Law, the Bible, and Death by Jury

This schrift originated as a comment on LPS's "laurafedora" livejournal post on the recent Colorado decision overturning a death penalty sentence when it was learned that jurors consulted Bible verses during deliberations before sentencing. One thing led to another, and before I knew it, I had a thousand words going. But here's my take on the matter, such as it is.

Sometimes it's helpful to think of our legal system as a mongrelization of multiple forms of authority. Being a total Max Weber geek, I'll identify the big three as legal/rational, traditional, and personal/charismatic.

Lawyers make arguments to convince judges on the one hand and juries on the other, and appeal to very different kinds of evidence. Judges interpret both statutory law and binding precedent, i.e., a combination of traditional and legal/rational authority. The role of a judge is formal -- to make sure the trial is procedurally correct and that the rights of the accused and the letter/intent of the law are upheld.

Juries, on the other hand, are supposed to make factual judgements -- is his alibi plausible? did she kill in self-defense? did they know the drug was dangerous? could he have worn those gloves? -- which in turn lead to judgements relating to guilt or liability. The problem, of course, is that courtrooms aren't laboratories: the evidence isn't clear-cut or entirely factual, and in most cases boils down in one form or another to issues of trust, motivation, and plausibility. In other words, it's a matter of charismatic authority, a trust or lack of trust in a person rather than a formal procedure. You could also argue, and I believe, that there's something primal and almost magical about the way guilt or innocence is decided, and that jury trials have as much to do with ritual guilt and absolution and public legitimation of the law as they do with finding of fact. But I digress.

If judges interpret the law, and juries decide guilt or innocence, then on whose authority should a guilty criminal be sentenced? In many cases, sentences are determined by statute. Hence it seems to be part of the judges' mandate. But in other cases, a specific sentence hinges on a point of fact or special circumstances: hate crimes, especially egregious acts of violence, etc. Lawyers are allowed to present new evidence between the conclusion of a trial and sentencing for this purpose. Of course, the evidence presented rarely if ever has anything to do with new facts, but rather involves a personal or emotional appeal, whether for or against a harsher sentence.

I guess this is a roundabout way of saying that, especially in death penalty cases, and even more often when deciding sentencing in a death penalty case, juries rarely if ever consult the facts or the law when making their decision -- and to a certaine extent, this failure is structural. Not only are juries not directly responsible for the interpretation of the law, but in most cases there are no clear statutory guidance, or guidance of any kind, as to what facts or circumstances warrant the death penalty and what do not. Therefore, jurors are compelled to deliberate based on extralegal and often extrarational authority -- which usually includes (when it isn't entirely limited to) subjective speculation on the viciousness of the crime, possibility of rehabilitation, and whether or in what circumstances the death penalty is warranted at all. The jurors' role is to convince one another and to generate a consensus -- whatever its basis may be. I don't think anyone believed that the Bible constituted a legal authority that compelled the jurors to make up their minds one way or the other, in the same sense as a judges' instructions would (although jurors usually ignore those as well). I certainly don't think anyone would argue that the Bible introduced new factual evidence into their deliberations. So what are the grounds here? It just doesn't make sense.

There are good reasons why judges rather than juries should determine sentencing. I especially think this is true in civil cases -- I just don't think juries are qualified enough to determine or award damages. It introduces an element of instability and unpredictability into the system precisely where you need it. (I don't care what you say about "activist judges" -- any one judge is more predictable than twelve random people in a jury.) Wouldn't it make sense, then, for judges rather than juries to decide whether or not to apply the death penalty?

There are two problems here. (Well, really, three, but two of them go together.) In 2002, the Supreme Court in Ring v. Arizona struck down laws allowing judges alone to decide death penalty cases, based on the constitutional right to a trial by jury. The other problem -- and again, this is more anthropological than sociological -- is that when we decide to kill people, it's better if it's done by a collective, a group of anonymous members of the populace. It's Pilate, giving Christ to the crowd and washing his hands: it keeps the blood dispersed and the institution clean by making all of us -- any one of us -- guilty. I'd like to see someone jot down those verses of the Bible before going into the jury room.