By: Scott Shafer
Prosecutors are seeking the death penalty for the arsonist who started the 2003 Old Fire in the San Bernardino Mountains. The jurors will make that decision, but California voters will have a say too. Proposition 34 on the November ballot would end the death penalty in California and replace it with life in prison without the possibilility of parole.
If passed, Prop. 34 would reverse another ballot measure, Prop. 7, which voters passed in 1978. Sacramento attorney Don Heller wrote that voter initiative at the request of then-State Senator John Briggs.
"I wrote it with the intent of writing a perfect legal document. Which I did. It was well crafted. It met all the constitutional standards and it's never been overturned in any aspects by the US Supreme Court." Heller says.
Jerry Brown was governor at the time, and celebrated crime sprees like the Manson killings and two assassination attempts on President Gerald Ford were still fresh in voters' minds. Heller remembers California as a western state with a taste for frontier justice, and Prop. 7 got more than 71 percent of the vote.
"It was a culture of hanging 'em high from the big oak tree," Heller recalls. "It was a western mentality of free thinkers and speedy punishment for criminal behavior."
But executions in California were anything but speedy. Since Prop. 7 passed, California has executed just 13 men and the death row population has grown from zero to more than 700. The average time between conviction and execution is nearly 18 years.
Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento says his group has pushed time and again to reduce that wait by streamlining legal appeals.
"If the legislature would do its job and pass the reforms correctly, and we've had bills in committee many, many times and they've always been killed in committee, we could get this done," Scheidegger says.
Scheidegger strongly opposes Prop. 34, saying simply the inmates on death row deserve to die.
"These are crimes far worse than the typcial murder. These are cases of serial rape and torture, people torturing and murdering children, and life in prison without parole simply isn't a sufficient punishment," he says.
But Don Heller, who wrote California's death penalty law, kept an eye on it as it was implemented. And he didn't like what he saw.
"One of the things I noticed immediately, which surprised me, was that the qualitiy of lawyers representing defendants in death penalty cases was suboptimal," Heller says.
Heller calls himself a conservative Republican. But he now believes his ballot measure in his words, was "a colossal mistake" that needs to be changed. He's supporting Proposition 34.
"I'm a believer in law and order. I think that's the primary objective of government is protecting society. But I don't believe capital punishment works. And if it doesn't work, change it," Heller says.
Governor Jerry Brown won't say -- not yet anyway -- whether he supports Prop. 34. But last year he cancelled plans for a new Death Row at San Quentin Prison. "Can't afford it," he said.
