The City of Bay Minette, Alabama, recently attempted to institute “Operation Restore Our Community,” a new alternative sentencing program. The program allows first-time non-violent misdemeanor offenders the option to attend church in a place of worship of their choice, in lieu of serving time in prison and/or paying a fine. Offenders who choose this option are required to meet with a pastor and the police department weekly. (It is unclear if the ROC program offers other additional sentencing options, but for purposes of this post I will assume the options are limited to church or jail.)
Though scheduled to begin earlier this month, the legal team behind the program agreed to re-evaluate it in response to a cease-and-desist letter from the ACLU. Last Monday the Bay Minette City Council voted to submit the program to the Alabama Attorney General’s office for review. Bay Minette Police Chief Michael Rowland believes the program is legal, but many others have raised constitutional concerns.
Under the Alabama Code courts may sentence misdemeanor offenders to appropriate community-based alternatives. (Ala. Code 175 § 15-18-175) In this program, Bay Minette offers attending church for one year as a community-based alternative to serving prison time or paying a fine. Assuming the program only offers two options – church or prison – then in my opinion it clearly violates the Establishment Clause by coercing individuals to participate in a religious practice rather than serve time in jail.
This article caught my attention because from our nation’s founding, the right to worship freely and without government interference, or not to worship at all, has been recognized as a basic and inalienable right. As Madison states in his Memorial and Remonstrance Against Religious Assessments, “[t]he Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.” While I support the program’s general goal to provide alternative sentencing options and bolster rehabilitative efforts, the program must do so in a way that does not violate the First Amendment. It is difficult to categorize this program as non-coercive given the disparity between the choices and implications on the offender’s freedom– though some may still choose jail time, the choice simply does not seem realistic to me.
The constitutionality of the ROC program can be viewed as part of a larger question addressing the extent to which prison programs can include religion without violating the First Amendment. The Eighth Circuit has already struck down one faith-based prison program in Iowa as a violation of the Establishment Clause. (See Americans United for Separation of Church & State v. Prison Fellowship Ministries, Inc., 509 F.3d 406 (8th Cir. 2007).) The Bay Minette program is distinguishable from these faith-based prison programs in that the ROC program substitutes religious participation for prison sentences entirely. As both programs present valid constitutional concerns, states will have to continue to rework these programs to comply with the First Amendment and meet the state’s rehabilitative goals. -JKH