Beyond Redemption?

By Professor David Sloss

Marlin Gray was executed on October 26, 2005. He was convicted for murder in 1992. The evidence at trial proved that he did not kill anyone and was not present when the killings occurred. There was no evidence that he encouraged, requested or instructed the actual killers to murder the victims. So why was he convicted for murder? And why did the State of Missouri execute him? Witnesses testified that Gray participated, along with three co-defendants, in the rape of two women and the robbery of a man. The crime occurred on the Chain of Rocks Bridge. After Gray departed the bridge, his co-defendants killed the women by pushing them off the bridge. The male victim jumped into the river and survived the fall.

In theory, capital punishment is reserved for those who commit the most heinous crimes. Death penalty proponents contend that there are some individuals who are so morally debased that they are beyond redemption, and that such individuals deserve to die. As a theoretical matter, it is difficult to contest this argument. There may well be some individuals who are beyond redemption.

In practice, though, the legal system is poorly equipped to decide which murderers deserve to live, and which ones deserve to die. In the State of Missouri, about 150 people are convicted of murder each year. Only about five of those 150 convicted murderers are sentenced to death. The process of selecting among the 150 murderers, to determine which five will be sentenced to death, is as random as spinning a roulette wheel. The five who are selected to die are not the “worst of the worst.” They are just the unlucky few who have been victimized by the system.

Consider Marlin Gray. He was 23 years old at the time of the murder. Prior to his murder conviction, Gray had never been convicted of a felony. In fact, he had never previously been charged with a crime of violence. A bishop in a local church testified that he had known Gray since he was three years old. He characterized Gray as “a nice young man” whom he “admired.” Approximately one month before the murders, Gray saved a man’s life by resuscitating him after a car ran over him. Gray continued to care for the man on a daily basis until he (Gray) was arrested for murder. In short, Gray was not a hardened criminal; he had significant potential for rehabilitation.

Gray was sentenced to death because of flaws in the judicial process. The prosecutor concealed evidence supporting Gray’s claim that the police had beaten him severely to secure a false confession. The trial judge gave the jury confusing instructions, leading them to believe that Gray could be convicted for crimes committed by his co-defendants, without any showing that Gray himself intended to kill the victims. The prosecutor made an emotional appeal to the jury, impermissibly comparing Gray to Charles Manson, and the judge let him get away with it. On appeal, the Missouri Supreme Court made critical factual errors, wrongly attributing to Gray statements manifesting an intent to kill, even though the trial testimony shows clearly that Gray never made those statements. Finally, thanks to legislation enacted by Congress in 1996, which was designed to streamline the process in capital cases, the federal courts were powerless to correct these errors.

Marlin Gray was not beyond redemption. Like many other death row prisoners, he was the victim of a flawed judicial process, which consistently sentences to death individuals who have significant potential for rehabilitation, while allowing the “worst of the worst” to live out their natural lives. If we, as a society, could devise a reliable system for distinguishing between those criminals who are truly beyond redemption, and those who deserve to live, I might be persuaded to support capital punishment. Unfortunately, our current system is more like a game of roulette, where we spin the wheel of fortune to decide who lives and who dies. We are all morally debased by this process. Like Marlin Gray, we are all accomplices to murder.

Professor Sloss is a member of the School’s Center for International and Comparative Law. His research focuses on the interface between domestic constitutional and public international law, including the constitutional law governing the conduct of U.S. foreign relations. “One of the main areas where the U.S. comes under international criticism is for failing to live up to international human rights norms in relation to the death penalty,” says Sloss, who, with his colleagues, is currently undertaking a major empirical study of capital punishment in Missouri.