 years.
The victory was as fleeting as it was historic. Ricketts, the billionaire founder of TD Ameritrade and co-owner of the Chicago Cubs, weaponized his family fortune to quash the bill and punish Republicans who supported it. First, he bankrolled a ballot initiative that repealed the repeal. He then poured money into election campaigns challenging GOP senators who’d dared to defy him; three lost reelection. Less than two years later, in August 2018, Nebraska carried out its first execution in more than 20 years.
In his signature jeans, short-sleeved sweatshirt, and brown hiking boots, 82-year-old Chambers is a legend in Nebraska politics. Before he was first elected in 1970, newspapers marveled at the “militant Negro leader” with a law degree who worked as a barber in his native North Omaha while fighting police brutality. At that time, black people were only 2 percent of the state’s population. “Everything the Legislature traditionally is — cautious, conservative, Caucasian — Chambers is not,” the Lincoln Star wrote in 1980. “He is one of 49 senators; yet he is apart.”
Chambers managed to put Nebraska ahead of the curve in a number of ways. When the state revamped its Juvenile Code in 1982, he won an amendment to prohibit death sentences for crimes committed by minors. It would take the U.S. Supreme Court until 2005 to impose such a ban. And in 1998 — four years before the court’s ruling in Atkins v. Virginia prohibited the execution of the “mentally retarded” — Chambers won passage of legislation abolishing the death penalty for people with intellectual disabilities. Two men with low IQs were subsequently removed from Nebraska’s death row.
Yet such successes have been eclipsed over the years by Chambers’s grenade-throwing style. He once famously proposed that executions be carried out in Lincoln’s Memorial Stadium. Spectators would be required to simultaneously push a button, at which point a chimp would pull the switch on the electric chair. People would likely be “outraged” at using an animal that way, he said. “But if it is beneath a member of the lower order to do it, it certainly ought to be beneath a member of the higher order to do it.”
For all of Chambers’s zeal for abolition, Nebraska has never been a hotbed of executions. Until the 2018 killing of Carey Dean Moore, only three executions had been carried out in the “modern” era. Nevertheless, Nebraska has its share of death penalty lore. Among its most notorious cases is that of Jack Marion, hanged in 1887 by officials in Gage County for a crime he swore he did not commit, whose supposed victim was later found alive. Today Gage County is feeling the pain of another wrongful conviction — the men and women known as the Beatrice 6, five of whom pleaded guilty in order to avoid a death sentence, only to be exonerated in 2009.
The first to stand in opposition to Chambers’s bill was state Sen. Julie Slama, appointed to the legislature by Ricketts in 2018. The 22-year-old law student worked as Ricketts’s press secretary before she was tapped to fill the vacated seat in December of that year. While Slama insisted on her independence, she rose passionately to defend the governor’s ballot initiative. Nebraskans “spoke decisively at the polls,” she said. More than two-thirds of the state’s registered voters cast a ballot on the referendum. Voting for the bill would “set a precedent of flagrant disregard for the voice of the people.”
On the opposite side was another young senator, Megan Hunt, elected in 2018. Nebraska’s first openly bisexual lawmaker, she slammed Ricketts for the “corrupt and faithless way he went over the legislature” to undo the hard-fought abolition bill. “We all know the personal, petty dislike the governor has for Senator Chambers,” Hunt added. It was no coincidence, she argued, that Ricketts originally set Moore’s execution for July 10, which happened to be Chambers’s birthday.
Like Slama, Hunt was not in office when the Legislature heard testimony about the death penalty in 2015. But she had a good handle on the issue. “The few death sentences in Nebraska are controlled not by the severity of the crime, but by the county in which they occur,” she said. Maintaining the death penalty costs $14.6 million a year, with little to show in the way of results. In fact, the U.S. Supreme Court had recently refused to consider the state’s appeal of a $28 million jury verdict in the case of the Beatrice 6. “That’s the cost of the death penalty in Nebraska,” Hunt said, adding, “It could happen to any of you, in any of your counties.”
As the senators went back and forth, a tall white man watched from the balcony. He had been waiting for the bill to come up for days. He had a grim demeanor but occasionally waved pleasantly at the lawmakers below. At times, individual Republican senators came to chat with him. One had shared with him the green card listing tentative votes among the lawmakers. The man was no casual spectator. He was Rick Eberhardt, sheriff of Pierce County and one of Ricketts’s most dedicated foot soldiers during the ballot initiative.
A veteran law enforcement official who was once the state’s youngest sheriff, Eberhardt was driven in part by a mass shooting that took place in his own backyard. The 2002 bank robbery killed five people and sent three men to death row. The victims included Evonne Tuttle, whose mother appeared publicly alongside Eberhardt in advance of the 2016 ballot vote. At a hearing at the capitol the next year, Eberhardt joined Tuttle’s daughter in lambasting senators like Chambers who openly celebrated after winning the repeal in 2015 as an affront to grieving families. “I saw people hugging and crying and being so happy that murderers, rapists, and people that torture were let off death row,” Eberhardt testified, offering photographs and video as proof.
Back in his office during the lunch recess on April 25, Chambers shared something he told Eberhardt at that time. His own nephew had been brutally murdered in 1990. When that news broke, people asked almost gleefully, “What do you think of the death penalty now?” Chambers reiterated what he said at the time, while sponsoring an abolition bill in the spring of 1991, “I feel the same way about the death penalty as I did before that happened. The state should not kill its citizens.”
Chambers was blunt about what made the abolition bill successful in 2015. A white Republican senator named Colby Coash had taken up the cause. “The fact that I was trying to do it for all those years doesn’t mean credit should go to me,” Chambers said. In many ways Coash was the unlikeliest of allies. In 1994, as Chambers fought to stop the high-profile execution of a man named Willie Otey, Coash was a college student who joined a celebratory mob outside the Nebraska State Penitentiary amid chants of “Fry him, fry him!” The experience came to haunt Coash. After being elected to his second term in 2012, he made abolishing the death penalty one of his last acts before leaving the Legislature.
To Coash, peddling the bill to a conservative Legislature meant rewriting the narrative about the death penalty. “I had to tell my Democrat friends, ‘You guys are going to have to sit down and be quiet because the reasons that you have are different than the reasons I’m gonna give,’” he recalled. Liberals emphasized the danger of wrongful convictions and “they’re always talking about minorities and disparate impact,” he said. “They’re valid arguments, but it doesn’t change the mind of my grumpy farmer father-in-law who is an eye-for-an-eye kind of guy.”
Instead, Coash stressed traditional conservative values: small government, fiscal responsibility. Republicans, after all, are supposed to be about reining in government excess. “That’s supposed to be our party’s role. Put the brakes on government that’s getting too big for its britches, right? So if we really believe that and when we look at the death penalty, can we really support that?” The message resonated with many conservative lawmakers, who agreed to sign on as co-sponsors. “Over time, I kept giving [Chambers] these co-sponsor sheets. … I think he was surprised at the people I was getting to co-sponsor his bill because he would never go talk to them. He would never go to an old white guy and say, ‘Would you co-sponsor my bill?’”
Coash was dismayed, but not particularly surprised, at the referendum that undid so much of his work. “That’s politics, right? Money drives it and when you have funds, you can pretty much get anything.” Ricketts is unabashed about using his office or his money to get what he wants — or to settle scores. On the floor earlier that day, Chambers had scolded legislators for being afraid of the governor. Asked if that fear is real, Coash said, “100 percent.”
It’s hard to know why, exactly, the governor made it his mission to keep the death penalty in Nebraska. During the abolition fight, it was revealed that he lost a cousin to murder years ago, but that didn’t seem to explain the extent of it. It seems just as likely that it was about defeating his enemies. The abolition bill, which came early in his tenure, was one of three veto overrides Ricketts faced early on. To be openly defied by his own party might well have been an intolerable offense. “Most governors would have probably gone out and bashed it in the media and used it as a campaign tool,” Coash said. “But most governors don’t have the means to say, ‘And by the way, I’m going to put my own money into getting you out.’”
For his part, Chambers is certain that Ricketts would not have been so bent on overturning the legislation had it not been the issue the state senator has championed throughout his career. Nor had the outcome come as a shock. “When you’re a black man in a white society and you pay attention and you read history, then you never feel that any ‘victory’ that a black person gets is guaranteed to stay in place.”
As the senators were returning to vote on LB44 later that day, 22-year-old Taylor Moore sat at a table at a McDonald’s four miles east of the capitol. She wore black eyeliner, metallic blue nail polish, and a black hoodie over her manager’s uniform. She was unaware of the debate that had happened on the floor that morning or of the looming vote. But she knew more about the death penalty than most Nebraskans.
Photos: Kayla Wolf for The Intercept
Moore’s father is the twin brother of Carey Dean Moore, the last man executed at the Nebraska State Penitentiary. Sentenced to death for killing two taxi drivers in 1980, well before his niece was born, Moore dropped his appeals and asked repeatedly to die.
In his 38 years on death row, Moore had eight execution dates. Each stay of execution made him angry and frustrated, a feeling his niece had tried hard to understand. While Taylor did not want to see her uncle executed, she felt that she should respect his wishes. As the execution approached last summer, “I was really nervous, anxious, sad,” she said. “I don’t know, I was very depressed, but at the same time I was happy because this is what he wanted since the day he got in there.”
There was no escaping the loss it would be for her. Moore had been present in her life from the start. When her mother got pregnant, it was Moore who came up with her name — including her middle name, Kari, a play on “Carey.” Growing up, Taylor would accompany her dad on the two-hour drive to Tecumseh State Correctional Institution, where they would visit Moore behind plexiglass. At some point this changed, and Moore was able to receive contact visits. “We would play rummy,” Taylor recalled. “My dad would win sometimes, and then me and my uncle would team up against my dad.”
Visitation became harder after Taylor got pregnant in high school. She quit going for a while but started again when she could find a babysitter. Her uncle was especially important to her then. Several members of her family had rejected her for getting pregnant so young. But he didn’t. Taylor sent him photos and letters. “I would write to him every day and just tell him about my life, how school is, how the kids are.” Her father wrote to him too. “Usually when I would come over and see him, he would always have a notebook in his lap writing to my uncle. … I feel like something died in him. His other half died.”
Taylor and her father attended Moore’s execution. There had been a long fight over the lethal drugs that would be used; the state finally carried it out using fentanyl — the first execution of that kind in the country. “He was lying down on the bed and he turns over, looks at us through the glass and he says, ‘I love you.’ … Then he eventually started getting really pale and then his eyes started closing and then he was just gone,” she said. A month after the execution, she got a tattoo on her left arm: “I carry your heart with me forever moore.”
Taylor expressed disgust at the lawmakers who used her uncle’s case for their political ends. “If I could have said something to the Legislature, I should have been like, ‘You guys are more bullies than anyone else.’”
The final vote was 25-17 against LB44. Three senators voted present. The outcome was not a surprise, although tensions ran high. Coash was watching from the sidelines. Now working as a lobbyist, he remains active at the capitol. But his success winning abolition in 2015 catapulted him onto the national stage. Invitations came from states all over the country. He’s spoken about the death penalty in Montana, South Dakota, and Colorado. Abolition may have ultimately failed in Nebraska. But states were eager to learn from his experience.
“I’ve made peace with the fact that people want to hear our story,” Coash said. He still believes that abolishing the death penalty is “good policy.” Despite what happened, he said, there is a change underway. “Someday it will be done. I don’t know when. But I would like to think that, at least in the United States, I will have played a role in that whenever it happens.”
Some 150 miles northwest of Cheyenne, the Wyoming Frontier Prison sits on the corner of 5th and Maple in downtown Rawlins. The forbidding stone complex, known as the Old Pen, is covered in overgrown vines and partly concealed from the street by towering cottonwood trees. The penitentiary has been closed since the early 1980s, but the site is not entirely abandoned. The prison conducts regular tours, a haunted house at Halloween, and a “Pen to Pen Fun Run” — a 5K race in which participants run in striped prison uniforms. At the gift shop, T-shirts feature a noose alongside the words “Come Hang With Us.”
We sprang for the tour, which began with a demonstration of the “Julian gallows,” a sort of demented Rube Goldberg machine used for hangings that was considered state of the art at the time. Named after its designer — “a humanitarian and an architect out of Cheyenne who believed no man should have to bear the guilt of executing another,” according to our guide — it allowed the state to absolve itself of any direct responsibility for the task at hand. A model of the device showed off how it worked, complete with a wooden doll in prison blues and a black hood. The guide placed the doll on a trapdoor, which was rigged to a bucket of water; the doll’s weight triggered a mechanism that began to drain the bucket. When the bucket was empty, a counterweight fell, opening the trapdoor and leaving the doll hanging by its neck.
Fourteen executions were carried out at the Old Pen. The last five took place in the gas chamber, one of the final stops on the tour. It sits next to what was once death row, a cramped set of cells atop stairs that led to the gallows. “Once you brought a man up the stairs,” the guide said, “they would not go back down alive.”
Records related to the Hopkinson execution are kept at the state archives in Cheyenne, including voluminous files that hold letters urging the governor to grant clemency. One was delivered on behalf of “Concerned Inmates” at the Wyoming State Penitentiary, with signatures from 119 men. Another letter is dated January 25, 1992, three days after Hopkinson’s death. In handwritten cursive, it is from Darlene Shillinger, the wife of Warden Duane Shillinger, who oversaw the execution and was with Hopkinson until just before his death. She did not know if the death penalty was right or wrong, she wrote. “One thing I do know only too well is that it certainly creates a whole new set of victims.”
“Duane and I agonized many times over his position, but are now at peace with his involvement,” she wrote. “He had a relationship with Mark for twelve years and to not be with him in his final hours would have been insensitive and cruel.” The execution was probably the hardest thing her husband had ever had to do, she wrote.
Shillinger retired as the longest-serving warden in the history of the state. He is on dialysis and was unable to speak for long when we reached him over the phone. “I’ve talked about the execution itself with very few people,” he said. “It’s just something that I haven’t wanted to get into. It was a very, very difficult time. I still have some terrible feelings about it.” One thing that sticks out is the way politicians loudly cheered the execution, “pounding their shields and bragging about what was going to take place.” But the night of the execution, he said, “not one of them called me.”
The day after the launch of Wyoming’s abolitionist campaign, we went to see Jared Olsen, the Republican lawmaker, at his law office, a modest blue house with gingerbread trim in downtown Cheyenne. Inside, the walls are painted avocado green and adorned with Western art. There’s a book titled “Cowboy Culture” in the waiting room and a large metal hanging of the state’s iconic trademarked logo of a cowboy riding a bucking horse, his hat held high, on his conference room wall.
It was there that Olsen revealed a more personal connection to the death penalty in Wyoming. Olsen grew up in Evanston, where the Vehar family was murdered. He was just 5 years old, but like virtually every member of the small rural community, his life was linked to the tragedy. One of his classmates was the son of the bombing’s sole survivor. One of his uncles lived in the house that was later built on the site of the crime. And one of his fellow Republican lawmakers who testified in favor of his abolition bill — state Sen. Wendy Schuler — was Olsen’s high school gym teacher and a former schoolmate of Hopkinson himself.
Schuler’s testimony was powerful, Olsen said. “She said that she remembers wanting the execution because she believed that it would make her whole again and make the community whole again. She also remembers the exact moment after the execution that all she felt was a dark hole inside of her.” Schuler wasn’t alone. After she spoke, an older representative, also from Evanston, rose to say that he had planned to vote against repeal but had now changed his mind. Like Schuler, he had always believed that the execution had been the right thing, only to realize there was “always this emptiness inside of him,” Olsen said. The man was moved to tears as he spoke, describing how it didn’t fix anything for the community.
The debate in the House was equally reverent. Olsen and others describe being struck by the silence in the chamber as the issue was considered. Ordinarily, members walk around and talk with colleagues, work on their computers, or fiddle with their phones. But that day, everyone was seated. “It didn’t matter who was speaking, there was just dead silence.” He could tell that the lawmakers were actually weighing the issue, trying to figure out where they stood. “I remember afterwards there were many House members who had come up to me and said — even the ones who voted against repeal said, ‘Jared, thank you for bringing the issue. I’m glad we got to discuss it.’ And that’s a good thing to hear.”
After the bill failed to pass, and as lawmakers submitted topics for study over the interim, a proposal to look into the death penalty popped up — but not with repeal in mind. Instead, it suggested an inquiry into shortening appeals and figuring out how to cut costs. “I became very nervous,” Olsen said. “I thought, ‘Is this how it’s all going to end?’” Slashing appeals and funding are two areas that supporters of capital punishment like to talk about, but they are nearly impossible to accomplish without running afoul of the courts. Another possible outcome, of course, is what happened in Nebraska. Such a scenario “had crossed my mind in fear,” he said. “I have thought about what would happen if we did repeal it and how permanent that would be.”
Sabrina King, the local ACLU director, and Marguerite Herman, lobbyist for the League of Women Voters, vividly remember the testimony last winter. “The House has never been quieter. Ever,” said King. Herman, who came to Wyoming in 1980 as a reporter for the Associated Press, said it reminded her of a different political time, where working across the aisle toward common policy goals was the norm. “What I saw were flashes of the old-time Wyoming Legislature,” she said. “Of being pragmatic, of what is the role of government and that sort of thing. It was just … kind of a step back in time.”
Photos: Rachel Woolf for The Intercept
It is precisely that kind of pragmatism they hope will carry forward into the next legislative session. Frankly, said Herman, the fact that there were some two dozen people at the snowy campaign launch was a very good sign. “In a state that is so far-flung as ours, to get 25 people in one place on a snowy day is a crowd.”
We recalled Christopher Xanthos’s enthusiasm after the press conference and asked King about his prediction that Wyoming abolishing the death penalty would be a harbinger for the rest of the West. “Oh, I think it’s completely accurate,” she said.
She acknowledged that her prognostication may seem a bit counterintuitive for folks who haven’t lived in the rural, red-state West. “I really consider this, like, the last bastion in this country of true libertarianism. I think people have a very pragmatic sense of what the government is supposed to be doing and how it’s supposed to function. So, for me, it makes complete sense that this is happening in Wyoming,” she said. And if Wyoming repeals the death penalty, “there are a whole bunch of states around the West that are like dominos waiting to fall,” she said. “I want Wyoming to be the first domino.”
The Intercept’s death row dataset is a living document, available on GitHub, that we will continue to update as new death sentences are meted out, old convictions are overturned, and executions continue. If you have relevant information, please email us at [email protected].