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David R. Dow: Lessons from death row inmates

February 11, 2012

What happens before a murder? In looking for ways to reduce death penalty cases, David R. Dow realized that a surprising number of death row inmates had similar biographies. In this talk he proposes a bold plan, one that prevents murders in the first place.

David R. Dow - Death penalty lawyer
David R. Dow has defended over 100 death row inmates in 20 years. Full bio

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Double-click the English subtitles below to play the video.
Two weeks ago,
00:16
I was sitting at the
00:18
kitchen table with my wife Katya,
00:20
and we were talking about what I was gonna talk about today.
00:23
We have an 11-year-old son; his name is Lincoln. He was sitting at the same table
00:28
doing his math homework.
00:33
And during a pause in my conversation
00:36
with Katya, I looked over at Lincoln
00:39
and I was suddenly thunderstruck
00:41
by a recollection of a client of mine.
00:45
My client was a guy named Will.
00:48
He was from North Texas.
00:51
He never knew his father very well, because his father left
00:53
his mom while she was pregnant with him.
00:58
And so, he was destined to be raised by a single mom,
01:02
which might have been all right
01:06
except that this particular single mom
01:08
was a paranoid schizophrenic,
01:10
and when Will was five years old she
tried to kill him with a butcher knife.
01:13
She was
01:18
taken away by authorities and placed in a
psychiatric hospital,
01:20
and so for the next several years Will
lived with his older brother
01:24
until he committed suicide by shooting
himself through the heart.
01:28
And after that
01:31
Will bounced around from one family
member to another,
01:34
until, by the time he was nine years old,
he was essentially living on his own.
01:37
That morning that I was sitting with
Katya and Lincoln, I looked at my son,
01:42
and I realized that when my client, Will,
01:47
was his age,
01:51
he'd been living by himself for two years.
01:53
Will eventually joined a gang
01:57
and committed
01:59
a number of very serious crimes,
02:01
including, most seriously of all,
02:04
a horrible, tragic murder.
02:06
And Will was ultimately executed
02:09
as punishment for that crime.
02:14
But I don't want to
02:16
talk today
02:19
about the morality of capital punishment. I certainly think that my client
02:21
shouldn't have been executed, but what I would like to do today instead
02:25
is talk about the death penalty
02:30
in a way I've never done before,
02:33
in a way
02:36
that is entirely noncontroversial.
02:37
I think that's possible,
02:39
because there is a corner
02:42
of the death penalty debate --
02:45
maybe the most important corner --
02:47
where everybody agrees,
02:49
where the most ardent death penalty supporters
02:52
and the most vociferous abolitionists
02:56
are on exactly the same page.
03:00
That's the corner I want to explore.
03:03
Before I do that, though, I want to spend a couple of minutes telling you how a death
03:06
penalty case unfolds,
03:11
and then I want to tell you two lessons that I have learned over the last 20 years
03:13
as a death penalty lawyer,
03:18
from watching well more than a hundred cases unfold in this way.
03:20
You can think of a death penalty case as
a story
03:25
that has four chapters.
03:29
The first chapter of every case is exactly the same,
03:31
and it is tragic.
03:35
It begins with the murder
03:36
of an innocent human being,
03:38
and it's followed by a trial
03:40
where the murderer is convicted and sent to death row,
03:42
and that death sentence is ultimately
03:44
upheld by the state appellate court.
03:46
The second chapter consists of a
complicated legal proceeding known as
03:48
a state habeas corpus appeal.
03:53
The third chapter is an even more complicated legal proceeding known as a
03:56
federal habeas corpus proceeding.
04:00
And the fourth chapter
04:02
is one where a variety of things can happen. The lawyers might file a clemency petition,
04:04
they might initiate even more complex
litigation,
04:08
or they might not do anything at all.
04:11
But that fourth chapter always ends
04:13
with an execution.
04:15
When I started representing death row
inmates more than 20 years ago,
04:17
people on death row did not have a right
to a lawyer in either the second
04:22
or the fourth chapter of this story.
04:26
They were on their own.
04:29
In fact, it wasn't until the late 1980s that they acquired a
04:30
right to a lawyer during the third chapter
04:34
of the story.
04:36
So what all of these death row inmates had to do
04:38
was rely on volunteer lawyers
04:40
to handle their legal proceedings.
04:43
The problem is that there were way more
guys on death row
04:45
than there were lawyers who had both the interest and the expertise to work on these cases.
04:49
And so inevitably,
04:54
lawyers drifted to cases that were
already in chapter four --
04:56
that makes sense, of course. Those are the
cases that are most urgent;
04:59
those are the guys who are closest to being executed.
05:02
Some of these lawyers were successful; they managed to get new trials for their clients.
05:05
Others of them managed to extend
the lives of their clients, sometimes by
05:09
years, sometimes by months.
05:13
But the one thing that didn't happen
05:15
was that there was never a serious and
sustained decline in the number of
05:17
annual executions in Texas.
05:22
In fact, as you can see from this graph,
from the time that the Texas execution
05:25
apparatus got efficient in the mid- to
late-1990s,
05:28
there've only been a couple of years where
the number of annual executions dipped
05:32
below 20.
05:36
In a typical year in Texas,
05:38
we're averaging about
05:40
two people a month.
05:42
In some years in Texas, we've executed
close to 40 people, and this number
05:44
has never significantly declined over
the last 15 years.
05:48
And yet, at the same time that we
continue to execute
05:53
about the same number of people every
year,
05:57
the number of people who we're sentencing
to death
05:59
on an annual basis
06:01
has dropped rather steeply.
06:03
So we have this paradox,
06:05
which is that the number of annual
executions has remained high
06:06
but the number of new death sentences
has gone down.
06:11
Why is that?
06:16
It can't be attributed to a decline in the murder rate,
06:17
because the murder rate has not declined
06:20
nearly so steeply as the red line on
that graph has gone down.
06:21
What has happened instead is
06:26
that juries have started to sentence
more and more people to prison
06:29
for the rest of their lives without the
possibility of parole,
06:32
rather than sending them to the
execution chamber.
06:36
Why has that happened?
06:39
it hasn't happened because of a
dissolution of popular support
06:42
for the death penalty. Death penalty opponents take great solace in the fact
06:46
that death penalty support in Texas is at
an all-time low.
06:50
Do you know what all-time low in Texas
means?
06:54
It means that it's in the low 60 percent.
06:56
Now that's really good compared to the
mid 1980s, when it was in
06:59
excess of 80 percent,
07:02
but we can't explain the decline in
death sentences and the affinity for
07:04
life without the possibility of parole
by an erosion of support for the death
07:09
penalty, because people still support the
death penalty.
07:12
What's happened to cause this phenomenon?
07:15
What's happened is
07:18
that lawyers
07:20
who represent death row inmates have
shifted their focus
07:21
to earlier and earlier chapters of the
death penalty story.
07:24
So 25 years ago, they focused on
chapter four.
07:29
And they went from chapter four 25 years ago to chapter three
07:32
in the late 1980s.
07:36
And they went from chapter three in the
late 1980s to chapter two in
07:38
the mid-1990s. And beginning
in the mid- to late-1990s,
07:41
they began to focus on chapter one of
the story.
07:44
Now you might think that this decline in
death sentences and the increase in the
07:47
number of life sentences is a good thing
or a bad thing.
07:51
I don't want to have a conversation about that
today.
07:54
All that I want to tell you is that the
reason that this has happened
07:56
is because death penalty lawyers have
understood
08:00
that the earlier you intervene in a
case,
08:03
the greater the likelihood that you're
going to save your client's life.
08:05
That's the first thing I've learned.
08:10
Here's the second thing I learned:
08:12
My client Will
08:14
was not the exception to the rule;
08:15
he was the rule.
08:18
I sometimes say, if you tell me the name
of a death row inmate --
08:21
doesn't matter what state he's in, doesn't matter if I've ever met him before --
08:25
I'll write his biography for you.
08:28
And eight out of 10 times,
08:31
the details of that biography
08:34
will be more or less accurate.
08:35
And the reason for that is that 80 percent of the people on death row are
08:38
people who came from the same sort of
dysfunctional family that Will did.
08:42
Eighty percent of the people on death row
08:46
are people who had exposure
08:48
to the juvenile justice system.
08:50
That's the second lesson
08:53
that I've learned.
08:55
Now we're right on the cusp of that corner
08:57
where everybody's going to agree.
09:00
People in this room might disagree
09:03
about whether Will should have been
executed,
09:05
but I think everybody would agree
09:07
that the best possible version of his story
09:10
would be a story
09:14
where no murder ever occurs.
09:15
How do we do that?
09:20
When our son Lincoln was working on that
math problem
09:22
two weeks ago, it was a big, gnarly problem.
09:26
And he was learning how, when you have a big old gnarly problem,
09:29
sometimes the solution is to slice it
into smaller problems.
09:32
That's what we do for most problems -- in
math and physics, even in social policy --
09:36
we slice them into smaller, more
manageable problems.
09:40
But every once in a while,
09:44
as Dwight Eisenhower said,
09:45
the way you solve a problem
09:47
is to make it bigger.
09:49
The way we solve this problem
09:51
is to make the issue of the death
penalty bigger.
09:55
We have to say, all right.
09:59
We have these four chapters
10:01
of a death penalty story,
10:03
but what happens before
10:06
that story begins?
10:08
How can we intervene in the life of a murderer
10:10
before he's a murderer?
10:15
What options do we have
10:17
to nudge that person
10:20
off of the path
10:21
that is going to lead to a result that
everybody --
10:22
death penalty supporters and death penalty
opponents --
10:27
still think
10:29
is a bad result:
10:30
the murder of an innocent human being?
10:33
You know, sometimes people say
10:37
that something
10:40
isn't rocket science.
10:41
And by that, what they mean is rocket
science is really complicated
10:43
and this problem that we're talking
about now is really simple.
10:46
Well that's rocket science;
10:50
that's the mathematical expression
10:51
for the thrust created by a rocket.
10:53
What we're talking about today
10:57
is just as complicated.
10:59
What we're talking about today is also
11:02
rocket science.
11:04
My client Will
11:07
and 80 percent of the people on
death row
11:09
had five chapters in their lives
11:12
that came before
11:15
the four chapters of the death penalty
story.
11:17
I think of these five chapters as points
of intervention,
11:18
places in their lives when our society
11:23
could've intervened in their lives and
nudged them off of the path that they were on
11:26
that created a consequence that we all -- death penalty supporters or death
11:31
penalty opponents --
11:35
say was a bad result.
11:37
Now, during each of these five
chapters:
11:39
when his mother was pregnant with him;
11:42
in his early childhood years;
11:43
when he was in elementary school;
11:45
when he was in middle school and then high
school;
11:47
and when he was in the juvenile justice
system -- during each of those five chapters,
11:49
there were a wide variety of things that society could have done.
11:53
In fact, if we just imagine
11:56
that there are five different modes of
intervention, the way that society could intervene
11:58
in each of those five chapters,
12:03
and we could mix and match them any way
we want,
12:05
there are 3,000 -- more than 3,000 -- possible strategies
12:08
that we could embrace in order to nudge
kids like Will
12:12
off of the path that they're on.
12:16
So I'm not standing here today
12:18
with the solution.
12:20
But the fact that we still have a lot to learn,
12:22
that doesn't mean that we don't know a lot already.
12:27
We know from experience in other states
12:30
that there are a wide variety of modes
of intervention
12:33
that we could be using in Texas, and in
every other state that isn't using them,
12:37
in order to prevent a consequence that we all agree is bad.
12:41
I'll just mention a few.
12:46
I won't talk today about reforming the
legal system.
12:48
That's probably a topic that is best
reserved for a room full of lawyers and judges.
12:52
Instead, let me talk about a couple of
modes of intervention
12:57
that we can all help accomplish,
13:01
because they are modes of intervention
that will come about
13:03
when legislators and policymakers, when taxpayers and citizens,
13:06
agree that that's what we ought to be
doing
13:10
and that's how we ought to be spending our money.
13:12
We could be providing early childhood care
13:14
for economically disadvantaged and
otherwise troubled kids,
13:16
and we could be doing it for free.
13:22
And we could be nudging kids like Will
off of the path that we're on.
13:25
There are other states that do that, but we don't.
13:29
We could be providing special schools, at
both the high school level
13:33
and the middle school level, but even in K-5,
13:37
that target economically and otherwise
disadvantaged kids, and particularly kids
13:40
who have had exposure
13:44
to the juvenile justice system.
13:46
There are a handful of states that do that;
13:48
Texas doesn't.
13:50
There's one other thing we can be doing --
13:52
well, there are a bunch of other things that we could be doing -- there's one other thing that we could be
13:54
doing that I'm going to mention, and this is
gonna be the only controversial thing
13:56
that I say today.
13:59
We could be intervening
14:02
much more aggressively
14:03
into dangerously dysfunctional homes,
14:05
and getting kids out of them
14:08
before their moms pick up butcher knives
and threaten to kill them.
14:10
If we're gonna do that,
14:16
we need a place to put them.
14:18
Even if we do all of those things, some
kids are going to fall through the cracks
14:20
and they're going to end up in that last
chapter before the murder story begins,
14:23
they're going to end up in the juvenile
justice system.
14:27
And even if that happens,
14:29
it's not yet too late.
14:32
There's still time to nudge them,
14:34
if we think about nudging them
14:37
rather than just punishing them.
14:38
There are two professors in the Northeast --
one at Yale and one at Maryland --
14:41
they set up a school
14:43
that is attached to a juvenile prison.
14:45
And the kids are in prison, but they go
to school from eight in the morning
14:49
until four in the afternoon.
14:52
Now, it was logistically difficult.
14:54
They had to recruit teachers
14:56
who wanted to teach inside a prison, they had to establish strict
14:57
separation between the people who work
at the school and the prison authorities,
15:00
and most dauntingly of all, they needed
to invent a new curriculum because
15:03
you know what?
15:07
People don't come into and out of prison
on a semester basis.
15:08
But they did all those things.
15:13
Now what do all of these things have in common?
15:16
What all of these things have in common
is that they cost money.
15:19
Some of the people in the room might be
old enough to remember
15:26
the guy on the old oil filter commercial.
15:29
He used to say, "Well, you can pay me now
15:32
or you can pay me later."
15:36
What we're doing
15:39
in the death penalty system
15:41
is we're paying later.
15:43
But the thing is
15:47
that for every 15,000 dollars
that we spend intervening
15:49
in the lives of economically and
otherwise disadvantaged kids
15:53
in those earlier chapters,
15:57
we save 80,000 dollars in crime-related costs down the road.
15:58
Even if you don't agree
16:03
that there's a moral imperative that we do it,
16:05
it just makes economic sense.
16:08
I want to tell you about the last conversation that
I had with Will.
16:13
It was the day that he was going to be executed,
16:17
and we were just talking.
16:22
There was nothing left to do
16:26
in his case.
16:27
And we were talking about his life.
16:29
And he was talking first about his dad,
who he hardly knew,
16:31
who had died,
16:34
and then about his mom,
16:35
who he did know,
16:37
who is still alive.
16:39
And I said to him,
16:41
"I know the story.
16:44
I've read the records.
16:46
I know that she tried to kill you."
16:48
I said, "But I've always wondered whether you
really
16:50
actually remember that."
16:53
I said, "I don't remember anything
16:55
from when I was five years old.
16:56
Maybe you just remember somebody telling you."
16:59
And he looked at me and he leaned forward,
17:01
and he said, "Professor," -- he'd known me for
12 years, he still called me Professor.
17:04
He said, "Professor, I don't mean any
disrespect by this,
17:08
but when your mama
17:11
picks up a butcher knife that looks bigger
than you are,
17:13
and chases you through the house
screaming she's gonna kill you,
17:16
and you have to lock yourself in the
bathroom and lean against the door and
17:19
holler for help until the police get
there,"
17:23
he looked at me and he said,
17:26
"that's something you don't forget."
17:29
I hope there's one thing you all won't forget:
17:33
In between the time you arrived here
this morning and the time we break for lunch,
17:35
there are going to be four homicides
17:38
in the United States.
17:41
We're going to devote enormous social
resources to punishing the people who
17:43
commit those crimes, and that's
appropriate, because we should punish
17:47
people who do bad things.
17:49
But three of those crimes are
preventable.
17:51
If we make the picture bigger
17:55
and devote our attention to the
earlier chapters,
17:58
then we're never going to write the
first sentence
18:03
that begins the death penalty story.
18:06
Thank you.
18:08
(Applause)
18:10
Translator:Jenny Zurawell
Reviewer:Thu-Huong Ha

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David R. Dow - Death penalty lawyer
David R. Dow has defended over 100 death row inmates in 20 years.

Why you should listen

What does it feel like to know exactly the day and time you’re going to die -- because the state has decided for you? As a death penalty attorney in Texas, the state with the highest death penalty rate in the US, David R. Dow asks himself questions like this every day. In the past 20 years he has defended over 100 death row inmates, many of whom have died -- and most of whom were guilty. But according to an interview with Dow, “They should have been sentenced to life in prison instead of death at the hands of the state.” Dow is the Litigation Director at the Texas Defender Service and the Founder and Co-director of the Texas Innocence Network, an organization in which law students provide pro bono legal services to investigate claims of actual innocence brought by Texas prisoners. He writes on contract law, constitutional law and theory, and death penalty law, and has most recently published a book called The Autobiography of an Execution, partly a memoir and partly about the politics of capital punishment. Dow is a professor at the University of Houston Law Center.

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