Moral Postman

Recently the Colorado Supreme Court overturned the death sentence of a convicted murderer because jurors had consulted a Bible during their deliberations and had argued chapter and verse in choosing life or death for the defendant. After grazing through Romans and Leviticus, they settled upon the passage about "an eye for an eye, a tooth for a tooth," and voted unanimously for execution. Citing concern that the jurors appear to have turned to "higher" authority rather than the law of the state, the Colorado Supreme Court's decision was a wise one, recognizing the threat posed by the insertion of biblical passages in the interpretation of laws passed by men in a representative democracy. But the problem is likely to continue to be a thorny one. Colorado, as it turns out, has an unusually directive yet amorphous set of jury instructions, one of which explicitly exhorts jurors to consult a "moral compass" in capital felony cases. It's an interesting reference in these times, when we slap the word "morality" on everything from individual opinion to ethical guidelines to constitutional principles to religious imperative.

The very purpose of the jury system in common law is to bring community norms to the process of adjudication, whether the wisdom of "peers" (literally the peerage in earlier English history) or the "common sense" of the ordinary citizen or the "reasonable doubt" of the reasonable person. This implies some process by which jurors determine an accused's fate by, first, evaluating what did or didn't happen through the filter of their own ability to connect the dots, their sense of witness credibility and their empathy; and, second, measuring these factual conclusions against a given set of rules we as citizens agree to honor as the law. Colorado's appeal to jurors' morals is, I should think, an underscoring of the normativity inherent in the open-minded, communally reasoned deliberation that is essential to part one of their role. When it comes to the second part, however, the law, as instructed by the court, must be the compass, the yardstick, the rule. It is not what your mother taught you or what your boss instructed or even what you think God commanded.

Our court system was designed to moderate human behavior in the face of moral ambiguity and in the absence of specific bullhorned answers from God. Laws against murder, of course, reflect religious commandments not to kill. But what happens when someone runs a red light and kills a math prodigy? When someone kills an intruder attempting to harm a child? When a convicted strangler asks the state, with a tortured little smile of anticipatory pleasure, to execute him by strangulation, pretty please? We could have the city council throw knucklebones, or have our tribal elders engage in haruspication; but as a society we've come up with our own time-tested system of civic rituals, of procedures and presumptions--the legal process that is due to each of us. Our laws are passed by the men and women we charge to instantiate our morality as best they can, Tom DeLay notwithstanding. Jury instructions are like traffic cones for those laws, signaling the way toward consistency and consensus, balancing the power of the state against those whose liberty is subject to it.

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