English subtitles

← Lessons from death row inmates

What happens before a murder? In looking for ways to reduce death penalty cases, David R. Dow realized that a surprising number of death row inmates had similar biographies. In this talk he proposes a bold plan, one that prevents murders in the first place. (Filmed at TEDxAustin.)

Get Embed Code
34 Languages

Showing Revision 12 created 01/18/2016 by Krystian Aparta.

  1. Two weeks ago,
  2. I was sitting at the kitchen table
    with my wife Katya,
  3. and we were talking about
    what I was going to talk about today.
  4. We have an 11-year-old son;
    his name is Lincoln.
  5. He was sitting at the same table,
    doing his math homework.
  6. And during a pause
    in my conversation with Katya,
  7. I looked over at Lincoln
  8. and I was suddenly thunderstruck
  9. by a recollection of a client of mine.
  10. My client was a guy named Will.

  11. He was from North Texas.
  12. He never knew his father very well,
  13. because his father left his mom
    while she was pregnant with him.
  14. And so, he was destined
    to be raised by a single mom,
  15. which might have been all right
  16. except that this particular single mom
    was a paranoid schizophrenic,
  17. and when Will was five years old,
  18. she tried to kill him
    with a butcher knife.
  19. She was taken away by authorities
    and placed in a psychiatric hospital,

  20. and so for the next several years
    Will lived with his older brother,
  21. until he committed suicide
    by shooting himself through the heart.
  22. And after that Will bounced around
    from one family member to another,
  23. until, by the time he was nine years old,
    he was essentially living on his own.
  24. That morning that I was sitting
    with Katya and Lincoln,

  25. I looked at my son, and I realized
    that when my client, Will, was his age,
  26. he'd been living by himself for two years.
  27. Will eventually joined a gang
  28. and committed a number
    of very serious crimes,
  29. including, most seriously of all,
  30. a horrible, tragic murder.
  31. And Will was ultimately executed
    as punishment for that crime.
  32. But I don't want to talk today
    about the morality of capital punishment.

  33. I certainly think that my client
    shouldn't have been executed,
  34. but what I would like to do today instead
  35. is talk about the death penalty
    in a way I've never done before,
  36. in a way that is
    entirely noncontroversial.
  37. I think that's possible,

  38. because there is a corner
    of the death penalty debate --
  39. maybe the most important corner --
  40. where everybody agrees,
  41. where the most ardent
    death penalty supporters
  42. and the most vociferous abolitionists
    are on exactly the same page.
  43. That's the corner I want to explore.
  44. Before I do that, though,
    I want to spend a couple of minutes

  45. telling you how
    a death penalty case unfolds,
  46. and then I want to tell you two lessons
  47. that I have learned over the last 20 years
    as a death penalty lawyer
  48. from watching well more
    than a hundred cases unfold in this way.
  49. You can think of a death penalty case
    as a story that has four chapters.

  50. The first chapter of every case
    is exactly the same, and it is tragic.
  51. It begins with the murder
    of an innocent human being,
  52. and it's followed by a trial
  53. where the murderer
    is convicted and sent to death row,
  54. and that death sentence is ultimately
    upheld by the state appellate court.
  55. The second chapter consists
    of a complicated legal proceeding

  56. known as a state habeas corpus appeal.
  57. The third chapter is an even
    more complicated legal proceeding
  58. known as a federal
    habeas corpus proceeding.
  59. And the fourth chapter is one
    where a variety of things can happen.
  60. The lawyers might file
    a clemency petition,
  61. they might initiate
    even more complex litigation,
  62. or they might not do anything at all.
  63. But that fourth chapter
    always ends with an execution.
  64. When I started representing
    death row inmates more than 20 years ago,

  65. people on death row
    did not have a right to a lawyer
  66. in either the second
    or the fourth chapter of this story.
  67. They were on their own.
  68. In fact, it wasn't until the late 1980s
  69. that they acquired a right to a lawyer
    during the third chapter of the story.
  70. So what all of these death row inmates
    had to do was rely on volunteer lawyers
  71. to handle their legal proceedings.
  72. The problem is that there were
    way more guys on death row
  73. than there were lawyers
  74. who had both the interest
    and the expertise to work on these cases.
  75. And so inevitably,

  76. lawyers drifted to cases
    that were already in chapter four --
  77. that makes sense, of course.
  78. Those are the cases that are most urgent;
  79. those are the guys
    who are closest to being executed.
  80. Some of these lawyers were successful;
  81. they managed to get
    new trials for their clients.
  82. Others of them managed
    to extend the lives of their clients,
  83. sometimes by years, sometimes by months.
  84. But the one thing that didn't happen

  85. was that there was never
    a serious and sustained decline
  86. in the number of annual
    executions in Texas.
  87. In fact, as you can see from this graph,
  88. from the time that the Texas
    execution apparatus got efficient
  89. in the mid- to late 1990s,
  90. there have only been a couple of years
  91. where the number of annual
    executions dipped below 20.
  92. In a typical year in Texas,

  93. we're averaging about two people a month.
  94. In some years in Texas,
    we've executed close to 40 people,
  95. and this number has never significantly
    declined over the last 15 years.
  96. And yet, at the same time
    that we continue to execute
  97. about the same number
    of people every year,
  98. the number of people who we're
    sentencing to death on an annual basis
  99. has dropped rather steeply.
  100. So we have this paradox,

  101. which is that the number
    of annual executions has remained high
  102. but the number of new
    death sentences has gone down.
  103. Why is that?
  104. It can't be attributed
    to a decline in the murder rate,
  105. because the murder
    rate has not declined nearly so steeply
  106. as the red line
    on that graph has gone down.
  107. What has happened instead
  108. is that juries have started to sentence
    more and more people to prison
  109. for the rest of their lives
    without the possibility of parole,
  110. rather than sending them
    to the execution chamber.
  111. Why has that happened?

  112. It hasn't happened
    because of a dissolution
  113. of popular support for the death penalty.
  114. Death penalty opponents
    take great solace in the fact
  115. that death penalty support in Texas
    is at an all-time low.
  116. Do you know what all-time low
    in Texas means?
  117. It means that it's in the low 60 percent.
  118. Now, that's really good
    compared to the mid-1980s,
  119. when it was in excess of 80 percent,
  120. but we can't explain
    the decline in death sentences
  121. and the affinity for life
    without the possibility of parole
  122. by an erosion of support
    for the death penalty,
  123. because people still support
    the death penalty.
  124. What's happened to cause this phenomenon?

  125. What's happened is that lawyers
    who represent death row inmates
  126. have shifted their focus
    to earlier and earlier chapters
  127. of the death penalty story.
  128. So 25 years ago,
    they focused on chapter four.

  129. And they went from
    chapter four 25 years ago
  130. to chapter three in the late 1980s.
  131. And they went from chapter three
    in the late 1980s
  132. to chapter two in the mid-1990s.
  133. And beginning in the mid- to late 1990s,
  134. they began to focus
    on chapter one of the story.
  135. Now, you might think
    that this decline in death sentences

  136. and the increase
    in the number of life sentences
  137. is a good thing or a bad thing.
  138. I don't want to have a conversation
    about that today.
  139. All that I want to tell you
    is that the reason that this has happened
  140. is because death penalty lawyers
    have understood
  141. that the earlier you intervene in a case,
  142. the greater the likelihood that
    you're going to save your client's life.
  143. That's the first thing I've learned.
  144. Here's the second thing I learned:

  145. My client Will was
    not the exception to the rule;
  146. he was the rule.
  147. I sometimes say, if you tell me
    the name of a death row inmate --
  148. doesn't matter what state he's in,
  149. doesn't matter
    if I've ever met him before --
  150. I'll write his biography for you.
  151. And eight out of 10 times,
  152. the details of that biography
    will be more or less accurate.
  153. And the reason for that is that 80 percent
    of the people on death row

  154. are people who came from the same sort
    of dysfunctional family that Will did.
  155. Eighty percent of the people on death row
  156. are people who had exposure
    to the juvenile justice system.
  157. That's the second lesson
    that I've learned.
  158. Now we're right on the cusp of that corner

  159. where everybody's going to agree.
  160. People in this room might disagree
  161. about whether Will
    should have been executed,
  162. but I think everybody would agree
  163. that the best possible
    version of his story
  164. would be a story
    where no murder ever occurs.
  165. How do we do that?
  166. When our son Lincoln was working
    on that math problem two weeks ago,

  167. it was a big, gnarly problem.
  168. And he was learning how,
    when you have a big old gnarly problem,
  169. sometimes the solution
    is to slice it into smaller problems.
  170. That's what we do for most problems --
  171. in math, in physics,
    even in social policy --
  172. we slice them into smaller,
    more manageable problems.
  173. But every once in a while,
    as Dwight Eisenhower said,
  174. the way you solve a problem
    is to make it bigger.
  175. The way we solve this problem

  176. is to make the issue
    of the death penalty bigger.
  177. We have to say, all right.
  178. We have these four chapters
    of a death penalty story,
  179. but what happens before that story begins?
  180. How can we intervene
    in the life of a murderer
  181. before he's a murderer?
  182. What options do we have
    to nudge that person off of the path
  183. that is going to lead
    to a result that everybody --
  184. death penalty supporters
    and death penalty opponents --
  185. still think is a bad result:
  186. the murder of an innocent human being?
  187. You know, sometimes people say
    that something isn't rocket science.

  188. And by that, what they mean
    is rocket science is really complicated
  189. and this problem that we're
    talking about now is really simple.
  190. Well that's rocket science;
  191. that's the mathematical expression
    for the thrust created by a rocket.
  192. What we're talking about today
    is just as complicated.
  193. What we're talking about today
    is also rocket science.
  194. My client Will and 80 percent
    of the people on death row

  195. had five chapters in their lives
  196. that came before the four chapters
    of the death penalty story.
  197. I think of these five chapters
    as points of intervention,
  198. places in their lives
  199. when our society
    could've intervened in their lives
  200. and nudged them off of the path
    that they were on
  201. that created a consequence that we all --
  202. death penalty supporters
    or death penalty opponents --
  203. say was a bad result.
  204. Now, during each of these five chapters:

  205. when his mother was pregnant with him;
  206. in his early childhood years;
  207. when he was in elementary school;
  208. when he was in middle school
    and then high school;
  209. and when he was
    in the juvenile justice system --
  210. during each of those five chapters,
  211. there were a wide variety of things
    that society could have done.
  212. In fact, if we just imagine
  213. that there are five
    different modes of intervention,
  214. the way that society could intervene
    in each of those five chapters,
  215. and we could mix and match them
    any way we want,
  216. there are 3,000 -- more than 3,000 --
    possible strategies
  217. that we could embrace
  218. in order to nudge kids like Will
    off of the path that they're on.
  219. So I'm not standing here today
    with the solution.

  220. But the fact that we
    still have a lot to learn,
  221. that doesn't mean
    that we don't know a lot already.
  222. We know from experience in other states
  223. that there are a wide variety
    of modes of intervention
  224. that we could be using in Texas,
  225. and in every other state
    that isn't using them,
  226. in order to prevent a consequence
    that we all agree is bad.
  227. I'll just mention a few.

  228. I won't talk today
    about reforming the legal system.
  229. That's probably a topic
  230. that is best reserved
    for a room full of lawyers and judges.
  231. Instead, let me talk
    about a couple of modes of intervention
  232. that we can all help accomplish,
  233. because they are modes of intervention
    that will come about
  234. when legislators and policymakers,
    when taxpayers and citizens,
  235. agree that that's
    what we ought to be doing
  236. and that's how we ought
    to be spending our money.
  237. We could be providing early childhood care

  238. for economically disadvantaged
    and otherwise troubled kids,
  239. and we could be doing it for free.
  240. And we could be nudging kids like Will
    off of the path that we're on.
  241. There are other states
    that do that, but we don't.
  242. We could be providing special schools,

  243. at both the high school level
    and the middle school level,
  244. but even in K-5,
  245. that target economically
    and otherwise disadvantaged kids,
  246. and particularly kids who have had
    exposure to the juvenile justice system.
  247. There are a handful
    of states that do that;
  248. Texas doesn't.
  249. There's one other thing we can be doing --
    well, there are a bunch of other things --

  250. there's one other thing
    that I'm going to mention,
  251. and this is going to be the only
    controversial thing that I say today.
  252. We could be intervening
    much more aggressively
  253. into dangerously dysfunctional homes,
  254. and getting kids out of them
  255. before their moms pick up butcher knives
    and threaten to kill them.
  256. If we're going to do that,
    we need a place to put them.
  257. Even if we do all of those things,

  258. some kids are going
    to fall through the cracks
  259. and they're going to end up
    in that last chapter
  260. before the murder story begins,
  261. they're going to end up
    in the juvenile justice system.
  262. And even if that happens,
    it's not yet too late.
  263. There's still time to nudge them,
  264. if we think about nudging them
    rather than just punishing them.
  265. There are two professors
    in the Northeast --

  266. one at Yale and one at Maryland --
  267. they set up a school
    that is attached to a juvenile prison.
  268. And the kids are in prison,
    but they go to school
  269. from eight in the morning
    until four in the afternoon.
  270. Now, it was logistically difficult.
  271. They had to recruit teachers
    who wanted to teach inside a prison,
  272. they had to establish strict separation
  273. between the people who work at the school
    and the prison authorities,
  274. and most dauntingly of all,
  275. they needed to invent a new curriculum
    because you know what?
  276. People don't come into and out of prison
    on a semester basis.
  277. (Laughter)

  278. But they did all those things.

  279. Now, what do all of these things
    have in common?

  280. What all of these things have in common
    is that they cost money.
  281. Some of the people in the room
    might be old enough
  282. to remember the guy
    on the old oil filter commercial.
  283. He used to say, "Well, you can pay me now
    or you can pay me later."
  284. What we're doing
    in the death penalty system
  285. is we're paying later.
  286. But the thing is
    that for every 15,000 dollars

  287. that we spend intervening
  288. in the lives of economically
    and otherwise disadvantaged kids
  289. in those earlier chapters,
  290. we save 80,000 dollars
    in crime-related costs down the road.
  291. Even if you don't agree that
    there's a moral imperative that we do it,
  292. it just makes economic sense.
  293. I want to tell you about the last
    conversation that I had with Will.

  294. It was the day that
    he was going to be executed,
  295. and we were just talking.
  296. There was nothing left to do in his case.
  297. And we were talking about his life.
  298. And he was talking first about his dad,
    who he hardly knew, who had died,
  299. and then about his mom,
    who he did know, who was still alive.
  300. And I said to him,

  301. "I know the story.
  302. I've read the records.
  303. I know that she tried to kill you."
  304. I said, "But I've always wondered
  305. whether you really
    actually remember that."
  306. I said, "I don't remember anything
    from when I was five years old.
  307. Maybe you just remember
    somebody telling you."
  308. And he looked at me and he leaned forward,

  309. and he said, "Professor," --
  310. he'd known me for 12 years,
    he still called me Professor.
  311. He said, "Professor,
    I don't mean any disrespect by this,
  312. but when your mama
    picks up a butcher knife
  313. that looks bigger than you are,
  314. and chases you through the house
    screaming she's going to kill you,
  315. and you have to lock yourself
    in the bathroom
  316. and lean against the door
  317. and holler for help
    until the police get there,"
  318. he looked at me and he said,
  319. "that's something you don't forget."
  320. I hope there's one thing
    you all won't forget:

  321. In between the time
    you arrived here this morning
  322. and the time we break for lunch,
  323. there are going to be
    four homicides in the United States.
  324. We're going to devote
    enormous social resources
  325. to punishing the people
    who commit those crimes,
  326. and that's appropriate
  327. because we should punish
    people who do bad things.
  328. But three of those crimes are preventable.
  329. If we make the picture bigger

  330. and devote our attention
    to the earlier chapters,
  331. then we're never going
    to write the first sentence
  332. that begins the death penalty story.
  333. Thank you.

  334. (Applause)