The Establishment Clause of the First Amendment provides that “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . .”[i] Contrary to what many people believe, the Constitution does not require a complete separation of church and state.[ii] Consequently, the Establishment Clause has been applied differently amongst the States. Some states suggest that the Establishment Clause is a total separation of church and state. In contrast, other states have said, “total separation is not possible . . . and could itself become inconsistent with the Constitution.”[iii] Nonetheless, state courts have made it clear that the government cannot encourage participation in religion.[iv] Thus, “[t]he government may not coerce anyone to support or participate in religion or its exercise . . . .”[v]
Creative sentencing is not a new concept. Judges have been coming up with creative ways to sentence defendants for years. When a mother recently drove on a sidewalk to avoid a school bus, a judge ordered her to wear a sign saying “only an idiot drives on the sidewalk to avoid a school bus.” In 2005, a judge sentenced a woman to spend the night in the woods for abandoning her thirty-five kittens. This same judge, Judge Michael A. Cicconetti, also sentenced a man to stand on a corner with a 350 pound pig and a sign that said “this is not a police officer” as punishment for calling a police officer a pig. Judge Cicconetti has used creative sentences for several non-violent offenders and found that people that received a creative sentence reoffended less than those who received traditional sentences.
Sentencing defendants to church is also not a new concept––judges have been sentencing people to church for years with few challenges when the defendant’s only other option is jail. In 2007 an Iowa judge sentenced a habitual offender to attend eight consecutive Sunday church services and a counseling program offered by a Baptist church. A Louisiana judge sentenced 540 defendants to attend church from 1993 through November of 1994.[vi] A complaint was filed against this judge with the Judiciary Commission but the defendants did not legally challenge their church sentences. In fact, after the complaint was filed the judge wrote to all 540 defendants and advised them if they objected to their church sentence they would have the opportunity for resentencing. Only 10 out of the 540 defendants elected to be resentenced.
Although few defendants challenge their church attendance mandates, the defendants that do challenge these mandates are victorious. When a Kansas man, Terry Evans, challenged his probation condition that he attend a specific church for a five year period, the court concluded that “the imposition of religious conditions on Evans unreasonably restricted his constitutional freedom.”[vii] Evans was required to go to a specific church and do 1,000 hours of maintenance work at the same church. The court found that this condition violated Evans constitutional right to free exercise of religion. Even when the defendant is not required to attend a specific church courts have found a constitutional violation. When a Louisiana man was ordered to attend church as a condition of his probation, the court held that Louisiana “has a strong separation of church and state, and making church attendance a condition of probation threatens this separation.[viii]
Although the church attendance mandate is a condition of Tyler Alred’s probation, the judge gave him a maximum ten year deferred sentence. Therefore, if Alred does not go to church he is facing ten years in prison. Essentially the judge has given Alred two choices, go to church or go to jail, making this sentence coercive. The fact that the Alred already attends church regularly and is not opposed to the sentence does not make the sentence constitutional. A ten year church attendance mandate could pose problems later in the teen’s life. He could get a job in the future that required him to work on Sunday’s which could preventing him from going to church or he could grow up and become an atheist. While this sentence may be a fair sentence for Tyler Alred considering the circumstances of his offense, it is a clear violation of the First Amendment. But, should we intervene when the alternatives for some of the defendants sentenced to church is far worse?
I asked a group of teenagers if they would they choose church or jail in a situation similar to Tyler Alred’s. The teens unanimously said they would choose church. One teen, who is a Christian, said he would even go to a Synagogue or Mosque if it meant avoiding jail. If given the options of church or jail, how many people would really choose jail? This could explain the lack of challenges to these types of sentences; most people would rather go to church than jail regardless of the constitutional violation.
Tonya DavisBlogger, Criminal Law Brief
Image courtesy of The Christian Science Monitor