[Music]
two weeks ago I was sitting at the
kitchen table with my wife Katya and we
were talking about what I was going to
talk about today we have an 11 year old
son his name is Lincoln and he was
sitting at the same table doing his math
homework and during a pause in my
conversation with Katya I looked over at
Lincoln and I was suddenly thunderstruck
by a recollection of a client of mine my
client was the guy named will he was
from North Texas he never knew his
father very well because his father left
his mom while she was pregnant with him
and so he was destined to be raised by a
single mom which might have been all
right except that this particular single
mom was a paranoid schizophrenic and
when will was five years old she tried
to kill him with a butcher knife she was
taken away by authorities and placed in
a psychiatric hospital and so for the
next several years will lived with his
older brother until he committed suicide
by shooting himself through the heart
and after that will bounced around from
one family member to another until by
the time he was nine years old he was
essentially living on his own that
morning that I was sitting with Kathie
and Lincoln I looked at my son and I
realized that when my client will was
his age he'd been living by himself for
two years will eventually join the gang
and committed a number of very serious
crimes including most seriously of all a
horrible tragic murder and will was
ultimately executed as punishment for
that crime but I don't want to
talk today about the morality of capital
punishment I certainly think that my
client shouldn't have been executed but
what I would like to do today instead is
talk about the death penalty in a way
I've never done before
in a way that is entirely
non-controversial I think that's
possible because there is a corner of
the death penalty debate maybe the most
important corner where everybody agrees
where the most ardent death penalty
supporters and the most vociferous
abolitionists are on exactly the same
page that's the corner I want to explore
before I do that though I want to spend
a couple of minutes telling you how a
death penalty case unfolds and then I
want to tell you two lessons that I have
learned over the last 20 years as a
death penalty lawyer from watching well
more than a hundred cases unfolding this
way you can think of a death penalty
case as a story that has four chapters
the first chapter of every case is
exactly the same and it is tragic it
begins with the murder of an innocent
human being and it's followed by a trial
where the murderer is convicted and sent
to death row and that death sentence is
ultimately upheld by the state appellate
court the second chapter consists of a
complicated legal proceeding known as a
state habeas corpus appeal the third
chapter is an even more complicated
legal proceeding known as a federal
habeas corpus proceeding and the fourth
chapter is one where a variety of things
can happen
the lawyers might file a clemency
petition they might initiate even more
complex litigation or they might not do
anything at all but that fourth chapter
always ends with an execution when I
started representing death row inmates
more than 20 years ago people on death
row did not have a right to a lawyer in
either the second or the fourth chapter
of this story they were on their own in
fact it wasn't until the late 1980s that
they acquired
right to a lawyer during the third
chapter of the story so what all of
these death row inmates had to do was
rely on volunteer lawyers to handle
their legal proceedings the problem is
that there were way more guys on death
row than there were lawyers who had both
the interest and the expertise to work
on these cases and so inevitably lawyers
drifted to cases that were already in
Chapter four that makes sense of course
those are the cases that are most urgent
those are the guys who are closest to
being executed some of these lawyers
were successful they managed to get new
trials for their clients others of them
managed to extend the lives of their
clients sometimes by years sometimes by
months but the one thing that didn't
happen was that there was never a
serious and sustained decline in the
number of annual executions in Texas in
fact as you can see from this graph from
the time that the Texas execution
apparatus got efficient in the mid to
late 1990s there have only been a couple
of years where the number of annual
executions dipped below 20 in a typical
year in Texas we're averaging about two
people a month in some years in Texas
we've executed close to 40 people and
this number has never significantly
declined over the last 15 years and yet
at the same time that we continue to
execute about the same number of people
every year
the number of people who were sentencing
to death on an annual basis has dropped
rather steeply so we have this paradox
which is that the number of annual
executions has remained high but the
number of new death sentences has gone
down why is that it can't be attributed
to a decline in the murder rate because
the murder rate has not declined nearly
so steeply as the red line on that graph
has gone down what has happened instead
is that juries have started to sentence
more and more people to prison for the
rest of their lives without the
possibility of parole rather than
sending them to the execution chamber
why is that happened it hasn't happened
because of a dissolution of popular
support for the death penalty
death penalty opponents take great
solace in the fact the death penalty
support in Texas is at an all-time low
do you know what all-time low in Texas
means it means that it's in the low 60%
now that's really good compared to the
mid 1980s when it was in excess of 80
percent but we can't explain the decline
in death sentences and the affinity for
life without the possibility of parole
by an erosion of support for the death
penalty because people still support the
death penalty what's happened to cause
this phenomenon what's happened is that
lawyers who represent death row inmates
have shifted their focus to earlier and
earlier chapters of the death penalty
story so 25 years ago they focused on
chapter four and they went from chapter
four twenty-five years ago to chapter
three in the late 1980s and they went
from chapter three in the late 1980s to
chapter two in the mid 1990s and
beginning in the mid to late 1990s they
began to focus on chapter one of the
story now you might think that this
decline in death sentences and the
increase in the number of life sentences
is a good thing or a bad thing I don't
want to have a conversation about that
today all that I want to tell you is
that the reason that this has happened
is because death penalty lawyers have
understood that the earlier you
intervene in a case the greater the
likelihood that you're going to save
your clients life that's the first thing
I've learned here's the second thing I
learned my client will was not the
exception to the rule
he was the rule I sometimes say if you
tell me the name of a death row inmate
dead matter what state he's in doesn't
matter if I've ever met him before I'll
write his biography for you and eight
out of ten times the details of that
biography will be more or less accurate
and the reason for that is that eighty
percent of the people on death row are
people who came from the same sort of
dysfunctional family that will did 80
percent of the people on death row are
people who had exposure to the juvenile
justice system that's the second lesson
that I've learned
now we're right on the cusp of that
corner
where everybody is going to agree people
in this room might disagree about
whether will should have been executed
but I think everybody would agree that
the best best possible version of his
story would be a story where no murder
ever occurs how do we do that when our
son Lincoln was working on that math
problem two weeks ago it was a big
gnarly problem and he was learning how
when you have a big old gnarly problem
sometimes the solution is to slice it
into smaller problems that's what we do
for most problems in math and physics
even in Social Policy we slice them into
smaller more manageable problems but
every once in a while as Dwight
Eisenhower said the way you solve a
problem is to make it bigger the way we
solve this problem is to make the issue
of the death penalty bigger we have to
say all right
we have these four chapters of a death
penalty story but what happens before
that story begins how can we intervene
in the life of a murderer before he's a
murderer what options do we have to
nudge that person off of the path that
is going to lead to a result that
everybody death penalty supporters and
death penalty opponents still think is a
bad result the murder of an innocent
human being you know sometimes people
say that something isn't rocket science
and by that what they mean is rocket
science is really complicated and this
problem that we're talking about now is
really simple well that's rocket science
that's the mathematical expression for
the thrust created by a rocket what
we're talking about today is just as
complicated what we're talking about
today is also rocket science my client
will
and 80% of the people on death row had
five chapters in their lives that came
before the four chapters of the death
penalty story I think of these five
chapters as points of intervention
places in their lives when our society
could have intervened in their lives and
nudged them off of the path that they
were on that created a consequence that
we all death penalty supporters or death
penalty opponents say was a bad result
now during each of these five chapters
when his mother was pregnant with him in
his early childhood years when he was in
elementary school when he was middle
school and then high school and when he
was in the juvenile justice system
during each of those five chapters there
were a wide variety of things that
society could have done in fact if we
just imagine that there are five
different modes of intervention the way
that society could intervene in each of
those five chapters and we could mix and
match them any way we want there are
3,000 more than 3,000 possible
strategies that we could embrace in
order to nudge kids like will off of the
path that they're on so I'm not standing
here today with the solution but the
fact that we still have a lot to learn
that doesn't mean that we don't know a
lot already we know from experience in
other states that there are a wide
variety of modes of intervention that we
could be using in Texas and in every
other state that isn't using them in
order to prevent a consequence that we
all agree is bad I'll just mention a few
I won't talk today about reforming the
legal system that's probably a topic
that's best reserved for a room full of
lawyers and judges instead let me talk
about a couple of modes of intervention
that we can all help accomplish because
they are modes of intervention that will
come about when legislators and
policymakers when taxpayers and citizens
agree that that's what we ought to be
doing and that's how we ought to be
spending our money we could be providing
early childhood care for economically
disadvantaged and otherwise troubled
kids
and we could be doing it for free and we
could be nudging kids like will off of
the path that we're on there are other
states that do that but we don't we
could be providing special schools at
both the high school level and the
middle school level but even in K
through five the target economically and
otherwise disadvantaged kids and
particularly kids who have had exposure
to the juvenile justice system there are
a handful of states that do that Texas
doesn't there's one other thing we can
be doing well they're a bunch of other
things we can be doing there's one other
thing that we could be doing that I'm
gonna mention and this is going to be
the only controversial thing that I say
today we could be intervening much more
aggressively into dangerously
dysfunctional homes and getting kids out
of them before their moms pick up
butcher knives and threaten to kill them
if we're gonna do that we need a place
to put them even if we do all of those
things some kids are going to fall
through the cracks and they're going to
end up in that last chapter before the
murder story begins they're going to end
up in the juvenile justice system and
even if that happens it's not yet too
late there's still time to nudge them if
we think about nudging them rather than
just punishing them there are two
professors in the Northeast one a Yale
and one at Maryland they set up a school
that is attached to a juvenile prison
and the kids are in prison but they go
to school from 8:00 in the morning until
4:00 in the afternoon now it was
logistically difficult they had to
recruit teachers who wanted to teach
inside a prison they had to establish
strict separation between the people who
work at the school and the prison
authorities and most dauntingly of all
they needed to invent a new curriculum
because you know what people don't come
into and out of prison on a semester
basis
but they did all those things now what
do all of these things have in common
what all of these things have in common
is that they cost money some of the
people in the room might be old enough
to remember the guy on the old oil
filter commercial he used to say well
you can pay me now or you can pay me
later what we're doing in the death
penalty system is we're paying later but
the thing is that for every fifteen
thousand dollars that we spend
intervening in the lives of economically
and otherwise disadvantaged kids in
those earlier chapters we save eighty
thousand dollars in crime related costs
down the road even if you don't agree
that there's a moral imperative that we
do it it just makes economic sense I
want to tell you about the last
conversation that I had with will it was
the day that he was going to be executed
and we were just talking there was
nothing left to do in his case and we
were talking about his life and he was
talking first about his dad who he
hardly knew who had died and then about
his mom who he did know who was still
alive
and I said to him I know the story I've
read the records I know that she tried
to kill you I said but I've always
wondered whether you really actually
remember that said I don't remember
anything from when I was five years old
maybe you just remember somebody telling
you and he looked at me and he leaned
forward and he said professor he'd done
me for twelve years he still called me
professor
he said professor I don't mean any
disrespect by this but when your mama
picks up a butcher knife that looks
bigger than you are and chases you
through the house screaming she's going
to kill you and you have to lock
yourself in the bathroom and lean
against the door and holler for help
until the Poli
got there he looked at me and he said
that's something you don't forget
I hope there's one thing you won't
forget in between the time you arrived
here this morning and the time we break
for lunch they're going to be four
homicides in the United States we're
going to devote enormous social
resources to punishing the people who
commit those crimes and that's
appropriate because we should punish
people who do bad things but three of
those crimes are preventable if we make
the picture bigger and devote our
attention to the earlier chapters then
we're never going to write the first
sentence that begins the death penalty
story thank you
[Applause]