Why Former Death Penalty Adherents Are Turning Away From It

Given the landscape of two decades ago, it is remarkable that we now see a California legislator proposing a bill that would convert all current death sentences to life without parole.

On July 16, the LA Times ran an op-ed in which Patt Morrison interviewed Donald Heller.  Donald Heller was a former US Attorney who wrote California’s Death Penalty.

He was also the author of “the Briggs initiative, a 1978 ballot measure (named for its sponsor, state Sen. John Briggs) that broadly expanded the kinds of murders eligible for capital punishment.”

But now Mr. Heller is a defense attorney and he has turned against the death penalty.

He was asked how he went from “writing Proposition 7, the Briggs initiative, which broadly expanded the categories of death-eligible crimes, to opposing the California death penalty.”

He responded, “When I wrote it, I believed in capital punishment. I thought I could write a comprehensive statutory scheme that would be effective and fair, and I did my job.”

He said, “I started thinking of some things that I never really thought about when I wrote it. One was the enormous toll it took on people involved. The human element — not [so much] the defendants but the people in the system.”

He said it took a toll on attorneys whose clients were sentenced to death and judges who pronounced death sentences.

He added, “I have a high regard for prosecutors — I could count on one hand the prosecutors I felt were unethical — but I saw the aggressiveness to get death. It became, with some, a game.”

Moreover he said, “I would see the quality of the court-appointed lawyers. Some were good, some mediocre, some less than mediocre. Defendants didn’t get what they were entitled to, and that’s why you [saw] quite a few reversals of verdicts in the Rose Bird court. That incensed the public. What the death penalty brought about [was] bad decisions and bad law.”

For Mr. Heller it was the 1998 Tommy Thompson execution that he felt was “a clear abuse of the death penalty law,” that turned him into an anti-death penalty advocate.

He wrote, “Thompson was convicted of special- circumstance murder and rape under the Briggs initiative. There were two defendants. Thompson was tried first. He was alleged to be the actual rapist-murderer. He was convicted of murder and sentenced to death in large measure due to the testimony of a professional jailhouse snitch.”

He continued, “In the co-defendant’s trial, the prosecutor switched theories. It was no longer Thompson as the rapist-murderer but the accomplice. While you can aid and abet to qualify for the death penalty, an accomplice must have the intent to kill to be death penalty eligible. The co-defendant accomplice was convicted of second-degree murder, but the prosecutor made no effort to notify Thompson’s trial judge that evidence now showed that Thompson was not the actual murderer. The trial judge has the authority to rectify an erroneous judgment.”

This issue was raised on habeas corpus, and ultimately the U.S. Supreme Court upheld the conviction on a technicality.

Mr. Heller said, “I felt this was wrong, that it violated the letter and spirit of the initiative, the fundamental law, the prosecutor’s obligation, and was an injustice. Gov. Wilson refused to commute his sentence. In 1998, Thompson was executed. I’ve been a vocal advocate in favor of abolition ever since.”

Mr. Heller also spoke of the relatively few executions under his initiative, with the average cost being about $330 million.

He wrote, “That cause[s] heads to turn. And right now, we see the cutbacks in education and public safety; police departments throughout the state [have] cut patrols, cut officers. One of the main purposes of government is public safety, and so in the pursuit of retribution and vengeance, we are pouring dollar after dollar into capital punishment with costs that I never could have envisioned in 1977.”

He added, “Life without parole serves the public-safety interests. It’s a lot cheaper, and you could even have special prisons for life-without-parole [prisoners]. You can serve the interests of the public and save a huge amount of money.”

LA Times columnist George Skelton has also jumped aboard, calling it, “Waste, fraud and abuse” and “a colossal waste of money for arguably the state’s most inefficient program.”

Wrote Mr. Skelton, “California has spent an estimated $4 billion to administer capital punishment over the past 33 years and executed only 13 people. That’s about $308 million per execution.”

“It’s a shameless fraud on the public. Californians have consistently supported the death penalty and been led to believe that it exists. It really doesn’t,” he adds.

It turns out Mr. Skelton is no anti-death penalty activist.  He wrote, “You won’t find any arguments here about the death penalty being unfair, immoral or barbaric. I don’t buy it.”

He added, “Far as I’m concerned, these characters — once proven guilty beyond a shadow of doubt — should be immediately removed from our planet. Some creeps should be appropriately tortured first.”

Nice.  But it also illustrates what has changed in our political system.  It used to be a George Skelton, a center-left columnist, would be on the forefront of those arguing not only to preserve but expand the death penalty, make it more efficient.

The problem with those adherents is the difficulty of removing the “shadow of doubt.”  The death penalty has not just been undone by our economic crisis, it has been undone by the weight of the problems in the legal system.

So George Skelton now can look beyond the merits of the death penalty because he no longer has a way to save it, to make it better.

No, it is about “inefficiencies and priorities. As we raise university tuitions out of sight, whack the poor and lay off cops, do we really want to be spending $308 million to snuff out one individual?”

He wrote, “What California has been doing for the past 33 years is insane: piling murderers into death row with little prospect of executing them.”

He cited a recent extensive study of California’s death penalty that cited the case of a white supremacist who killed a fellow gang member. The individual asked his attorney to get him sentenced to death, researchers reported, “because, as his attorney explained, ‘living conditions at San Quentin prison’s death row will be better than if he serves a life term at Pelican Bay.'”

The report added: “By any measure, it is beyond dispute that ‘the strongest, most effective death penalty law in the nation’ that was promised to California voters in 1978 has not been realized. Instead, California has the most expensive and least effective death penalty law in the nation.”

Mr. Skelton then went into the Alarcon/Mitchell report on the death penalty and the $184 million per year cost of it, over and above what it would cost to sentence those to life without parole.  You can defend the policy, sort of, by understanding that that money will not fix the budget.  “On the other hand, don’t we have a better use for $1 billion, every five years and increasing?”

Wrote Mr. Skelton, “Fully implementing California’s death penalty would cost an extra $85 million annually. Or, the state could reduce the number of eligible crimes and save perhaps $55 million. Third option: abolish the penalty completely and pocket about $1 billion over five or six years.

“Unless California voters want to tolerate the continued waste of billions of tax dollars on the state’s now-defunct death penalty system,” the report concludes, “they must either demand meaningful reforms…or, if they do not want to be taxed to fund the needed reforms, they must recognize that the only alternative is to abolish the death penalty and replace it with a sentence of life imprisonment without the possibility of parole.”

Mr. Skelton gets his shot in at Republicans, writing that they “used to be the crime-fighting party. Now they’re Johnny one-notes about lower taxes. So we can’t expect them to help raise money to resurrect capital punishment in California.”

“We don’t think you can put a price on justice,” says Cory Salzillo, legislative director for the California District Attorneys Assn. “If this is a penalty society wants — and every poll shows clearly that it is — there’s a responsibility to pay for it.”

It is not just George Skelton who has turned against the death penalty.  It is happening all over the place with people that you would not expect, who have seen the system up close and recognize that it simply does not work as they thought it would. 

And it cannot work properly without a good deal more money spent on it.

—David M. Greenwald reporting