Wednesday, March 30, 2005

Morals are for Reactionaries

Re: the case in Colorado where death-pen decision was reveresed because jurors were discovered to have consulted Bibles in coming to their decision to off the perp. My good friend Kingspawn blogged the case here.

While I agree with the bulk of King's analysis, I must argue portions of his last point, namely that:

Each juror in the case has the right to make a personal decision based on legal factors, yes, but also moral factors should they have their legally constituted place. The right of jurors to use religion as a guide for moral decisions should not be infringed upon, as it would be a textbook violation of the freedom of religion guaranteed by the First Amendment.

King's language is strictly correct in the sense that jurors should be able to consult morals IF "they have their legally constituted place." As the Times reports it, under Colorado law, moral factors DID have a legally constituted place. The law requires judges to give a jury-instruction to the effect that they must consult their personal beliefs and moral intuitions in coming to a death-pently decision. I totally agree with Kingspawn that the appelate judges were "wrong" to reverse the death penalty under the given law. The distinction they're making with regards to anti-Biblical consultation is one that doesn't exist -- between textual and cognitive reference -- given a normal human capacity for memory.

That said, I strongly disagree with King's final sentence, saying that jurors IN GENERAL should be allowed to consult their religious beliefs, as to do otherwise would be an infringement of their first amendment rights. Juries are under all sorts of restrictions which seem to obviate Amendment rights. Gag orders, orders against reading newspapers, all of these are "violations" of Amendment rights. The jury-system relies on jurors to act in a very particular way while they serve which is a very different way than that which is expected of normal citizens.

So saying "no bible-thumping, real or mental" or more radically "none of your silly slave morality" is not an infringement of anyone's rights. Rather, the idea that a juror should be asked to rely on his or her personal moral compass is insane. The legal system exists, or should exist, to obviate moral claims. Juries were invented to judge the believability of facts and arguments about facts, not to make determinations about the spiritual or moral qualities of an individual. I know this is untrue in practice, but that should be the goal. Laws can be developed based on moral traditions, though I don't really like that either, but once the law exists, the morals, like a ladder that got you there, need to be knocked away. One of the major problems with the death penalty is that it creates the life-in-prison/death dichotomy which must almost always be mediated by some judgment about a persons' soul, sorrowfulness, regret, etc. Cf. the avenging angels on the S. Peterson jury. Torture them all.

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