Lessons from death row inmates | David R. Dow

2,775,614 views ・ 2012-06-18

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

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