Sentencing and religion

The intersection of sentencing issues and religion is a fascinating (and, in my view, underexamined) topic. These matters are actively percolating in the corrections setting, with the faith-based prison movement and a forthcoming Supreme Court case about RLUIPA (background here).  We also often see opposition to the death penalty influenced by religious views, as evidenced by developments last year in Ohio and the work of Sister Helen Prejean.  But on occasion, as evidenced by an intriguing Sixth Circuit case today, these matters can also intersect in individual sentencings.  (Thanks to How Appealing and a reader for the tip.)

In today's Sixth Circuit decision in Arnett v. Jackson, No. 03-4375 (6th Cir. Jan. 6, 2005), a divided panel reversed a grant of habeas corpus in favor of a state prisoner in a child rape case.  The district court granted habeas due to the state trial judge's reference to the Bible during petitioner's sentencing hearing, based on the conclusion that the "trial court's use of the Bible as a 'final source of authority' constituted an impermissible factor for sentencing." 

The Sixth Circuit, over a vigorous dissent, disagreed: it contended that "the principle embedded in the referenced Biblical passage (of not harming young children) is fully consistent with Ohio’s sentencing consideration to the same effect," and it suggested that the state trial judge "cited to the Biblical passage to underscore the contention that our society has a long history of sternly punishing those people who hurt young children."  The whole case is a very interesting read, as this provocative passage from the Judge Clay's dissent highlights:

If the Constitution sanctions such direct reliance on religious sources when imposing criminal sentences, then there is nothing to stop prosecutors and criminal defense lawyers from regularly citing religious sources like the Bible, the Talmud, or the Koran to justify their respective positions on punishment. The judge would be placed in the position of not only considering statutory sentencing factors, but also deciding which religious texts best justify a particular sentence. Under this approach, the judgments of trial courts could begin to resemble the fatwas of religious clerics, and the opinions of appellate courts echo the proclamations of the Sanhedrin. The result would be sentencing procedures that create the perception of the bench as a pulpit for which judges announce their personal sense of religiosity.