Church or Jail? Tough Call

As a criminal defense lawyer, I always appreciate it when judges or others in the criminal justice system come up with sentences for low-level offenders that don’t require them to go to jail. We lock entirely too many people up in this country and we should be more vigorous in pursuing alternatives. Nonetheless, is it too much to expect that they not come up with alternatives that blatantly violate the Constitution?

One small town in Alabama has come up with an alternative sentencing scheme that really makes you shake your head. It presents a simple choice – go to jail or go to church:

Operation Restore Our Community or ‘ROC’...begins next week. The city judge will either let misdemenor [sic] 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.

It’s actually not even an alternative sentence, it’s better than that. If you choose jail, you have a criminal record that will follow you for the rest of your days. The church program, on the other hand, operates like a pretrial diversion program and erases your misdeeds if you complete it.

Regardless, it’s a clear First Amendment violation, as Eugene Volokh explains:

Both conservative and liberal Justices agree that coercion of religious practice violates the Establishment Clause. And while they disagree on what counts as coercion of religious practice (e.g., does being exposed to prayer, and socially pressured to stand and remain silent, at a high school graduation ceremony that isn’t legally required, qualify as coercion?), this is not a close case: Just as it would coerce religious practice to say someone who hasn’t been convicted of a crime, ‘go to church or we’ll send you to jail,’ so it coerces religious practice to say someone who has been convicted of a crime, ‘go to church or you’ll stay in jail.’

Apparently violates the Alabama state constitution, too.

It’s not enough, as the local police chief who dreamed up this scheme explained, that you can choose jail or church (assuming there is a particular flavor of “church” that includes your own – there are no references to mosques, synagogues, or other non-Christian services in any of the news coverage). In reality, that’s no choice at all.

Kudos to the powers that be for thinking outside of the box, but, to paraphrase a great being, “so ten out of ten for intent, but minus several million for good thinking, yeah?” So, it’s back to the drawing board with you. Read this first. And this. In fact, there’s probably some Alabama statutory law you’ll need to be familiar with, too. Come to think of it, just get together with a law talking guy (or gal) or two. They can set you straight. I hope.