Lessons from death row inmates
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0:02 - 0:03Two weeks ago,
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0:03 - 0:06I was sitting at the
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0:06 - 0:09kitchen table with my wife Katya,
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0:09 - 0:13and we were talking about what I was gonna talk about today.
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0:13 - 0:18We have an 11-year-old son; his name is Lincoln. He was sitting at the same table
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0:18 - 0:21doing his math homework.
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0:21 - 0:23And during a pause in my conversation
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0:24 - 0:26with Katya, I looked over at Lincoln
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0:26 - 0:28and I was suddenly thunderstruck
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0:30 - 0:34by a recollection of a client of mine.
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0:34 - 0:37My client was a guy named Will.
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0:37 - 0:38He was from North Texas.
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0:38 - 0:44He never knew his father very well, because his father left
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0:44 - 0:47his mom while she was pregnant with him.
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0:47 - 0:52And so, he was destined to be raised by a single mom,
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0:52 - 0:53which might have been all right
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0:53 - 0:55except that this particular single mom
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0:55 - 0:59was a paranoid schizophrenic,
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0:59 - 1:03and when Will was five years old she
tried to kill him with a butcher knife. -
1:03 - 1:05She was
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1:05 - 1:09taken away by authorities and placed in a
psychiatric hospital, -
1:09 - 1:13and so for the next several years Will
lived with his older brother -
1:13 - 1:16until he committed suicide by shooting
himself through the heart. -
1:16 - 1:19And after that
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1:19 - 1:22Will bounced around from one family
member to another, -
1:22 - 1:27until, by the time he was nine years old,
he was essentially living on his own. -
1:27 - 1:32That morning that I was sitting with
Katya and Lincoln, I looked at my son, -
1:32 - 1:36and I realized that when my client, Will,
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1:36 - 1:38was his age,
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1:38 - 1:42he'd been living by himself for two years.
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1:42 - 1:45Will eventually joined a gang
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1:45 - 1:46and committed
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1:46 - 1:49a number of very serious crimes,
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1:49 - 1:52including, most seriously of all,
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1:52 - 1:54a horrible, tragic murder.
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1:54 - 2:00And Will was ultimately executed
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2:00 - 2:01as punishment for that crime.
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2:01 - 2:04But I don't want to
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2:04 - 2:06talk today
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2:06 - 2:10about the morality of capital punishment. I certainly think that my client
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2:10 - 2:15shouldn't have been executed, but what I would like to do today instead
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2:15 - 2:18is talk about the death penalty
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2:18 - 2:21in a way I've never done before,
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2:21 - 2:22in a way
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2:22 - 2:25that is entirely noncontroversial.
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2:25 - 2:28I think that's possible,
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2:28 - 2:30because there is a corner
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2:30 - 2:32of the death penalty debate --
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2:32 - 2:34maybe the most important corner --
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2:34 - 2:37where everybody agrees,
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2:37 - 2:41where the most ardent death penalty supporters
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2:41 - 2:45and the most vociferous abolitionists
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2:45 - 2:48are on exactly the same page.
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2:48 - 2:52That's the corner I want to explore.
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2:52 - 2:56Before I do that, though, I want to spend a couple of minutes telling you how a death
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2:56 - 2:58penalty case unfolds,
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2:58 - 3:03and then I want to tell you two lessons that I have learned over the last 20 years
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3:03 - 3:06as a death penalty lawyer,
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3:06 - 3:10from watching well more than a hundred cases unfold in this way.
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3:10 - 3:14You can think of a death penalty case as
a story -
3:14 - 3:16that has four chapters.
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3:16 - 3:20The first chapter of every case is exactly the same,
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3:20 - 3:22and it is tragic.
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3:22 - 3:23It begins with the murder
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3:23 - 3:26of an innocent human being,
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3:26 - 3:27and it's followed by a trial
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3:27 - 3:30where the murderer is convicted and sent to death row,
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3:30 - 3:32and that death sentence is ultimately
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3:32 - 3:34upheld by the state appellate court.
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3:34 - 3:39The second chapter consists of a
complicated legal proceeding known as -
3:39 - 3:41a state habeas corpus appeal.
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3:41 - 3:45The third chapter is an even more complicated legal proceeding known as a
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3:45 - 3:47federal habeas corpus proceeding.
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3:47 - 3:49And the fourth chapter
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3:49 - 3:53is one where a variety of things can happen. The lawyers might file a clemency petition,
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3:53 - 3:56they might initiate even more complex
litigation, -
3:56 - 3:58or they might not do anything at all.
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3:58 - 4:00But that fourth chapter always ends
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4:00 - 4:02with an execution.
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4:02 - 4:07When I started representing death row
inmates more than 20 years ago, -
4:07 - 4:11people on death row did not have a right
to a lawyer in either the second -
4:11 - 4:14or the fourth chapter of this story.
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4:14 - 4:15They were on their own.
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4:15 - 4:19In fact, it wasn't until the late 1980s that they acquired a
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4:19 - 4:21right to a lawyer during the third chapter
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4:21 - 4:23of the story.
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4:23 - 4:25So what all of these death row inmates had to do
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4:25 - 4:28was rely on volunteer lawyers
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4:28 - 4:31to handle their legal proceedings.
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4:31 - 4:34The problem is that there were way more
guys on death row -
4:34 - 4:39than there were lawyers who had both the interest and the expertise to work on these cases.
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4:39 - 4:41And so inevitably,
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4:41 - 4:44lawyers drifted to cases that were
already in chapter four -- -
4:44 - 4:48that makes sense, of course. Those are the
cases that are most urgent; -
4:48 - 4:50those are the guys who are closest to being executed.
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4:50 - 4:55Some of these lawyers were successful; they managed to get new trials for their clients.
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4:55 - 4:58Others of them managed to extend
the lives of their clients, sometimes by -
4:58 - 5:00years, sometimes by months.
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5:00 - 5:03But the one thing that didn't happen
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5:03 - 5:07was that there was never a serious and
sustained decline in the number of -
5:07 - 5:10annual executions in Texas.
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5:10 - 5:14In fact, as you can see from this graph,
from the time that the Texas execution -
5:14 - 5:17apparatus got efficient in the mid- to
late-1990s, -
5:17 - 5:21there've only been a couple of years where
the number of annual executions dipped -
5:21 - 5:23below 20.
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5:23 - 5:25In a typical year in Texas,
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5:25 - 5:27we're averaging about
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5:27 - 5:29two people a month.
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5:29 - 5:34In some years in Texas, we've executed
close to 40 people, and this number -
5:34 - 5:38has never significantly declined over
the last 15 years. -
5:38 - 5:42And yet, at the same time that we
continue to execute -
5:42 - 5:44about the same number of people every
year, -
5:44 - 5:47the number of people who we're sentencing
to death -
5:47 - 5:48on an annual basis
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5:48 - 5:50has dropped rather steeply.
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5:50 - 5:52So we have this paradox,
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5:52 - 5:56which is that the number of annual
executions has remained high -
5:56 - 6:01but the number of new death sentences
has gone down. -
6:01 - 6:02Why is that?
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6:02 - 6:05It can't be attributed to a decline in the murder rate,
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6:05 - 6:07because the murder rate has not declined
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6:07 - 6:11nearly so steeply as the red line on
that graph has gone down. -
6:11 - 6:14What has happened instead is
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6:14 - 6:18that juries have started to sentence
more and more people to prison -
6:18 - 6:21for the rest of their lives without the
possibility of parole, -
6:21 - 6:24rather than sending them to the
execution chamber. -
6:24 - 6:27Why has that happened?
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6:27 - 6:31it hasn't happened because of a
dissolution of popular support -
6:31 - 6:35for the death penalty. Death penalty opponents take great solace in the fact
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6:35 - 6:39that death penalty support in Texas is at
an all-time low. -
6:39 - 6:41Do you know what all-time low in Texas
means? -
6:41 - 6:44It means that it's in the low 60 percent.
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6:44 - 6:48Now that's really good compared to the
mid 1980s, when it was in -
6:48 - 6:49excess of 80 percent,
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6:49 - 6:54but we can't explain the decline in
death sentences and the affinity for -
6:54 - 6:58life without the possibility of parole
by an erosion of support for the death -
6:58 - 7:00penalty, because people still support the
death penalty. -
7:00 - 7:03What's happened to cause this phenomenon?
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7:03 - 7:05What's happened is
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7:05 - 7:06that lawyers
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7:06 - 7:09who represent death row inmates have
shifted their focus -
7:09 - 7:14to earlier and earlier chapters of the
death penalty story. -
7:14 - 7:17So 25 years ago, they focused on
chapter four. -
7:17 - 7:21And they went from chapter four 25 years ago to chapter three
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7:21 - 7:23in the late 1980s.
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7:23 - 7:26And they went from chapter three in the
late 1980s to chapter two in -
7:26 - 7:29the mid-1990s. And beginning
in the mid- to late-1990s, -
7:29 - 7:33they began to focus on chapter one of
the story. -
7:33 - 7:37Now you might think that this decline in
death sentences and the increase in the -
7:37 - 7:39number of life sentences is a good thing
or a bad thing. -
7:39 - 7:42I don't want to have a conversation about that
today. -
7:42 - 7:45All that I want to tell you is that the
reason that this has happened -
7:45 - 7:48is because death penalty lawyers have
understood -
7:48 - 7:51that the earlier you intervene in a
case, -
7:51 - 7:55the greater the likelihood that you're
going to save your client's life. -
7:55 - 7:57That's the first thing I've learned.
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7:57 - 7:59Here's the second thing I learned:
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7:59 - 8:00My client Will
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8:00 - 8:04was not the exception to the rule;
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8:04 - 8:07he was the rule.
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8:07 - 8:10I sometimes say, if you tell me the name
of a death row inmate -- -
8:10 - 8:13doesn't matter what state he's in, doesn't matter if I've ever met him before --
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8:13 - 8:16I'll write his biography for you.
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8:16 - 8:19And eight out of 10 times,
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8:19 - 8:21the details of that biography
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8:21 - 8:23will be more or less accurate.
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8:23 - 8:27And the reason for that is that 80 percent of the people on death row are
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8:27 - 8:31people who came from the same sort of
dysfunctional family that Will did. -
8:31 - 8:33Eighty percent of the people on death row
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8:33 - 8:35are people who had exposure
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8:35 - 8:38to the juvenile justice system.
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8:38 - 8:40That's the second lesson
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8:40 - 8:42that I've learned.
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8:42 - 8:45Now we're right on the cusp of that corner
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8:45 - 8:48where everybody's going to agree.
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8:48 - 8:51People in this room might disagree
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8:51 - 8:53about whether Will should have been
executed, -
8:53 - 8:55but I think everybody would agree
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8:55 - 8:59that the best possible version of his story
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8:59 - 9:00would be a story
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9:00 - 9:05where no murder ever occurs.
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9:05 - 9:07How do we do that?
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9:07 - 9:11When our son Lincoln was working on that
math problem -
9:11 - 9:14two weeks ago, it was a big, gnarly problem.
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9:14 - 9:17And he was learning how, when you have a big old gnarly problem,
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9:17 - 9:21sometimes the solution is to slice it
into smaller problems. -
9:21 - 9:25That's what we do for most problems -- in
math and physics, even in social policy -- -
9:25 - 9:29we slice them into smaller, more
manageable problems. -
9:29 - 9:30But every once in a while,
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9:30 - 9:32as Dwight Eisenhower said,
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9:32 - 9:34the way you solve a problem
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9:34 - 9:36is to make it bigger.
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9:36 - 9:40The way we solve this problem
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9:40 - 9:44is to make the issue of the death
penalty bigger. -
9:44 - 9:46We have to say, all right.
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9:46 - 9:48We have these four chapters
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9:48 - 9:51of a death penalty story,
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9:51 - 9:53but what happens before
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9:53 - 9:55that story begins?
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9:55 - 10:00How can we intervene in the life of a murderer
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10:00 - 10:03before he's a murderer?
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10:03 - 10:05What options do we have
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10:05 - 10:06to nudge that person
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10:06 - 10:08off of the path
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10:08 - 10:12that is going to lead to a result that
everybody -- -
10:12 - 10:15death penalty supporters and death penalty
opponents -- -
10:15 - 10:15still think
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10:15 - 10:18is a bad result:
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10:18 - 10:20the murder of an innocent human being?
-
10:22 - 10:25You know, sometimes people say
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10:25 - 10:26that something
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10:26 - 10:28isn't rocket science.
-
10:28 - 10:32And by that, what they mean is rocket
science is really complicated -
10:32 - 10:35and this problem that we're talking
about now is really simple. -
10:35 - 10:37Well that's rocket science;
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10:37 - 10:38that's the mathematical expression
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10:38 - 10:42for the thrust created by a rocket.
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10:42 - 10:45What we're talking about today
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10:45 - 10:47is just as complicated.
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10:47 - 10:50What we're talking about today is also
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10:50 - 10:52rocket science.
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10:52 - 10:54My client Will
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10:54 - 10:57and 80 percent of the people on
death row -
10:57 - 11:00had five chapters in their lives
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11:00 - 11:02that came before
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11:02 - 11:04the four chapters of the death penalty
story. -
11:04 - 11:08I think of these five chapters as points
of intervention, -
11:08 - 11:11places in their lives when our society
-
11:11 - 11:16could've intervened in their lives and
nudged them off of the path that they were on -
11:16 - 11:20that created a consequence that we all -- death penalty supporters or death
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11:20 - 11:22penalty opponents --
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11:22 - 11:24say was a bad result.
-
11:24 - 11:27Now, during each of these five
chapters: -
11:27 - 11:28when his mother was pregnant with him;
-
11:28 - 11:31in his early childhood years;
-
11:31 - 11:32when he was in elementary school;
-
11:32 - 11:35when he was in middle school and then high
school; -
11:35 - 11:38and when he was in the juvenile justice
system -- during each of those five chapters, -
11:38 - 11:41there were a wide variety of things that society could have done.
-
11:41 - 11:44In fact, if we just imagine
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11:44 - 11:49that there are five different modes of
intervention, the way that society could intervene -
11:49 - 11:50in each of those five chapters,
-
11:50 - 11:53and we could mix and match them any way
we want, -
11:53 - 11:57there are 3,000 -- more than 3,000 -- possible strategies
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11:57 - 12:01that we could embrace in order to nudge
kids like Will -
12:01 - 12:04off of the path that they're on.
-
12:04 - 12:05So I'm not standing here today
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12:05 - 12:07with the solution.
-
12:07 - 12:12But the fact that we still have a lot to learn,
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12:12 - 12:15that doesn't mean that we don't know a lot already.
-
12:15 - 12:18We know from experience in other states
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12:18 - 12:22that there are a wide variety of modes
of intervention -
12:22 - 12:26that we could be using in Texas, and in
every other state that isn't using them, -
12:26 - 12:31in order to prevent a consequence that we all agree is bad.
-
12:31 - 12:33I'll just mention a few.
-
12:33 - 12:37I won't talk today about reforming the
legal system. -
12:37 - 12:42That's probably a topic that is best
reserved for a room full of lawyers and judges. -
12:42 - 12:46Instead, let me talk about a couple of
modes of intervention -
12:46 - 12:48that we can all help accomplish,
-
12:48 - 12:51because they are modes of intervention
that will come about -
12:51 - 12:55when legislators and policymakers, when taxpayers and citizens,
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12:55 - 12:57agree that that's what we ought to be
doing -
12:57 - 12:59and that's how we ought to be spending our money.
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12:59 - 13:02We could be providing early childhood care
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13:02 - 13:07for economically disadvantaged and
otherwise troubled kids, -
13:07 - 13:10and we could be doing it for free.
-
13:10 - 13:14And we could be nudging kids like Will
off of the path that we're on. -
13:14 - 13:18There are other states that do that, but we don't.
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13:18 - 13:22We could be providing special schools, at
both the high school level -
13:22 - 13:25and the middle school level, but even in K-5,
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13:25 - 13:30that target economically and otherwise
disadvantaged kids, and particularly kids -
13:30 - 13:31who have had exposure
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13:31 - 13:33to the juvenile justice system.
-
13:33 - 13:35There are a handful of states that do that;
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13:35 - 13:37Texas doesn't.
-
13:37 - 13:39There's one other thing we can be doing --
-
13:39 - 13:42well, there are a bunch of other things that we could be doing -- there's one other thing that we could be
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13:42 - 13:44doing that I'm going to mention, and this is
gonna be the only controversial thing -
13:44 - 13:47that I say today.
-
13:47 - 13:48We could be intervening
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13:48 - 13:50much more aggressively
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13:50 - 13:53into dangerously dysfunctional homes,
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13:53 - 13:55and getting kids out of them
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13:55 - 14:01before their moms pick up butcher knives
and threaten to kill them. -
14:01 - 14:03If we're gonna do that,
-
14:03 - 14:05we need a place to put them.
-
14:05 - 14:08Even if we do all of those things, some
kids are going to fall through the cracks -
14:08 - 14:12and they're going to end up in that last
chapter before the murder story begins, -
14:12 - 14:14they're going to end up in the juvenile
justice system. -
14:14 - 14:17And even if that happens,
-
14:17 - 14:19it's not yet too late.
-
14:19 - 14:22There's still time to nudge them,
-
14:22 - 14:23if we think about nudging them
-
14:23 - 14:26rather than just punishing them.
-
14:26 - 14:29There are two professors in the Northeast --
one at Yale and one at Maryland -- -
14:29 - 14:30they set up a school
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14:30 - 14:34that is attached to a juvenile prison.
-
14:34 - 14:37And the kids are in prison, but they go
to school from eight in the morning -
14:37 - 14:39until four in the afternoon.
-
14:39 - 14:41Now, it was logistically difficult.
-
14:41 - 14:42They had to recruit teachers
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14:42 - 14:45who wanted to teach inside a prison, they had to establish strict
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14:45 - 14:49separation between the people who work
at the school and the prison authorities, -
14:49 - 14:52and most dauntingly of all, they needed
to invent a new curriculum because -
14:52 - 14:53you know what?
-
14:53 - 14:58People don't come into and out of prison
on a semester basis. -
14:58 - 15:02But they did all those things.
-
15:02 - 15:04Now what do all of these things have in common?
-
15:04 - 15:11What all of these things have in common
is that they cost money. -
15:11 - 15:14Some of the people in the room might be
old enough to remember -
15:14 - 15:17the guy on the old oil filter commercial.
-
15:17 - 15:21He used to say, "Well, you can pay me now
-
15:21 - 15:24or you can pay me later."
-
15:24 - 15:26What we're doing
-
15:26 - 15:29in the death penalty system
-
15:29 - 15:32is we're paying later.
-
15:32 - 15:34But the thing is
-
15:34 - 15:38that for every 15,000 dollars
that we spend intervening -
15:38 - 15:42in the lives of economically and
otherwise disadvantaged kids -
15:42 - 15:44in those earlier chapters,
-
15:44 - 15:48we save 80,000 dollars in crime-related costs down the road.
-
15:48 - 15:50Even if you don't agree
-
15:50 - 15:52that there's a moral imperative that we do it,
-
15:53 - 15:56it just makes economic sense.
-
15:59 - 16:03I want to tell you about the last conversation that
I had with Will. -
16:03 - 16:07It was the day that he was going to be executed,
-
16:07 - 16:11and we were just talking.
-
16:11 - 16:12There was nothing left to do
-
16:12 - 16:14in his case.
-
16:14 - 16:16And we were talking about his life.
-
16:16 - 16:19And he was talking first about his dad,
who he hardly knew, -
16:19 - 16:20who had died,
-
16:20 - 16:22and then about his mom,
-
16:22 - 16:24who he did know,
-
16:24 - 16:26who is still alive.
-
16:26 - 16:29And I said to him,
-
16:29 - 16:31"I know the story.
-
16:31 - 16:33I've read the records.
-
16:33 - 16:36I know that she tried to kill you."
-
16:36 - 16:38I said, "But I've always wondered whether you
really -
16:38 - 16:40actually remember that."
-
16:40 - 16:42I said, "I don't remember anything
-
16:42 - 16:44from when I was five years old.
-
16:44 - 16:47Maybe you just remember somebody telling you."
-
16:47 - 16:49And he looked at me and he leaned forward,
-
16:49 - 16:53and he said, "Professor," -- he'd known me for
12 years, he still called me Professor. -
16:53 - 16:56He said, "Professor, I don't mean any
disrespect by this, -
16:56 - 16:58but when your mama
-
16:58 - 17:01picks up a butcher knife that looks bigger
than you are, -
17:01 - 17:05and chases you through the house
screaming she's gonna kill you, -
17:05 - 17:08and you have to lock yourself in the
bathroom and lean against the door and -
17:08 - 17:11holler for help until the police get
there," -
17:11 - 17:14he looked at me and he said,
-
17:14 - 17:18"that's something you don't forget."
-
17:18 - 17:20I hope there's one thing you all won't forget:
-
17:20 - 17:23In between the time you arrived here
this morning and the time we break for lunch, -
17:23 - 17:27there are going to be four homicides
-
17:27 - 17:28in the United States.
-
17:28 - 17:32We're going to devote enormous social
resources to punishing the people who -
17:32 - 17:34commit those crimes, and that's
appropriate, because we should punish -
17:34 - 17:37people who do bad things.
-
17:37 - 17:40But three of those crimes are
preventable. -
17:40 - 17:43If we make the picture bigger
-
17:43 - 17:48and devote our attention to the
earlier chapters, -
17:48 - 17:51then we're never going to write the
first sentence -
17:51 - 17:53that begins the death penalty story.
-
17:53 - 17:55Thank you.
-
17:55 - 17:56(Applause)
- Title:
- Lessons from death row inmates
- Speaker:
- David R. Dow
- Description:
-
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.)
- Video Language:
- English
- Team:
- closed TED
- Project:
- TEDTalks
- Duration:
- 18:16
Krystian Aparta commented on English subtitles for Lessons from death row inmates | ||
Krystian Aparta edited English subtitles for Lessons from death row inmates | ||
Krystian Aparta edited English subtitles for Lessons from death row inmates | ||
Joanna Pietrulewicz edited English subtitles for Lessons from death row inmates | ||
Joanna Pietrulewicz edited English subtitles for Lessons from death row inmates | ||
Joanna Pietrulewicz edited English subtitles for Lessons from death row inmates | ||
Jenny Zurawell edited English subtitles for Lessons from death row inmates | ||
Федор Гнучев commented on English subtitles for Lessons from death row inmates |
Krystian Aparta
The English transcript was updated on 1/18/2016.