In March of 2005 the Colorado Supreme Court voided the death sentence for a murderer on the basis of the fact that a juror during the penalty phase — when the decision of what sentence to impose was being debated — had copied down a verse from the book of Exodus and quoted it during deliberation.
The law is clear that jurors are not allowed to consult outside sources or use information that was not presented at trial during a jury deliberation, so the fact that a juror consulted the Bible and wrote down a verse suggests that perhaps the Court was technically correct in upholding a narrow legal prohibition. Of course that this was a deliberation over punishment — a moral question — rather than over a determination of fact and law might suggest that such prohibitions are overly narrow if they limit moral debate.
And of course under their ruling it is not entirely clear that the prohibition would have held had the juror merely cited the verse in question from memory rather than consulting the source; the law cannot prohibit the application of cultural and educational background we bring to jury service, and many Christians (and not a few heathens) could have provided that citation as a matter of course. Further, in Western culture, the Bible is so ubiquitous and so identified with moral perception it is inconceivable that its moral lessons would not be debated and applied in such a deliberation, regardless of whether or not a specific verse was quoted or even referenced. Recently the Supreme Court of the United States prohibited a particular application of the death penalty (to those who were minors when they committed their crimes) based not on specific Constitutional principle but on a common understanding of the current moral atmosphere — including citations of legislative preferences from selected foreign countries and from selected individual states. Is consideration of Biblical principle, or principle from hundreds of secular philosophical sources which underlie so much of Western thought, any less relevant or permissible to the application of law, and particularly of punishment? I would hope not.
I wrote this letter to bring that common-sense assertion to the discussion, which had been otherwise dominated strictly by questions of religious bias. It was submitted to The New York Times but was not published.
29 March 2005
Would the Colorado Supreme Court (“Colorado Court Bars Execution Because Jurors Consulted Bible”, 29 March) have been as offended had the jurors discussed ethical guidance from Aristotle or Plato rather than from Exodus? From Locke or Hume? How about from Kant? Or from Hayek? Or from John Rawls? Or from the New Testament rather than the Old?
The fact is that the judgment of whether a particular crime is so severe as to demand a punishment of death — or the judgment of what penalty is proper for any crime — is more moral than legal. It is a certainty that ethical precepts from those and hundreds of other sources were swirling around that jury room, even if the jurors themselves could not have named those sources or identified what it was that was guiding their choices. Is it really better that such ethical deliberation be done unconsciously rather than consciously? Is it really better that it be done without reference, from memory and emotion alone? Is that really what the law requires? Is that really what the law should require?
And, if not, what are proper sources of moral and ethical thought? The religious right, with its theocratic tendencies and intolerance, has certainly poisoned our view of religion in political life. But that doesn’t invalidate religion as a legitimate source of moral guidance. And the separation of church and state should not imply that only secular moral sources are acceptable ethical guides in political or legal debate.
© Copyright 2005, Augustus P. Lowell