Moral Judgment and the Death Penalty

The Colorado Supreme Court has vacated a death sentence based on the jury's consultation of the Bible during deliberations.  The evidence showed that:

(1) one or more jurors brought a Bible, a Bible index, and handwritten notes containing the location of biblical passages into the jury room to share with another juror during deliberations in the penalty phase of defendant’s trial; (2) these extraneous materials contained a passage commanding the death penalty for murderers and another instructing obedience to civil authorities; and (3) these passages were pointed out by at least one juror to another juror before the jury reached its unanimous verdict imposing the death sentence.

My inclination is to embrace the majority's ruling, but the dissent's argument is not lightly brushed aside:

The jurors’exposure to Romans 13:1 and Leviticus 24:20—21 was not prejudicial to Harlan because the jurors were required to make an overwhelming moral decision, namely whether the death penalty was an appropriate punishment for Harlan. To this end, the court instructed the jurors to "apply [their] reasoned judgment in deciding whether the situation calls for life imprisonment or the imposition of the death penalty"(emphasis added). The court further told the jurors that "you must still all make a further individual moral assessment of whether you have been convinced beyond a reasonable doubt that the death penalty, instead of life in prison, is the appropriate punishment for [Harlan] in this case"(emphasis added). As such, the jury instructions squarely directed the jurors to consider their moral and religious precepts, as well as their general knowledge, when making a reasoned judgment about whether or not to impose the death penalty.

. . . .

[B]y choosing to define the written version of these commonly known biblical passages as "a higher authority,"the majority elevates form over substance. Many people know large parts of the Bible by heart and can quote certain passages verbatim with persuasive alacrity, particularly when the ideas in those passages are as widespread and generally known as those referenced here. It is without doubt that a juror may relate passages of scripture from memory during deliberations, and that such recitation would not even be considered extraneous, much less prejudicial. It makes little sense, therefore, that the exact same passage in written form is somehow enshrined with an authority that the spoken or remembered passage lacks.

In so holding, the majority puts death penalty jurors in an impossible bind; jurors are instructed to make the ultimate decision about life or death based on their individual moral assessment –so long as their individual moral assessments are made from memory. This holding is demeaning to all jurors, but especially the jurors in this case, because it assumes that jurors cannot be trusted to think for themselves or follow the law in the face of written, but not spoken, religious passages.

My experience with jurors leads me to emphatically reject the majority’s way of thinking. Jurors chosen to serve in death penalty cases are selected for their ability, stated under oath, to uphold the law, apply the law to the facts, and to make reasoned judgments based upon their respective backgrounds and beliefs. To presume that jurors who have a religious background cannot distinguish between the written biblical passages referenced here and the written jury instructions –a presumption that must be made in order to find prejudice in this case -is to underestimate their intelligence and to belittle their participation in our legal system.

The dissent has a point: if we expect a jury to make a moral judgment on a morally laden issue like the death penalty, it seems strange to categorically rule out the foundation on which many jurors' moral judgments will be based.  And I'm not certain that the "internal source" (OK) versus "external document" (not OK) distinction can bear the weight the courts seem to place on it.  Further, eradicating the moral component from a jury's imposition of the death penalty strikes me as a solution bringing a new set of problems.  Is it better to have jurors looking to the Bible as they hold a person's life in their hands, or to have them view death as a strictly amoral function of the legal apparatus?

Rob