Born Again on Death Row: Retribution, Remorse, and Religion

Abstract

William Payton was convicted in 1981 of capital murder. In the penalty phase of his trial, Payton's counsel argued that Payton should not be executed because he had experienced a profound religious conversion in prison. After the prosecutor argued that Payton's religious conversion could not be considered as mitigating evidence under California law, the jury sentenced Payton to death. Payton's challenge to his conviction (based primarily on the prosecutor's penalty phase argument) will be decided this term by the Supreme Court. And while Payton's pending appeal will turn on technical issues, the case raises deep questions about the relevance of post-offense conduct such as a death row religious conversion. This paper first argues that Payton's religious conversion is plainly legally relevant, if only because it suggests that he will be less dangerous in the future. The more difficult questions are whether the conversion is practically or morally relevant. After surveying empirical data about capital juror decision-making, the paper concludes that a death row religious conversion can be significant to jurors, but only if the conversion is accompanied by a repentant acceptance of responsibility. The paper then argues that jurors' intuitions are consistent with punishment theory, and that a repentant acceptance of responsibility and a sincere desire to atone for the defendant's wrongs - both of which may be the products of a genuine religious conversion - lessen a defendant's desert.