Religious Comments at Sentencing

Entering a sentence is more than a mere recitation of months and years and dollars. A judge has wide latitude to consider all sorts of information at sentencing, and then to make comments about that information when pronouncing judgment. As the Fourth Circuit put it in a leading case, “[t]o a considerable extent a sentencing judge is the embodiment of public condemnation and social outrage.” United States v. Bakker, 925 F.2d 728, 740 (4th Cir. 1991). It is entirely appropriate for a judge to speak to defendants—even to lecture them—“as a lesson to that defendant and as a deterrent to others.” Id.

But some topics are off limits. A recent North Carolina case explored the propriety of a religious comment at sentencing. In State v. Earls, a jury found the defendant guilty of multiple sex crimes, including indecent liberties, rape, and incest. At sentencing, the judge said:

I think children are a gift of God and I think God expects when he gives us these gifts that we will treat them as more precious than gold, that we will keep them safe from harm the best as we’re able and nurture them and the child holds a special place in this world. In the 19th chapter of Matthew Jesus tells his disciples, suffer the little children, to come unto me, forbid them not: for such is the kingdom of heaven. . . . I’m going to enter a judgment in just a moment. But some day you’re going to stand before another judge far greater than me and you’re going to have to answer to him why you violated his law and I hope you’re ready when that day comes.

The judge consolidated the defendant’s seven convictions into two judgments, one sentenced as low as possible and the other sentenced at the top of the presumptive range. The defendant argued that the judge violated his right to due process by quoting the Bible at sentencing.

The court of appeals disagreed, concluding that while the trial judge “should not have referenced the Bible or divine judgment in sentencing,” religious references violate due process only when the impermissibly expressed views become the basis of the sentence. In light of the facts of the case and the defendant’s consolidated and non-aggravated sentences, the appellate court held that any error was non-prejudicial, and the sentence was affirmed.

Still, the Earls court gave a final reminder that trial judges should take care to avoid using language that could create an appearance of impropriety. That is undoubtedly good advice, because the issue of religious references at sentencing turns out to be a complicated one. I suppose that’s not surprising when you consider that many faith traditions have a view of justice that aligns with our own statutory purposes of sentencing. (Retribution, for example, is often described as “an eye for an eye.”) There is no per se rule against religious references, but some common stumbling blocks (did you know that phrase has religious origins?) emerge in the case law discussing the issue.

Commenting on religion when the case itself involves religion. There is no exception to the rule against religious comments when the crime itself involves religion. In United States v. Bakker, 925 F.2d 728 (4th Cir. 1991), evangelist Jim Bakker was convicted of various fraud crimes related to his television ministry and associated property deals. At sentencing, the trial judge commented that “those of us who do have a religion are ridiculed as being saps from money-grubbing preachers and priests.” The appellate court remanded for resentencing, to avoid any perception of the bench as a “pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it.” Id. at 740.

By contrast, the same court found no error in Deyton v. Keller, 682 F.3d 340 (4th Cir. 2012). In that case, co-defendants robbed a church congregation at gunpoint, stealing over $2,500 worth of valuables, including the weekly offertory. At sentencing the judge commented on the heinousness of the crime, saying “I mean if there’s one place in the whole world that you ought to have the right to feel . . . some degree of safety it would be in a church,” and “You took the Lord’s money and [to] those of us that believe that there is an Almighty . . . [that] is just outrageous . . . .” Id. at 342. The court rejected the habeas petitioners’ argument that the judge’s comments “reflected an impermissible religious bias that infected the sentencing procedure,” Id. at 343, noting that houses of worship demand a “special tranquility” regardless of the faith being observed.

Noting defendant’s lack of fidelity to a religious faith. A judge should avoid any comment indicating that a defendant is not a “good” practitioner of his or her faith. In Torres v. State, 124 So. 3d 439 (Fla. Dist. Ct. App. 2013), a defendant was convicted of sexual battery against a victim with whom he had prior consensual extramarital sex. The judge erred at sentencing when he said “Just because your wife is in another country doesn’t mean you ought to be going out with other women. You’re a good Catholic fellow as I am. That’s not the way Catholic people—that’s not the way anybody with morals should do anything.” Id. at 440–41. Despite the trial judge’s broader statement about morality, the appellate court reversed, concluding that “[n]o one should be punished, or conversely shown leniency, merely because he or she may be a member of a particular religion.”

Using religious references to make a non-religious point. Mere reference to a religious figure or story is not likely to be deemed error if the reference is intended to make a non-religious point. In Jones v. Donnelly, 487 F. Supp. 2d 403 (S.D.N.Y. 2007), a federal district judge concluded that a state trial court did not err when it referenced the Biblical story of Cain and Abel to make the point that a defendant’s actions could have broader implications. Similarly, the Tenth Circuit held in United States v. Traxler, 477 F.3d 1243 (10th Cir. 2007), that a district judge did not err when he said at sentencing that “good things can come from jail. A guy named Paul was put in jail a couple thousand years ago and wrote a bunch of letters from jail . . .  and people are still reading those letters and being encouraged by them and finding hope in them thousands of years later.” The judge’s reference to the Apostle Paul were properly used to illustrate that good things can come out of a bad situation.