As the primary in the U.S. Senate race moves closer, one of the deepest divides between candidates has opened over the issue of the death penalty.
Russ Fagg, a former Billings judge, released a television ad last week saying he supports the death penalty for those in the country illegally who commit murder.
Fagg and Troy Downing, a Big Sky businessman, both said this week they support the death penalty in heinous cases. State Auditor Matt Rosendale, who is the subject of attack in Fagg’s television ad, opposes the death penalty, as does state legislator Al Olszewski.
The four men are seeking to run against Democrat U.S. Sen. Jon Tester in what's expected to be a hard-fought and close election. As the June 5 primary nears, Fagg has increased his jabs at Rosendale in ads and at forums around the state.
Rosendale is seen by some to be the front-runner, though Fagg's fundraising totals for the first quarter of 2018 show him pulling closer, at least in the money race. Absentee ballots were mailed out to voters statewide Friday.
A voiceover in Fagg's ad says Fagg has "made the tough decisions to protect our families" and promotes Fagg's support of the death penalty. But text in the ad and Fagg's record as a judge show he's never sentenced a person to the death penalty, only life in prison.
In an interview this week, Fagg was less bombastic than the ad spot, saying he was “glad I’ve never had to do a death penalty case, even though I believe in the death penalty.”
In Montana, a prosecutor must file with the district court within 60 days of a defendant's arraignment if he or she will seek the death penalty.
Fagg said in his 22 years as a judge, he’s never had that happen. A 2013 story by The Billings Gazette reported that county attorneys there, where Fagg was judge, had not sought the death penalty for nearly three decades, and the office hasn’t since then. County Attorney Scott Twito also said Friday he was not aware of any death penalty cases before Fagg during Twito's two decades in the office.
“I can’t say I’ve ever had a case where I thought it should be recommended,” Fagg said. “To me it would be something that’s premeditated, involves torture and then murder. To me those are probably the three scenarios that I think would justify the death penalty.”
That includes what Fagg calls the “toughest case I’ve ever dealt with” where a 17-year-old man robbed a convenience store in Billings and shot and killed the clerk after Fagg said he could have just left the store.
“I gave him a life in prison sentence, which was one of the hardest things I’ve ever done in my life,” Fagg said.
The death penalty is appropriate, Fagg said, “when it’s such a horrendous crime that it is not right to let somebody continue to live because they’ve caused such pain and agony for a person or a group of people. It should be used only in extraordinary circumstances.”
Downing, the other candidate who supports the death penalty, said in particularly horrific crimes it is appropriate to put the person convicted to death.
“I think sometimes there are things that are so bad it warrants it,” Downing said last week. However, Downing did not want to specifically say what those situations would be, saying he didn’t want to “speak the unspeakable.”
“Obviously we’re talking about something very serious, but sometimes humans do the unthinkable on others, egregious acts in extreme situations that (call for) the death penalty,” Downing said.
Both Fagg and Downing, along with the other primary candidates, are anti-abortion.
“In the death penalty we’re not talking about taking an innocent life,” Downing said. “There’s a big difference between protecting the innocent as in an abortion and having justice for somebody who commits a heinous act on another.”
Fagg agreed, saying “the difference is easy: it’s an innocent life as opposed to a person that’s committed a horrendous crime against a fellow human being.”
As a former judge, Fagg said he did have concerns about people being put to death who could later be found not guilty of their crime.
“It’s certainly not likely to happen, it’s extremely unlikely, but of course it’s a concern,” Fagg said. “But (to get a conviction), those are pretty high standards to achieve.”
Rosendale said last week that his opposition to the death penalty is rooted in his religious beliefs. In forums statewide, he's said he's anti-abortion in all situations.
“Beyond the purposes of self-defense or imminent danger, my Catholic faith teaches me and millions of other Americans that we do not get to decide who lives or who dies, only the good Lord does,” Rosendale said.
Olszewski says he also would like to see the death penalty “kept as minimal as possible or make it go away.”
“I’m a physician. I’m a very strong pro-life candidate, and I believe in the sanctity of life, which goes all the way from conception to natural death. My belief is we should greatly restrict it or eliminate it, but I also do understand there is going to be a situation where maybe there’s a person who should never leave prison, who should never get it out.”
Olszewski, who is also Catholic, said while that’s his personal belief, he acknowledges the Republican Party platform supports capital punishment.
Polling by Gallup has found support for the death penalty strong among the GOP, but waning among Democrats, who in 2016 added a call the party platform to abolish the death penalty.
According to Gallup polling, from 2000-2010, 80 percent of Republicans supported the death penalty; that number dropped just 1 percentage point between 2011-2016. The decrease in support among Democrats is more sharp, going from 55 percent to 47 percent.
The Montana Legislature has seen attempts to do away with the death penalty during every session going back about 20 years. Prosecutors don't seek it often because of the complicated nature of death penalty cases.
A legislative fiscal note from 2017 found attorney time spent both on appeals and for the Office of the Public Defender to handle death penalty cases is significantly higher than for other cases.
No state office tracks when prosecutors seek the death penalty, but a recent list of cases includes Lloyd Barrus, who is accused of killing Broadwater County sheriff’s deputy Mason Moore. The Broadwater County attorney filed notice last July that he plans to seek the death penalty.
A prosecutor in Richland County initially said he would seek the death penalty for Michael Keith Spell and Lester Van Waters Jr., who killed Sidney teacher Sherry Arnold in 2012. Both pleaded guilty, which took the death penalty off the table for Waters. Spell later was found by state health officials to be mentally disabled.
Flathead County prosecutors sought the death penalty for Tyler Miller, who killed his ex-girlfriend and her daughter on Christmas Day in Kalispell in 2010, but Miller later pleaded guilty and avoided capital punishment.
Prosecutors also sought the death penalty for Laurence Jackson Jr., found guilty of shooting and killing Blaine County Sheriff's Deputy Joshua Rutherford in 2003. Jackson was convicted and sentenced to life in prison without the possibility of parole.
The last inmate executed in Montana was David Dawson on Aug. 11, 2006. Dawson kidnapped a Billings family and strangled the father, mother and 11-year-old son; a 15-year-old daugther was rescued. Dawson was sentenced by Yellowstone County District Court Judge Diane Barz.
Since 1973, there have been 13 people sentenced to death in Montana. Two remain on death row.