Interview with David Dow
By: Lily Hughes
David R. Dow is a renowned death penalty appeals attorney based in Houston. Over the course of his career, he has represented more than 100 death row prisoners in state and federal appeals. One of his highest-profile clients was Frances Newton, who was executed by the state of Texas on September 14, 2005, despite compelling evidence of her innocence. She was the first Black woman to be executed in Texas since the Civil War.
David is a professor of law at the University of Houston Law Center and Litigation Director at the Texas Defender Service, a nonprofit group of lawyers representing death row prisoners. He also helped found and has directed the Texas Innocence Network, based out of the University of Houston Law School.
He is responsible for several books, including his 2010 memoir The Autobiography of an Execution, and the 2002 book Machinery of Death: The Reality of America’s Death Penalty Regime, which he co-edited.
Recently, David has authored several articles critical of the life without parole sentences, including one titled “Life Without Parole: A Different Death Penalty,” featured in the Nation magazine in October 2012.
National director of the Campaign to End the Death Penalty Lily Hughes interviewed David Dow for the New Abolitionist.
Many in the abolitionist community feel that we need to advocate the sentence of life without the possibility of parole (LWOP) if we ever hope to win abolition of the death penalty. Do you agree?
No. The death penalty will be abolished, as a practical matter, because it is obscenely expensive. States will abandon it and are doing so already because it costs so much and does not return those costs. If the abolitionist community wants to employ an argument other than the purely moral one–i.e., the argument that executions are wrong–then it ought to focus on cost.
But using LWOP to erode support for the death penalty is a mistake. Although it almost certainly does reduce the number of death sentences, the punishment itself is almost as morally and economically suspect as the death penalty itself, and perhaps equally so.
If it is wrong to kill people even though they did something horrific, it is almost as wrong—maybe just as wrong and perhaps even more wrong—to lock them up forever.
As the rate of death sentences decline, we see the rate of LWOP sentences increase. Should abolitionists be concerned about this?
Everybody should be concerned about this—alarmed even. We are on track to have 50,000 or 60,000 people die of old age in prison in the United States. We are going to have to build old-age wings in our prisons.
The death penalty is racist, targets the poor, the mentally ill and often ensnares the innocent. Aren’t these concerns that affect those sentenced to life without the possibility of parole, too?
The criminal justice system as a whole disadvantages the poor, and the criminal justice system as a whole embodies the same prejudices that run through society. These include racism and discrimination again the mentally ill. I don’t think these criticisms are uniquely applicable to capital punishment, or to LWOP. They are widely applicable.
That said, discrimination matters more as the stakes increase, and the stakes in the death penalty and LWOP regimes are as big as they get.
Many of those on California’s death row were critical of a recent defeated referendum that would have abolished the death penalty, but also guaranteed LWOP sentences instead, without access to appeals. They said they were worried about access to courts, especially for the innocent. Are they right to be concerned?
I don’t think that was a terribly important issue. It is true that people no longer facing a sentence of death lost their statutory right to counsel. But courts can nevertheless appoint lawyers to represent inmates with cogent claims of actual innocence. Moreover, there are dozens of organizations around the U.S., including several in California, that work on behalf of innocent inmates.
So I don’t think that was a particularly good reason to have opposed the referendum. And in fact, I think more generally that focusing on innocent inmates is largely a distraction.
If social justice activists continue to talk about LWOP as a “sensible” sentence, how realistic is it to think these same activists will criticize it once abolition of the death penalty is won?
I don’t know whether supporters of LWOP will change their mind or whether many of them don’t really support it deep down, but are simply embracing it as a tactic. But I think the more important issue is whether it would make a difference, even if contemporary supporters of LWOP ultimately criticize it. I suspect it would not.
Policies have a way of embedding themselves and staying in place, even long after it is known that they make no sense. That, after all, is why we still have the death penalty.
Put differently, as hard as it is to pass a law, it is even harder to repeal it. Jurisdictions that have LWOP are going to have it for many years, and that will be true even if most people understand that LWOP is a bad idea.
Many other advanced countries don’t use harsh sentences like the death penalty or LWOP. Should the U.S. look to those countries as a model?
I have never understood why anyone or any country would be unwilling to learn lessons from anywhere they can.
I’m not saying the U.S. should look to any other country as a model. I think our own model is pretty good. But that doesn’t mean we can’t learn from other places. We can. And I am not limiting the places we could learn from to Western Europe.
LWOP sentences don’t lend themselves to ever allowing anyone committed of a serious offense a second chance. What are your thoughts about this?
There are undoubtedly some people who should be locked up forever. If Israel had not hanged Eichmann, I would have thought he should die in prison.
But mass murderers are, thankfully, rather rare. Most people who do something bad are capable of reform, and many of them do reform. The ultimate flaw of LWOP is that it prevents society from taking that reform into consideration.
How do you think we can best advance the movement toward abolition as well as against harsh sentences like LWOP? Shouldn’t we tackle them both as part of a fight for reform to the criminal justice system as a whole?
This is a big question. I think one has to combine arguments that focus on moral considerations, like whether it is just to take a 19-year-old who has done something truly horrible and throw him away forever, with practical concerns, like whether it makes economic sense to continue to imprison that kid 50 or 60 years later.
At the same time, I think a mistake that abolitionists make—and perhaps opponents of LWOP make the same mistake—is to be tone-deaf to the real pain and harm that perpetrators of violent crime inflict. We have a debate in America where the law-and-order crowd pays no attention to advocates of sentencing reform, and where advocates of less harsh punishments pay no attention to the law-and-order (and victims’ rights) communities.
I do believe there is common ground, but so far, not many people seem interested in finding it.
You must have clients who have are now serving LWOP sentences. What would you like people to know about these folks?
The most important two facts about them are: First, that nearly all of them have been deeply and truly remorseful for their acts, almost since the moment they committed them, and many have reached out to family members of their victims to express that remorse; and second, that nearly all of them will be capable, if they are not already capable, of living law-abiding lives outside prison.
To put it differently, they are not monsters. They are people who did something bad, who understand they did something bad, and who are now very different people from the people they used to be.