During an
unprecedented flurry
of closely watched
executions and celebritydriven protest this
winter at San Quentin,
emboldened activists
predicted that
California could soon
abolish the death penalty.
Reporting from inside
the media circus,
About a thousand
protesters rally outside
San Quentin a month
before Stanley “Tookie”
Williams’s execution.
Many came to hear
rapper Snoop Dogg
speak.
JAIMAL YOGIS
KILLING THE
DEATH PENALTY
P H OTO G RAP H BY G E O R G E N YB E R G ; O P P O S ITE PAG E BY JAI MAL YO G I S
discovers that their
prophecy isn’t
as far-fetched as
it sounds.
A few days after Allen’s execution, I drove up to Sacramento to meet Donald Heller. He sat casually behind a
huge desk, his numerous diplomas and awards mounted
proudly behind him. The first thing I realized was that
this guy is not a flip-flopper. A longtime Republican,
Heller still thinks that sex offenders should be put away
for life and that recent criticism of prosecutors is largely
unjustified. He concedes that the conservative movement has passed him by, going so far to the right that he
sometimes feels like a lefty. But everything from his red
striped shirt to the watercolor painting of an aircraft
carrier mounted on his office wall screamed Republican
and happy to remain so. What Heller is, he said, is able
to admit when he’s wrong. “The death penalty is something that a civilized society should not take part in,”
Heller told me. “It should be abolished.”
Heller began to oppose the death penalty a few years
after becoming a private defense lawyer in 1977. It
became clear to him that everyone had a story and that
many cases would always be ambiguous. Further
research taught him that the death penalty he created
discriminates against the poor and people of color, costs
the state too much money, and doesn’t even act as a
deterrent to homicides. He stayed mostly silent about
his switch until the execution of Tommy Thompson in
1998. “I don’t think Californians appreciate how wrong
that execution was,” he said. Thompson was executed
at San Quentin for the rape and murder of Ginger
Fleischli. But the evidence for rape—which made the
case eligible for death—was shaky at best. Jailhouse
snitches clearly lied in their testimony against Thompson, and the coroner’s report suggested Fleischli may
not have been raped at all. Though he had nothing to
do with the case, it still haunts Heller.
A realist, Heller knows he might not see the abolition
of the death penalty in his lifetime. Still, if people
learned the facts, if they realized that life without parole
is a real alternative to state executions, he thinks the
majority would oppose the penalty. “The people voted
133
PHOTOGRAPH BY JEFFREY BRAVERMAN
Former prosecutor
Donald Heller, in his
private law office in
Sacramento, says his
Republican friends
used to tease him for
opposing the death
penalty law that he
wrote. “They don’t anymore,” he says. “I take
it too seriously now.” At
right, Snoop Dogg
waits outside San
Quentin for his turn to
speak at a November
Save Tookie rally.
This his very busy winter, as San Quentin prepared to
execute three men in three months, anti–death penalty
activists noticed they had a strange ally. He wasn’t a
celebrity protesting alongside Snoop Dogg before the
infamous execution of Stanley “Tookie” Williams, nor a
candle-carrying activist at the subsequent midnight killing of Clarence Ray Allen. He wasn’t a Catholic priest
moved to preach against capital punishment by the
church’s suddenly strong stand against it, nor a member
of the new state-appointed commission investigating
California’s capital system. No, Donald Heller, a man
nicknamed “Mad Dog” for his hard-nosed ways as a
prosecutor, has his own claim to fame, one in which socalled abolitionists were taking special comfort. In 1977,
shortly after a stint as an assistant U.S. attorney, Heller
wrote the Briggs Initiative, the proposition that brought
the death penalty back to California in a big way.
The night the 76-year-old Allen was executed,
Natasha Minsker, the ACLU’s San Francisco–based
anti–death penalty advocate, told me about Heller. We
were outside San Quentin, Minsker bundled in a fauxsheepskin coat and a fleece cap, and we could see our
breath in the cold air. Few of the people protesting
could believe the state was about to execute a disabled
senior who was legally blind. Even the former warden of
San Quentin, who supports the death penalty, asked the
governor to spare Allen as “an act of decency”—and this
from a man who ruled over a prison at times criticized
for inhumane conditions. The turnout for Allen’s execution was fairly small compared to that for Williams’s,
and I later asked Minsker if she thought California
would just go numb to increasing executions. “I don’t
think so,” she said. “Just look at the demographics of
California. The increasing number of Catholics, the
young population. It’s easy to get distracted by these
executions, but the death penalty’s days are definitely
numbered.” Then she mentioned Heller, citing his
recent work on the political campaign to put a moratorium on California executions. “You know the death penalty’s losing speed when the guy who wrote the law
opposes it,” Minsker said.
MARCH 2006 SAN FRANCISCO
JAI MAL YO G I S
T
SAN FRANCISCO MARCH 2006
134
It was a crisis Bay Area abolitionists must have known
they needed: a controversial execution case that would
rally the media and get the public involved. For them,
the “Save Tookie” campaign fell like manna from heaven. It filled the airwaves from Thanksgiving to Christmas, supplying celebrities, fund-raising opportunities,
and reams of news stories.
On the night of Williams’s death, candle-holding
activists packed the San Quentin waterfront like a sea of
Christmas lights. They surrounded hordes of TV news
teams, the anchors waiting in heavy makeup. For every
activist, there seemed to be at least two cameras. As the
executioner fumbled to find the “kill” vein in Williams’s
muscular arm, I stood next to three Catholic schoolgirls
who had come from the East Bay with their art teacher
to pray and protest. They looked so sincere with their
candles, I couldn’t help snapping a few photos. But
within minutes, a swarm of news photographers saw
what they were missing and descended like vultures.
“Make them stop,” one of the girls pleaded as the photographers stumbled over each other for tomorrow’s
front-page shot.
The crowd was more diverse than ever, making the
event resemble a somber Burning Man party that got
crashed by the Walnut Creek PTA. One man was parading around with a huge papier-mâché Gandhi on
wheels, and a group of elderly Catholic women was
singing hymns. While Angela Davis gave a speech about
injustice, a born-again Christian told me how abortion
and the death penalty were really the same issue. And
while Jesse Jackson preached redemption, some conspiracy theorist explained to me how Bush planned
9/11 and that CBS and the CIA were happily working
together again.
The scale of protest and media presence was unprecedented at the prison, but with the coverage in the
months leading up to the execution, it was no surprise.
The San Francisco Chronicle called for clemency, and
newspapers around the world were awash in sympathetic coverage. Beyond the usual chorus of pro and
“Make them
stop,” one
of the girls
pleaded
as the
photographers
stumbled
over each
other for
tomorrow’s
front-page
shot.
At recent anti–death
penalty rallies, believers of many faiths
showed up to protest
state killing. Stefanie
Faucher and Lance
Lindsey (left) run
Death Penalty Focus
from a three-room
office in the Flood
Building. Jesse Jackson, Danny Glover,
Mike Farrell, and other
high-profile figures sit
on the organization’s
boards.
P H OTO G RAP H BY J E F F R E Y B RAV E R M AN ; O P P O S ITE PAG E BY JAI MAL YO G I S
It may seem far-fetched to think that California might
abolish the death penalty. The state has a well-earned
reputation for hard-line anticrime measures like the
three-strikes law. It’s still considered political suicide for
a candidate for higher office to oppose capital punishment. But during these last few executions, many abolitionists were saying that a tipping point is near. More
politicians are openly opposing the death penalty and
considering legislation requiring a moratorium on executions while the capital system is investigated. Religious
institutions, including the Catholic Church, are also taking a stronger stand. Lance Lindsey, executive director
of California’s largest abolition organization, Death Penalty Focus, believes capital punishment may not have 10
years left in this state. Minsker agrees. Franklin Zimring,
a law professor at UC Berkeley who has studied death
penalty trends for 40 years, says, “Death penalty abolition is absolutely inevitable. The question is when, and
what institutions will be involved.”
For three months, I attended just about every protest
and stole time from the politicians, activists, scholars,
church workers, and legal experts who were caught up
in the moment. Could Lindsey, Minsker, and Zimring
possibly be right? Yes, the signs of potential abolition
have long been there in San Francisco, where the majority of residents are plain sick of executions in their backyard. Our own district attorney, Kamala Harris, in her
inaugural address, vowed to never seek the death penalty. A poll showed 70 percent of the city supported her
when she chose not to seek death even for cop killer
David Hill. Many, if not most, of the elected officials,
wealthy do-gooders, and human rights organizations
who oppose capital punishment in California are here.
Noe Valley has been dubbed “Death Valley” due to the
number of defense lawyers there who have worked to
stop or delay executions.
What surprised me was that public opinion in the rest
of the state has been steadily catching up. Twenty years
ago, before the words DNA testing and wrongful conviction
and exoneration meant much to the public, 83 percent of
Californians supported the death penalty. But a poll in
2004 found support down to 68 percent. When you
ask a nuanced question, the public’s wavering becomes
clear. Another poll revealed that when given the choice
between sentencing someone to life imprisonment and
to death, 53 percent of Californians would choose life
without parole. And in one 2000 poll, 73 percent supported a moratorium on capital punishment until a
study of its fairness could be completed.
Nearly 650 prisoners wait on California’s death row,
more than in any other state. And although, as of press
time for this piece, we had executed only 13 since the
death penalty’s return, experts say we may see multiple
executions per year from now on, a process activists are
calling “Texafication.” (Texas has executed 357 since
1982.) Zimring believes that as executions increase in
frequency, public support will keep falling. “One of the
things that Williams became is a catalyst,” Zimring says.
“All of a sudden, California has three executions in three
months. Now three executions is a terrible yawn in
Texas or Oklahoma or Virginia. But in California, it’s a
terrible crisis.”
G UTTE R C R E D I T H E R E
the death penalty law in,” he said. “They’re the only
ones who can vote it out.”
In the midst of the media circus, I turned to Professor
Zimring for perspective. His desk on the third floor of
Boalt Hall held an impending avalanche of charts and
statistics. The eloquent, mustached man with an odd
fetish for elephant sculptures recently published a dense
book called The Contradictions of American Capital Punishment, which he references like the Bible. Zimring
explained that abolition will happen in California
137
PHOTOGRAPH BY JEFFREY BRAVERMAN
San Francisco attorney
Jon Streeter was
appointed by the state
senate to make sure
California doesn’t kill
an innocent person.
Though he supports
the death penalty narrowly, he says the state
is dangerously close to
that nightmare. At right,
the ACLU’s Natasha
Minsker and former
M.A.S.H. star Mike
Farrell are two of California’s most powerful
abolitionists.
abolitionist brunch in Sausalito, emceed by former
M.A.S.H. star Mike Farrell. From a living room
overlooking Richardson Bay, Farrell recalled his 40
years on the abolition campaign, while philanthropists
and defense lawyers nibbled on quiche and drank
orange juice. “There are three reasons politicians support the death penalty,” said Farrell. “Politics, politics,
politics.” As he spoke, CNN and Fox News kept his cell
phone ringing.
Farrell is now the president of the board of the San
Francisco–based Death Penalty Focus, and he is a major
reason other celebrities have spoken out. Every year in
Los Angeles, Farrell hosts an awards ceremony to honor
abolitionists, among others. Kiefer Sutherland, Mario
Cuomo, George Ryan, Danny Glover, the cast of The
West Wing, and the cast of The Practice have all been honored at the event. “It used to be taboo to bring the
death penalty up in polite company,” said Farrell.
“We’ve created a safe environment to oppose it publicly.” Farrell, who donates a large undisclosed sum every
year to Death Penalty Focus, flew in from L.A. for both
the Allen and Williams executions to make speeches, as
he always has. “Once you see the horrors of the justice
system,” he told me, “it’s hard not to oppose it.”
Stars were so common, it wasn’t surprising to be sipping tea with Joan Baez the day of Williams’s death.
Wearing wooden prayer beads on her wrist and the tags
of a Marine who had served in Iraq around her neck,
Baez commented that the Save Tookie rally would be
her first protest at San Quentin in 20 years. “We’re
finally starting to win,” said Baez. “I think they’re finally
starting to listen.”
It was difficult not to agree with her that day. On a
national level, celebrities may do more harm than good
for the anti–death penalty issue. These days, all a conservative has to say is “Hollywood liberal” to turn middle America against a cause. But in California, let’s be
honest, they wield serious clout. Remember who our
governor is.
MARCH 2006 SAN FRANCISCO
D I N O VO U R NAS/AP
“There are
three
reasons
politicians
support the
death
penalty,”
Farrell told
attendees at
a private
brunch in
Sausalito.
“Politics,
politics,
politics.”
anti voices, the blogosphere exploded with surprising
anti–death penalty opinions, including some from hardcore conservatives. “As Abraham Lincoln said when pardoning a deserter in the Civil War,” wrote Andy Nevis, a
prolific conservative blogger who is only 15, “he will be
of more use above ground than below it.” South African
archbishop Desmond Tutu and former Soviet premier
Mikhail Gorbachev also favored clemency, and when
Schwarzenegger refused to grant it, politicians in his
hometown of Graz threatened to remove his name from
their stadium. (He beat them to the punch, ordering
them to remove his name immediately.)
Williams’s 10 anti-gang books and five Nobel Peace
Prize nominations had a lot to do with the explosion of
protest. But, as with most media events, the celebrities
were key. Jamie Foxx started the domino effect, playing
Williams in Redemption: The Stan Tookie Williams Story, a
film that aired on national television in 2004. In the
month before Williams’s execution, it seemed nearly
impossible to rent Redemption at local video stores. Foxx
reeled Long Beach rapper Snoop Dogg into the campaign by inviting him to a screening of the film.
On a sunny morning in November, about a thousand
death penalty foes, Williams supporters, hip-hop fans,
and journalists had gathered on the waterfront by the
prison to hear Snoop. Dressed in an oversize Save Tookie.org T-shirt and black jeans, the rapper walked onto
the stage flanked by black-clad bodyguards. The crowd
roared. “I want to say to you, Governor, that Stanley
Tookie Williams is not just a regular old guy,” he said,
his cornrows looking a bit fuzzy that morning. “He’s an
inspirator. He inspires me, and I know I inspire millions...So you add that up. That’s over a hundred million people that’s inspired by what he’s doing.” Snoop’s
speech lasted all of three minutes, and it wasn’t primarily about abolishing the death penalty. But he made a
good point. Through the multiple cameras filming, he
was indeed reaching millions; arguably, by Snoop’s mere
presence, and his chant of “Change gonna come!,” a
new generation was being eased into the abolition fold.
One evening, as Williams’s death grew closer, actor
Danny Glover showed up fashionably late to a Redemption screening in the Mission district. Glover said he
thought there was a chance that Schwarzenegger might
spare Williams. Oakland hip-hop star Boots Riley of the
Coup and filmmaker Kevin Epps (Straight Outta Hunters
Point), jumped in, too. “Tookie’s words, man, they’re like
2Pac,” said Epps, shedding tears. “We gotta save this cat.”
True, the stars were more focused on saving Williams
than on death penalty abolition—and some of their
comments probably wouldn’t have found favor with the
governor. Snoop recalled his early days as a member of
the Crips gang, and Riley, in an otherwise intriguing
analysis of poverty and violence, joked that you can’t sue
the guy who steals your weed. But mixed in with so
many activists giving abolition speeches, the two causes
became virtually synonymous.
Some of the stars were doing more than just talking.
A few days before Williams’s death, I found myself at an
138
“We claim to be killing in the service of victims’ families now,” Zimring said. “But that can only last so long.”
The new rationale gained popularity nationwide and
executions increased, especially in the South, where 81
percent have occurred since 1977.
Killing in the name of closure is illogical when we
execute so few. California averages 2,400 homicide convictions per year, and we execute less than a handful of
the convicted murderers. What about closure for the
other 2,395 families? But the argument is emotionally
effective, and the media has gone along: in a database
search, Zimring found that the number of news stories
mentioning closure went from almost none in the mid1980s to more than 400 in 2001. Even the Chronicle,
reporting in a city where the majority of citizens oppose
the death penalty, sometimes covers the victims’ families
more than the execution.
By 1999, the peak year of U.S. executions, it seemed
the nation was going to take the killing spree into the
new millennium. Only China, Saudi Arabia, Iran, and
the Democratic Republic of the Congo were executing
more regularly than the southern United States. But
there was a backlash. DNA testing became mainstream
and a host of death row inmates were found to be
innocent. About 122 death row prisoners have been
exonerated to date, six of them in California. The U.S.
Supreme Court ruled it unconstitutional to execute
minors and the mentally retarded. Illinois implemented
a moratorium, and New York’s highest court declared
executions unconstitutional. Only months ago, New
Jersey joined the moratorium states.
Zimring sees all this as part of a historic march: first,
executions cease to be viewed as important to crime
control, which leads to a slowing down. Then, usually
during a shift to the left in the government, the death
penalty gets abolished. The first states abolished it in
the mid–19th century after scholars began questioning
its value. (Currently, 12 states, plus the District of
These
days, all a
conservative
has to say is
“Hollywood
liberal” to
turn middle
America
against a
cause. But in
California,
let’s be
honest,
celebrities
wield
serious
clout.
The night of Clarence
Ray Allen’s execution,
protesters ranged
from famous to fringe,
with everyday Bay
Area residents in
between.
JAI MAL YO G I S
SAN FRANCISCO MARCH 2006
because almost everyone now realizes that the death
penalty does not serve what many would see as its
primary purpose: preventing murders. “It doesn’t,”
Zimring told me. “It is brutally useless.”
And the statistics are there to prove it. Zimring says
none of the European countries or U.S. states that have
abolished capital punishment have seen a rise in homicides. After abolition, Canada actually saw a 23 percent
reduction in murders. The New York Times conducted a
study in 2000 and found no evidence that the death
penalty served as a deterrent. To be fair, several journals
have published studies showing contrary evidence, but
so many scholars have criticized the authors’ statistical
methods that the results seem unreliable.
So why do we still have a death penalty, especially
when the rest of the developed Western world has
already abandoned it? The last person in western
Europe to be executed—perhaps forever—was a
Tunisian immigrant convicted of rape and murder.
He was beheaded in Marseilles in 1977. Beginning
with Italy in 1944, western Europe began abolishing
capital punishment; France, in 1981, was the last to
do so. Countries that execute cannot even join the
European Union.
The strange thing is that in 1977 the United States
was in a similar moral space as Europe and could have
gone the same way. While France executed two people
in 1977, the United States executed only one; in 1972
the Supreme Court had ruled all existing state capitalpunishment systems unconstitutional. But four years
later, in Gregg v. Georgia, the court reversed course,
allowing states to execute provided they complied with
new standards. Most states eventually brought back what
Zimring terms a “reinvented death penalty.” Instead of
claiming that executions would protect people from
more homicides, increasingly prosecutors and politicians
shifted the rhetoric, portraying the penalty as a sort of
community effort to create “closure.”
Columbia, have no death penalty law on the
books.) “There are a lot of things people
disagree on about the death penalty,” Zimring said. “But there is one thing that everyone agrees on, and that’s that we don’t need
a death penalty. That’s why you didn’t hear
Schwarzenegger arguing that killing Tookie
would keep murders down.”
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Junior Page
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The lack of a concrete need for capital punishment has gradually pushed the debate
back into mainstream politics in California.
Sally Lieber, a Democratic assemblywoman
from Silicon Valley, cointroduced AB 1121
last year to put a hold on executions until
2007. She supports capital punishment but
doesn’t want the state rushing into any unjust executions. The bill had support from at
least 30 members of the 80-member assembly, along with 40 high-profile California
judges, police officers, and prosecutors. It
died in January before getting to a vote, but
supporters plan to reintroduce it in the senate, where it has a better chance of passing.
The day after the moratorium passed its
first hearing in Sacramento, I met Stefanie
Faucher, program director of Death Penalty
Focus. The 26-year-old redhead is one of a
growing band of people who combat executions full-time as paid staffers in the Bay
Area for Death Penalty Focus, the ACLU,
and Amnesty International. “It’s a great first
step,” said Faucher, positively bubbly.
“You’ve seen this in New York and Illinois.
The majority of people support the death
penalty until they really see the facts.”
Although Death Penalty Focus is the
strongest voice in California’s abolition
movement, its eighth-floor office in the
Flood Building on Market Street is cramped
and suffers from ugly gray carpeting. “But
with a $400,000 annual budget, you work
with what you have,” said Faucher, who
talks like a lawyer but isn’t. She works
alongside Executive Director Lance Lindsey.
The day we met, Lindsey’s eyes were heavy
under his round glasses. He had been protesting Clarence Ray Allen’s execution at
San Quentin until 3 a.m. and woke up at
5 a.m. for a New York radio interview. For
much of Lindsey’s 10 years with the organization, the movement felt like a street corner operation. Now Lindsey and Faucher,
like Minsker—who became the ACLU’s first
full-time anti–death penalty advocate in 10
years—meet regularly with policy makers.
“Politicians were afraid to be seen in the
hall with us,” said Lindsey, who had worked
as a school principal and for the Special
Olympics before becoming a full-time abolitionist. “I saw it as the culmination of every
social justice movement. Civil rights, segregation, it all came together in this fundamental
injustice. But it was such a fringe issue.”
The majority of Californians want a moratorium. The problem is, most politicians outside the Bay Area are afraid to pass it.
“They’re afraid of being called soft on
crime,” says San Francisco assemblyman
Mark Leno, also a coauthor of the bill.
Republicans have tried to characterize the
moratorium essentially as death penalty abolition even though many death penalty
advocates see a thoughtful pause as necessary to fix flaws in the system. “If the prosecution is going to have the moral authority
to request the death penalty,” says Ira Reiner,
former district attorney of Los Angeles and a
firm supporter of capital punishment, “we
need to be constantly vigilant in improving
the system. If it came to a point where we
could not be virtually certain that innocent
people are not being killed, that might be
enough for one to make a moral switch to
oppose the death penalty.”
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A new group of 14 experts is in charge of
making sure California is not on track to kill
an innocent person. The California Commission on the Fair Administration of Justice is a bipartisan committee created by the
San Francisco power-legislator John Burton
in 2004 just before he termed out in the
senate. Think of it as a 9/11 commission for
criminal justice: the committee will research
specific cases, interview witnesses and
experts, and every few months issue recommendations. In December 2007, it will publish a final report.
The abolitionists’ fantasy is built around
this commission because they saw what massive changes a similar group catalyzed in
Illinois. After exonerating 13 death row
inmates in a short time, Illinois put a twoyear moratorium on the death penalty so
the commission could study the system,
much like California is trying to do now.
The commission, which included the
famous crime novelist and former prosecutor Scott Turow, came out with 85 recommendations for the system. Then-governor
George Ryan reviewed the findings and
every single death row case, and to the
nation’s shock, commuted 167 death sentences and pardoned four inmates entirely.
In a speech, Ryan said, “I cannot support a
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system, which, in its very administration,
has proven to be so fraught with error and
has come so close to the ultimate nightmare, the state’s taking of an innocent life.”
Judging by the California commission’s
bipartisan demographic, it’s hard to guess
what conclusions it will draw. At least five
members are associated with law enforcement or prosecution, including the district
attorney of San Mateo County, James Fox,
who has sent 20 criminals to death row
since 1983. And at least four others have
criminal-defense backgrounds, like Michael
Laurence, the executive director of the
Habeas Corpus Resource Center in San
Francisco.
Jon Streeter, a former defense attorney
who is the vice-chair of the commission, told
me he won’t make any predictions except
one: that the final results will make a big
splash and possibly change the death penalty’s status forever. “Looking at the procedural problems and exonerations, we could
ultimately conclude that we should reform
our death penalty laws,” he said.
Numerous studies already suggest that
the commission will find many of the same
flaws that made Ryan reverse course.
According to a study by the Los Angeles
Times, the death penalty costs California taxpayers $114 million more per year than life
without parole would cost. But the arbitrariness of the system is far more shocking.
The application of the death penalty in California varies widely from county to county:
murder someone in Riverside County,
which has sent 54 people to death row since
1977, and you are many times more likely
to get a death sentence than if you murder
someone in San Francisco. Those who murder whites are over four times more likely
to get death than those who kill Latinos and
over three times more likely to get death
than those who kill African Americans. One
of the most talked-about studies, published
in the Santa Clara Law Review in 2003, analyzed how many of the 85 Illinois recommendations California’s system met. Only
five, the study found.
Many attorneys have told me that poor
criminal defense in capital cases is a huge
problem. “One of the main reasons California has such a large death row is a lack of
qualified defense,” said Laurence, who is on
the commission. California only recently
created minimum standards for capital
defense attorneys, some of whom have
shown themselves to be less than professional at times. One court-appointed
defense attorney in San Bernardino County regularly
came to a death penalty trial drunk and was arrested
for driving to the courthouse with a .27 percent bloodalcohol content.
This is not to say that California does not have many
deft defense attorneys. But to see that there is a serious
problem, you don’t even have to look to the most egregious cases. Take Allen’s capital trial: while the Ninth
Circuit Court of Appeals ultimately didn’t reverse his
death sentence, the justices noted that his defense was
so poor that it “fell below an objective standard of reasonableness.” The court said Allen’s court-appointed
counsel admitted to doing nothing to prepare for the
penalty phase of the trial until after the guilty verdicts
were rendered.
Such unfairness in how the death penalty is applied
has allowed some politicians to feel safe in opposing it.
But a new infusion of religious support for abolition
could end up casting an even wider safety net. The
Catholic Church has long opposed the death penalty in
a quiet way, but recently the church has made it a forefront issue in its “Culture of Life” campaign, which
includes opposition to abortion and euthanasia. It even
changed the official catechism to reflect its opposition.
Simultaneously, Catholics’ support for the death penalty
went from 68 percent in 2001 to 48 percent in 2004.
California is 25 percent Catholic. That figure is growing,
and the state senate has a large Latino caucus. (Schwarzenegger is Catholic, but it’s tough to know if his faith
influences his political decisions.)
Few religious institutions are as centralized as the
Catholic Church, but adherents of many other faiths
and sects are taking a stand against the death penalty. I
met Muslims, born-again Christians, Episcopalians, Baptists, Buddhists, Quakers, and Jews protesting the death
penalty at San Quentin. And at a pro-moratorium rally
in front of City Hall in November, just about every other
speaker was preaching. Rabbi Alan Lew of Congregation Beth Sholom in San Francisco delivered a thunderevoking speech: “A million years may pass, but killing
will never bring peace,” said Lew. “It is a spiritual
impossibility, an immutable law.” Catholic bishop John
Wester followed with a message from Catholic bishops
across the state: “We implore all Californians to ask what
good comes of state-sanctioned killing?” Even the political speakers were getting biblical. “What would Jesus
do?” asked Supervisor Tom Ammiano. “He’d kick your
sorry butt out of the temple, Mr. Bush.”
To understand the Catholic viewpoint, I met up with
George Wesolek, director of public policy and social concerns for the Archdiocese of San Francisco. A jolly, bald
man who wore a red sweater, Wesolek said he has seen a
small group of lapsed Catholics return to the church
because they strongly oppose the death penalty. The
death penalty debate has fluctuated for centuries within
the Church, Wesolek said. But with the ability to lock
people up for life and even deny them access to other
prisoners and visitors if necessary, the Pope says capital
punishment is out of the question for modern societies.
The Old Testament prescribes death for no fewer than
36 crimes, including practicing witchcraft, working on
the Sabbath, and talking back to your parents. And in
the biblical story, God does kill wrongdoers. But he also
spares them: David, for instance, and even Cain, the
king of all murderers, receive pardons from God. This
contributes to the Catholic belief that God prefers forgiveness. But the main reason for Catholics’ opposition
is Jesus. “Jesus is the fulfillment of the law,” Wesolek
said. “Jesus comes in and says, ‘Actually the whole law is
to forgive; the whole law is love; the whole law is service.’” And recall that in John 8:1–11, it’s Jesus who
saves an adulterous woman from being stoned, warning
an angry crowd: “He that is without sin among you, let
him cast a first stone.”
It’s understandable that some people, even after learning the impracticalities of the death penalty and knowing that even God may oppose it, still want murderers to
die. Who hasn’t at times wished death on the sickest killers and rapists? As former district attorney Reiner told
me: “Even if the death penalty has no deterrent effect,
the reason to support it is a moral one: there are cases
where the punishment fits the crime.” Perhaps. Or perhaps Gandhi, Martin Luther King Jr., and Mother Teresa were right in opposing the death penalty. The moral
debate will go on as long as people commit murders.
But aside from whether the death penalty is right or
wrong, few can reconcile themselves with the horror of
executing an innocent person. Through all my discussions, that issue kept resurfacing, and many experts say
California is dangerously close. That scenario has
already befallen other states. Georgia recently apologized for executing an innocent woman, Lena Baker,
more than 60 years ago. Last year a Texas judge and
prosecutor reportedly admitted to wrongfully executing
the innocent Ruben Cantu in 1993.
Zimring estimates that as many as seven innocents
have been killed in the U.S. already. Even if prosecutors,
judges, and jurors got it right 99 percent of the time, six
or seven innocent people are currently waiting 15 years
in a cell for California to poison them. Toward the end of
my interview with Heller, after he had talked extensively
about the immorality of Tommy Thompson’s execution,
I asked him what it would take for the law he wrote to be
undone. Would the activists, preachers, and Bay Area
politicians have enough impact to change the hearts and
minds of a good chunk of the state’s population? Heller
paused, as if he were pondering an obscure bit of constitutional law. “At some point in the future, there will be
no death penalty,” he said. “But I think it will happen
when we know for certain that someone innocent has
been killed. I mean know for sure—DNA, everything.”
In the meantime, as Heller regrets the day he wrote
California’s death penalty law, he will continue to remind
voters that only they have the power to vote it out. ■
“You’ve seen
this in New
York and
Illinois. The
majority of
people
support the
death
penalty until
they see the
facts.”
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MARCH 2006 SAN FRANCISCO
Allen’s grandnephew
holds a family photo
taken just hours before
his uncle’s execution.
The nephew said he
felt sorrow for the victims’ families.
JAI MAL YO G I S
SAN FRANCISCO MARCH 2006
JAIMAL YOGIS IS SAN FRANCISCO’S WRITER-REPORTER. ADDITIONAL REPORTING BY CHRIS SMITH AND LEIGH FERRARA.