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March 29, 2005

Colorado Supreme Court troubled by mixing sentencing and the Bible

As detailed in this AP article, the Colorado Supreme Court on Monday, in a divided 3-2 ruling, affirmed a lower appellate court's determination that a death sentence should be overturned because jurors consulted the Bible during deliberations in the penalty phase.  The lengthy decision in People v. Harlan, No. 03SA173 (Colo. Mar 28, 2005), is available here.  The New York Times has this thoughtful article about the decision, and TalkLeft has a post and interesting comments on the case here.

This ruling in Harlan stands in interesting contrast to a decision a few months ago from the Sixth Circuit in Arnett v. Jackson, No. 03-4375 (6th Cir. Jan. 6, 2005). In Arnett, which I first discussed in this post, a divided panel reversed a grant of habeas corpus for a state prisoner in a child rape case, concluding that the district court should not have granted habeas due to the state trial judge's references to the Bible during petitioner's sentencing hearing. 

Below I provide a few links to some other coverage of the intersection of sentencing issues and religion (which is, in my view, a fascinating and under-examined topic):

March 29, 2005 at 12:44 AM | Permalink

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Comments

I just finished reading the full Harlan opinion. I admit I find this a fascinating case on many levels. It gives some insight into juror deliberation in what must be a soul-wrenching experience -- to have to decide whether another citizen will actually live or die.

What surprises me about the majority opinion is that it does, like the dissent says, put form over substance. A juror could discuss the identical biblical quotes in deliberation and no error results; but bring the actual Bible in, and suddenly the Word takes on increased importance. It seems that the majority wanted to avoid offending the religious or simply to sidestep a giant conundrum -- to what extent religious belief can influence jury deliberation. I imagine jurors in death cases do think about religious texts and beliefs, individually or collectively. But the religious belief or text cannot be the deciding factor -- if so, by definition a defendant would be sentenced under religious canon, not civil law. Of course, we rarely get to find out if a jury uses religious belief or text in this manner. So in the case of Harlan, we do -- and the majority does put form over substance. It makes no sense to believe that only the physical presentation of the text in written form violates the defendant's rights, but not the spoken presentation of the identical text. But the dissent is wrong in concluding that religious belief can veto civil law. I wonder how some of the Bible jurors survived voir dire. When asked if they could put religion aside, they had to have lied -- they brought their Bibles in and relied on them as primary source. God says it is okay to execute a murderer, so give him the death penalty.

What I found really curious about the entire Harlan opinion is the absence of any actual constitutional right mentioned. The whole case was procedural -- a violation of a rule consulting extraneous text. But I see the issue as one of due process intersecting the First Amendment. We can lawfully exclude a juror from a panel if he or she cannot put aside religious beliefs in deciding whether to impose the death penalty. It follows that we can hold a juror to that promise -- that if the juror relied on religious belief in imposing the death penalty, due process has been violated. Does the sentence violate the defendant's free exercise rights by having his sentence imposed in a religious manner contrary to his own beliefs? Does it violate the establishment clause by giving the appearance that the state executes a defendant based on the religious beliefs of the jurors? These are weighty and interesting questions, and Colorado made it harder by urging jurors to consult "moral" beliefs in reaching their verdict. Is that instruction unconstitutional for the same First amendment reasons? Or what about the obligation to decide a case on facts and reason, not passion or prejudice? All these issues were sidestepped by the procedural emphasis, thus exposing the decision to the "form over substance" argument.

I do not think jurors should consult or rely on religious beliefs in passing on a death sentence. If they do, they perjured themselves in voir dire. By the same token, I am not aware of any state that actually instructs jurors to disregard religious beliefs in passing on a death sentence. This case screams for one, which in today's climate (see Schiavo) would become another political hot potato.

Oh well...that's my two cents worth.

Posted by: Jason Marks | Mar 29, 2005 1:44:56 PM

Thanks to the Colorado Supreme Court’s recent reversal of the death penalty for a worthless piece of garbage, America has a very descriptive way to describe the height of stupidity.
"DUMB AS A COLORADO SUPEREME JUSTICE!"

Posted by: George Santulli | Apr 1, 2005 12:04:25 PM

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Posted by: | Oct 14, 2008 8:21:34 AM

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