David R. Dow: Lessons from death row inmates

Two weeks ago, I was sitting at the kitchen table with my wife Katya, and we were talking about what I was gonna 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 all right 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 Katya 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. Will eventually joined a 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 noncontroversial.

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 unfold in 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 1980s 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've 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 we're 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't 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 has 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 that 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 percent. 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 three in the late 1980s to chapter two in the mid-1990s. And beginning in the mid- to late-1990s, they began to focus on chapter one 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 client's 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 10 times, the details of that biography will be more or less accurate.

And the reason for that is that 80 percent of the people on death row are people who came from the same sort of dysfunctional family that Will did. Eighty percent 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's 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 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 percent 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've 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 in 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 is 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 for 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-5, that 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, there are a bunch of other things that we could be doing -- there's one other thing that we could be doing that I'm going to mention, and this is gonna 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 going to fall through the cracks and they're going to end up in that last chapter before the murder story begins, they're going to 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 eight in the morning until four 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 15,000 dollars that we spend intervening in the lives of economically and otherwise disadvantaged kids in those earlier chapters, we save 80,000 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 is 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 all won't forget: In between the time you arrived here this morning and the time we break for lunch, there are 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. (Applause)