Two weeks ago,
I was sitting at the
kitchen table with my wife Katya,
and we were talking about what I was gonna talk about today.
We have an 11-year-old son; his name is Lincoln. 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 a 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 Katya 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 joined a 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 noncontroversial.
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 unfold in 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 a
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've 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 we're 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 has 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
that 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 percent.
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 25 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 client's 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 --
doesn't 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 10 times,
the details of that biography
will be more or less accurate.
And the reason for that is that 80 percent of the people on death row are
people who came from the same sort of dysfunctional family that Will did.
Eighty 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's 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 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 percent 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've 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 in 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 is 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-5,
that 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, there are a bunch of other things that we could be doing -- there's one other thing that we could be
doing that I'm going to mention, and this is gonna 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 at 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 eight in the morning
until four 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 15,000 dollars that we spend intervening
in the lives of economically and otherwise disadvantaged kids
in those earlier chapters,
we save 80,000 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 is 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."
I 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 known me for 12 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 gonna kill you,
and you have to lock yourself in the bathroom and lean against the door and
holler for help until the police get there,"
he looked at me and he said,
"that's something you don't forget."
I hope there's one thing you all won't forget:
In between the time you arrived here this morning and the time we break for lunch,
there are 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)