Today’s New York Times tells us about two cases that were recently decided by the federal appeals court in San Francisco. In one, a 9 to 6 vote allowed a death sentence to stand, even though the jury had considered bible verses in deciding whether such a sentence was appropriate. In the other, a three-judge panel of the court said unanimously that the state may not compel participation in Alcoholics Anonymous, because of its invocation of a “higher power”.
For the first case:
After the jury convicted Mr. Fields and while it was deliberating his sentence, the foreman, Rodney White, conducted outside research, consulting several reference works and preparing a list of pros and cons on the death penalty that he shared with fellow jurors. On the pro side, he quoted passages from the Bible, including this one from Exodus: “He that smiteth a man, so that he dies, shall surely be put to death.”
Judge Pamela Ann Rymer, writing for the majority, said there was no need to decide whether there had been juror misconduct, “because even assuming there was, we are persuaded that White’s notes had no substantial and injurious effect or influence.”
In dissent, Judge Marsha S. Berzon said there was “no doubt that White engaged in unconstitutional misconduct by injecting his overnight biblical research into the deliberations.” Judge Ronald M. Gould, also dissenting, said the majority had endorsed “a theocratic jury room” in which jurors consider “the death penalty in light of Scripture.”
It shouldn’t surprise my readers that I agree with the dissenting Judge Berzon. First, given the stock that many put in citations from the bible, it’s likely that Mr White’s quoting of it had more influence than his personal views alone would have. I’m sure there were other jurors than Mr White who read those lines and said, “Well, it’s all right, then; the bible says so.” Second, by selecting quotes that support his view and ignoring others, Mr White was clearly aiming to manipulate the jury’s decision. I’m quite sure there was a substantial effect. Third, what do you suppose the judges would be thinking now if the foreman had been a Muslim juror who had quoted verses from the Qur’an? Not the same, I suspect, and that should be a sign that something’s wrong.
In the second case:
The case was brought by Ricky K. Inouye, who was released on parole in 2000 after serving time for drug crimes. His parole officer, Mark Nanamori, ordered him to attend A.A. meetings. Mr. Inouye, a Buddhist, refused. Partly as a result, he was returned to prison.
That violated the First Amendment, the panel ruled. “While we in no way denigrate the fine work of A.A./N.A., attendance in their programs may not be coerced by the state,” wrote Judge Berzon, who was also one of the dissenting judges in yesterday’s decision.
I completely agree. Alcoholics Anonymous, for their part, consistently claim that they are “not religious, but spiritual.” And just what does that mean? Let’s take a look at how they approach this “higher power” in their twelve steps, say, here (original emphasis):
3. Made a decision to turn our will and our lives over to the care of God as we understood Him....and here:
6. Were entirely ready to have God remove all these defects of character....and here (again, original emphasis):
7. Humbly asked Him to remove our shortcomings.
11. Sought through prayer and meditation to improve our conscious contact with God, as we understood Him, praying only for knowledge of His will for us and the power to carry that out.
That looks awfully like God and religion and prayer to me. Claiming otherwise is deceitful — or at best, comes from a misguided view that everyone must have some sort of “god” to whom they can “pray”. No. We don’t. And any program that insists on one for participation and for measuring success, good though it might otherwise be, can’t be mandated by our justice system.
It’s this sort of thing that makes “faith-based programs” insidious. I don’t object to good work that’s simply promoted by religious (or “spiritual”) organizations. But it’s far too easy for them to wind up pushing their fantasies at others, sometimes innocently, sometimes not. And in cases like this, we’re throwing particularly vulnerable people — addicts, prisoners looking for reduced sentences, often those with mental illnesses — into that arena.