On a regular basis, I'm sitting face to face with murderers. When I imagine sitting face to face with somebody who might have injured somebody I love or care about, I can imagine wanting to injure that person myself. I used to support the death penalty. [But] once I started doing the work, I became aware of the inequalities. I tell people that if you're going to commit murder, you want to be white, and you want to be wealthy — so that you can hire a first-class lawyer — and you want to kill a black person. And if [you are], the odds of your being sentenced to death are basically zero. It's one thing to say that rich people should be able to drive Ferraris and poor people should have to take the bus. It's very different to say that rich people should get treated one way by the state's criminal-justice system and poor people should get treated another way. But that is the system that we have. (See the top 10 crime duos.)
It was incremental. Almost everybody I represented actually committed the murder that he was sent to death row for committing. But what I noticed is that they were committing murders that were not, in any meaningful sense, different from the thousands of other murders that occur where the person isn't on death row. You have about 15,000 homicides a year in the U.S. And you might have 60 executions. There wasn't any rhyme or reason to which crimes were resulting in executions, other than the operation of what I consider to be insidious types of prejudice and just sheer randomness.
Most of the cases I work on are tragic, but at a very deep level they make sense to me. I understand how [the crime] happened. Most of my clients dropped out of school. They've got extensive juvenile records. They came from backgrounds of deprivation. I'm not saying that excuses their conduct. I'm simply saying that there were any number of points in the lives of my clients where I truly believe that if society had intervened more aggressively, it could have done something. In other cases, though, I don't see that at all. There wasn't any deprivation, and there wasn't abuse, and there wasn't poverty. Those are the cases that just make you stay awake at night. (See the 25 crimes of the century.)
The cases that I write about are cases that I was handling five years ago, which means that the trials were 15 years ago. And 15 years ago, the quality of trial lawyers in Texas, and really all over the so-called death-penalty belt — the Southeast of the U.S. — was typically abysmal. Over the past five years, the quality of trial lawyering has gotten vastly better. There are still a handful of bad lawyers. [But] today the problem is that there aren't any resources. You can have the world's greatest lawyer. And if the lawyer doesn't have resources [to hire experts], then it doesn't matter.
Juries can sentence somebody to death for the same reasons that kids in a gang will do something that they wouldn't do if they were by themselves. The group diffuses moral responsibility. I really do believe that jurors take their responsibility very seriously, particularly in a death-penalty trial. But I think that being a member of a group allows individual jurors to slough off the responsibility for the decision. That diffusion of responsibility continues up until the very end: the judges on the court of appeals are one of three or one of nine. It's a system where you can't ever point to a single person and say, That person is responsible for imposing the death sentence. (See the top 10 crime stories of 2009.)
My prediction is that we're going to get rid of it for economic reasons. We spend at least a million dollars more on a death-penalty case than on a non-death-penalty case. In the U.S., where we've executed 1,200 people since the death penalty [was reinstated in 1976], that's $1.2 billion. I just think, gosh, with $1.2 billion, you could hire a lot of policemen. You could have a lot of educational programs inside of prisons, so that when people come out of prison they know how to do something besides rob convenience stores and sell drugs. There are already counties in Texas, of all places, that have said, This is just not worth it. Let's fix the schools and fill the potholes in the streets instead of squandering this money on a death-penalty case. You don't need to be a bleeding heart to make that argument.