The “Religious Freedom” Issue That May Cost the Accused Boston Bomber His Life

While Dzhokhar Tsarnaev’s lawyers have argued that potential jurors might be biased based by the recent attacks in France, or because the region was so traumatized by the 2013 marathon bombing, there may be quite another cause for concern.

At the beginning of January, more than 1,200 people were summoned to the federal courthouse in Boston. These potential jurors in Dzhokhar Tsarnaev’s forthcoming trial were questioned in groups of 200 as the presiding judge winnowed the multitude down, and he has continued to do so in a second phase of questioning that began today. Although this process, called voir dire, is taking place in Massachusetts, which does not have the death penalty for state crimes, this is a federal case so it does permit the prosecution to seek the death penalty. Since nearly half of the state’s six million residents identify as Catholic, however, a sizable number of potential jurors—those who follow the Church’s teaching on capital punishment—are likely to be excluded from jury service for their religious beliefs.1

This regularly happens in capital trials across the country, and it’s important to reflect on this case to highlight both the potential Establishment Clause problem and a remedy to that problem.

The basics of criminal trials have been in the public consciousness lately, with high-profile grand juries in Ferguson, Missouri, and on Staten Island garnering intense coverage and commentary. Capital murder trials are no different in this respect: A prosecutor presents a grand jury with a bill of indictment after which the grand jury determines whether there is sufficient evidence to return a “true bill” of indictment. Once the jury is selected, the guilt phase of the capital trial begins. If the defendant is found guilty of capital murder, the sentencing phase of the trial will begin, during which the jury will determine whether or not to sentence the defendant to death.

Because the same jury typically sits both phases of the trial, and because jurors are potentially tasked with deciding a life-or-death question, jury pools typically are purged of those who would vote for death upon conviction in any murder case as well as those who would never vote for death in any case. This is known as “death-qualifying” the jury. The latter group poses an apparent problem of religious discrimination in instances where opposition to the death penalty comes from an individual juror’s religious belief.

At voir dire, potential jurors are routinely asked a variant of the following: “Do you have any religious, philosophical or moral beliefs which would prevent or substantially impair your ability to convict someone of a crime which potentially carried the death penalty?” This formulation, taken from the transcript of a capital trial in Virginia (Commonwealth v. Lenz), is representative of such questions nationally.

If jurors answer “yes” to the above, they are to be excluded from the jury “for cause”—that is, because they are unable to carry out their duty as jurors. The defense can attempt to rehabilitate the potential juror by attempting to establish that while they are opposed to the death penalty on principle, they would consider it in this case at sentencing, thus fulfilling their obligation to the state. More often, however, these attempts at rehabilitation follow the pattern in the following example from a Kentucky case:

At voir dire, a potential juror indicated that he held to Catholic teaching on the death penalty and that it would be difficult to get him to consider it. Defense counsel asked whether he would be able to set aside his views if the court instructed him to do so, but the court declared that it would not do so, and the juror was struck for cause (Appellant’s Brief, Wheeler v. Kentucky [Supreme Court of Kentucky], WL 32508332).

Prior to 1968, any potential juror who held “conscientious scruples against the death penalty” could be excluded for cause. In 1968, however, the Supreme Court’s decision in Witherspoon v. Illinois declared that such broad exclusions created “a tribunal organized to return a verdict of death.” The problem was not that the individuals on Witherspoon’s jury violated the Constitution; it was the jury as a whole that was violative, because it excluded viewpoints represented within the community and thus abridged the defendant’s Sixth and Fourteenth Amendment rights. The Court then articulated an acceptable standard for excluding such potential jurors: If they would automatically vote against death in any case, regardless of the facts of the case, they may be excluded, as may any potential jurors whose beliefs about the death penalty would bias or impair their ability to decide the defendant’s guilt. Which is where the aforementioned juror rehabilitation became relevant.

In 1985, with Wainwright v. Witt, the Court backed away from Witherspoon and adopted a different standard: If a potential juror’s beliefs would “prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath,” he could be struck for cause. Declaring that the unmistakable clarity of unfitness that Witherspoon demanded was too strict, Wainwright afforded trial courts the latitude to strike potential jurors if they give the “definite impression” that they would fail to consider a death sentence.

Compounding the problem is the fact that courts are permitted neither to exclude jurors based on their religious beliefs nor inquire into those beliefs. Indeed, in the main, courts tend to treat religious beliefs in Madisonian terms, in terms of the “duty we owe to our Creator.” On its face, a court’s refusal to ask a juror to put aside their beliefs is an acknowledgment of the competing claims of authority to which the individual is subject and protects the individual from being put in a position where a temporal authority could compel them to act in ways the individual believes run counter to his or her obligations to their transcendent authority.

How do you solve a problem like a death-qualified jury?

There are at least two problems with this kind of exclusion. First, death-qualified juries tend to be more prone to convict, as numerous studies have shown. The Court obliquely acknowledged evidence of this in Lockhart v. McCree (though Justice Thurgood Marshall, dissenting from Lockhart, did so more directly). The presumption of innocence on which our criminal justice system is to rest is thus weakened by death-qualifying the jury.

The second problem is the exclusion of specific components of the community, namely, those that oppose the death penalty. This tends to exclude members of particular faith traditions from jury service, as the Death Penalty Information center noted in 2005: “Catholics who have heeded their Church’s call to end the death penalty” are among those “believers of all stripes who… will not be able to serve even in the guilt-innocence phase of the trial.” (DPIC, “Blind Justice,” 6,) On January 8, the Catholic Mobilizing Network to End the Use of the Death Penalty echoed this language, posting on its Facebook page that “Catholics who heed the Pope’s call to oppose the death penalty may be disqualified from serving as jurors.”

The first problem, that of biasing the jury toward conviction, undermines the criminal justice process by enervating the presumption of innocence. The second problem undermines the idea that the capital jury is the community’s conscience. As the Supreme Court declared in Witherspoon, “a jury that must choose between life imprisonment and capital punishment can do little more—and must do nothing less—than express the conscience of the community on the ultimate question of life or death.” By excluding individuals with religious objections to capital punishment from juries, however, that community is by definition diminished, and potentially troublesome elements of its conscience neatly excised.

It’s difficult to ignore the appearance that these exclusions express governmental favoritism toward particular religious traditions at the expense of others. In 1986, in Batson v. Kentucky, the Supreme Court ruled that excluding potential jurors based on their race was unconstitutional. Such exclusions abridged the rights both of the defendants as well as of those excluded: Defendants, the Court noted, “have the right to be tried by a jury whose members are selected pursuant to nondiscriminatory criteria.” Potential jurors, meanwhile, must be afforded the “right and the opportunity to participate in the administration of justice.” The Batson principle has since been extended to exclusions based on gender (J.E.B. v. Alabama ex rel. T.B.) and should now be extended to these exclusions in capital cases.

There are several ways that this could be done. One suggestion is to treat death-scrupled citizens as a “cognizable group.” A cognizable group of jurors, or potential jurors, has some specific attribute that both defines and renders the group discrete and represents a “’community of interest’ that the jury pool would not adequately reflect if it excluded members of the group.” Race, ethnicity, religion, gender, and socioeconomic status are all recognized as cognizable groups.

Religious organizations, such as the American Friends Service Committee, have filed amicus curiae briefs in capital appeals arguing that the Court should deem the death-scrupled a cognizable group on the basis of the specific attribute—religiously motivated opposition to the death penalty. This renders the group at once identifiable and discrete, represents an element of the community’s conscience that should be brought to bear in criminal justice proceedings, and, because it links back to religious affiliation, ties this proposed cognizable group with one already recognized. This argument sits comfortably alongside the Madisonian conception of religion, and thus has some of the flaws of that concept.

We need not, however, accept this argument in order to resolve the problem that these exclusions raise; namely, that the apparent selection of religious traditions compatible with the rights and obligations of citizenship and the attendant communication of favor or disfavor. A different solution is suggested by the bifurcated nature of the capital trial itself: A jury should be impaneled for the guilt phase regardless of the jurors’ religious affiliations or any belief that the death penalty is immoral or is otherwise wrong.

This would avoid any question of governmental favor or disfavor of religious traditions, and thus would relieve any Establishment tension; would not unfairly bias juries toward conviction, and thus help preserve the necessary presumption of innocence; would not deprive citizens needlessly of their rights to sit on a jury; and, because the death-scrupled could be excused from the sentencing phase, when the life-or-death decision is to be made, would provide adequate protection for those individuals by allowing them to serve while preventing them from being put into a situation where their temporal and transcendent duties may conflict.

Tsarnaev’s prosecution is somewhat unique, in that it is a federal death penalty case being prosecuted in a state that has abolished the death penalty (which has happened in other states, including, recently, Hawaii). The more important element of this case is one that’s operative in capital murder trials across the country: the exclusion of otherwise-qualified death-scrupled jurors from taking part in the criminal justice system and bringing with them into the jury room their life experiences and what it has taught them, as Justice O’Connor put it (J.E.B. v. Alabama ex rel. T.B.)

The right to a jury trial is a foundational American right, and as the Supreme Court has recognized, unfairly removing otherwise-qualified individuals from the pool of potential jurors violates the defendant’s rights under the Sixth and Fourteenth Amendments. That this particular kind of exclusion implicates First Amendment rights as well makes it the more imperative that we are attentive to the problem and seek its resolution.

1 It should be noted that while the Catholic Church opposes the death penalty, the majority of white Catholics in the U.S. are actually in favor of it by a margin of 59-34%.


  • The idea that the Catholic Church ‘opposes’ capital punishment is misleading at best and deceitful at worst.

    The Church has stated on numerous occasions that capital punishment is a matter of prudence, not morals (like abortion). Cardinal Ratzinger expressed this quite clearly:

    “Not all moral issues have the same moral weight as abortion and euthanasia. For example, if a Catholic were to be at odds with the Holy Father on the application of capital punishment or on the decision to wage war, he would not for that reason be considered unworthy to present himself to receive Holy Communion. While the Church exhorts civil authorities to seek peace, not war, and to exercise discretion and mercy in imposing punishment on criminals, it may still be permissible to take up arms to repel an aggressor or to have recourse to capital punishment. There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia.”

    The Catechism also allows for capital punishment.

  •' Mark Byron says:

    I’m not a Catholic scholar, but if I remember church teaching on capital punishment, it is open to it in theory while opposing it in most modern practice. Thus, folks with qualms about the death penalty could make an exception in some cases and sill be in good standing with the Catholic church.

    That’s not to say that there isn’t a strong base in the Catholic church that is actively opposed to the death penalty, but it isn’t a requirement, as far as I know.

  •' Mark Byron says:

    Thanks, sir. Your comment came in as I was crafting mine; you nicely confirm what was on my mind, being the “Catholic scholar” that I’m not.

  • The author is clearly anti-cap punishment and seems to be setting up a very deceptive argument to serve as a sort of stealth prohibition of the practice.

    Basically the argument seems to go Catholicicism = Anti-Capital Punishment, therefore keeping Catholics who oppose capital punishment off of a capital crime jury is a restriction of ‘Religious Freedom’, therefore philosophical opposition to capital punishment should not be a bar to serving on the jury of a capital crime.

    It seems a very dishonest argument, at least to me.

  •' James Ronan says:

    “The “Religious Freedom” Issue That May Cost the Accused Boston Bomber His Life” Balderdash!
    What may cost Tsarnaev his life are his heinous acts including the possibility he ran over his wounded brother during his get away attempt.

  • Yeah, but I don’t think it serves the anti-capital punishment agenda of this piece to admit that.

  •' Anon. says:

    Actually, the teaching of the Catechism places extreme conditions on the employment of the death penalty.

    As within the United States, the death penalty is NOT “the only possible way of effectively defending human lives against the unjust aggressor,” therefore, the Roman Catholic Church holds that it should not be considered. Not in the aforementioned case. Below is section 2267:

    2267 Assuming that the guilty party’s identity and responsibility have been fully determined, the traditional teaching of the Church does not exclude recourse to the death penalty, if this is the only possible way of effectively defending human lives against the unjust aggressor.

    If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor, authority will limit itself to such means, as these are more in keeping with the concrete conditions of the common good and more in conformity to the dignity of the human person.

    Today, in fact, as a consequence of the possibilities which the state has for effectively preventing crime, by rendering one who has committed an offense incapable of doing harm – without definitely taking away from him the possibility of redeeming himself – the cases in which the execution of the offender is an absolute necessity “are very rare, if not practically nonexistent.” [Citation is from John Paul II, Evangelium vitae 56. 69 Cf. Gen 4:10.]

  •' pennyroyal says:

    I disagree, I think the argument needs to be considered. However, in my experience as an interfaith chaplain for years most Catholics think for themselves. They may conform in the practice of their faith (orthopraxy) but not in conforming themselves to orthodoxy.

  • Your argument only applies if one accepts that there are practical alternatives. I’d argue that, recidivism, gang membership rates, sentencing and parole practices being what they are, the argument that capital punishment is the only possible way of definitively defending human life is still compelling.

    But I do understand that Liberal Catholics don’t accept this.

    My ultimate point still stands though – the Catholic Church does not ‘oppose’ capital punishment in the manner the author of this piece implies.

  •' Anon. says:

    “If, however, non-lethal means are sufficient to defend and protect people’s safety from the aggressor”(CCC, sec. 2267) – sufficiency has nothing to do with the practicality in question with respect to the particularity of the “guilty party.” The American penal system has non-lethal alternatives, ergo – the Church exhorts governmental institutions to employ these. You litany of topics: recidivism, gang membership rates, border security, parole practices, all warrant separate conversations and discussion. The Catechism refers to capital punishment versus a non-lethal alternative. Because there is exists the option of life-without-parole, capital punishment is no longer justified theologically.

    The issue at hand – is the existence of a nonlethal alternative. It exists. The Church’s counsel is that it is employed. This has nothing to do with whether a person self-identifies as liberal, conservatiive, or neither.

    You original suggestion:”The Catechism also allows for capital punishment” is in fact misleading because it omits the explicit conditions that the Catholic Church places on the defaulting to captial punishment, and it does not mention John Paul II’s conclusion that such situations are “are very rare, if not practically nonexistent.”

  •' Anon. says:

    In addition, His Holines Pope Francis has called for the end of the death penalty and life imprisonment: cf.,

    The USCCB affirms the Church’s anti-death-penalty position: cf.,

    And Pope Benedict urged nations around the world to end the Death Penalty: cf.,

  • A few points:

    “Because there is exists the option of life-without-parole, capital punishment is no longer justified theologically.”

    Life without parole has never been demonstrated to be ‘sufficient’ to prevent future harm.

    “You litany of topics: recidivism, gang membership rates, border
    security, parole practices, all warrant separate conversations and

    My ‘litany’ as you call it speaks directly to ‘the possibilities which the state has for effectively preventing crime’; namely demonstrating how ineffective such ‘possibilities’ have been administered and implemented to date. And, capital punishment being a matter of prudence and not morals, effectiveness is a perfectly reasonable consideration.

    “You original suggestion:”The Catechism also allows for capital punishment” is in fact misleading because it omits the explicit conditions that the Catholic Church places on the defaulting to captial punishment”

    No, it’s not misleading in the least. The Catechism does in fact allow for capital punishment, it’s quite clear and unambiguous. And what you call the ‘explicit conditions placed on defaulting’ demonstrate my point that capital punishment is a matter of prudence and not morals.

    But I get it that you probably don’t agree with any of these points.

  •' TexasStomp says:

    How much of your paycheck you’re willing to pony up to house, feed, educate, and medicate felons. Life is full of choices. Nobody chooses to break the law to the extent they could get the death penalty “accidentally.” Are you prepared to support such people for the rest of their lives? If you are then make send them a check every month out of YOUR earnings instead of trying to use the full weight of fed gov’t to steal mine.

  • And that’s a whole separate layer of the onion, the injustice of spending so much money and dedicating so many resources to care for people who have demonstrated such a depraved hostility for decent society that they literally cannot be allowed to participate in said decent society.

    “Even in the case of the death penalty the State does not dispose of the individual’s right to life. Rather public authority limits itself to depriving the offender of the good of life in expiation for his guilt, after he, through his crime, deprived himself of his own right to life.”

    Pius XII,1952

    “Another kind of lawful slaying belongs to the civil authorities, to whom is entrusted power of life and death, by the legal and judicious exercise of which they punish the guilty and protect the innocent. The just use of this power, far from involving the crime of murder, is an act of paramount obedience to this Commandment which prohibits murder. The end of the Commandment is the preservation and security of human life. Now the punishments inflicted by the civil authority, which is the legitimate avenger of crime, naturally tend to this end, since they give security to life by repressing outrage and violence. Hence these words of David: In the morning I put to death all the wicked of the land, that I might cut off all the workers of iniquity from the city of the Lord.”

    The Tridentine Catechism

  •' Anon. says:

    The difference is in scope.

    The “aggressor” mentioned in the Catechism is not crime in general, but an aggressor in singular. The Cathechism speaks to the use of capital punishment when no non-lethal option is available, regarding a particular aggression, not in combatting all crime, all aggression.

    This is in concord with the position of the USCCB, John Paull II, Benedict XVI, and Francis.

    This is why popes and the USCCB stand against the use of the death penalty (see links shared earlier).

    This article is about a singular individual and whether or not he should face the death penalty for his actions. The USCCB’s position is that there are non-lethal alternatives, ergo there is no need for the death penalty. Pope Francis’ teaching is in concord.

    Your position in favor of the death penalty is understandable and you are welcome to it. It is not in concord with the Pope or the position of the USCCB.

  •' TexasStomp says:

    Clearly Pope Pius has never seen the Club Meds that pass for US prisons. Work out rooms, basketball courts, cable TV lounges, libraries, free college grants, and medical facilities our Veterans can only dream about. These people are NOT suffering for lack of anything law abiding people have except freedom of movement. That is NOT punishment by any definition one cares to apply.

    No doubt Pope Paul’s frame of reference for “prisons” was the EU model which, while not quite third world, are NO PLACE anyone sane wants to be. The cells have one window, at the top of the wall, about 12 inches tall and 2-3 feet wide and prisoners spend most of their days in those cells. They eat alone, sleep alone, and they spend their days in silence. No wonder their recidivism rates are lower than ours.

  •' Murmur1 says:

    I am opposed to the death penalty, not for the sake of the convicted murderer, but because of what it it requires of the prison staff and what it does to, and says about, the society. If I sat on a trial jury, I would convict the defendant if the evidence of guilt warranted, even if the death penalty was a possibility. If I sat on a sentencing jury, I would vote against the death penalty. I think the author’s suggestion of having two juries is the answer. Or possibly those who categorically oppose the death penalty could be excused and alternates could sit in their places.

  • You raise a very good point that hasn’t been touched on yet.

    If anything, the existence of the modern welfare/support state strengthens the argument for capital punishment. Consider all of the various programs which benefit to so-called ‘disadvantaged’ in the US – Medicaid/S-CHIP, SNAP, public education and jobs training programs, Section 8, a plethora of preferential treatment programs (i.e the Community Reinvestment Act).

    The days of Jean Valjean stealing a loaf of bread to keep from starving are long gone, replaced by a hulking and sullen (and quite likely obese and diabetes afflicted) dependent criminal class.

    One could make the argument that, with material deprivation eliminated as a motivation, most criminality now is purely a reflection of deficient character and thus more deserving of capital punishment.

  • Several points:

    “The “aggressor” mentioned in the Catechism is not crime in general, but an aggressor in singular. ”

    Problem here is that it’s the general that’s precisely the state’s sphere of responsibility. No common good exists for advocating on behalf of the individual criminal.

    “The Cathechism speaks to the use of capital punishment when no
    non-lethal option is available, regarding a particular aggression, not
    in combatting all crime, all aggression.”

    The Catechism also speaks of the state’s responsibility in providing punishment necessary to maintain public order and the common good:

    “Legitimate public authority has the right and duty to inflict punishment proportionate to the gravity of the offense. Punishment has the primary aim of redressing the disorder introduced by the offense. When it is willingly accepted by the guilty party, it assumes the value of expiation. Punishment then, in addition to defending public order and protecting people’s safety, has a medicinal purpose: as far as possible, it must contribute to the correction of the guilty party [CCC off. vers., 2266].”

    “Your position in favor of the death penalty is understandable and you
    are welcome to it. It is not in concord with the Pope or the position
    of the USCCB.”

    And that’s perfectly fine with Pope Benedict: “There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty.”

  •' phatkhat says:

    Eh, not sure which country you refer to, but it isn’t like that in Germany.

  •' cgosling says:

    As far as I know, all religions, with the exception of Quakerism, have practiced and/or condone the death penalty for certain crimes. Those who reject the death penalty must be willing to pay higher taxes to house and care for those convicted. Many convicted murderers have been freed because DNA evidence has proven them innocent.

  •' MT says:

    You should put your efforts at finding the real perpatrators of BMB. The brothers were not even near the BM. Their pictures as if they were at the BM have been manufactured by the FBI.Dzhokhar and Tamerlan were never shooting out with police. Tamerlan wasn’t killed by Dzhokhar. He was murdered by FBI, after they got it clear for themselves, that Tamerlan will never take a blame for the BMB that somebody carried out. After FBI wan’t successful in their attempt to treaten and intimidate Tamerlan to take the blame, they had only one choice left is to put the blame on Dzhokhar. In order to cover up the BMB, that the FBI carried out with other LE agencies, during their planned ahead drill, and to clear themselves from executing Tamerlan without a trial, FBI is accusing Dzhokhar for driving over his own brother and killing him. Your story Mr. James Ronan is too old. Go onto sites, research, at least get yourself familirized with already researched info, one of those sites

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