NEW VOICES: Author of California’s Expanded Death Penalty Law Now Supports Repeal

Donald Heller (pictured) served as both a California and federal prosecutor and was the author of the state ballot measure that greatly expanded the list of murders eligible for capital punishment. After the trial of one defendant, Heller volunteered to “throw the switch,” a comment that earned him the name “Mad Dog.” But his views on capital punishment have changed sharply over the years. A recent interview in the Los Angeles Times explored how Heller came to have his greatest regrets for his promotion of the death penalty. He recently testified in California in support of a bill that would lead to ending capital punishment. Heller said he first changed his mind about the death penalty after the execution of Tommy Thompson, who was convicted through what Heller believed to be “a clear abuse of the death penalty law.” He realized that the initiative he created “can and may have resulted in the death of an innocent person.” Heller debunks many arguments in support of the death penalty, including that it is needed to deter crimes. He said, “Statistically, in a number of states where there is no death penalty, state crime has dropped. I have found from my years as a lawyer in the criminal process that it doesn’t deter anyone. When someone kills, they’re thinking of satisfying whatever [made them] decide to kill. They never think about the ultimate punishment.” He concluded, “My view is that as a civilized society, we’ve reached the point where capital punishment should be completely abolished.” Read full op-ed below.

Patt Morrison Asks: Donald Heller, death-penalty advocate no more

Donald Heller is partly responsible for turning California’s death row into the most populous and expensive in the nation. So why’d the lawyer known as “Mad Dog” change his mind?

‘Remanded” — taken into custody. In his career as a New York prosecutor and a federal prosecutor in California, Donald Heller has asked the court to remand guilty defendants countless times. He helped put away Lynette “Squeaky” Fromme, who tried to assassinate President Gerald Ford, and a big-time heroin dealer, a man Heller believed destroyed many lives. At the dealer’s sentencing hearing, the prosecutor remarked that were the death penalty an option, he would volunteer to “throw the switch.” After that, a law clerk called him “Mad Dog,” and the nickname stuck. Heller left the U.S. attorney’s office in 1977 — the “remanded” sign was a farewell gift — but he didn’t give up his law-and-order cred. He’s 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. It helped make California’s the most populous and expensive death row in the nation. But for more than a decade, Heller has been saying it’s time to stop. Now a defense attorney with a mostly white-collar clientele, he testified recently at the state Capitol about the need to undo his legal handiwork, which has changed so many lives — and ended some.

How did you go from writing Proposition 7, the Briggs initiative, which broadly expanded the categories of death-eligible crimes, to opposing the California death penalty?

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. My wife was very opposed to capital punishment, so it was always a big topic of conversation. When I wrote it, I had only been married a little over a year; her goal was to try to change my views.

And eventually she did?

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. I was in a restaurant bar in Sacramento celebrating a settlement. At the bar was a lawyer I [knew]; his head was down on the bar and he was completely drunk. I said, “Are you OK?” He said: “They just sentenced my client to death, and I really like him and it’s just a bad decision.” Eventually he got out of criminal practice. I [also] started noticing the toll it took on judges pronouncing a sentence of death.

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. 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.

When I testified in front of the Legislature [on July 7], I was in front of a committee. There was a dialogue. In the initiative process, there was no input from anyone else but me. There was no fiscal analysis, which frankly I never really thought about. While the initiative was supported overwhelmingly by voters, in retrospect it was people voting for capital punishment without reading any of the details of the multiple sections of the initiative.

Were you, a la Capt. Renault, shocked, shocked to realize Californians didn’t read the initiatives?

I wasn’t shocked, but I realized you could fit anything in there. Voters will vote for the lead line, not knowing what [else] is in it.

As a kid, one of my favorite movies was “Mr. Smith Goes to Washington” — no dirty words, no sex, but a great movie. I always thought [that is] how a government should function. Of course, it had corruption, but I know a lot about corruption because I prosecuted corruption cases and defended corruption cases. But there’s a corruption of the process: People aren’t doing what they are supposed to be doing — having a thoughtful debate and then reaching a compromise decision for the public good.

Your mind was changing within a few years of the Proposition 7 vote. What was the tipping point?

It took the Tommy Thompson execution [in 1998] for me to become very vocal. It was an example of a clear abuse of the death penalty law.

Thompson was convicted of special- circumstance murder and rape under the Briggs initiative. There were 2 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.

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 2nd-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.

I was contacted by Thompson’s appellate lawyer about testifying at a clemency hearing. I laid out in detail the reasons that 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.

The way I look at it, what I created can and may already have resulted in the death of an innocent person. And that’s pretty heavy.

A number of arguments are now marshaled against capital punishment: DNA evidence, the racial inequity question, the lengthy process, cost. If all of those concerns were remedied, could you then support capital punishment?

My view is that as a civilized society, we’ve reached the point where capital punishment should be completely abolished. And we are a civilized country, with some idiosyncrasies, capital punishment being one.

Then why do we have it?

I’m not sure. It’s [most prevalent] when you go west. The West has always been kind of a cowboy part of the country, where they hang ‘em high after they’ve committed a crime. I grew up in New York. There was no public stampede for executions. On the West Coast, it’s been entirely different.

Do you think the cost issue can persuade voters better than other arguments?

We’ve had 12 executions under [my] initiative; the approximate average cost for each execution was $330 million. 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.

When people start thinking, “I’m voting on this but maybe [the cost] is going to deprive my children or my grandchildren of an education,” people will [also] start thinking about consequences instead of just “an eye for an eye.” It’s not going to change overnight.

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.

Politics has also kept capital punishment front and center.

It’s true. It’s like apple pie and motherhood. Law and order has been a constant refrain since Richard Nixon ran for president.

Nixon’s a good example. It would take Republicans like you to turn public attitudes. Are there Republican politicians who share your thinking?

I think in their heart of hearts, if you speak to them off the record, they would vote that way, but the liberal wing of the Republican Party has essentially been trounced by the right wing, even though it doesn’t reflect the majority of the people of the United States. Now we’ve reached the chaos of government, where it’s pretty much dysfunctional. Even Jerry Brown, who we’ve seen resurrected in a much more conservative way — and a very bright man — can’t reel in his own party, and Republicans are just refusing to work with him for the common good. At some point, he may do what Gov. [George] Ryan did in Illinois two days before he left office: commute [to life in prison] every sentence on death row.

I expect back in 1977 you wouldn’t have foreseen yourself working with the ACLU?

Nope. But I’ve always had a high regard for [its] lawyers. Even though I disagreed with them, I’ve always admired people who guided themselves out of principle, trying to uphold the Constitution. There’s a lot of conservative people I respect: Justice Scalia, I have a high regard for.

What about the argument that the death penalty lowers crime rates?

Statistically, in a number of states where there is no death penalty, state crime has dropped. I have found from my years as a lawyer in the criminal process that it doesn’t deter anyone. When someone kills, they’re thinking of satisfying whatever [made them] decide to kill. They never think about the ultimate punishment.

You sound as if you have real regrets about the Briggs initiative.

I’ve had a lot of great professional accomplishments. I’ve had a case where I was the functional equivalent of Atticus Finch and my client wasn’t hanged; it was the greatest victory of my entire career. But the thing I regret most that I cannot change — except by what I do now — was drafting the death penalty initiative.

An attorney I debated on capital punishment [in 1978] said, “Don, you’re a fine lawyer. At some point in your life you’re going to regret this because you’re too decent a person not to realize what you did.” That stayed with me, and at some point, I realized he was right.

Is your wife nicer to you now that you agree with her on capital punishment?

[He laughs.] How do you define “nice”? We still have debates about a number of things; our views are not always coalesced, but it keeps our life interesting!

(P. Morrison, “Patt Morrison Asks: Donald Heller, death-penalty advocate no more,” Los Angeles Times, July 16, 2011). See New Voices and Deterrence.