"The thing I regret most that I cannot change -- except by what I do now -- was drafting the death penalty initiative."

July 16, 2011 11:33 AM

"The way I look at it, what I created can and may already have resulted in the [execution] of an innocent person." 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?
posted by scody (24 comments total)

Because he realized he was being a massive prick?
posted by thsmchnekllsfascists at 11:54 AM on July 16, 2011 [1 favorite]

More than anything, this is a condemnation of the proposition/initiative system in California. But I don't know how I feel about the fact he knew that going in. I suppose it was hubris and the belief he could write the perfect proposition rather than exploiting the system.
posted by hoyland at 11:57 AM on July 16, 2011

quick, is he dying? Is it yet another Lee Atwater conversion? I swear to dog Faust gets old after being retold so many times. We don't learn from history.. we might as well just stop teaching history and give everyone long-term memory lobotomies. I am sick to death of powerful people and organizations having these crisis' of consciousness. Stop your PRing and start undoing the massive damage you have done. We are not here to grant you absolution.

here is a hot tip: want to be able to live with yourself when your older? Don't act like a flaming asshole when you are younger, even in the name of a "righteous cause".
posted by edgeways at 12:16 PM on July 16, 2011 [8 favorites]

quick, is he dying? Is it yet another Lee Atwater conversion?

No, he states in the interview he started having doubts within a few years of Prop 7 being enacted in 1978, and that the tipping point was the execution of Tommy Thompson in 1998. He's been a vocal opponent of the death penalty since then.

As an abolitionist, I don't ultimately mind how people come to the cause of ending capital punishment; I only care that they eventually do. And the only way it's going to end in this country (whether it has to happen state by state or ultimately at the federal level) is precisely by continuing to get former supporters to change their minds.
posted by scody at 12:21 PM on July 16, 2011 [13 favorites]

The obvious problem with not acting like a flaming asshole is that most people don't believe they are. This could very well just be PR, but if I had to weigh the benefits of having a former death penalty advocate working to undo his horrible wrongs, admitting he was mistaken, and actively trying to convince others about the injustice of the whole thing; I'd say this is a positive step.
posted by l2p at 12:26 PM on July 16, 2011 [2 favorites]

oh, and per this...

Stop your PRing and start undoing the massive damage you have done.

...Heller clearly works pretty hard to undo the massive damage he's done. Most recently he testified in favor of SB 490, which would abolish the death penalty in California.
posted by scody at 12:28 PM on July 16, 2011 [3 favorites]

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.

Well, we might be making some progress in this direction.
posted by fuq at 12:39 PM on July 16, 2011

Many years ago I went to Spain for a vacation. When I returned, I noted that there were things done in Spain not done here and vice versa. It was then that I figured that travel and seeing how things are done elsewhere should be a way, a window, into the way you and your country do things. Perhaps, just perhaps, you could learn from seeing other places and how things are done.
Thus on executions, a look at European nations indicates that a lot of smart people in an industrialized and educated nations believe executions as punishment for crimes is horrendous and a dated practice. Why do we differ?
posted by Postroad at 12:40 PM on July 16, 2011 [1 favorite]

Why do we differ?

IMHO the short answer is because US citizens don't have a history of some monstrous dictator or noble that summarily executed its citizens arbitrarily and/or en masse.
posted by Talez at 1:16 PM on July 16, 2011 [3 favorites]

IMHO the short answer is because US citizens don't have a history of some monstrous dictator or noble that summarily executed its citizens arbitrarily and/or en masse.

Yeah, but we do have Texas.
posted by Benny Andajetz at 1:30 PM on July 16, 2011 [2 favorites]

All else aside, a man coming to his senses is a rare and beautiful thing.
posted by fleetmouse at 1:44 PM on July 16, 2011 [1 favorite]

He reminds me of some of the narcissistic, innumerate, sophists with whom I attended law school.

At least he finally started paying attention to something other than his own bullshit.
posted by wuwei at 1:55 PM on July 16, 2011

California has 714 inmates on death row and has executed 13 people since the death penalty was reinstated in 1978. In that time 54 death row inmates died of natural causes, 18 committed suicide, and there were 6 deaths reported as "other." "The state has spent $4 billion on the program, at an annual average of $139,000 per inmate."

SB 490 would reduce the maximum criminal sentence in California to life without parole, which it already almost is since death row inmates are four times as likely to die of old age as to be executed.

Loyola of Los Angeles Law Review recently published a special issue on the death penalty in California (all PDFs):

• Executing the Will of the Voters?: A Roadmap to Mend or End the California Legislature’s Multi-Billion-Dollar Death Penalty Debacle
  by Judge Arthur L. Alarcón & Paula M. Mitchell
• Essay: Post-Conviction Death Penalty Investigations: The Need for Independent Investigators
  by Laurie L. Levenson
• Essay: Facing Facts on the Death Penalty
  by James P. Gray

The time between sentencing and execution has been over 20 years for each of the five inmates executed in the last 10 years. For current death row inmates, 112 have been there for more than twenty-five years, 217 have been there for more than twenty years, and 546 have been there for longer than ten years.
posted by kirkaracha at 2:37 PM on July 16, 2011 [2 favorites]

This just goes to illustrate, if you're going to have the courage to stand up for your convictions, you should put some effort in beforehand to making sure those convictions are justified, and not just take whatever opinions you were handed by your upbringing. Far too many people are absolutely sure of things they probably shouldn't be.

This, more than anything else, should be tought in schools, to examine one's own beliefs critically before acting on them. When this finally happens, the human race might have a chance.
posted by JHarris at 2:40 PM on July 16, 2011 [1 favorite]

Why do we differ?

It's an interesting question, and I don't know that there's a single answer. First off, of course, the death penalty in the U.S. was suspended -- though not actually abolished -- in 1972 on the grounds that the way it was applied was unconstitutional. It was an interesting moment, historically, in which you've got the generally progressive Warren SCOTUS and progressive social movements (civil rights/black power, antiwar, women's liberation, gay liberation, prisoners' rights, etc.) coexisting with the reactionary presidency of Nixon, who made "law and order" part of his whole Southern strategy.

Then in 1976, the door was reopened to states resuming the death penalty; while some states remained non-capital states, most re-adopted it with statutes that were intended to make it constitutional. My own hunch is that there was a widespread sense of anger that Charles Manson et al. had supposedly escaped justice for the Tate-LaBianca murders when their death sentences were commuted to life in 1972, and that this was part of the public sentiment that was motivating states to find the "right" way to put prisoners to death rather than abolishing the death penalty entirely. (Manson's still one of the names that's invariably invoked by death penalty proponents to justify capital punishment.)

Even so, executions didn't really start to happen with much frequency until the early-mid 1980s (and really took off again in the 1990s). By the 1980s, the general political atmosphere had, of course, totally changed from the early '70s -- there were no longer the progressive social movements influencing national politics, and there had been a very specific "tough on crime" trend at local, state, and federal levels (which can be seen as an outgrowth of the Southern strategy).

Then there's the imbalance between states in terms of the actual practice of the death penalty -- the largest death rows and the highest numbers of executions have tended to be in the South and the West, rather than the East and Midwest. But even then, each state has its peculiarities: in Texas, about 2% of convicted murderers are given the death penalty, which (surprisingly) is actually slightly below the national average... but it executes 40% of its death row prisoners, which is ten times higher than the national average. By contrast, California has twice as many people on death row as Texas, but has executed less than 1% of its prisoners.

So the reasons for all these differences between states is a combination of factors, ranging from the cultural history of a particular state or region's approach to crime (compare the South vs. the Northeast, for example) to the countless differences in current state laws on every question from which crimes are eligible for the death penalty to the entire appeals process (compare Texas vs. California, for example). All of this adds up to a complex legal, political, and historical context that is genuinely unique to this country.

All told, though, the general trend in the United States is currently against capital punishment, after peaking in the 1990s. There are now 14 states (plus DC) without the death penalty, and the number of executions has generally gone down each year for the past decade, which is in line with public opinion polls showing that support for capital punishment has largely declined. This makes me cautiously optimistic, but until it's abolished nationally I fear we'll always be just one "tough on crime" wave of political hysteria from returning to the days of the '90s.
posted by scody at 2:42 PM on July 16, 2011 [9 favorites]

Then there's the imbalance between states in terms of the actual practice of the death penalty

Not only are there differences between states, there are differences within states. "No death sentences have been imposed in 21 of California’s 58 counties, and only one death sentence has been imposed in another four counties." (From "Executing the Will of the Voters?")
posted by kirkaracha at 2:52 PM on July 16, 2011 [1 favorite]

From the article: 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

Actually, it was the eastern urbanites who were bloody handed and violent. There were less shootings in the wild west than in big cities in the east.
Seems to have more to do with frontier justice. We don't have the resources to hold them and feed them in jail for years so we have to kill them.
The east was more violent but had more resources to hold captured criminals.

Nowdays of course we have plenty of resources so there's no valid reason at all.

And this: "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."

Man, thank you. F'ing finally. Nice to see someone wake up.
posted by Smedleyman at 2:53 PM on July 16, 2011 [1 favorite]

Actually, it was the eastern urbanites who were bloody handed and violent. There were less shootings in the wild west than in big cities in the east.

What do you mean by this? Of course in raw numbers there were more shootings in the big cities of the east because there were more people there. Do you mean relative to the population? I'd like to see some numbers on this claim.
posted by Sangermaine at 2:56 PM on July 16, 2011 [2 favorites]

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.

This pretty much sums up my feelings about the proposition process in California. Spending time in the political process in California is what has given me a true appreciation for representative democracy, flawed though it may be.
posted by Brak at 3:52 PM on July 16, 2011

the proposition process in California

The California prison unions generally release statements supporting or opposing propositions that affect their industry. I seek these out and vote the opposite. (CA resident, not joking at all)
posted by ryanrs at 4:43 PM on July 16, 2011

Jeanne Woodford, a former Warden of San Quentin, is also a strong voice against the death penalty.
posted by rtha at 5:24 PM on July 16, 2011

The thing I regret most that I cannot change

Not as much as the dead innocent regret it.

I'm not really big on having a lot of Commandments lying around, but I always thought "Don't Kill!" was fairly unambiguous.

What a world-changer that'd be, huh?
posted by Twang at 8:47 PM on July 16, 2011 [1 favorite]

What I think I am seeing here is that a man has discovered that logic does not equal reality. He crafted his vision with the idea that it would be properly applied. It hasn't been.

Not only did he have to realize that the device he made not work as intended - it cannot be made to work as intended. By it's nature, it doesn't work as intended. It's run by human beings. It's not a machine.

So he wants to see it unplugged. I think that's pretty cool.

Just for the record, I support capital punishment. I do not support the application of capital punishment (or any punishment) by trickery, malicious misinterpretation of the law, or or distorted, tortured logic. I'd have to say I am sort of in the same boat as Donald Heller. We can not guarantee that some prosecutors won't twist the law to suit their career objectives. We would be better off without capital punishment.
posted by Xoebe at 10:00 PM on July 16, 2011 [2 favorites]

What do you mean by this? Of course in raw numbers there were more shootings in the big cities of the east because there were more people there. Do you mean relative to the population?

Does it matter? I mean more people = more local wealth = more local criminal syndicates = more crime.
I don't have some other agenda here. If some guy on the plains has a rifle then 100% of the local population is armed, but it's only him and some cows so there's no crime either way. Doesn't prove much of anything.

But it boils down to the same thing in punishment whether crime is proportional or not.

If there's 10 people in my town and I kill 5 of them, it's still only 5 people dead even if it's 1/2 the town and the town has no way to practically hold me and go about the business of surviving. So they're going to hang me.
If I kill 5 people in a city of 5 million it's proportionately smaller, but there's more people left who can pony up some taxes and keep me in jail. If they decide to do so.
posted by Smedleyman at 3:40 PM on July 18, 2011