Photo by Torrey Bailey
Dayna Herroz stands over the rocks dedicated to her daughter and grandson at the River of Fallen Tears in the Cara Knott Memorial Garden.
Dennis Potts wakes up every morning to the same photograph—a picture of his 10-month-old son, wrapped in his mother's arms, lying on the cushion of a coffin hangs on the wall of his prison cell. This photo has followed Potts through seven years and two cell transfers at the request of Dayna Herroz, mother and grandmother of the victims. In 2006, Potts strangled 22-year-old Tori Vienneau and their son, Dean, in Vienneau's Southeastern San Diego home.
"The murderer had tried to come to the funeral, but we caught him at the door," Herroz said. "He wanted to get up close to Tori and Dean to see them, and I'm sure he was quite proud of his handiwork. So I thought, 'Since you wanted to see them so bad at the funeral, I think you should live with this vision, because I have to.'"
Capital punishment was on the table for Potts, who committed the brutal murders to avoid paying child support, but he was ultimately sentenced life in prison without the possibility of parole.
"I had always thought that I was pro-death penalty until it landed in my lap," Herroz said. She researched capital punishment extensively before meeting with San Diego County District Attorney Bonnie Dumanis and was surprised at what she found.
"I found that our death penalty system is broken in California," she said. "I know it's supposed to be going through an overhaul, but at this time it's broken. People don't get executed. They sit on death row, and I've seen photos and videos of them with their TVs in their cells, and that's the last thing I wanted."
California hasn't executed a death row inmate in 10 years, and between 1978 and 2006 just 13 prisoners were put to death. Meanwhile, there are 746 condemned inmates in San Quentin, many who have been there for decades.
There are two propositions regarding the death penalty on the November ballot. Proposition 62 would repeal capital punishment (retroactively, as well), and replace it with life in prison without the possibility of parole.
"It's a penalty that all of the Western developed world, and most of the rest of the world, has abandoned because it's too costly in terms of human rights and money," said John Cotsirilos, a University of San Diego law professor who specializes in the death penalty.
The state Legislative Analyst's Office estimates that abolishing the death penalty would save the state and counties around $150 million annually within the first few years. Cotsirilos said that this money could be put toward the state's unsolved rape cases and homicides, or other concrete ways that make communities safer.
"The death penalty doesn't actually accomplish anything," said Yes on 62 spokesperson Jacob Hay. "So by replacing it with life in prison without parole, taxpayers get a better deal, and we have swift and certain justice. We guarantee we never execute an innocent person, and we can give victims' families certain closure."
If Californians reject Prop 62 and vote to keep the death penalty, there's also Prop 66, a multi-faceted initiative that aims to mend the system in four areas that are currently backlogged.
There are big political players on both sides of the issue. The California Democratic Party, the California American Civil Liberties Union, San Diego Center on Policy Initiatives and Criminal Defense Lawyers Club of San Diego will be voting to repeal capital punishment.
San Diego District Attorney Bonnie Dumanis, the San Diego Police Officers Association, the Deputy Sheriffs' Association of San Diego and the California District Attorneys Association are all in favor of maintaining and changing the death-penalty process.
"I think everybody agrees that this system is broken," said Anne Marie Schubert, the Sacramento County District Attorney and head of the No on 62, Yes on 66 campaign.
Prop 66 would increase the number of lawyers eligible to defend death row inmates, who currently wait seven to 10 years to start the appeals process. Schubert said the goal is to reduce that wait time to less than five years by hiring and training additional lawyers.
There is speculation, however, about the quality of lawyers that would be hired.
"You either have to train, very quickly, a huge number of lawyers at a great public expense, or youíd have to permit totally unqualified lawyers to do the cases," Cotsirilos said. "One is going to be a great public expense with no assurance of concrete improvement in the system and the speed in which it functions, or you're just going to have a greater margin of error."
Schubert said she is fully confident in the lawyers who would be chosen, but admits that the transformation would not occur overnight and would not be cheap.
If there were a larger pool of potential defense lawyers, it would reduce the time it takes to start the appeals process, which is the second element Prop 66 tries to streamline. If passed, Prop 66 would limit the number of habeas petitions the defense can file.
"What we see time and time again is appeal after appeal after appeal that are the same appeals, and it just effectuates decades of delays," Schubert said, adding that inmates will petition for all kinds of reasons, including to transfer cells. Prop 66 would also require that these petitions be filed in trial courts.
The third proposed change to the system takes aim at the legal process regarding the approval of lethal injection drugs. Prop 66 would eliminate a roadblock to executions that requires the California Department of Corrections and Rehabilitation to respond to all public commentary about lethal injection, which can number in the tens of thousands, within a time frame.
Lastly, Prop 66 would allow the Department of Corrections to house death row inmates outside of San Quentin. Depending on the scope of inmates' crimes, they could potentially be double celled. Inmates who are less of a threat could be paired up, while career criminals would be kept in isolation. This component was added to Prop 66 to loosen up funds for other facets of the proposition, but again, Cotsirilos has doubts because he said that only 20 percent of the death penalty budget is spent on housing inmates.
"Even if you took them off death row, it would still be very expensive to house many of these people because a lot of them have gang-related crimes," he said. "They're very difficult murderers, where they cannot be with the general population, so there would be some savings but not much."
The Legislative Analystís Office confirms that the fiscal impact of the initiative is uncertain and depends largely on how it is implemented.
Prop 62 and Prop 66 carry both financial and emotional impact. Herroz, who lost her daughter and grandson, wanted Potts to spend his life in prison but said every family should have the freedom to make that choice. In November she'll vote to keep the death penalty under the assumption it will be fixed.
Families that choose the death sentence are called back into court every couple of years to face the inmate and argue why they shouldn't be considered for parole. "I don't get to see Tori and Dean, and I sure as hell donít want to see [Potts]," she said. "It's not that [inmates] are going to get paroled. It's just that they get to play the system. So the families have to buy into that game. There was no way I could do that."
Instead, Herroz wanted Potts to wake up every morning to the memory of what he did, without the possibility of lethal injection allowing him to escape it.
"I've seen people who have gone for the death penalty, and it breaks them all over again," said Herroz. "He broke everything about me, and I'm just not willing to allow that to happen. I would certainly explain to [victims' families] that this is for you. This is about what you can live with, and thatís the bottom line. Can you live with it or not?"