William & Mary Bill of Rights Journal
Abstract
This article critically examines the prevalence, judicial treatment, and constitutional implications of religious arguments in U.S. capital sentencing proceedings. Drawing on over one hundred reported cases, Blume and Johnson identify recurrent patterns in prosecutorial use of biblical quotations, divine authority claims, and religious imagery—most notably Old Testament retributive verses such as “an eye for an eye”—and contrast them with defense counsel’s appeals to mercy and forgiveness, often rooted in New Testament narratives like the woman caught in adultery. The authors survey divergent judicial responses across jurisdictions, noting that only a small fraction of such arguments have led to reversals, and that clear, uniform standards are rare. They analyze these practices through the lens of the First Amendment’s Establishment and Free Speech Clauses, the Eighth Amendment’s Cruel and Unusual Punishment Clause, and the Fourteenth Amendment’s Due Process Clause, arguing that prosecutors’ religious arguments should be sharply curtailed, while defense counsel should retain broader, though not unlimited, latitude. The article proposes model rules that distinguish between the constitutional constraints on state actors and the rights of capital defendants, offering a nuanced framework for regulating religious discourse in the courtroom.