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March 29, 2005

Bible-reading juries

Yesterday, I posted a smart-alecky comment about the decision of the Supreme Court of Colorado overturning a death sentence because the jury discussed Bible verses during deliberations.

Today, I read the actual opinion in People v. Harlan, which is here. The majority opinion is rather ignorant on the subject of the Bible (at least the Hebrew Bible, which is what I'm familiar with), but I have to say that I don't think the court's goal was to disparage the Bible or Bible believers. Its goal, I would say, is to use any pretext to overturn a capital sentence.

I will not waste too much time explaining the ignorance. Two of the verses discussed by the jurors were Leviticus 24:20-21, which in Robert Alter's new translation read as follows:

A fracture for a fracture, an eye for an eye, a tooth for a tooth -- as he has maimed a human being, so shall he be maimed. And he who strikes down a beast shall pay for it, but he who strikes down a human being shall be put to death.
The court's majority thinks this is law for some in the jury pool.
The Bible and other religious documents are considered codes of law by many in the contemporary communities from which Colorado jurors are drawn. The book of Leviticus is one of the first five books of the Old Testament, which are considered the books of law, and it contains "ritual laws prescribed for the priests" and is "almost entirely legislative in character." Holy Bible (Papal Edition), "Introduction to the Books of the Old Testament" at xiii.
And further: "The Leviticus text is written in the first person voice of God and commands death as the punishment for murder." So, of course, jurors might follow the personal command of God.

This is ignorant. The fact that the laws were legislative in biblical days does not mean they're treated as law today. For Jews, an eye for an eye was understood to require monetary compensation. The Talmud imposed so many restrictions and qualifications on capital punishment that it was effectively abolished. And Christian readers can correct me, but I've always understood the Hebrew Bible to have no continuing legal effect on Christians. So what's this bizarre idea of the court that these biblical verses are prejudicial to the defendant because some jurors would treat them as legally binding?

But getting back to my original point about the goal of the decision. Justice Scalia has referred to the "ad hoc nullification machine" used by the Supreme Court in abortion cases to dispense with legal rules that apply in all other cases. There is an analogous principle in death penalty cases. In an effort to stop executions from going forward, no matter how horrible the crime, some judges will use any pretext to invalidate the sentence. I think that is what is going on with the Colorado Supreme Court. It could have been anything. Here it just happened to be the Bible.

One final note: Cases out of the state courts cannot be taken to the U.S. Supreme Court absent a substantial federal question. Here, there is no federal question. The decision is based entirely on state law. This is the end of the road for this case.