Religion in Sentencing

"In God We Trust." "With God All Things Are Possible." "One Nation Under God." Posting the Ten Commandments in public buildings. Prayers at Commencement. Prayers before high school football games.

"In God We Trust." "With God All Things Are Possible." "One Nation Under God." Posting the Ten Commandments in public buildings. Prayers at Commencement. Prayers before high school football games.

We, as a society, struggle with the role of religion in our public lives. How much is ceremonial, how much is appropriate and how much is ramming the majority's religious beliefs down the throats of those with different views? What about the role of religion in judicial proceedings? Two recent, closely decided cases show how conflicted we are on this topic.

People vs. Harlan, a Colorado Supreme Court case, involves the use of the Bible by jurors in death sentence deliberations. State vs. Arnett, an Ohio case, involves the use of Biblical references by the judge in pronouncing sentence. Let's look at each.

Robert Eliot Harlan committed a particularly heinous murder. He raped, savagely beat and murdered one woman and shot another during a rescue attempt, leaving her paralyzed for life. He was convicted and, following the requisite unanimous recommendation by the jury, sentenced to death in Colorado.

But subsequently, Harlan's lawyers found out that one or more Bibles had been brought into the jury room and had been used by jurors in the penalty phase deliberations. So Harlan brought a new challenge to the death sentence imposed in his case. In a 3-2 decision — two justices did not participate in the case — the Colorado Supreme Court agreed that the jurors wrongly considered extraneous information during the penalty phase and threw out the death sentence. By law, that decision means Harlan gets life without possibility of parole.

The extraneous information in Harlan's case was the use of Bibles and biblical texts. Before you say, "You've got to be kidding," let's look at some fundamental principles that are at work. When citizens become jurors, they are regularly admonished not to discuss the case with anyone and to avoid TV or newspaper accounts of the proceedings. When it comes time for deliberations, jurors are told quite clearly by the trial judge that they are to consider only the evidence admitted at the trial and the law the judge gives them in the jury instructions. This is a basic principle of our constitutional system. So it doesn't really matter whether the extraneous material was the Bible, the Federalist Papers or People magazine. If it's not part of the trial, it's not part of the deliberations.

One of the ironies in this case is that the jurors were sequestered, and one of the things generally available to read in a hotel room is the Bible. According to the decision, several jurors studied Bibles, either their own or the hotel's, looking for passages that could help them in their deliberations. When deliberations resumed, Bibles and notes were brought into the jury room.

Did the Biblical texts really influence the sentence? Two specific Biblical texts were discussed, the "eye for an eye, tooth for a tooth" passage from the book of Leviticus in the Old Testament and a passage from Romans in the New Testament commanding every person to submit to the governing authorities. As viewed by the majority, "The Leviticus text is written in the first person voice of God and commands death as the punishment for murder. The Romans text instructs human beings to obey the civil government. Here the state of Colorado was seeking the death penalty."

The court found that religious texts mandating a death sentence and relieving individuals of personal responsibility for the decision could sway a reasonable juror in favor of a death sentence. The dissenting justices disagreed, finding there was no way Harlan could have been legally prejudiced by the references to the Bible verses.

Does this decision mean a juror could quote scripture from memory during deliberations but not read from a Bible brought in from home or from a hotel? Yes, it does. Jurors bring their own experiences to bear, including whatever forms their moral compasses. But they then apply that compass to the information within the confines of the judicial record. That line might be a fine one, but it is a clear one.

A couple of months before the Colorado decision, the 6th U.S. Circuit Court of Appeals revisited a Hamilton County case in which trial Judge Melba Marsh quoted scripture when sentencing defendant James Arnett to 51 years on 10 counts of child rape and one count of pandering obscenity involving a minor. Marsh explained in open court that the previous evening, as she was trying to determine the appropriate sentence, she turned to the Bible as an additional source to help her, quoting from Matthew 18:5, 6: "And whoso shall receive one such little child in my name, receiveth me. But whoso shall offend one of these little ones which believe in me, it were better off for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea."

Arnett challenged these remarks on the appeal of his sentence, arguing that the biblical references violated his due process rights. The 1st District Court of Appeals in Cincinnati, in a 2-1 decision, agreed that the judge's religious comments during sentencing were impermissible because they were the determining factor in her decision and were not a proper factor under the state felony sentencing guidelines. The Ohio Supreme Court reversed in a unanimous decision, finding that the judge's religious references were only one of many factors influencing her decision and was actually appropriately pertinent to one sentencing guideline, which requires the court to consider the age of the victim of the offense.

Having exhausted his rights in state court, Arnett went to federal court, making the same arguments, but under the much stricter requirements of habeas corpus review. A habeas corpus proceeding is used to attack a state criminal conviction after all state criminal appeals are exhausted. U.S. District Judge S. Arthur Spiegel granted the writ of habeas corpus, finding Arnett's due process rights were violated by Marsh's references to the Bible at his sentencing hearing.

But the 6th U.S. Circuit Court of Appeals reversed, in a 2-1 decision, upholding the Ohio Supreme Court's interpretation of existing law. The line, said the 6th Circuit, quoting the 4th Circuit, is that judges cannot announce "their personal sense of religiosity and simultaneously punish defendants for offending it." But Bible references are not per se improper.

Courts in both cases noted there is no U.S. Supreme Court precedent on these issues. Might it not be the season for just such a ruling?

Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.

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