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.

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