WEBVTT

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Two weeks ago,

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I was sitting at the kitchen table
with my wife Katya,

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and we were talking about
what I was going to talk about today.

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We have an 11-year-old son;
his name is Lincoln.

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He was sitting at the same table,
doing his math homework.

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And during a pause
in my conversation with Katya,

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I looked over at Lincoln

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and I was suddenly thunderstruck

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by a recollection of a client of mine.

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My client was a guy named Will.

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He was from North Texas.

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He never knew his father very well,

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because his father left his mom
while she was pregnant with him.

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And so, he was destined
to be raised by a single mom,

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which might have been all right

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except that this particular single mom
was a paranoid schizophrenic,

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and when Will was five years old,

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she tried to kill him
with a butcher knife.

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She was taken away by authorities
and placed in a psychiatric hospital,

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and so for the next several years
Will lived with his older brother,

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until he committed suicide
by shooting himself through the heart.

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And after that Will bounced around
from one family member to another,

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until, by the time he was nine years old,
he was essentially living on his own.

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That morning that I was sitting
with Katya and Lincoln,

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I looked at my son, and I realized
that when my client, Will, was his age,

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he'd been living by himself for two years.

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Will eventually joined a gang

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and committed a number
of very serious crimes,

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including, most seriously of all,

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a horrible, tragic murder.

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And Will was ultimately executed
as punishment for that crime.

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But I don't want to talk today
about the morality of capital punishment.

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I certainly think that my client
shouldn't have been executed,

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but what I would like to do today instead

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is talk about the death penalty
in a way I've never done before,

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in a way that is
entirely noncontroversial.

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I think that's possible,

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because there is a corner
of the death penalty debate --

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maybe the most important corner --

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where everybody agrees,

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where the most ardent
death penalty supporters

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and the most vociferous abolitionists
are on exactly the same page.

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That's the corner I want to explore.

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Before I do that, though,
I want to spend a couple of minutes

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telling you how
a death penalty case unfolds,

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and then I want to tell you two lessons

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that I have learned over the last 20 years
as a death penalty lawyer

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from watching well more
than a hundred cases unfold in this way.

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You can think of a death penalty case
as a story that has four chapters.

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The first chapter of every case
is exactly the same, and it is tragic.

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It begins with the murder
of an innocent human being,

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and it's followed by a trial

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where the murderer
is convicted and sent to death row,

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and that death sentence is ultimately
upheld by the state appellate court.

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The second chapter consists
of a complicated legal proceeding

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known as a state habeas corpus appeal.

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The third chapter is an even
more complicated legal proceeding

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known as a federal
habeas corpus proceeding.

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And the fourth chapter is one
where a variety of things can happen.

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The lawyers might file
a clemency petition,

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they might initiate
even more complex litigation,

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or they might not do anything at all.

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But that fourth chapter
always ends with an execution.

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When I started representing
death row inmates more than 20 years ago,

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people on death row
did not have a right to a lawyer

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in either the second
or the fourth chapter of this story.

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They were on their own.

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In fact, it wasn't until the late 1980s

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that they acquired a right to a lawyer
during the third chapter of the story.

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So what all of these death row inmates
had to do was rely on volunteer lawyers

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to handle their legal proceedings.

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The problem is that there were
way more guys on death row

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than there were lawyers

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who had both the interest
and the expertise to work on these cases.

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And so inevitably,

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lawyers drifted to cases
that were already in chapter four --

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that makes sense, of course.

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Those are the cases that are most urgent;

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those are the guys
who are closest to being executed.

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Some of these lawyers were successful;

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they managed to get
new trials for their clients.

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Others of them managed
to extend the lives of their clients,

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sometimes by years, sometimes by months.

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But the one thing that didn't happen

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was that there was never
a serious and sustained decline

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in the number of annual
executions in Texas.

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In fact, as you can see from this graph,

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from the time that the Texas
execution apparatus got efficient

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in the mid- to late 1990s,

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there have only been a couple of years

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where the number of annual
executions dipped below 20.

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In a typical year in Texas,

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we're averaging about two people a month.

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In some years in Texas,
we've executed close to 40 people,

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and this number has never significantly
declined over the last 15 years.

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And yet, at the same time
that we continue to execute

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about the same number
of people every year,

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the number of people who we're
sentencing to death on an annual basis

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has dropped rather steeply.

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So we have this paradox,

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which is that the number
of annual executions has remained high

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but the number of new
death sentences has gone down.

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Why is that?

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It can't be attributed
to a decline in the murder rate,

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because the murder
rate has not declined nearly so steeply

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as the red line
on that graph has gone down.

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What has happened instead

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is that juries have started to sentence
more and more people to prison

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for the rest of their lives
without the possibility of parole,

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rather than sending them
to the execution chamber.

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Why has that happened?

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It hasn't happened
because of a dissolution

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of popular support for the death penalty.

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Death penalty opponents
take great solace in the fact

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that death penalty support in Texas
is at an all-time low.

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Do you know what all-time low
in Texas means?

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It means that it's in the low 60 percent.

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Now, that's really good
compared to the mid-1980s,

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when it was in excess of 80 percent,

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but we can't explain
the decline in death sentences

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and the affinity for life
without the possibility of parole

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by an erosion of support
for the death penalty,

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because people still support
the death penalty.

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What's happened to cause this phenomenon?

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What's happened is that lawyers
who represent death row inmates

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have shifted their focus
to earlier and earlier chapters

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of the death penalty story.

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So 25 years ago,
they focused on chapter four.

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And they went from
chapter four 25 years ago

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to chapter three in the late 1980s.

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And they went from chapter three
in the late 1980s

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to chapter two in the mid-1990s.

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And beginning in the mid- to late 1990s,

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they began to focus
on chapter one of the story.

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Now, you might think
that this decline in death sentences

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and the increase
in the number of life sentences

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is a good thing or a bad thing.

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I don't want to have a conversation
about that today.

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All that I want to tell you
is that the reason that this has happened

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is because death penalty lawyers
have understood

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that the earlier you intervene in a case,

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the greater the likelihood that
you're going to save your client's life.

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That's the first thing I've learned.

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Here's the second thing I learned:

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My client Will was
not the exception to the rule;

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he was the rule.

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I sometimes say, if you tell me
the name of a death row inmate --

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doesn't matter what state he's in,

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doesn't matter
if I've ever met him before --

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I'll write his biography for you.

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And eight out of 10 times,

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the details of that biography
will be more or less accurate.

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And the reason for that is that 80 percent
of the people on death row

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are people who came from the same sort
of dysfunctional family that Will did.

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Eighty percent of the people on death row

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are people who had exposure
to the juvenile justice system.

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That's the second lesson
that I've learned.

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Now we're right on the cusp of that corner

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where everybody's going to agree.

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People in this room might disagree

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about whether Will
should have been executed,

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but I think everybody would agree

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that the best possible
version of his story

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would be a story
where no murder ever occurs.

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How do we do that?

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When our son Lincoln was working
on that math problem two weeks ago,

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it was a big, gnarly problem.

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And he was learning how,
when you have a big old gnarly problem,

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sometimes the solution
is to slice it into smaller problems.

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That's what we do for most problems --

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in math, in physics,
even in social policy --

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we slice them into smaller,
more manageable problems.

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But every once in a while,
as Dwight Eisenhower said,

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the way you solve a problem
is to make it bigger.

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The way we solve this problem

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is to make the issue
of the death penalty bigger.

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We have to say, all right.

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We have these four chapters
of a death penalty story,

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but what happens before that story begins?

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How can we intervene
in the life of a murderer

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before he's a murderer?

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What options do we have
to nudge that person off of the path

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that is going to lead
to a result that everybody --

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death penalty supporters
and death penalty opponents --

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still think is a bad result:

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the murder of an innocent human being?

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You know, sometimes people say
that something isn't rocket science.

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And by that, what they mean
is rocket science is really complicated

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and this problem that we're
talking about now is really simple.

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Well that's rocket science;

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that's the mathematical expression
for the thrust created by a rocket.

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What we're talking about today
is just as complicated.

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What we're talking about today
is also rocket science.

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My client Will and 80 percent
of the people on death row

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had five chapters in their lives

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that came before the four chapters
of the death penalty story.

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I think of these five chapters
as points of intervention,

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places in their lives

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when our society
could've intervened in their lives

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and nudged them off of the path
that they were on

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that created a consequence that we all --

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death penalty supporters
or death penalty opponents --

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say was a bad result.

NOTE Paragraph

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Now, during each of these five chapters:

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when his mother was pregnant with him;

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in his early childhood years;

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when he was in elementary school;

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when he was in middle school
and then high school;

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and when he was
in the juvenile justice system --

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during each of those five chapters,

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there were a wide variety of things
that society could have done.

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In fact, if we just imagine

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that there are five
different modes of intervention,

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the way that society could intervene
in each of those five chapters,

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and we could mix and match them
any way we want,

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there are 3,000 -- more than 3,000 --
possible strategies

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that we could embrace

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in order to nudge kids like Will
off of the path that they're on.

NOTE Paragraph

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So I'm not standing here today
with the solution.

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But the fact that we
still have a lot to learn,

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that doesn't mean
that we don't know a lot already.

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We know from experience in other states

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that there are a wide variety
of modes of intervention

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that we could be using in Texas,

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and in every other state
that isn't using them,

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in order to prevent a consequence
that we all agree is bad.

NOTE Paragraph

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I'll just mention a few.

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I won't talk today
about reforming the legal system.

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That's probably a topic

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that is best reserved
for a room full of lawyers and judges.

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Instead, let me talk
about a couple of modes of intervention

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that we can all help accomplish,

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because they are modes of intervention
that will come about

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when legislators and policymakers,
when taxpayers and citizens,

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agree that that's
what we ought to be doing

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and that's how we ought
to be spending our money.

NOTE Paragraph

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We could be providing early childhood care

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for economically disadvantaged
and otherwise troubled kids,

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and we could be doing it for free.

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And we could be nudging kids like Will
off of the path that we're on.

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There are other states
that do that, but we don't.

NOTE Paragraph

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We could be providing special schools,

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at both the high school level
and the middle school level,

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but even in K-5,

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that target economically
and otherwise disadvantaged kids,

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and particularly kids who have had
exposure to the juvenile justice system.

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There are a handful
of states that do that;

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Texas doesn't.

NOTE Paragraph

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There's one other thing we can be doing --
well, there are a bunch of other things --

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there's one other thing
that I'm going to mention,

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and this is going to be the only
controversial thing that I say today.

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We could be intervening
much more aggressively

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into dangerously dysfunctional homes,

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and getting kids out of them

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before their moms pick up butcher knives
and threaten to kill them.

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If we're going to do that,
we need a place to put them.

NOTE Paragraph

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Even if we do all of those things,

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some kids are going
to fall through the cracks

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and they're going to end up
in that last chapter

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before the murder story begins,

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they're going to end up
in the juvenile justice system.

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And even if that happens,
it's not yet too late.

00:14:18.600 --> 00:14:21.376
There's still time to nudge them,

00:14:21.400 --> 00:14:25.376
if we think about nudging them
rather than just punishing them.

NOTE Paragraph

00:14:25.400 --> 00:14:27.496
There are two professors
in the Northeast --

00:14:27.520 --> 00:14:29.176
one at Yale and one at Maryland --

00:14:29.200 --> 00:14:33.240
they set up a school
that is attached to a juvenile prison.

00:14:33.880 --> 00:14:36.216
And the kids are in prison,
but they go to school

00:14:36.240 --> 00:14:38.816
from eight in the morning
until four in the afternoon.

00:14:38.840 --> 00:14:40.536
Now, it was logistically difficult.

00:14:40.560 --> 00:14:43.816
They had to recruit teachers
who wanted to teach inside a prison,

00:14:43.840 --> 00:14:45.698
they had to establish strict separation

00:14:45.722 --> 00:14:48.976
between the people who work at the school
and the prison authorities,

00:14:49.000 --> 00:14:50.336
and most dauntingly of all,

00:14:50.360 --> 00:14:53.256
they needed to invent a new curriculum
because you know what?

00:14:53.280 --> 00:14:56.346
People don't come into and out of prison
on a semester basis.

NOTE Paragraph

00:14:56.370 --> 00:14:58.136
(Laughter)

NOTE Paragraph

00:14:58.160 --> 00:15:00.320
But they did all those things.

NOTE Paragraph

00:15:01.240 --> 00:15:03.480
Now, what do all of these things
have in common?

00:15:04.000 --> 00:15:08.440
What all of these things have in common
is that they cost money.

00:15:10.320 --> 00:15:12.696
Some of the people in the room
might be old enough

00:15:12.720 --> 00:15:17.136
to remember the guy
on the old oil filter commercial.

00:15:17.160 --> 00:15:22.600
He used to say, "Well, you can pay me now
or you can pay me later."

00:15:24.040 --> 00:15:27.400
What we're doing
in the death penalty system

00:15:28.600 --> 00:15:30.640
is we're paying later.

NOTE Paragraph

00:15:31.880 --> 00:15:35.776
But the thing is
that for every 15,000 dollars

00:15:35.800 --> 00:15:37.976
that we spend intervening

00:15:38.000 --> 00:15:41.736
in the lives of economically
and otherwise disadvantaged kids

00:15:41.760 --> 00:15:43.056
in those earlier chapters,

00:15:43.080 --> 00:15:47.120
we save 80,000 dollars
in crime-related costs down the road.

00:15:47.800 --> 00:15:53.424
Even if you don't agree that
there's a moral imperative that we do it,

00:15:54.360 --> 00:15:56.920
it just makes economic sense.

NOTE Paragraph

00:15:58.200 --> 00:16:01.391
I want to tell you about the last
conversation that I had with Will.

00:16:02.320 --> 00:16:06.360
It was the day that
he was going to be executed,

00:16:07.680 --> 00:16:10.096
and we were just talking.

00:16:10.120 --> 00:16:12.520
There was nothing left to do in his case.

00:16:13.280 --> 00:16:15.040
And we were talking about his life.

00:16:15.760 --> 00:16:19.600
And he was talking first about his dad,
who he hardly knew, who had died,

00:16:20.360 --> 00:16:24.800
and then about his mom,
who he did know, who was still alive.

NOTE Paragraph

00:16:25.880 --> 00:16:27.080
And I said to him,

00:16:28.600 --> 00:16:29.800
"I know the story.

00:16:30.600 --> 00:16:31.800
I've read the records.

00:16:32.520 --> 00:16:34.200
I know that she tried to kill you."

00:16:34.920 --> 00:16:36.536
I said, "But I've always wondered

00:16:36.560 --> 00:16:39.536
whether you really
actually remember that."

00:16:39.560 --> 00:16:43.576
I said, "I don't remember anything
from when I was five years old.

00:16:43.600 --> 00:16:45.760
Maybe you just remember
somebody telling you."

NOTE Paragraph

00:16:46.400 --> 00:16:48.776
And he looked at me and he leaned forward,

00:16:48.800 --> 00:16:50.176
and he said, "Professor," --

00:16:50.200 --> 00:16:52.896
he'd known me for 12 years,
he still called me Professor.

00:16:52.920 --> 00:16:55.936
He said, "Professor,
I don't mean any disrespect by this,

00:16:55.960 --> 00:16:58.416
but when your mama
picks up a butcher knife

00:16:58.440 --> 00:17:00.816
that looks bigger than you are,

00:17:00.840 --> 00:17:04.616
and chases you through the house
screaming she's going to kill you,

00:17:04.640 --> 00:17:06.936
and you have to lock yourself
in the bathroom

00:17:06.960 --> 00:17:08.216
and lean against the door

00:17:08.240 --> 00:17:10.680
and holler for help
until the police get there,"

00:17:12.000 --> 00:17:13.936
he looked at me and he said,

00:17:13.960 --> 00:17:16.119
"that's something you don't forget."

NOTE Paragraph

00:17:17.480 --> 00:17:20.176
I hope there's one thing
you all won't forget:

00:17:20.200 --> 00:17:22.536
In between the time
you arrived here this morning

00:17:22.560 --> 00:17:24.136
and the time we break for lunch,

00:17:24.160 --> 00:17:27.616
there are going to be
four homicides in the United States.

00:17:27.640 --> 00:17:30.816
We're going to devote
enormous social resources

00:17:30.840 --> 00:17:33.096
to punishing the people
who commit those crimes,

00:17:33.120 --> 00:17:34.336
and that's appropriate

00:17:34.360 --> 00:17:36.736
because we should punish
people who do bad things.

00:17:36.760 --> 00:17:39.193
But three of those crimes are preventable.

NOTE Paragraph

00:17:39.880 --> 00:17:43.136
If we make the picture bigger

00:17:43.160 --> 00:17:46.520
and devote our attention
to the earlier chapters,

00:17:47.360 --> 00:17:50.816
then we're never going
to write the first sentence

00:17:50.840 --> 00:17:52.600
that begins the death penalty story.

NOTE Paragraph

00:17:53.680 --> 00:17:54.896
Thank you.

NOTE Paragraph

00:17:54.920 --> 00:17:56.341
(Applause)