Don Heller: A California Republican against death penalty
By Don Heller, Columnist
I have been a Republican for many years. I wrote the ballot initiative that reinstated the death penalty in California in 1978. I believe those who commit willful and intentional murder should be locked up and severely punished in the interest of public safety.
I made a terrible mistake 33 years ago, but it is one that can be corrected. People are working hard to give voters the opportunity in the next election to replace the death penalty with life in prison without possibility of parole. If given that chance, I call upon all Californians to join me in voting yes to abolish capital punishment.
I have not gone soft on crime. I believe that public safety is one of the primary purposes of a government predicated on the rule of law.
Justice should be swift and certain.
But the death penalty initiative that I drafted was drawn up without fiscal study, input from others, or committee hearings. I made sure that the legal structure that I created would meet tough constitutional standards and checked my work against relevant U.S. Supreme Court jurisprudence. But there was none of the give and take envisioned by our forefathers when they created the legislative process more than 200 years ago. Essentially, I wrote alone and the fiscal impact was never considered by the sponsors or myself.
At the time I wrote it, I had been well trained as a prosecutor and was an excellent legal writer. I took seriously my charge to broaden the scope of the law so that every person who committed a murder willfully and intentionally – or did so in the course of committing a serious “special circumstances” felony – would be eligible for the death penalty.
The structure that I created was legally sound; it withstood multiple appeals to the U.S. Supreme Court. Fiscally speaking, it was weak. I never contemplated the staggering cost of implementing the death penalty: more than $4 billion to date and approximately $185 million projected per year in ongoing costs.
I thought the ultimate punishment would save money and end victim grief with finality. I did not account for multiple defense lawyers, expert witnesses including scientists, jury consultants and investigators; nor did I consider the cost of countless appeals and habeas corpus petitions.
California spends more than $300 million per execution. We have executed 13 people since 1978. No executions have occurred since 2006, and there are 714 persons on Death Row. The average time between death sentences and executions is 25 years and in some cases more than 30 years.
It makes no sense to prop up such a failed system.
Those who call for a “faster” death penalty should know that this can only be done with a huge additional expenditure of millions of dollars annually, plus a special court for death penalty appeals, and a constitutional amendment to create that court.
There is a shortage of experienced death penalty lawyers available to handle such appeals because almost 98 percent of death penalty appeals are handled by court-appointed lawyers. And all death penalty appeals are required to be heard by the California Supreme Court directly, a court that hears both civil and criminal appeals and a court that is overburdened with cases. Appeals and delays cannot be eliminated; they are required to prevent the execution of innocent persons.
A gross miscarriage of justice can happen, even in California. I am convinced that at least one innocent person may have been executed under the current death penalty law. It was not my intent nor do I believe that of the voters who overwhelmingly enacted the death penalty law in 1978. We did not consider that horrific possibility.
Today we see cutbacks in funding for schools, law enforcement agencies and offices of county prosecutors throughout the state, with more on the way. Fewer police officers and prosecutions mean less safety on the streets for us and our families. Ironically, Death Row inmates enjoy more benefits than those in the general prison population. And paradoxically, the cost of capital punishment takes away funds that could be used to enhance public safety.
Life without parole protects public safety better than a death sentence.
It’s a lot cheaper, it keeps dangerous men and women locked up forever, and mistakes can be fixed. Perhaps best of all we eliminate the waste of taxpayer dollars at a time when police, firefighters and district attorneys face dangerous shortfalls. The costs of the death penalty far outweigh the benefits. It is time to undo it.
(D. Heller, “Don Heller: A California Republican against death penalty,” Los Angeles Daily News (op-ed), September 18, 2011.)