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  • 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 try to kill him with butcher's 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 himself.

  • That morning that I was sitting with Catia 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 twenty years ago

  • people on death row did not have a right to a lawyer and even 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

  • 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 4.

  • that makes sense, of course. Those are the cases in the 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 life for 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 Texas access execution.

  • apparatus got efficient in the mid-to-late 1990s.

  • there've only been a couple of years where the number of annual executions dip..

  • 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 the forty people and this number..

  • has never significantly declined over the last fifteen years.

  • And yet, at the same time that we continue to execute

  • about the same number of people every

  • 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 remained high.

  • but the number of new death sentences has going 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 is going 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 supports.

  • for the death penalty. Death penalty opponents take great solace in the fact

  • that death penalty support in Texas is at the 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 they was in

  • excess of 80 percent,

  • but we can't explain the decline in death sentence and the afinity for

  • life without the possibility of parole by an erotion 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 increases 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 reasons of these was 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 problems

  • 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 in the smaller problems.

  • That's what we do for most problems -- in math, in physics, even in social policy

  • we slice them into smaller, more manager 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

  • and this problem that we're talking

  • 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

  • had five chapters in their lives

  • that came before

  • the four chapters of the death penalty

  • I think of these five chapters as points

  • places in their lives when our society

  • could've intervened in their lives and

  • 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

  • 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

  • and when he was in the juvenile justice

  • 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

  • in each of those five chapters,

  • and we could mix and match them any way

  • there are 3,000 -- more than 3,000 -- possible strategies

  • that we could embrace in order to nudge

  • 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 is 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

  • that we can all help accomplish,

  • because they are modes of intervention that would come about