Lessons from death row inmates David R. Dow

two weeks ago I was sitting at the

kitchen table with my wife Katya and we

were talking about what I was going to

talk about today we have an 11 year old

son his name is Lincoln 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 alright

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 kotti

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 we’ll eventually joined the

gang and committed a number of very

serious crimes including most seriously

of all a horrible tragic murder and will

was ultimately executed as punishment

for that crime but I don’t want to

talk today about the morality of capital

punishment I certainly think that my

client shouldn’t have been executed but

what I would like to do today instead is

talk about the death penalty in a way

I’ve never done before

in a way that is entirely

non-controversial I think that’s

possible because there is a corner of

the death penalty debate maybe the most

important corner where everybody agrees

where the most ardent death penalty

supporters and the most vociferous

abolitionists are on exactly the same

page that’s the corner I want to explore

before I do that though I want to spend

a couple of minutes telling you how a

death penalty case unfolds and then I

want to tell you two lessons that I have

learned over the last 20 years as a

death penalty lawyer from watching well

more than a hundred cases unfolding this

way you can think of a death penalty

case as a story that has four chapters

the first chapter of every case is

exactly the same and it is tragic it

begins with the murder of an innocent

human being and it’s followed by a trial

where the murderer is convicted and sent

to death row and that death sentence is

ultimately upheld by the state appellate

court the second chapter consists of a

complicated legal proceeding known as a

state habeas corpus appeal the third

chapter is an even more complicated

legal proceeding known as a federal

habeas corpus proceeding and the fourth

chapter is one where a variety of things

can happen

the lawyers might file a clemency

petition they might initiate even more

complex litigation or they might not do

anything at all but that fourth chapter

always ends with an execution when I

started representing death row inmates

more than 20 years ago people on death

row did not have a right to a lawyer in

either the second or the fourth chapter

of this story they were on their own in

fact it wasn’t until the late 1980

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 have only been a couple

of years where the number of annual

executions dipped below 20 in a typical

year in Texas we’re averaging about two

people a month in some years in Texas

we’ve executed close to 40 people and

this number has never significantly

declined over the last 15 years and yet

at the same time that we continue to

execute about the same number of people

every year the number of people who were

sentencing to death on an annual basis

has dropped rather steeply so we have

this paradox which is that the number of

annual executions has remained high but

the number of new death sentences has

gone down why is that it can be

attributed to a decline in the murder

rate because the murder rate has not

declined nearly so steeply as the red

line on that graph has gone down what

has happened instead is that juries have

started to sentence more and more people

to prison for the rest of their lives

without the possibility of parole rather

than sending them to the execution

chamber why is that happened it hasn’t

happened because of a dissolution of

popular

support for the death penalty death

penalty opponents take great solace in

the fact the death penalty support in

Texas is at an all-time low do you know

what all-time low in Texas means it

means that it’s in the low 60% now

that’s really good compared to the

mid-1980s when it was in excess of 80

percent but we can’t explain the decline

in death sentences and the affinity for

life without the possibility of parole

by an erosion of support for the death

penalty because people still support the

death penalty what’s happened to cause

this phenomenon what’s happened is that

lawyers who represent death row inmates

have shifted their focus to earlier and

earlier chapters of the death penalty

story so 25 years ago they focused on

chapter four and they went from chapter

four 25 years ago to chapter three in

the late 1980s and they went from

chapter 3 in the late 1980s to chapter 2

in the mid 1990s and beginning in the

mid to late 1990s they began to focus on

chapter 1 of the story

now you might think that this decline in

death sentences and the increase in the

number of life sentences is a good thing

or a bad thing I don’t want to have a

conversation about that today all that I

want to tell you is that the reason that

this has happened is because death

penalty lawyers have understood that the

earlier you intervene in a case the

greater the likelihood that you’re going

to save your clients life that’s the

first thing I’ve learned here’s the

second thing I learned my client will

was not the exception to the rule

he was the rule I sometimes say if you

tell me the name of a death row inmate

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 ten times the details

of that biography will be more or less

accurate and the reason for that is that

80% of the people on death row are

people who came from the same sort of

dysfunctional family that will did 80%

of the people on death row are people

who had exposure to the juvenile justice

system that’s the second lesson that

I’ve learned

now we’re right on the cusp of that

corner where everybody is going to agree

people in this room might disagree about

whether will should have been executed

but I think everybody would agree that

the best best possible version of his

story would be a story where no murder

ever occurs how do we do that when our

son Lincoln was working on that math

problem two weeks ago it was a big

gnarly problem and he was learning how

when you have a big old gnarly problem

sometimes the solution is to slice it

into smaller problems that’s what we do

for most problems in math and physics

even in Social Policy we slice them into

smaller more manageable problems but

every once in a while as Dwight

Eisenhower said the way you solve a

problem is to make it bigger the way we

solve this problem is to make the issue

of the death penalty bigger we have to

say all right we have these four

chapters of a death penalty story but

what happens before that story begins

how can we intervene in the life of a

murderer before he’s a murderer what

options do we have to nudge that person

off of the path that is going to lead to

a result that everybody death penalty

supporters and death penalty opponents

still think is a bad result the murder

of an innocent human being you know

sometimes people say that something

isn’t rocket science and by that what

they mean is rocket science is really

complicated and this problem that we’re

talking about now is really simple well

that’s rocket science that’s the

mathematical expression for the thrust

created by a rocket what we’re talking

about today is just as complicated what

we’re talking about today is also rocket

science my client will and 80%

of the people on death row had five

chapters in their lives that came before

the four chapters of the death penalty

story I think of these five chapters as

points of intervention places in their

lives when our society could have

intervened in their lives and nudged

them off of the path that they were on

that created a consequence that we all

death penalty supporters or death

penalty opponents say was a bad result

now during each of these five chapters

when his mother was pregnant with him in

his early childhood years when he was in

elementary school when he was middle

school and then high school and when he

was in the juvenile justice system

during each of those five chapters there

were a wide variety of things that

society could have done in fact if we

just imagine that there are five

different modes of intervention the way

that society could intervene in each of

those five chapters and we could mix and

match them any way we want there are

3,000 more than 3,000 possible

strategies that we could embrace in

order to nudge kids like will off of the

path that they’re on so I’m not standing

here today with the solution but the

fact that we still have a lot to learn

that doesn’t mean that we don’t know a

lot already we know from experience in

other states that there are a wide

variety of modes of intervention that we

could be using in Texas and in every

other state that isn’t using them in

order to prevent a consequence that we

all agree is bad I’ll just mention a few

I won’t talk today about reforming the

legal system that’s probably a topic

that’s best reserved for a room full of

lawyers and judges instead let me talk

about a couple of modes of intervention

that we can all help accomplish because

they are modes of intervention that will

come about when legislators and

policymakers when taxpayers and citizens

agree that that’s what we ought to be

doing and that’s how we ought to be

spending our money we could be providing

early childhood care for economically

disadvantaged and otherwise troubled

kids and we could be doing it

free and we could be nudging kids like

will off of the path that we’re on there

are other states that do that but we

don’t we could be providing special

schools at both the high school level

and the middle school level but even in

K through five the target economically

and otherwise disadvantaged kids and

particularly kids who have had exposure

to the juvenile justice system there are

a handful of states that do that Texas

doesn’t there’s one other thing we can

be doing well they’re a bunch of other

things we can be doing there’s one other

thing that we could be doing that I’m

going to mention and this is going to be

the only controversial thing that I say

today we could be intervening much more

aggressively into dangerously

dysfunctional homes and getting kids out

of them before their moms pick up

butcher knives and threaten to kill them

if we’re gonna do that we need a place

to put them even if we do all of those

things some kids are gonna fall through

the cracks and they’re going to end up

in that last chapter before the murder

story begins they’re gonna 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 8:00 in the morning until 4:00 in

the afternoon now it was logistically

difficult they had to recruit teachers

who wanted to teach inside a prison they

had to establish strict separation

between the people who work at the

school and the prison authorities and

most dauntingly of all they needed to

invent a new curriculum because you know

what people don’t come into and out of

prison on a semester basis

but they did all those things now what

do all of these things have in common

what all of these things have in common

is that they cost money some of the

people in the room might be old enough

to remember the guy on the old oil

filter commercial he used to say well

you can pay me now or you can pay me

later what we’re doing in the death

penalty system is we’re paying later but

the thing is that for every fifteen

thousand dollars that we spend

intervening in the lives of economically

and otherwise disadvantaged kids in

those earlier chapters we save eighty

thousand dollars in crime related costs

down the road even if you don’t agree

that there’s a moral imperative that we

do it it just makes economic sense I

want to tell you about the last

conversation that I had with will it was

the day that he was going to be executed

and we were just talking there was

nothing left to do in his case and we

were talking about his life and he was

talking first about his dad who he

hardly knew who had died and then about

his mom who he did know who was still

alive

and I said to him I know the story I’ve

read the records I know that she tried

to kill you I said but I’ve always

wondered whether you really actually

remember that 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 won’t

forget in between the time you arrived

here this morning and the time we break

for lunch they’re going to be four

homicides in the United States we’re

going to devote enormous social

resources to punishing the people who

commit those crimes and that’s

appropriate because we should punish

people who do bad things but three of

those crimes are preventable if we make

the picture bigger and devote our

attention to the earlier chapters then

we’re never going to write the first

sentence that begins the death penalty

story thank you

you