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November 22, 2012

Sign of misguided sentencing times in today's New York Times piece on church sentencing

Nationwide, there are literally thousands of sentencing stories about thousands of defendants subject to problematic sentencing terms that never get consider part of "all the news that's fit to print" by the New York Times.  But when one judge in Oklahoma incorporates church into his sentencing script, the New York Times provides coverage via this lengthy article headlined "Constitution Experts Denounce Oklahoma Judge’s Sentencing of Youth to Church."  Here are excerpts:

Initially there was little outcry in Muskogee, Okla., last week when a judge, as a condition of a youth’s probation for a driving-related manslaughter conviction, sentenced him to attend church regularly for 10 years. Judge Mike Norman, in his Muskogee courtroom, seemed surprised by the scrutiny. “I sentenced him to go to church for 10 years because I thought I could do that,” he said.

The judge, Mike Norman, 67, had sentenced people to church before, though never for such a serious crime. But as word of the ruling spread in state and national legal circles, constitutional experts condemned it as a flagrant violation of the separation of church and state.

This week, the American Civil Liberties Union said it would file a complaint against Judge Norman with the Oklahoma Council on Judicial Complaints, an agency that investigates judicial misconduct, seeking an official reprimand or other sanctions. “We see a judge who has shown disregard for the First Amendment of the Constitution in his rulings,” said Ryan Kiesel, executive director of the civil liberties union branch in Oklahoma.

The 17-year-old defendant, Tyler Alred, was prosecuted as a youthful offender, giving the judge more discretion than in an adult case. Mr. Alred pleaded guilty to manslaughter for an accident last year, when he ran his car into a tree and a 16-year-old passenger was killed.

Although his alcohol level tested below the legal limit, because he was under age he was legally considered to be under the influence of alcohol. Mr. Alred told the court that he was happy to agree to church attendance and other mandates — including that he finish high school and train as a welder, and shun alcohol, drugs and tobacco for a year. By doing so, he is avoiding a 10-year prison sentence and has a chance to make a fresh start.

But his acquiescence does not change the law, Mr. Kiesel and others pointed out. “Alternative sentencing is something that should be encouraged, but there are many options that don’t violate the Constitution,” Mr. Kiesel said.  “A choice of going to prison or to church — that is precisely the type of coercion that the First Amendment seeks to prevent.”...

The judge said he was surprised at the criticism. “I feel like church is important,” he said. “I sentenced him to go to church for 10 years because I thought I could do that.” He added, “I am satisfied that both the families in this case think we’ve made the right decision,” and noted that the dead boy’s father had tearfully hugged Mr. Alred in the courtroom. If Mr. Alred stops attending church or violates any other terms of his probation, Judge Norman said, he will send him to prison....

Randall T. Coyne, a professor of criminal law at the University of Oklahoma, agreed that the judge’s church requirement was unconstitutional. But unless the defendant fights the ruling, he said, civil liberties advocates have no way to challenge it in court, leaving the complaint to the judicial review agency as their only option.

Over the years, several judges around the country have mandated church attendance as part of sentences, sometimes stirring criticism. In the early 1990s in Louisiana, Judge Thomas P. Quirk ordered hundreds of defendants in traffic and misdemeanor cases to attend church once a week for a year. The judge said that he had imposed the condition only on people who agreed to it, and that it provided a good alternative to sending defendants to overcrowded jails or imposing fines they could not afford.

The Judiciary Commission of Louisiana found that Judge Quirk had engaged in knowing violations of the Constitution and recommended that he be suspended without pay for 12 months. But the Louisiana Supreme Court ruled in 1995 that while the judge might have erred, he did not engage in “judicial misconduct,” and it rescinded the sanctions.

In 2011, the city of Bay Minette, Ala., required first-time misdemeanor offenders to choose between doing jail time and attending church weekly for a year. The city dropped the program after the American Civil Liberties Union called it unconstitutional.

I understand fully thr First Amendment concernins with a criminal sentence that requires religious activity.  Nevertheless, I still find it so very sad and telling that Judge Mike Norman here could have readily opted to sentence 17-year-old defendant Tyler Alred to prison for a full decade and this case never would have received a moments notice from anyone other than the local community. But because the judge here sought to encourage the juvenile defendant's spiritual development rather than completely deprive his liberty for a decade, this story makes national news and gets the ACLU up in arms.

I suppose I have to just continue hoping for a time when we as a society are as troubled by state-mandated deprivations of liberty as we are state-encouraged spiritual development. Until then, I have to remain less than entirely thankful about what gets folks most concerned in incarceration nation.

November 22, 2012 at 11:20 AM | Permalink


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The ACLU at least gets "up in arms" by "state-mandated deprivations of liberty" of various types. The NYT has before spoke of sentencing issues, right? This is a quirky enough story that it is worthy of an article and it doesn't really tell me "society" is more concerned about this sort of thing than other matters. And, state mandated spiritual development, IS a deprivation of liberty.

"required first-time misdemeanor offenders to choose between doing jail time and attending church weekly for a year"

Religious liberty counts, yes?

Posted by: Joe | Nov 22, 2012 11:39:33 AM

Prof. Berman and I agree. But I go further. Religion is found in all cultures, and is likely biologically based due to some evolutionary advantage. I am a devout atheist to the extreme, but an intelligent atheist who appreciated the role of religion and its benefits.

It explains in simple terms to average people why they should not live the Roman Orgy lifestyle, should go work to take care of their families, and treat others kindly (to be treated kindly in return). This explanation appeals to convicted felons as well

It provides comfort, however illusory, in times of severe stress, which was most of the time until very recently.

And as an aside it prevents crime far more effectively than any lawyer run criminal law program. It is because of its superiority to lawyer enterprises at preventing crime, that the church is under all out attack, and is being defunded, debased, demonized by the lawyer profession and it big government running dogs like the media.

Posted by: Supremacy Claus | Nov 22, 2012 11:59:58 AM

The ACLU also does a lot of work on sentencing reform, overincarceration, and juvenile justice.

Posted by: DK | Nov 22, 2012 12:15:26 PM

A plague on all their houses: On the ACLU for thinking it has standing in this case; on the kid for driving around when he ought not to be; and the judge for not knowing beans about the Constitution.

There is a place for faith-based initiatives in public life, but not like this.

Posted by: Bill Otis | Nov 22, 2012 9:44:48 PM

oh i don't know bill. If you think it's perfectly legal to waive the right to appeal! Then why can't a defendant to not go to church? if that keeps them out of trouble and out of the very prison we can no longer afford to send them in the first place?

Posted by: rodsmith | Nov 23, 2012 12:08:01 AM

sorry "Then why can't the defendant waive the option to Not go to church?"

Posted by: rodsmith | Nov 23, 2012 12:08:51 AM

So, if I'm an atheist in the judge's court can I choose to attend the "Church of Satan" (atheists believe Satan is as imaginary as god) to avoid a 10 year prison sentence? How about a mosque? What happens if I object to the sentence of church attendance? Will I then be punished because I'm "not religious enough?" I'm a mere atheist-citizen.

Posted by: Daniel | Nov 23, 2012 12:52:50 AM

As a devout atheist to the extreme, I would give Church a chance as an alternative to being in a cage.

Posted by: Supremacy Claus | Nov 23, 2012 3:57:59 AM

I did not read up on the victim impact statement, or reaction if they didn't give one. What did the victim's family say about this? That is the only missing component.

Having said that, I don't believe the ACLU has any footing on first amendment grounds, as LONG as the defendant, victim, and state (through both victim and local or state elected fiat) agree to the plea.

(In fact, I have issues with the ACLU's view of separation of church and state. The original intent was that religion was to play no part in determining policy of state, but there NEVER was an attempt to fully insulate the state FROM the church, which is key.)

Posted by: Eric Knight | Nov 23, 2012 10:04:04 AM

read the original article eric!


"In the courtroom this week, an emotional scene between the victim’s family and Alred played out after statements from Dum’s mother, father and two sisters were read during the sentencing. Dum’s father and Alred stood up in court, turned toward each other and embraced one another."

So the victim's family is fine with the sentence!

Posted by: rodsmith | Nov 23, 2012 10:36:46 AM

There are no atheists in the US, especially among conservatives and even liberals themselves:

I am your lord, o god Obama (or Bush, Clinton, etc. et al), thou shalt not have strange gods before me.

You shall love your government more than yourself.

Posted by: albeed | Nov 23, 2012 10:53:17 AM

The state doesn't have the power to do certain things respecting religion, even if each party consents. Consent might make it hard or impossible to have standing or claim to sue, but it doesn't make the act itself, if otherwise illicit, acceptable. It also encourages repeat use of the practice and we might not know how much each person involved consents. OTOH, don't know the state policy as to filing complaints for misconduct. Standing can come there.

Nor should such a "bargain" be offered. The state, e.g., has no business waiving sentence for consensual baptisms. As to the atheist, to put it out there, how about if the judge (who apparently didn't know the guy went to church already, so this is in theory) said that probation would be tied to church OR a secular alternative of your choice, such as weekly meetings of the local freethinker club or peace group? The idea is some weekly visit to such a religious or conscientious type organization of one's choice.

See also, use of alcoholic's anonymous chapter which speaks of a higher power or some group that might serve the same purpose w/o idea of God.

Posted by: Joe | Nov 23, 2012 11:00:44 AM


While I agree with your sentiment, I don't think that this is "state-encouraged" anything. It is mandated every bit as much as a prison sentence would be, even if I agree it would be preferably to a ten year term of incarceration.

Posted by: Guy | Nov 23, 2012 7:54:29 PM

nice one joe!

"It also encourages repeat use of the practice and we might not know how much each person involved consents. OTOH, don't know the state policy as to filing complaints for misconduct."

Of course we could say the exact same thing about the ever popular....90% of all criminal convicitons....Plea Bargain!

Posted by: rodsmith | Nov 23, 2012 7:56:01 PM

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