translator: jenny zurawellreviewer: thu-huong ha two weeks ago, i was sitting at the kitchen tablewith my wife katya, and we were talking aboutwhat 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 pausein 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 momwhile she was pregnant with him. and so, he was destinedto be raised by a single mom, which might have been all right except that this particular single momwas a paranoid schizophrenic, and when will was five years old,
she tried to kill himwith a butcher knife. she was taken away by authoritiesand placed in a psychiatric hospital, and so for the next several yearswill lived with his older brother, until he committed suicideby shooting himself through the heart. and after that will bounced aroundfrom 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 sittingwith katya and lincoln, i looked at my son, and i realizedthat when my client, will, was his age, he'd been living by himself for two years.
will eventually joined a gang and committed a numberof very serious crimes, including, most seriously of all, a horrible, tragic murder. and will was ultimately executedas punishment for that crime. but i don't want to talk todayabout the morality of capital punishment. i certainly think that my clientshouldn't have been executed, but what i would like to do today instead is talk about the death penaltyin a way i've never done before,
in a way that isentirely noncontroversial. i think that's possible, because there is a cornerof the death penalty debate -- maybe the most important corner -- where everybody agrees, where the most ardentdeath penalty supporters and the most vociferous abolitionistsare 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 howa death penalty case unfolds, and then i want to tell you two lessons that i have learned over the last 20 yearsas a death penalty lawyer from watching well morethan a hundred cases unfold in this way. you can think of a death penalty caseas a story that has four chapters. the first chapter of every caseis exactly the same, and it is tragic. it begins with the murderof an innocent human being, and it's followed by a trial where the murdereris convicted and sent to death row,
and that death sentence is ultimatelyupheld by the state appellate court. the second chapter consistsof a complicated legal proceeding known as a state habeas corpus appeal. the third chapter is an evenmore complicated legal proceeding known as a federalhabeas corpus proceeding. and the fourth chapter is onewhere a variety of things can happen. the lawyers might filea clemency petition, they might initiateeven more complex litigation, or they might not do anything at all.
but that fourth chapteralways ends with an execution. when i started representingdeath row inmates more than 20 years ago, people on death rowdid not have a right to a lawyer in either the secondor the fourth chapter of this story. they were on their own. in fact, it wasn't until the late 1980s that they acquired a right to a lawyerduring the third chapter of the story. so what all of these death row inmateshad to do was rely on volunteer lawyers to handle their legal proceedings.
the problem is that there wereway more guys on death row than there were lawyers who had both the interestand the expertise to work on these cases. and so inevitably, lawyers drifted to casesthat were already in chapter four -- that makes sense, of course. those are the cases that are most urgent; those are the guyswho are closest to being executed. some of these lawyers were successful;
they managed to getnew trials for their clients. others of them managedto extend the lives of their clients, sometimes by years, sometimes by months. but the one thing that didn't happen was that there was nevera serious and sustained decline in the number of annualexecutions in texas. in fact, as you can see from this graph, from the time that the texasexecution apparatus got efficient in the mid- to late 1990s,
there have only been a couple of years where the number of annualexecutions 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 significantlydeclined over the last 15 years. and yet, at the same timethat we continue to execute about the same numberof people every year, the number of people who we'resentencing to death on an annual basis
has dropped rather steeply. so we have this paradox, which is that the numberof annual executions has remained high but the number of newdeath sentences has gone down. why is that? it can't be attributedto a decline in the murder rate, because the murderrate has not declined nearly so steeply as the red lineon that graph has gone down. what has happened instead
is that juries have started to sentencemore and more people to prison for the rest of their liveswithout the possibility of parole, rather than sending themto the execution chamber. why has that happened? it hasn't happenedbecause of a dissolution of popular support for the death penalty. death penalty opponentstake great solace in the fact that death penalty support in texasis at an all-time low. do you know what all-time lowin texas means?
it means that it's in the low 60 percent. now, that's really goodcompared to the mid-1980s, when it was in excess of 80 percent, but we can't explainthe decline in death sentences and the affinity for lifewithout the possibility of parole by an erosion of supportfor the death penalty, because people still supportthe death penalty. what's happened to cause this phenomenon? what's happened is that lawyerswho represent death row inmates
have shifted their focusto earlier and earlier chapters of the death penalty story. so 25 years ago,they focused on chapter four. and they went fromchapter four 25 years ago to chapter three in the late 1980s. and they went from chapter threein the late 1980s to chapter two in the mid-1990s. and beginning in the mid- to late 1990s, they began to focuson chapter one of the story.
now, you might thinkthat this decline in death sentences and the increasein the number of life sentences is a good thing or a bad thing. i don't want to have a conversationabout that today. all that i want to tell youis that the reason that this has happened is because death penalty lawyershave understood that the earlier you intervene in a case, the greater the likelihood thatyou're going to save your client's life. that's the first thing i've learned.
here's the second thing i learned: my client will wasnot the exception to the rule; he was the rule. i sometimes say, if you tell methe name of a death row inmate -- doesn't matter what state he's in, doesn't matterif i've ever met him before -- i'll write his biography for you. and eight out of 10 times, the details of that biographywill be more or less accurate.
and the reason for that is that 80 percentof the people on death row are people who came from the same sortof dysfunctional family that will did. eighty percent of the people on death row are people who had exposureto the juvenile justice system. that's the second lessonthat i've learned. now we're right on the cusp of that corner where everybody's going to agree. people in this room might disagree about whether willshould have been executed,
but i think everybody would agree that the best possibleversion of his story would be a storywhere no murder ever occurs. how do we do that? when our son lincoln was workingon 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 solutionis to slice it into smaller problems. that's what we do for most problems --
in math, in 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 problemis to make it bigger. the way we solve this problem is to make the issueof the death penalty bigger. we have to say, all right. we have these four chaptersof a death penalty story, but what happens before that story begins?
how can we intervenein the life of a murderer before he's a murderer? what options do we haveto nudge that person off of the path that is going to leadto a result that everybody -- death penalty supportersand death penalty opponents -- still think is a bad result: the murder of an innocent human being? you know, sometimes people saythat something isn't rocket science. and by that, what they meanis rocket science is really complicated
and this problem that we'retalking about now is really simple. well that's rocket science; that's the mathematical expressionfor the thrust created by a rocket. what we're talking about todayis just as complicated. what we're talking about todayis also rocket science. my client will and 80 percentof the people on death row had five chapters in their lives that came before the four chaptersof the death penalty story. i think of these five chaptersas points of intervention,
places in their lives when our societycould've intervened in their lives and nudged them off of the paththat they were on that created a consequence that we all -- death penalty supportersor death penalty opponents -- say was a bad result. now, during each of these five chapters: when his mother was pregnant with him; in his early childhood years;
when he was in elementary school; when he was in middle schooland then high school; and when he wasin the juvenile justice system -- during each of those five chapters, there were a wide variety of thingsthat society could have done. in fact, if we just imagine that there are fivedifferent modes of intervention, the way that society could intervenein each of those five chapters, and we could mix and match themany way we want,
there are 3,000 -- more than 3,000 --possible strategies that we could embrace in order to nudge kids like willoff of the path that they're on. so i'm not standing here todaywith the solution. but the fact that westill have a lot to learn, that doesn't meanthat we don't know a lot already. we know from experience in other states that there are a wide varietyof modes of intervention that we could be using in texas,
and in every other statethat isn't using them, in order to prevent a consequencethat we all agree is bad. i'll just mention a few. i won't talk todayabout reforming the legal system. that's probably a topic that is best reservedfor a room full of lawyers and judges. instead, let me talkabout a couple of modes of intervention that we can all help accomplish, because they are modes of interventionthat will come about
when legislators and policymakers,when taxpayers and citizens, agree that that'swhat we ought to be doing and that's how we oughtto be spending our money. we could be providing early childhood care for economically disadvantagedand otherwise troubled kids, and we could be doing it for free. and we could be nudging kids like willoff of the path that we're on. there are other statesthat do that, but we don't. we could be providing special schools,
at both the high school leveland the middle school level, but even in k-5, that target economicallyand otherwise disadvantaged kids, and particularly kids who have hadexposure to the juvenile justice system. there are a handfulof states that do that; texas doesn't. there's one other thing we can be doing --well, there are a bunch of other things -- there's one other thingthat i'm going to mention, and this is going to be the onlycontroversial thing that i say today.
we could be interveningmuch more aggressively into dangerously dysfunctional homes, and getting kids out of them before their moms pick up butcher knivesand threaten to kill them. if we're going to do that,we need a place to put them. even if we do all of those things, some kids are goingto fall through the cracks and they're going to end upin that last chapter before the murder story begins,
they're going to end upin 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 themrather than just punishing them. there are two professorsin the northeast -- one at yale and one at maryland -- they set up a schoolthat is attached to a juvenile prison. and the kids are in prison,but they go to school from eight in the morninguntil four in the afternoon.
now, it was logistically difficult. they had to recruit teacherswho wanted to teach inside a prison, they had to establish strict separation between the people who work at the schooland the prison authorities, and most dauntingly of all, they needed to invent a new curriculumbecause you know what? people don't come into and out of prisonon a semester basis. (laughter) but they did all those things.
now, what do all of these thingshave in common? what all of these things have in commonis that they cost money. some of the people in the roommight be old enough to remember the guyon the old oil filter commercial. he used to say, "well, you can pay me nowor you can pay me later." what we're doingin the death penalty system is we're paying later. but the thing isthat for every 15,000 dollars that we spend intervening
in the lives of economicallyand otherwise disadvantaged kids in those earlier chapters, we save 80,000 dollarsin crime-related costs down the road. even if you don't agree thatthere's a moral imperative that we do it, it just makes economic sense. i want to tell you about the lastconversation that i had with will. it was the day thathe 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 reallyactually remember that."
i said, "i don't remember anythingfrom when i was five years old. maybe you just remembersomebody 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 mamapicks up a butcher knife that looks bigger than you are, and chases you through the housescreaming she's going to kill you,
and you have to lock yourselfin the bathroom and lean against the door and holler for helpuntil the police get there," he looked at me and he said, "that's something you don't forget." i hope there's one thingyou all won't forget: in between the timeyou arrived here this morning and the time we break for lunch, there are going to befour homicides in the united states.
we're going to devoteenormous social resources to punishing the peoplewho commit those crimes, and that's appropriate because we should punishpeople who do bad things. but three of those crimes are preventable. if we make the picture bigger and devote our attentionto the earlier chapters, then we're never goingto write the first sentence that begins the death penalty story.
thank you. (applause)
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