John H. Blume and Sheri Lynn Johnson, Limiting Religious Arguments in Capital Cases

Limiting Religious Arguments in Capital Cases

John H. Blume and Sheri Lynn Johnson

Both opponents and proponents of capital punishment employ religious imagery and authority in support of their respective positions; in this respect, capital punishment is no different from other hotly disputed social issues of the present and past, such as abortion, gay rights, euthanasia, divorce, welfare, segregation, or war. What is somewhat unusual is the regularity with which religious argument is publicly invoked in the course of decision-making concerning the application of the death penalty to particular cases. Thus, for example, it would be unusual to have a public discussion that cited religious principles in determining whether Jane Roe’s abortion, in particular, was constitutionally protected, or, to go back to a now-dead controversy, whether Ruby Bridges, in particular, should have been allowed to attend an otherwise all-white school.
In contrast, religious arguments in the course of particular capital sentencing proceedings are very common. This may be in part because capital punishment jurisprudence, unlike the jurisprudence of reproductive rights or segregation, has itself mandated individualized decision-making. Public discussion of whether religious principles or authority compel (or preclude) the imposition of the death penalty for all police killings (or, more broadly, all killings) has been largely mooted by the Supreme Court’s determination that mandatory death penalty statutes violate the Eighth Amendment. Perhaps what might otherwise be broader arguments about the categories of cases in which capital punishment is morally and religiously legitimate are imported into individual cases by this jurisprudence. Or perhaps, religious emotions and authority are simply so compelling to jurors who make life and death decisions that advocates, absent regulation, will naturally resort to them.
WHAT LAWYERS SAY GOD SAYS
As the reader may guess, what prosecutors and defense lawyers think God has said about capital punishment is so different that it is hard to see how they can be talking about the same God. It is, however, clear that they all think they are talking about the same God, a Judeo-Christian deity. None of the reported cases involves reliance on religious authority from outside of the dominant tradition. Because there are so many more cases involving prosecutors, and because we will ultimately conclude that prosecutorial invocations of religious authority present more of a threat to First and Fourteenth Amendment values, we begin with them. A. Religious Appeals for Death Sentences At least to those unacquainted with capital trial practice, both the frequency and variety of religious quotations or allusions by prosecutors are surprising. In the last fifteen years, nearly one hundred reported capital cases involved challenges to a prosecutor’s religiously oriented remarks, and the numbers are not decreasing. Moreover, in most jurisdictions, given the virtually uniform lack of success of these challenges, there must be many more cases in which prosecutors make such remarks without challenge because the defense attorneys know that a challenge is futile.
(1) An Eye For an Eye and Other Retributive Commands. Most popular are quotations from Mosaic law that, at least upon facial interpretation, appear to require the imposition of the death penalty. In eight reported instances, the prosecutor chose the classic retributive mantra “an eye for an eye.” In another nine cases, the prosecutor quoted from Exodus 21:12, “He that smiteth a man, so that he die, shall be surely put to death,” and in eight more cases, quoted Genesis 9:6 for the rule that “[who] so sheddeth the man’s blood, by man shall his blood be shed.” Similarly, six cases report a quotation from Numbers 35:16: “the murderer shall [surely] be put to death.” ... Although many prosecutorial arguments from Mosaic law were limited to a single quotation, in others the prosecutor recited numerous quotations or recounted at length the history of capital punishment in the Old Testament. In one case, according to the court, the prosecutor interspersed copious biblical quotations with the reading of a statute in such a way that a listener could not tell which was which.
(2) Claiming Divine Authority. In a lesser number of cases, the prosecutor’s religious comments address the question of who has the authority to impose a death sentence. The coerciveness of these claims varies greatly between cases. Occasionally, the claim is limited to an assertion that sentencing the defendant to death is not a usurpation of God’s authority, and in such cases the prosecutor tends to proclaim: “Render unto Caesar what is Caesar’s.” Somewhat more aggressive are the cases in which the prosecutor claims that either he or the jury are acting under the authority of the Almighty. When claiming God’s authority for themselves, prosecutors have, for example, stated that after the flood, God gave the “sword of justice” to Noah, who represents the government, thereby giving the government the power to decide who dies, or that he, the prosecutor, “is the servant of God to execute his wrath on the wrongdoer.” …
(3) Comparisons to Biblical Characters. Both of the first two types of argument are quite generic; either the prosecutor is claiming that God desires the death penalty or that He desires compliance with the state. In the next three categories, the prosecutor attempts to focus on the particular facts of the case and derive some guidance from the Bible about those facts. One way to do so is to compare the defendant to some despicable biblical character. Thus, in three cases, the prosecutor analogized the defendant to Judas Iscariot. Three prosecutors made a more extreme comparison, likening the defendant to the devil himself. …
(4) Millstones for Child Murderers. In five child murder cases, the prosecutor cited a verse that appears in Luke 17:2, Mark 9:42, and Matthew 18:6: “Whosoever shall offend one of these little ones that believe in me, it is better for him that a millstone were hanged about his neck, and he were cast into the sea.” Although one could certainly interpret these New Testament passages as simply warning of the terrible moral gravity of doing harm to children, this is not the interpretation the prosecutors take. Instead, they use the admonition much as the Old Testament retributive verses are used: as a command.
(5) Specific Religious Experiences of the Defendant or Victims. This category of comments sometimes refers to evidence about the parties and sometimes contains rank speculation. With respect to the defendant, several prosecutors have deprecated the sincerity of the defendant’s purported religious beliefs, and at least two have, like Torquemada, hypothesized that execution might provide the only opportunity for the defendant’s salvation. We found no factual comments about the victim’s religious beliefs but found several statements that the defendant had deprived the victim of his opportunity to “get right with the Lord” or to become all that God had planned for him. ...
B. Religious Appeals Against Death Sentences Because the Double Jeopardy Clause of the Fifth Amendment bars retrial after an acquittal, most religious remarks by defense attorneys are unassailable on appeal. The reported cases are comprised of the two instances in which a defense attorney was precluded from making a religious argument: the slightly more numerous cases in which the remarks of defense attorneys make their way into a reported case because they are used as a justification for the prosecutor’s religious arguments, and cases in which either the execution or the omission of religious arguments were the subject of an ineffective assistance of counsel claim. From these sources, plus anecdotal accounts, we have tried to discern the range of religious arguments made by defense counsel.
(1) Biblical Instances of Mercy. Most common, we think, are invocations of the story of the “woman caught in the act of adultery,” brought before Jesus. As the scribes and Pharisees reminded Jesus, Mosaic law commanded that she be stoned, and they asked him “What do you say about her?” [And Jesus replied,] “He that is without sin among you, let him cast the first stone.” … We have also found two reported instances of retelling the story of Cain and Abel, with emphasis on the fact that after murdering his brother, Cain was punished not by death, but by “banishing him from the soil,” and “putting a mark on him.” Similarly, two attorneys cited Jesus’ forgiveness of those who killed him, one of whom colorfully stated: “[H]e didn’t say, ‘Send these people to the electric chair, consign them to hell.’ He lifted his eyes up and he said, ‘Father forgive them, for they know not what they do.’” ...
(2) Biblical Prohibitions Against Execution. In three instances defense counsel quoted the Fifth Commandment: “Thou shalt not kill.” Another two argued that the Sermon on the Mount replaced “an eye for eye.” More indirectly, defense counsel in another case quoted: “Love your neighbor as yourself.” Defense counsel made the related argument that life and death decisions belong to God in an additional two cases. In one, he paraphrased: “Vengeance is mine, thus sayeth the Lord.” In a second, he referred to the Sermon on the Mount, quoting: “Judge not that ye be not judged.” Rather more coercively, yet another attorney argued, during the guilt phase of a capital prosecution, that the death penalty is un-Christian, and that if the jurors impose it, they will suffer after death. Two defense attorneys recognized that the application of biblical passages is less than certain and cited additional authority supporting an anti-death penalty interpretation. In one case, defense counsel argued that “[t]he death penalty today is condemned by most religious beliefs,” and went on to note that Popes John Paul II and Paul IV, as well as other religious authorities, including the National Council of Churches, oppose it. In the other, an attorney argued that the jury should not apply “an eye for an eye,” literally because this approach leaves “the whole world…blind,” citing Ghandi.
... Thus, the evidence of the reported cases, taking into account how few of the arguments made by defense counsel land in published opinions, combined with our own conversations with other defense lawyers, lead us to conclude that defense counsel frequently make religious arguments against the death penalty, at least in the South, where we practice. We are less sure, however, that we have adequately surveyed the range of defense counsels’ arguments than we are with respect to those made by prosecutors.
WHAT COURTS SHOULD SAY
Given the hodge-podge of outcomes and rationales that courts have employed when confronted with prosecutors’ religious arguments, and the dearth of cases ruling on defense counsels’ religious arguments, it is impossible to describe any test as commanding even majority support. We think that part of the reason for the scattered case law regarding prosecutorial argument is that no court has systematically considered all of the constitutional and statutory limits on such arguments. … We also think that [this results from] the failure to consider systematically whether the various constraints that apply to prosecutors also apply to defense attorneys, and how these constraints interact with rights unique to the defendant. We hope to remedy these failures in the following section.
A. Constitutional and Statutory Limitations on Prosecutors’ Religious Arguments
Although the Fourth Circuit’s characterization of “religiously-based arguments” as “universally condemned” certainly overstates the relevant positive law, we think it is close to the mark, normatively speaking. Most religious arguments made by prosecutors are improper and should be precluded because they infringe upon one or more constitutional rights. The Establishment Clause of the First Amendment, the Cruel and Unusual Punishment Clause of the Eighth Amendment, the Due Process Clause of the Fourteenth Amendment, and the Free Speech Clause of the First Amendment each forbid at least some of the arguments discussed above. It is not our intention to discuss exhaustively the reach of each of these clauses, but only to sketch them in sufficient detail to convince the reader that together they prohibit all religious arguments, except those that directly address testimony concerning the defendant’s or victim’s religious beliefs or activities, assuming, of course, that such testimony was properly received as relevant to aggravation or mitigation.
(1) Establishment Clause Limitations. Because the Establishment Clause sweeps so broadly, we begin with it. A prosecutor is a “quintessential state actor,” so there can be no doubt that the actions of the prosecutor are subject to the Establishment Clause. The proper standard for judging Establishment Clause violations is less than clear… Nevertheless, a majority of the Court remains committed to the central tenet of Lemon [v. Kurzman]: government may not take action either for the purpose, or with the primary effect, of endorsing religion… A state may not place its power or prestige behind religion, whether it be a particular form of religion, or religion in general. When it attempts to do so, it effectively endorses religion. When a prosecutor refers to religion in closing argument, he obviously places the power and prestige of his office behind his remarks. Indeed, prosecutors frequently refer to their submissions as those of the state; the prosecutor does not claim in his or her request to be seeking death as “William Smith” or “Susan Jones,” but as “we, the people of the state of South Carolina.” The only question, therefore, is which kinds of references to religion, in fact, lend religion power or prestige. As the Ninth Circuit has suggested—but not decided—the answer would seem to be that virtually all of them do. Looking at our initial categories, it is obvious that quoting “an for an eye” or any other retributive command lends power and prestige to religion because it urges the jury to rely upon religion in determining sentence; quoting “millstones for those who harm children” functions in the same way. … The mere use of the word “God” is unlikely to constitute an endorsement of religion; thus to call a victim “this little child of God” or to say “my God!” is probably insufficiently specific to have a substantial effect of advancing or endorsing religion. On the other hand, virtually all identifiable quotations from the Bible do have an endorsing effect, for they suggest the authority of that book compared to others. Thus, even if “[t]he wicked will flee when no man pursueth” does not suggest a rule or analogy by which to decide an entire case, it suggests that the Bible is the source to turn to in resolving difficult questions. It is not accidental that some other equally “poetic” source such as Eldridge Cleaver is not quoted, for it is the identification with and endorsement of the religious authority that is both desired and anticipated.
(2) Cruel and Unusual Punishment Clause Limitations. “Death is a different kind of punishment from any other which may be imposed in this country, …both [in] its severity and its finality.” As a consequence, the Eighth Amendment’s Cruel and Unusual Punishment Clause requires a “greater degree of scrutiny of the capital sentencing determination,” which has a number of ramifications, two of which are relevant here.
(a) The “Truly Awesome Responsibility of Capital Jurors.” In Caldwell v. Mississippi the Supreme Court held that it is “constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Prosecutorial references to religion during closing argument diminish the jury’s sense of responsibility when they suggest that the decision is dictated by the Bible or God. A number of courts, including the Ninth Circuit, have found a prosecutor’s references to religion in closing argument to violate the CaIdwell rule, though they disagree on what sort of remarks Caldwell covers.
Certainly, remarks that state or imply that capital punishment has been sanctioned by the Bible or by God (including all of the retributive quotes and the “millstones for those who harm children” verses) would fall within this rule, as would assertions that God has ordained the prosecutor (who, of course, is seeking a death sentence). On the other hand, in most cases, neither comparisons to biblical characters nor comments about the defendant’s or victim’s religious experiences would diminish the jurors’ sense of responsibility.
(b) Consideration of the Character and Record of the Individual Offender. The other “death is different” requirement that has implications for prosecutors religious arguments is the “rejection of the common-law practice of inexorably imposing a death sentence upon every person convicted of a specified offense.” In Woodson v. North Carolina, the Supreme Court struck down North Carolina’s broad mandatory scheme for its failure to allow for “particularized consideration of the character and record of each convicted defendant before the imposition upon him of a sentence of death.” Moreover, the Court deemed even Louisiana’s narrow mandatory statute impermissible because evolving standards of decency reject “the belief that every offense in a like legal category calls for an identical punishment without regard to the past life and habits of a particular offender.” Thus, all state capital sentencing laws require individualized consideration of the offender and his offense because the Eighth Amendment forbids any other kind of capital sentencing scheme. But, as the Ninth Circuit succinctly noted, “The biblical concepts of vengeance…do not recognize such a refined approach.”
Were jurors to rely upon any of the retributive verses from Mosaic law, all of which are nondiscretionary in nature, they would be violating their duty under (constitutionally-mandated) state law. As the Georgia Supreme Court currently observed, for a prosecutor to quote Mosaic law is to suggest that “another, higher law should be applied in capital cases, displacing the law in the court’s instructions.” Summaries of Old Testament law are similarly infirm, as is the use made of the “millstones for those who harm children” quote. Other forms of religious argument or imagery, however, do not violate the Woodson individualized sentencing principle.
(3) Due Process Clause Limitations. An additional danger posed by many religious and biblical references during closing argument are their prejudicial and inflammatory effect on the jury. The Due Process Clause of the Fourteenth Amendment compels reversal of a conviction when the prosecutor’s comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” This is a high standard, and unlike those previously considered, takes into account whether the objectionable comment was invited by defense counsel, at least to the extent that the defense counsel’s comments limited the damage done by the prosecutor’s remarks. Interestingly enough, although there is overlap between this category and the Establishment Clause violation category, most cases that meet this standard do not violate Eighth Amendment restrictions. Thus, for example, the Eleventh Circuit found that a comparison of the defendant to Judas Iscariot violated due process because of its inflammatory nature, though such a comparison would not seem either to diminish juror responsibility or preclude individualized decision-making.
It should be noted that some religious arguments that do not violate due process nonetheless violate complementary statutory or supervisory rules concerning the conduct of trials, or ethical duties placed upon prosecutors. Moreover, in some respects, biblical arguments risk another harm related to unfairness caused by passion; they may cause the jury to digress from its individualized judgment mission into questions concerning the proper interpretation of biblical texts. As even the permissive North Carolina Supreme Court noted, closing arguments based on religion “inevitably pose a danger of distracting the jury from its sole and exclusive duty of applying secular law.” ...
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The careful reader will have noticed that we have not yet defined religious argument…[O]ur tentative definition: religious argument is any recognizable quotation from, paraphrase of, or allusion to the Bible or biblical characters, including God, or to any other religious text, characters, or deity, except in those instances where (1) the allusion is limited to the discussion of evidence presented at trial concerning the specific religious beliefs or activities of the defendant(s) or victim(s), and (2) such beliefs or activities are relevant to mitigation or aggravation. B. Crafting More Modest Limits for Defense Attorneys
(1) Most Defense Religious Arguments Do Not Supplant State Law. When prosecutors argue “[h]e that smiteth a man…shall…be put to death,” they contradict state law that requires individualized sentencing, thereby violating the Eighth Amendment that requires individualized sentencing. As discussed above, defense counsel’s statements cannot analogously violate the Eighth Amendment, but for non-constitutional reasons, a state court might want to preclude counsel on either side from misstating the law. It is therefore worth noting that defense religious arguments, unlike those most commonly made by prosecutors, rarely offer an alternative rule of decision. ... To take the most widely used example, the import of the story of the woman caught in adultery is not either to forbid or prescribe a rule for capital punishment, but to ask the sentencer to look at his or her own failings before making an ultimate judgment.
This is not to say that defense arguments never offer a substitute rule of decision. If defense counsel says “The Bible says ‘Thou shalt not kill,’ and there’s no exception for killings by the State of Arizona,” counsel has argued for supplanting state law with religious law. ... Notice, however, that chopping off the second half of [that sentence] makes [it] more ambiguous; if the lawyer only says “The Bible says ‘Thou shalt not kill,’” it is less clear whether this is an argument to supplant state law or a moral argument for extreme caution in imposing the death penalty. Given the ambiguity, courts should consider the affirmative reasons for permitting such an argument, discussed below, before deciding to preclude it.
(2) Most Defense Religious Arguments Are Not Inflammatory. Just as defense argument supplanting state law may be a legitimate judicial concern even though it has no constitutional dimension, inflammatory defense arguments are a source of legitimate concern even when they come from defense counsel and therefore do not violate the Due Process Clause. The overwhelming majority of defense religious arguments, however, have no inflammatory potential. The only exception we have found in the reported cases is the defense attorney who argued that the death penalty is un-Christian and that if the jurors impose it, they will suffer after death. This is more than inflammatory; it is threatening, and should not be permitted. (3) Affirmative Reasons to Allow Defense Religious Arguments Should Be Considered. A final justification for imposing only modest limitations on defense counsel’s use of religious arguments lies in the affirmative benefits of such arguments. Briefly, we think there are three reasons for viewing defense resort to religious arguments with a generous eye, all three of which relate to the ways in which “death is a different kind of punishment from any other,” and consequently, requires a “greater degree of scrutiny of the capital sentencing determination.” … [First,] while many, if not most, prosecutorial references to religion during closing argument tend to diminish the jury’s sense of responsibility (because they suggest that the decision is dictated by the Bible or God), most defense arguments emphasize and encourage individual responsibility for the life or death decision. In part, this is the flip side of not advocating a retributive rule for decision-making, but instead encouraging personal reflection. … [Second,] even more significantly, allowing a fairly free rein for defense penalty phase summations comports with the “rejection of the common-law practice of inexorably imposing a death sentence upon every person convicted of a specified offense,” and the required “particularized consideration of... the character and record of each convicted defendant before the imposition upon him of a sentence of death.” This need for truly individualized decision-making has led to very broad admissibility rules for the mitigation evidence in capital sentencing proceedings. … Allowing defense counsel to employ religious references may enhance his or her ability to show jurors the significance of the “compassionate or mitigating factors stemming from the diverse frailties of humankind.”
A final reason to allow defense counsel wide latitude in the use of religious arguments is the cultural prevalence of “an eye for an eye” religious orientations. … Particularly when some of the jurors come into the jury with a mandatory death penalty predisposition that was created by prior exposure to retributive religious doctrines, the best way to combat that (unconstitutional) predisposition is likely to be through reference to countervailing religious principles and stories. At the very least, in order to create any receptivity to mitigating evidence, defense lawyers may need to first defuse beliefs that God commands every murderer be put to death. (4) Balancing Legitimate Judicial Concerns with the Defendant’s Interest in Effective Advocacy. Because the constitutional constraints that curtail prosecutors’ religious arguments in capital cases do not speak to defense religious summation, because garden-variety defense arguments differ in kind from common prosecutorial religious arguments, and because there are significant constitutional values furthered by allowing defense counsel substantial leeway in their employment of religious imagery and allusions, the rules forbidding religious argument should not be applied to defense attorneys. Instead, defense attorneys’ arguments should be precluded only when they clearly infringe upon another judicial value.
Courts therefore may legitimately restrain religious arguments by defense counsel when those arguments: (I) directly advocate replacing state law with religious law or bowing to religious authority; (2) threaten the jury with divine wrath or are in some other way inflammatory; (3) denigrate the significance of killing the victim based upon the victim’s religious beliefs; or (4) opt for generic recitation of religious platitudes when such recitations reveal a lack of diligent investigation and advocacy of mitigation evidence in violation of the duty to provide effective assistance of counsel. Otherwise, religious argument by defense counsel should not be restrained.
John H. Blume is a visiting professor of law at Cornell Law School and the Director of the Cornell Death Penalty Project. Sheri Lynn Johnson is a professor of law at Cornell Law School and co-director of the Cornell Death Penalty Project.
Excerpted from John H. Blume and Sheri Lynn Johnson, “Don’t Take His Eye, Don’t Take His Tooth, and Don’t Cast the First Stone: Limiting Religious Arguments in Capital Cases, in William and Mary Bill of Rights Journal 9:1 (December 2000). Reprinted with permission.