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September 25, 2011

Can a sentencing judge give low-level offenders a choice between jail and church?

The question in the title of this post is prompted by this notable local piece from Alabama, which is headlined "Serve Time In Jail...Or In Church?".   Here are the details of a new local faith-based alternative sentencing program:

Non-violent offenders in Bay Minette now have a choice some would call simple: do time behind bars or work off the sentence in church. Operation Restore Our Community or "ROC"...begins next week. The city judge will either let misdemenor offenders work off their sentences in jail and pay a fine or go to church every Sunday for a year.

If offenders elect church, they're allowed to pick the place of worship, but must check in weekly with the pastor and the police department. If the one-year church attendance program is completed successfully, the offender's case will be dismissed.

Bay Minette Police Chief Mike Rowland says it costs his department about 75 bucks per inmate per day. Rowland says the ROC program will be cost-effective and could change the lives of many people heading down the wrong path. So far, 56 churches in North Baldwin County are participating in ROC.

Rowland says the program is legal and doesn't violate separation of church and state issues because it allows the offender to choose church or jail...and the church of their choice.

Perhaps unsurprisingly, not every agrees with the local police chief's assessment of the constitutionality of this program.  As this follow-up piece reports, the "American Civil Liberties Union says Bay Minette must stop a program that will soon allow offenders to choose whether they serve a jail sentence or attend church every Sunday for a year."   Here is more:

The ACLU of Alabama has sent Bay Minette a letter demanding it stop a program that's supposed to start next week. Offenders who successfully complete it would have their cases dismissed.

State ACLU Executive Director Olivia Turner says the alternative sentencing program "flagrantly" violates the Constitution. She says the government cannot force someone to attend church. She says that when offenders must pick between prison or religious services, they do not have a true choice.

September 25, 2011 at 01:35 PM | Permalink


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in this case i have to tell the ACLU to shut up and stay out of it. As long as the individual can pick jail or work in THEIR religion's physical church be it a chuch, a mosque or a buddist temple or whatever. LEAVE IT ALONE!

Posted by: rodsmith | Sep 25, 2011 2:10:51 PM

This program is really a win-win proposition. It is likely to be more effective and to generate a lower recidivism rate for the non-sociopath.

Naturally, the ACLU, the spear head of the lawyer rent seeking in bad faith, the research and development department for the lawyer destruction of the family, schools, and the economy, is likely correct legally.

Here is the Lemon test, but the program also fails the reasonable person approach. Church or jail and heavy fines.

"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster "an excessive government entanglement with religion.""

The best tactic to stop the ACLU would be to offer a secular community service alternative, as a third choice, eliminating the coercion of jail time. The program would then have a legitimate secular purpose, the reduction of crime and recidivism. It would neither advance nor interfere with religion. It would reduce but not eliminate government entanglement with religion. That would be enough with judges raised in the South. The defense attorney should seek to disqualify or demand recusal of all ultra-left appointees (most of the judges are pro-big government, no matter their political affiliation). They are all biased against religion. Any refusal of recusal by these biased judges should be appealed. A trial should not be allowed to proceed before these biased judges. No defense attorney will do that because they are collaborators and disloyal to their clients' interests. One has to always hire a second lawyer specializing in suing lawyers to terrorize the collaborator defense lawyer.

Posted by: Supremacy Claus | Sep 25, 2011 2:21:21 PM

Wow, when I read this i was stunned that a court would so blatantly violate the Separation of Church and State portion of the Constitution. It seems we are working backwards as a society and giving more and more feedback and authority to churches, conservative organizations, and it is done so via fear-mongering. I fully Agree with Supremacy Claus who wrote that adding a secular alternative would be a possible way to silence the ACLU, but think that is not the correct alternative... not only should there be a secular alternative, but there should NOT be any credit for going to church. Other than this point, I disagree with what SC writes... most judges are not pro-big government, but instead they are much more anti-Defense.

Posted by: Dax Garvin | Sep 25, 2011 3:11:55 PM

This program will get shut down voluntarily the day after somebody demands that they be allowed to serve their sentence as a Scientologist, Wiccan, Satanist, Secular Humanist, etc. There is no shortage of religions/belief systems that are extremely unpopular in Alabama.

Posted by: The Death Penalty Sucks. | Sep 25, 2011 3:25:03 PM

Dax: True, the defense loses 70% of the time. Judges might be biased against defense verdicts. However, they are absolutely in support of any procedure that preserves defense bar jobs. They are biased against your client, but are totally biased in favor of your job.

One reason that the defense loses most of the time is that the prosecutor answers only 10% of all serious crimes. They get to pick those cases where the evidence is overwhelming, to maintain their scores. These high scores will make them more attractive to the rich defense firms later. They are getting free training, at taxpayer expense, to better serve rich defense firms later. In those firms, they charge high fees, end up doing pleas, which the defendant could have done at the outset for free.

I would like to see the end of prosecutorial immunity for both discretion and prosecutorial misconduct. Crime victims should be able to sue prosecutors for failure to prosecute, if they can show a deviation from professional standards of due care. This liability would require a Constitutional amendment to overcome the tort immunity granted to prosecutors by the Supreme Court in many decisions, true even when a prosecutor used a witness he knew was lying. Evidence of knowledge and malice cannot penetrate this absolute immunity. Such liability would help prosecutors improve their work. It would also remove the full justification for violence and street justice against prosecutors in morality, intellectual and policy considerations.

Posted by: Supremacy Claus | Sep 25, 2011 6:48:40 PM

i will give you part of it SC. Yes it should include the option to volunteer in ANY community service program in their area.

Posted by: rodsmith | Sep 26, 2011 12:38:12 PM

Blatantly unconstitutional.

Posted by: reader | Sep 26, 2011 1:39:30 PM

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