ABOUT THE SPEAKER
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.

More profile about the speaker
David R. Dow | Speaker | TED.com
TEDxAustin

David R. Dow: Lessons from death row inmates

Filmed:
3,920,670 views

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

Double-click the English transcript below to play the video.

00:17
Two weeks ago,
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I was sitting at the
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kitchen table with my wife Katya,
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and we were talking about what I was gonna talk about today.
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We have an 11-year-old son; his name is Lincoln. He was sitting at the same table
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doing his math homework.
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And during a pause in my conversation
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with Katya, 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, because his father left
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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
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was a paranoid schizophrenic,
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and when Will was five years old she
tried to kill him with a butcher knife.
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She was
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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
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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, I looked at my son,
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and I realized that when my client, Will,
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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
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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
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as punishment for that crime.
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But I don't want to
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talk today
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about the morality of capital punishment. I certainly think that my client
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shouldn't have been executed, but what I would like to do today instead
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is talk about the death penalty
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in a way I've never done before,
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in a way
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that is entirely noncontroversial.
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I think that's possible,
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because there is a corner
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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
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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 telling you how a death
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penalty case unfolds,
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and then I want to tell you two lessons that I have learned over the last 20 years
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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
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that has four chapters.
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The first chapter of every case is exactly the same,
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and it is tragic.
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It begins with the murder
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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
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upheld by the state appellate court.
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The second chapter consists of a
complicated legal proceeding known as
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a state habeas corpus appeal.
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The third chapter is an even more complicated legal proceeding known as a
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federal habeas corpus proceeding.
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And the fourth chapter
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is one where a variety of things can happen. 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
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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 in either the second
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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 that they acquired a
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right to a lawyer during the third chapter
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of the story.
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So what all of these death row inmates had to do
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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 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. 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; they managed to get new trials for their clients.
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Others of them managed to extend
the lives of their clients, sometimes by
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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 in the number of
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annual executions in Texas.
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In fact, as you can see from this graph,
from the time that the Texas execution
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apparatus got efficient in the mid- to
late-1990s,
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there've only been a couple of years where
the number of annual executions dipped
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below 20.
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In a typical year in Texas,
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we're averaging about
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two people a month.
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In some years in Texas, we've executed
close to 40 people, and this number
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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
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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
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nearly so steeply as the red line on
that graph has gone down.
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What has happened instead is
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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 of popular support
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for the death penalty. 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, when it was in
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excess of 80 percent,
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but we can't explain the decline in
death sentences and the affinity for
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life without the possibility of parole
by an erosion of support for the death
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penalty, 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
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that lawyers
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who represent death row inmates have
shifted their focus
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to earlier and earlier chapters 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 to chapter three
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in the late 1980s.
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And they went from chapter three in the
late 1980s to chapter two in
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the mid-1990s. 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 and the increase in the
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number of life sentences 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
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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, 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
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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 are
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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
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to the juvenile justice system.
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That's the second lesson
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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
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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
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two weeks ago, 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 -- in
math and 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,
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as Dwight Eisenhower said,
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the way you solve a problem
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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
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of a death penalty story,
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but what happens before
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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
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to nudge that person
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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
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is a bad result:
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the murder of an innocent human being?
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You know, sometimes people say
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that something
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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
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for the thrust created by a rocket.
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What we're talking about today
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is just as complicated.
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What we're talking about today is also
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rocket science.
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My client Will
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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
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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 when our society
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could've intervened in their lives and
nudged them off of the path that they were on
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that created a consequence that we all -- death penalty supporters or death
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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 -- 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, the way that society could intervene
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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 in order to nudge
kids like Will
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off of the path that they're on.
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So I'm not standing here today
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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, 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 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, at
both the high school level
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and the middle school level, but even in K-5,
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that target economically and otherwise
disadvantaged kids, and particularly kids
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who have had exposure
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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 --
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13:55
well, there are a bunch of other things that we could be doing -- there's one other thing that we could be
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13:57
doing that I'm going to mention, and this is
gonna be the only controversial thing
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14:00
that I say today.
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14:02
We could be intervening
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14:04
much more aggressively
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14:06
into dangerously dysfunctional homes,
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14:09
and getting kids out of them
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14:11
before their moms pick up butcher knives
and threaten to kill them.
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5471
14:16
If we're gonna do that,
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2020
14:18
we need a place to put them.
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14:20
Even if we do all of those things, some
kids are going to fall through the cracks
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14:24
and they're going to end up in that last
chapter before the murder story begins,
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14:27
they're going to end up in the juvenile
justice system.
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14:29
And even if that happens,
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14:32
it's not yet too late.
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There's still time to nudge them,
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14:37
if we think about nudging them
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14:39
rather than just punishing them.
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14:41
There are two professors in the Northeast --
one at Yale and one at Maryland --
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14:44
they set up a school
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14:46
that is attached to a juvenile prison.
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14:50
And the kids are in prison, but they go
to school from eight in the morning
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14:53
until four in the afternoon.
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14:55
Now, it was logistically difficult.
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14:56
They had to recruit teachers
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14:57
who wanted to teach inside a prison, they had to establish strict
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15:01
separation between the people who work
at the school and the prison authorities,
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15:04
and most dauntingly of all, they needed
to invent a new curriculum because
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3432
15:07
you know what?
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15:08
People don't come into and out of prison
on a semester basis.
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15:14
But they did all those things.
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15:17
Now what do all of these things have in common?
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15:20
What all of these things have in common
is that they cost money.
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15:26
Some of the people in the room might be
old enough to remember
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3028
15:29
the guy on the old oil filter commercial.
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3762
15:33
He used to say, "Well, you can pay me now
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15:37
or you can pay me later."
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15:40
What we're doing
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15:42
in the death penalty system
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2020
15:44
is we're paying later.
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3599
15:48
But the thing is
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1848
15:49
that for every 15,000 dollars
that we spend intervening
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3866
15:53
in the lives of economically and
otherwise disadvantaged kids
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4367
15:58
in those earlier chapters,
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1320
15:59
we save 80,000 dollars in crime-related costs down the road.
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16:03
Even if you don't agree
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16:05
that there's a moral imperative that we do it,
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it just makes economic sense.
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16:14
I want to tell you about the last conversation that
I had with Will.
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4023
16:18
It was the day that he was going to be executed,
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4088
16:22
and we were just talking.
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4312
16:26
There was nothing left to do
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16:27
in his case.
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1615
16:29
And we were talking about his life.
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2351
16:31
And he was talking first about his dad,
who he hardly knew,
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2867
16:34
who had died,
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833
16:35
and then about his mom,
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2634
16:38
who he did know,
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982367
1764
16:40
who is still alive.
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2169
16:42
And I said to him,
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2700
16:44
"I know the story.
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2051
16:46
I've read the records.
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1816
16:48
I know that she tried to kill you."
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2642
16:51
I said, "But I've always wondered whether you
really
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2438
16:53
actually remember that."
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2120
16:55
I said, "I don't remember anything
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1503
16:57
from when I was five years old.
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2159
16:59
Maybe you just remember somebody telling you."
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2938
17:02
And he looked at me and he leaned forward,
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2500
17:05
and he said, "Professor," -- he'd known me for
12 years, he still called me Professor.
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3600
17:08
He said, "Professor, I don't mean any
disrespect by this,
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3315
17:11
but when your mama
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1651
17:13
picks up a butcher knife that looks bigger
than you are,
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3100
17:16
and chases you through the house
screaming she's gonna kill you,
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3800
17:20
and you have to lock yourself in the
bathroom and lean against the door and
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1024633
3825
17:24
holler for help until the police get
there,"
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2763
17:27
he looked at me and he said,
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3079
17:30
"that's something you don't forget."
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3500
17:33
I hope there's one thing you all won't forget:
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2500
17:36
In between the time you arrived here
this morning and the time we break for lunch,
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2856
17:39
there are going to be four homicides
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1043156
3411
17:42
in the United States.
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1433
17:43
We're going to devote enormous social
resources to punishing the people who
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4167
17:48
commit those crimes, and that's
appropriate, because we should punish
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2300
17:50
people who do bad things.
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2066
17:52
But three of those crimes are
preventable.
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3567
17:56
If we make the picture bigger
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2910
17:59
and devote our attention to the
earlier chapters,
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4644
18:03
then we're never going to write the
first sentence
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3384
18:07
that begins the death penalty story.
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1794
18:08
Thank you.
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18:10
(Applause)
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1331
Translated by Jenny Zurawell
Reviewed by Thu-Huong Ha

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ABOUT THE SPEAKER
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.

More profile about the speaker
David R. Dow | Speaker | TED.com