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