Appeals court overturns convict’s sentence because of Bible-citing judge

Tuesday, February 16, 1999

A convicted child molester’s punishment was improper because the judge cited a passage from the New Testament, an Ohio appeals court has ruled.

The appellate court ruled this month in Cincinnati that James Arnett, who pleaded guilty to 10 counts of rape and one count of pandering obscenity, would be able to seek a lesser sentence. The appellate judges said the trial judge at Arnett’s original senentcing had improperly cited religious beliefs in setting his punishment. Arnett’s rape and obscenity charges involved the daughter of his live-in girlfriend.

Judge Mark Painter, writing for the 2-1 majority in Ohio v. Arnett, said that the trial judge had gone beyond the state’s sentencing guidelines and improperly “turned to the Bible for guidance.”

At Arnett’s punishment hearing last year, Judge Melba Marsh described her struggle to determine the criminal’s sentence. Marsh first noted factors that would help Arnett receive a lighter sentence, such as his diagnosis as a pedophile and the fact that he had been sexually abused as a child. Next she cited reasons for a harsher sentence, such as the heinousness of the offense. It was Marsh’s concluding comment, however, that the appeals court found troubling.

“And in looking at the final part of my struggle with you, I finally answered my question late at night when I turned to one additional source to help me,” Marsh said. “And that passage where I had the opportunity to look is Matthew 18:5,6.”

Marsh then sentenced Arnett to 51 years in prison citing the New Testament passage: “And whoso shall receive one such little child in my name, receiveth me. But, whoso shall offend one of these little ones which believe in me, it were better for him that a millstone were hanged about his neck, and that he were drowned in the depth of the sea.”

Judge Painter said Marsh failed to adhere to state guidelines barring trial judges from using religious beliefs when handing out punishments.

“A review of the sentencing hearing reveals that the court impermissibly factored religion into Arnett’s sentence,” Painter wrote. “After first considering factors favoring leniency, and then considering factors favoring a harsher sentence, the court explicitly stated that it turned to an ‘additional source’ —the Bible— to resolve its ‘struggle’ in determining an appropriate sentence. It was as if the court used the Bible as a ‘tiebreaker’ in its struggle of determining if Arnett’s sentence should be harsh or lenient.”

Painter continued that “apparently, the passage quoted by the court, with its reference to drowning an offender by hanging a millstone around his neck, convinced the court to impose what it considered to be a harsh sentence.”

The state appeals court also noted that in 1991 a federal appeals court found that the infamous televangelist James Bakker had received a punishment that was improperly influenced by a judge’s religious views.

The 4th U.S. Circuit Court of Appeals ruled in U.S. v. Bakker that the trial judge overstepped sentencing guidelines when he said of Bakker: “He had no thought whatever about his victims and those of us who do have a religion are ridiculed as being saps from money-grubbing preachers or priests.”

Although the federal appeals court noted that the Constitution does not force a judge to surrender religious beliefs, it concluded that courts “cannot sanction sentencing procedures that create the perception of the bench as a pulpit from which judges announce their personal sense of religiosity and simultaneously punish defendants for offending it.”

In Arnett’s case, Painter concluded that the religious passage could not be the basis for his punishment. “We understand that our decision may be misconstrued or interpreted as somehow hostile to religion,” Painter wrote. “Not so. We stress that this case is unusual in that a specific text in the Christian Bible was the determining factor in the judge’s imposition of punishment.”

Judge Lee Hildebrandt Jr., who dissented from the state appeals court ruling, said Marsh’s use of the passage did not undermine the sentence.

“Though the trial judge indicated that she consulted a religious source while struggling with her sentencing decision, it nevertheless appears from the context of the sentencing hearing that the Bible’s tenets and the trial judge’s own sense of religiosity were not the basis of the judge’s decision,” Hildebrandt wrote. “The language quoted from the Bible merely reflects society’s interests in protecting its most vulnerable citizens, a laudable goal that is incorporated into the sentencing guidelines enacted by the General Assembly. The fact that this concern was placed in a religious context or phrased in religious terms does not render the concern invalid or inappropriate.”