Utah Prosecutor Tests GOP Appetite for Opposing the Death Penalty

David Leavitt says his decision to abandon capital punishment was rooted in public safety and conservative principles. It has drawn heated debate and a challenge in the June 28 primary.

Lauren Gill   |    June 14, 2022

Protest at the Utah State Capitol against the execution by firing squad of Ronnie Lee Gardner in June 2010. (Wikimedia commons)

At first, Utah County Attorney David Leavitt wanted to seek the death penalty for Jerrod Baum, who had been accused of violently murdering two teenagers, Riley Powell and Brelynne Otteson, and throwing their bodies down a mine in 2017. 

The use of the death penalty in Utah County, a majority Republican county that’s the second most populous in Utah, had been rare when Leavitt took office in 2019, two years after the Baum murders. The last time a Utah County attorney had sought the death penalty was in 1984, when prosecutors pushed for the exections of Ron and Dan Lafferty, who had been charged with capital murder for the killings of their sister-in-law Brenda Lafferty and her 15-month old daughter, Erica. (Dan was sentenced to life in prison, where he remains, while Ron died of natural causes on death row.)

As the Baum prosecution got underway, Leavitt, a Republican, assigned four full-time prosecutors to the case. But then he quickly saw how they detracted from other prosecutions. At the start of the Baum case, Leavitt said his office was handling 17 homicide prosecutions and around 230 cases involving sex crimes. Typically, Leavitt said, each prosecutor in his office would work more than 100 cases. 

Leavitt eventually decided that seeking death was no longer worth it, announcing last September, that he would take the death penalty off the table in Baum’s case and never again seek the ultimate punishment, saying it deterred him from his ultimate goal of public safety. 

“My commitment to you when I took office was to focus our efforts on community protection rather than on methods of the past that have long since proven ineffective,” Leavitt said in a statement at the time. “Focusing on ALL victims by no longer seeking the death penalty advances that commitment.” In April, a jury convicted Baum of aggravated murder. Leavitt’s office argued for four consecutive life sentences without the possibility of parole, and a jury agreed during Baum’s sentencing last week. By not seeking the death penalty, Leavitt says his office only had to assign two lawyers to the case instead of four, and estimated the trial was shortened by about three months. 

“The doctrine of limited government is that government acts only to the extent necessary to get the job done,” Leavitt told Bolts in an interview. “But what is the job? The job in this case is protecting society. And we can protect society far better with life in prison without parole than we can with the death penalty.” 

In recent years, conservative politicians across the country have joined in Leavitt’s thinking, shifting from once zealous proponents of capital punishment to supporters of limiting and ending the practice. Leavitt, however, may be the only known conservative prosecutor to have done so. He has been lauded as a trailblazer among the nation’s conservative groups fighting to end the death penalty, who typically frame their stance as pro-life, fiscally responsible, and in line with limited government. 

But at home, his move sparked a heated political battle: the county’s commissioners have voted in favor of abolishing the death penalty, while the Fraternal Order of the Police and a group of former prosecutors issued a vote of no confidence in Leavitt. 

Leavitt’s pivot away from the death penalty might now cost him his job in Utah County. He faces tough competition to keep his seat in Utah’s June 28 Republican primary, up against an opponent who cites his stance on the death penalty and the Baum case in pushing the narrative that Leavitt is soft on crime.

“I think it’s a violation of his oath not to pursue the death penalty in appropriate cases,” Jeff Gray, who is an assistant Utah solicitor general, told the Daily Herald in January. Adam Pomeroy, who currently works under Leavitt as a deputy county attorney and who dropped out of the primary in early June to endorse Gray, told Bolts that Leavitt has “become a rogue prosecutor who simply refuses to follow what the law is.” Pomeroy also called it “completely inappropriate for a county attorney to unilaterally decide, disregard the will of the people and nullify a law he personally disagrees with that usurps the legislative function.”

The execution chamber inside Utah State Prison, with a platform for lethal injection and a metal chair for executions by firing squad. (Wikimedia commons)

Before becoming Utah County attorney, Leavitt served as top prosecutor for Juab County from 1995 to 2003. After he lost the 2002 election, he started working in Ukraine and Moldova to reform their criminal justice systems. “In 2018,” Leavitt said, he “realized that I really had very little business traveling 7,000 miles to try and reform someone else’s criminal justice system when my own was falling apart around me.”

After taking office, he first introduced a pre-filing diversion program that would allow people accused of low-level crimes to avoid conviction and prison time by participating in classes, community service, and treatment programs. He also aimed to reduce incarceration for non-violent offenses, and change the office’s charging practices. 

Leavitt was presented with the Baum case his first year in office. Initially, he remembered thinking, “If there was ever a crime that in my estimation warranted the death penalty it is that one.” But the resources and time devoted to the case at the expense of others made him rethink his position. Leavitt said that he also considered that even if the jury sentenced Baum to death, it would be decades before he would be executed, if ever. (The last person Utah executed, Ronnie Lee Gardner, spent nearly 25 years on death row between his conviction and execution, and Utah has not carried out an execution in 12 years.) Leavitt said he also had problems with coercive plea bargaining in capital murder cases and the possibility that an innocent person could be executed at the government’s hands. 

“My evolution with the death penalty really came down to the fact that I realized that the only person that really benefits from seeking the death penalty is me as the elected prosecutor because it makes me look tough on crime,” Leavitt told Bolts. “But at the same time, the prosecutor is spending all the government resources, we’re diminishing the effectiveness of all the other cases in the office.”

He added, “In my mind, the choice was clear. I’m not here to get and stay elected. I’m here to reform the criminal justice system.”

The families of Baum’s victims have criticized Leavitt’s decision to drop the death penalty. “There is no reform for this man. There is no rebuilding,” Amanda Davis, Otteson’s aunt, said of Baum during an interview with local news outlet KSL. “Taking the death penalty off the table makes it, like, he won. He got what he wanted.” 

Leavitt isn’t the only prosecutor in Utah to move away from the death penalty. Shortly after his announcement in September, he was joined by three others, two Democrats and one independent, in an open letter urging the state legislature and Governor Spencer Cox to repeal the state’s death penalty statute. Instead, they favored the introduction of a 45 years-to-life sentence to replace the death penalty, along with the existing punishments for aggravated murder of life without parole and 25 years-to-life. 

Leavitt is part of a growing movement of Republican politicans who are increasingly fueling efforts to end the death penalty. In January, two Republican Utah lawmakers who had formerly supported capital punishment introduced legislation that would prohibit prosecutors from seeking death; the bill failed in committee by a 6–5 vote. In Kentucky, a conservative lawmaker introduced a bill that was signed into law in April that would prevent people with certain mental illnesses from being sentenced to death. Missouri’s legislature is now considering a Republican-sponsored bill that would abolish the death penalty on the grounds that the government cannot be trusted with administering the ultimate punishment. And a bill to end the death penalty in Ohio, which has a Republican governor and legislature, is gaining traction, having gone further than others before it. 

Utah’s conservative activists have not responded positively, though. Pomeroy led with 46 percent of the vote in April’s county GOP convention, a gathering which grassroots activists usually dominate, while Gray had nearly 44 percent. Leavitt won just 10 percent but will appear on the June ballot because of the signatures he collected. 

Regardless of the outcome, Leavitt has already helped change the debate on capital punishment among conservatives, says Demetrius Minor, national manager for Conservatives Concerned About the Death Penalty. “I believe that because of David Leavitt, that could possibly open up the gateway for for other prosecutors to come forward in opposition to the death penalty,” Minor told Bolts. “There’s definitely a shift happening. It’s not a matter of if it’s a matter of when.”

The story has been updated to note that one of the primary candidates dropped out in early June.