Religious Neutrality & the Death Penalty

Arnold Loewy

In assessing the interrelationship between religion and the death penalty, I start with the Establishment of Religion Clause the cases construing it. Although the Court occasionally refers to “separation” or “accommodation” as guiding principles of Establishment Clause construction, the dominant theme of the Court’s Establishment Clause jurisprudence has been neutrality. By neutrality, the Court means evenhandedness, neither favoring nor disfavoring religion. This concept is embodied in such phrases as “neither advance nor inhibits,” or more recently, does not “endorse or disapprove.”

Neutrality does not, however, mean irrelevancy. A religious perspective can prevail so long as it is not favored over a nonreligious perspective. Thus, religious institutions may be given a tax exemption so long as comparably situated nonreligious entities (e.g., fraternal or benevolent organizations) are similarly treated.’0 Also, Sunday closing laws can be justified if supported by nonreligious reasons

One reason for requiring neutrality (especially in regard to capital punishment) is the inability to contradict religion by ordinary logic. For example, if one believes that God supports an eye for an eye, she will not be persuaded by the power of a contrary philosophical approach. Deific decrees are simply not amenable to philosophical refutation. Consequently, a prosecutorial or defense reference to the Bible should be accompanied by a judicial admonition that the Bible is not the law. My focus will be on jury selection, religion as an aggravating circumstance, religion as a mitigating circumstance, and gubernatorial pardons.

JURY SELECTION

Typically, jury selection questions arise when a juror belongs to a religious group that the prosecutor believes opposes capital punishment. In the easy case, where the juror concedes that her religious beliefs render it impossible for her to impose the death penalty, the juror may be excused for cause. This is a religiously neutral rule because the excusal for cause follows regardless of the source of the opposition. Whether it be religious or secular, one whose scruples preclude the imposition of the death penalty may be excused for cause.

The harder question involves a juror who belongs to a religion that hesitates to judge others, but who states no categorical opposition to the death penalty. Such a juror may not be dismissed for cause. But may she be peremptorily challenged? Peremptory challenges on the basis of race or gender are, of course, forbidden. Is religion different, or should it be?

The cases are split, and thus far the Supreme Court has refused to consider the question. It typically arises in cases in which a religious reason is proffered to overcome what would otherwise appear to be an unconstitutional racial challenge. In State v. Davis, the prosecution sought to explain its peremptory challenge of a black juror on the ground that he was a Jehovah’s Witness. The prosecutor contended that Jehovah’s Witnesses do not like to sit in judgment of their fellow man. Although agreeing that a peremptory challenge based on religion without more would be invalid, the court upheld this peremptory challenge because it found the explanation of Jehovah’s Witnesses’ beliefs sufficiently related to the case to justify the challenge. State v. Thorson, on the other hand, reversed a death sentence because one of the jurors was peremptorily challenged on the basis of her membership in the Holiness Church, a church whose members, according to the prosecutor, could not sit in judgment of others. Relying on a state constitutional provision precluding religious preference, the Mississippi Supreme Court found exclusive reliance on the juror’s religion to be reversible error.

Which view is better? Frankly, the question is close. Under the Davis view, members of some religious groups could be subject to systematic peremptory challenges. The prospect of some religious sects never being represented on a criminal jury is not pretty. Furthermore, as the Thorson court emphasized, a juror from one of the nonjudgmental sects could be excluded if she were asked if she personally could sit in judgment of her fellow man, notwithstanding the religious admonition to the contrary, and could be excused if her answer were “no.” In view of this more precise alternative to the rather blunt instrument of excluding all Jehovah’s Witnesses or Holiness Church members, there is much force to Thorson’s requirement of individual incapacity vis-à-vis presumed group incapacity.

Notwithstanding the power of these arguments, I believe that Davis got it right. Religion is inherently tied to belief in a way that race and sex are not. Furthermore, according to Georgia v. McCollum, peremptory challenges forbidden to the prosecution are also forbidden to the defense. Thus, if Thorson were to prevail, what would become of a black defendant faced with a potential juror from the Aryan Church who claims that, notwithstanding his church’s teachings, he could give a black man a fair trial? Would we want to saddle a defendant with such a juror with not even a peremptory challenge to save him? I hope not, but by combining Thorson and McCollum it would be difficult, if not impossible, to prevent. Thus, I support allowing religious peremptory challenges.

This position accords with my theme of neutrality. Certainly one could base peremptory challenges on club membership. I assume that one could be peremptorily challenged from a capital case because he belongs to “Citizens Against the Death Penalty.” Peremptorily challenging one who belongs to a religion believing the same thing is not all that different.

RELIGION AS AN AGGRAVATING CIRCUMSTANCE

One cannot read cases pertaining to religion as an aggravating circumstance without getting the impression that prosecutors are equal opportunity religion attackers. The cases in this section involve prosecutorial comment on Satanism, Christianity, Islam, and Judaism. Although not all of the cases were capital cases, the principle of each is applicable to capital cases. In three of these cases, the religious reference was cause for conviction or sentence reversal. In the fourth case, the religious reference was condemned, but the conviction upheld because of curative instructions from the trial court.

In the Satanism case, Flanagan v. State, Dale Flanagan and his friend, Randolph Moore, murdered Flanagan’s grandparents in order to collect insurance proceeds and an inheritance. In an effort to obtain the death penalty, the prosecutor offered evidence of the defendants’ membership in a satanic cult. The Nevada Supreme Court reversed the death sentences on the ground that the free exercise of Satanism could not be penalized in the absence of proof that the religious practice, as opposed to greed, motivated the killings.

The court’s reasoning comported with the neutrality thesis espoused herein. Relying on the Supreme Court case of Dawson v. Delaware, the Nevada Supreme Court held that the constitutionally-protected activity could be punished only if it directly contributed to the crime. Dawson involved a member of an Aryan supremacy group who escaped from prison? After escaping, he stole a car and killed its owner, who happened to be a Caucasian woman. Because his Aryan beliefs were unrelated to the killing, the Court held that the First Amendment was violated by reference to Dawson’s beliefs. The Court in Dawson sharply distinguished Barclay v. Florida,” where the beliefs of a black supremacist were held relevant because he chose his victim on the basis of race.

Justice Steffan dissented in Flanagan on two grounds. First, he argued that because Satanism was a generic commitment to evil, the killings, being evil, were the product of his beliefs.” He distinguished Dawson on the ground that racism was a specific evil vis-à-vis Satanism, which was more general. Although not without force, I believe that tarring a group as generically evil, thereby rendering membership in it always relevant as an aggravating factor, guts the First Amendment precision that Dawson endeavored to draw.

Justice Steffan’s second argument was that because of Satanism’s devotion to unmitigated evil, it should not be recognized as a religion for purposes of the religion clauses.” I believe that this reasoning fails for two reasons. First, it is surely anathematic to the First Amendment for courts to accord religious status to only those religions that comport with a judge’s sense of propriety. Second, even if Satanism were not a religion, under neutrality principles, it would be entitled to protection as a philosophical belief. Thus, I conclude that Flanagan was rightly decided.

Even Christians are sometimes met by prosecutorial wrath. In State v. Wangberg, the prosecution sought to negate the defendant’s insanity claim by focusing on his minister father’s Christianity. The prosecutor argued: “Now, there is another law, a higher law than that of our state law, and that is a law that Pastor Wangberg has taught his son, I am sure only too well; ‘Thou shalt not kill.’ The fifth commandment.” In reversing Wangberg’s conviction, the court disapproved of this and other biblical references.

Had the court admonished the jury that the law of Minnesota, and not the prosecutor’s opinion of the law of God, governed this case, a fairly powerful argument could have been made for affirmance. However, the opinion does not indicate that any such curative instruction was given. Consequently, the court’s reversal of the conviction was appropriate. And, although not a capital case, the Wangberg logic surely would apply to an attempt to invoke religion in support of the death penalty.

In Commonwealth v. Mahdi, it was Islam’s turn to feel the prosecutor’s heat in a robbery/murder case. The prosecutor argued as follows:

You know what explains this, don’t you, this whole killing and everything else? They talk about the Islamic religion. This is what it is. Who is the colored man? The Caucasian Jacob’s made devil, skunk of the [planet] earth... . That’s what they thought of the Ladners,. . . and they eliminated these two men, and felt that they’d really succeeded in pulling off the robbery of the year..

Holding that “[a]ppeals to racial, religious, or ethnic prejudices are especially incompatible with the concept of a fair trial because of the likelihood that such references will ‘sweep jurors beyond a fair and calm consideration of the evidence,’” the court rightly reversed Mahdi’s conviction.

Finally, in United States v. Goldman, the prosecutor called attention to the defendant’s yarmulke, formally suggesting that the jury not be prejudiced Against the defendant for wearing it, but suggesting that the “religious symbol that this man wears has been defamed, defiled, and scandalized.” Whether the prosecutor Was seeking to inflame anti- or pro-Jewish sentiment (or both), the court rightly found the remarks highly prejudicial. However, because the trial judge explicitly instructed the jury that neither religion nor attire was relevant to its deliberations, the court affirmed the conviction.

ELIGION AS A MITIGATING CIRCUMSTANCE

Unlike its use as an aggravator, religion as a mitigator is almost universally accepted. The federal capital punishment statute has been construed to allow for religious experiences to be considered when offered by the defendant in mitigation. Indeed, research has disclosed no case in which a defendant was not permitted to use his religious beliefs as a mitigating circumstance. The issue arises, most commonly, when a defendant’s religious beliefs are found to be insufficient mitigation by the jury. Typically in such a case, the defendant appeals the death sentence and the appellate court determines that the jury was justified in imposing the death penalty notwithstanding the defendant’s religious character.

These decisions follow the principle of religious neutrality. If there is one fixed star in capital punishment jurisprudence, it is that aggravation is limited and mitigation is unlimited.~ Thus, by consistently allowing evidence of religion as a mitigator, but limiting its use as an aggravator, religion is treated precisely as other character evidence.

BORN AGAIN PARDONS AND COMMUTATIONS

I close with a section devoid of case law. The problem I examine is the extent to which a governor could adopt a policy of pardoning only those defendants Who profess Christianity. Two things seem clear to me: (I) such a policy would be unconstitutional, and (2) it would not be amenable to judicial review. In regard to enforceability, would we order a state to execute a Christian whose sentence had been commuted? I do not think so. Would we say that the governor could not commute another Christian’s sentence until he had commuted two non-Christians? Again, I do not think so.

Yet, the problem could be real. Undoubtedly, some death row inmates have adopted religion while on death row, and have become far better human beings for it.” On the other hand, there are those who have become better people without religion.” Rendering the former eligible and the latter ineligible to live is obviously intolerable. If anyone has a solution to this problem, please let me hear it.

Arnold Loewy is the Graham Kenan Professor of Law at the University of North Carolina School of Law.

Originally published in William and Mary Bill of Rights Journal 9:1 (December 2000): 191-200. Reprinted with permission of the publisher.