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