Umm, Your Honor, you really can't do that

I found this story on one of my atheist social networking sites last week and have been meaning to write about it, but between the holiday and the hideous weekend thing, I haven't gotten around to it yet. So now here goes.

In Oklahoma, a state court judge ordered a young defendant to attend church once a week for 10 years as part of his probation plan. The 17 year-old defendant had been convicted of a vehicular manslaughter charge. Because of his status as a youthful offender, the judge had more discretion to fashion a unique sentence. The judge added the condition because he thinks "church is important." The judge further said, "I think Jesus can help anybody." It's not clear whether he made that statement at the sentencing hearing or when being interviewed later.

I rather hope I need not explain what the obvious potential problems with that condition are. This did not come to the public's attention because of any objection by the defendant, though. Rather, it was the American Civil Liberties Union that objected. The ACLU lacks standing to object to the defendant's sentence itself, so they raised the issue in the context of an ethical complaint against the judge.*

This topic is one that I'm a little conflicted on. It shouldn't be a surprise to anyone to know that I am a big fan of creative punishments that don't rely on incarceration. I want judges to look for ways to make probation work, especially for young offenders. I want probation to be a way for offenders to connect with their communities, which will help them find a better path in life and not re-offend. Call me a Pollyanna if you will, but I believe our response to crime should be much more rehabilitative than it is in this incarceration-crazy atmosphere.

But, I'm also an atheist and don't appreciate the way religiosity can dominate in some public spheres. Just this week, our local paper has been running a series of stories about the prevalence of prayers at public meetings, for example. Yes, I know it doesn't hurt me to sit quietly for a minute, but it does irk me just how much of my life has been spent in those quiet minutes imposed on me by others when I'd rather just get to work already. If I were ever convicted of a DUI (I don't expect that to happen, btw, just a hypothetical), I would be the defendant who would object to a condition that I attend AA meetings. And I would prevail. I could be required to participate in some kind of alcohol counseling, but I could not be required against my will to participate specifically in AA because of the religious content of its message. (This link provides links to some of the case law on the AA topic.)

So it is with these conflicting views that I come to this: if this defendant were my client and he agrees with the probation condition, truly doesn't object, truly finds it beneficial and something he wants to do, I would agree to it. Heck,  I would zealously advocate for that condition if that was what my client wanted. But if my client were like me, I would object to the condition. Even strenuously object. And I would do my level best to make sure the judge didn't engage in vindictive sentencing by saying, "All right, it's prison for you, then." That, to me, is where the real danger comes in with this kind of sentencing condition. That a defendant will not feel like he can object to it, will fear that objecting will lead to the court changing its mind about probation and imposing prison instead. Can we be sure that the defendant is truly, freely, wholeheartedly agreeing to the condition rather than feeling coerced? If a judge thinks it can impose this condition, it stands to reason that a defendant has no clue the judge can't.

What most sticks out to me about this particular Oklahoma case is that the judge suggests that he truly does not understand that he can't require this probation condition whenever he wants. Someone who is regularly sentencing defendants in criminal matters shouldn't be that unaware of the limitations the Constitution imposes on him. I hope this judge has now learned that lesson and will be more careful in future sentencings. But I hope he won't give up on attempts to be creative in sentencings, especially when youthful offenders are involved. There are other ways a court can require a defendant to participate in his community that won't run afoul of the First Amendment.


*I'll be curious to see how the ethics case comes out. I don't have any sense of how such a complaint against a judge in Oklahoma might be treated. I doubt there would be any serious consequences for the judge. Though it does seem to me that complete ignorance of the First Amendment is kind of a problem for a judge.