JI-64

December 21, 1992

SYLLABUS

It is not unethical for a judge in sentencing a defendant to offer as an alternative to incarceration that the defendant perform services or attend an educational or rehabilitative program, provided that:

(a) the alternative offered, excluding fines and costs authorized by law, is attendance at a program or performance of services and not payment of money;

(b) where more than one program exists which serves the educational or rehabilitative purpose, the defendant is given a choice of programs in which to participate rather than the sentencing judge making the designation;

(c) where only one program exists which serves the educational or rehabilitative purpose, the judge, the court, and court staff do not have a nonjudicial interest in, participate in, or otherwise operate or control the program alternative;

(d) any charges for the operation of the program are paid by the defendant directly to the program and are not assessed or handled by the court, are limited solely to the reasonable cost of the defendant's participation in the program, and a defendant is not denied access to the program for inability to pay the charge; and

(e)the content of the program is limited to the educational or rehabilitative purposes prompting the sentence.

References: MCJC 1, 2C, 3A, 5B; JI-48, JI-55; JTC A/O 59; In re Merritt, 431 Mich 1211 (1988).

TEXT

A number of inquiries have been received from judges seeking guidance regarding the propriety of certain sentencing proposals. These sentencing proposals are distinct from those outlined in statutes which authorize incarceration, fines or costs.

1. May a judge assign probationer/defendants to perform maintenance work in the municipality which is the funding unit for the judge's court? The assignment to the defendant may be mandatory, or may be presented as an option to incarceration or participation in other community service activities.
2. To what extent may a court contract with an outside organization to create and administer educational or rehabilitation programs which a judge may require a defendant to attend, and/or to which a judge may require a defendant to make a financial contribution? Examples are programs which provide driver improvement programs, alcohol evaluations, substance abuse counseling, mediation, and family abuse counseling.
3. If a judge sentences a defendant to participation in an educational or rehabilitative program operated by an outside organization, may the sentence also require payment to the court of the fee charged by the outside organization, which fees are then turned over to the organization by court staff; may the organization operate the program on court premises?
4. If an outside organization which offers educational or rehabilitative programs also has a political agenda, which may or may not be incorporated into the program, may a judge nevertheless sentence defendants to attend the program? Does it matter whether the program charges a fee?

In In re Merritt, 431 Mich 1211 (1988), a judge was publicly censured for establishing a bank account ostensibly to assist indigent drug abusers, and then assessing fines against attorneys who appeared before the judge and depositing the moneys into the account. Citing to Mich Const 1963, art 6, § 30, MCR 9.104(4), and MCJC 1, 2A and 3A(9), the Michigan Supreme Court found that the judge's conduct, whether well-intentioned or not, gave the appearance of using the power of judicial office to solicit moneys, and constitutes misconduct in office clearly prejudicial to the administration of justice.

In JI-48 the Committee addressed a sentencing program which gave offenders the option of either performing a designated number of hours of community service work or making a cash contribution to charities designated by the judges. Reasoning from Merritt and ethics rules MCJC 2C and 5B, the Committee opined that a sentencing judge may not give offenders the option of making a monetary contribution to a charity designated by the judge. Such a sentence was akin to "soliciting" money for the judge's charity and used the judicial office for the private charity.

In JI-55 the Committee addressed a sentence which required defendants to make a financial contribution to the local school district's substance abuse education program. In opining that the practice was not proper, the opinion reiterated the general principles from Merritt and JI-48, that a sentence which mandates a payment to a specific charity was akin to "solicitation" and using the judicial proceedings to promote such assesssment was exploiting the prestige of the office for private interests of the charity.

Those same principles apply to the additional questions raised in this inquiry.

1. May a judge assign probationer/defendants to perform maintenance work in the municipality which is the funding unit for the judge's court? The assignment to the defendant may be mandatory, or may be presented as an option to incarceration or participation in other community service activities.

The problems discussed in Merritt, JI-48 and JI-55 revolve around sentencing practices requiring payment of money, not performance of services. Also, in each of those matters, the presiding judge designated the organization which would be the beneficiary. In Merritt and JI-48, the presiding judge had a direct interest in the program to which the defendants were sentenced.

In this instance, the sentencing practice does not involve money, and the beneficiary is the public municipality, not an outside private interest. The sentencing judge has no direct interest in the programs offered; in fact, the list of available municipal services may be maintained by the probation department rather than by the judge.

The inquiry appears to suggest that there may be an appearance of bias or an appearance of currying favor if the beneficiary of the sentence (the municipality) is also the funding source of the court. Without detailed information concerning the number of defendants so sentenced and the value of their services to the municipality, the Committee cannot evaluate whether the sentencing practice reaches the level of impropriety, but we suspect that the actual impact is slight. In any case, any taint would be minimized if the defendant has a choice of municipal services to perform, and the judge does not "direct" participation in a particular program. Indeed, since prosecutors and defense counsel may propose various sentencing, community service, and rehabilitation options to the sentencing judge, the judge might be merely accepting an option agreed to by the parties.

It would be improper for the court to use the sentencing practice as a bargaining ploy in funding negotiations.

2. To what extent may a court contract with an outside organization to create and administer educational or rehabilitation programs which a judge may require a defendant to attend, and/or to which a judge may require a defendant to make a financial contribution? Examples are programs which provide driver improvement programs, alcohol evaluations, substance abuse counseling, mediation, and family abuse counseling.

There is nothing in the ethics rules which prohibit a court from contracting for services with an outside organization, whether the organization is charitable/civic or some other type. Nor is there anything per se ethically inappropriate for a judge who knows of an existing service or program, whether or not it is offered under contract with the court, from ordering participation when it would be beneficial for a particular defendant.

MCJC 2C forbids a judge from allowing the prestige of the judicial office to be used for the private interests of another person or organization. MCJC 1 requires a judge to maintain the independence and impartiality of the judiciary, free from outside interests. MCJC 5 allows judges to participate in avocational or charitable/civic activities, as long as they do not interfere with the performance of judicial duties. As long as those principles are observed and the judge does not personally benefit from referrals to a particular agency, there is nothing which would ethically prevent a judge from making sentencing referrals to an organization of which the judge is a member. See JTC A/O 59.

When the program is provided by an independent, outside organization, there is always the danger that mandating participation in the particular program will be perceived as a judicial endorsement, or using the prestige of office for the interests of the outside entity. As discussed above, this perception can be minimized by offering the defendant participation alternatives, rather than the judge designating the program which the defendant must attend. When there is only one acceptable program available, a judge may nevertheless make a sentencing referral, as long as the judge does not have a direct interest in the program.

On the issue of the outside organization charging a fee, the impropriety proscribed by ethics rules is the assessment of monetary contribution which would inure to the benefit of the program, i.e., using the public auspices and prestige of the judiciary to make sure the costs of the outside program are covered. The ethics code does not appear to proscribe a judge from referring a defendant to a program for education or rehabilitation and to require the defendant to pay whatever the program costs directly to the program, but the judge should not make payment of program fees part of the sentence. Fees should be limited to the reasonable costs of the defendant's participation in the educational or rehabilitative program. No defendant should be turned away from a program for inability to pay the entire fee. An organization may establish a sliding fee based upon ability to pay, and may, in calculating the fee to be charged, include a reasonable estimate of the amount needed to offset the number of individuals likely to be unable to pay the full fee. Any contract with an outside organization should explicitly address fees charged to sentencing referrals.

The opportunity to receive sentencing referrals should remain open to other outside entities which may establish programs in the future. When contracting for services, a court should institute a fair selection procedure which would allow other interested organizations the opportunity to obtain the contract and should not grant exclusive rights to referrals to a particular outside organization.

3. If a judge sentences a defendant to participation in a educational or rehabilitative program operated by an outside organization, may the sentence also require payment to the court of the fee charged by the outside organization, which fees are then turned over to the organization by court staff; may the organization operate the program on court premises?

This example is answered by the previous discussion. A judge may require a defendant to attend and satisfactorily complete a particular educational or rehabilitative program operated by an outside organization. A judge does not violate ethics rules merely by sentencing a defendant to attend a program which the judge knows charges a fee, as long as the selection was reached objectively based upon the quality of the program and the particular needs of the defendant, and other available alternative programs have been given equal consideration. The judge and the judge's court and staff may not participate in the collection of moneys from sentenced individuals to attend such programs.

Ethics rules do not prohibit a judge or court from allowing an organization to hold its educational or rehabilitative program on court premises.

4. If an outside organization which offers educational or rehabilitative programs also has a political agenda, which may or may not be incorporated into the program, may a judge nevertheless sentence defendants to attend the program? Does it matter whether the program charges a fee?

The inquiry provides several examples of organizations that might have such "political agendas," i.e., M.A.D.D., the Salvation Army, Alcoholics Anonymous, and Catholic Social Services. The danger perceived is that an organization may take advantage of the "captive audience" of sentencing referrals to promote its own interests, whether through membership solicitation, advocacy of particular philosophies, or furtherance of goals unrelated to the purposes of the referral. A definition of "political agenda" has not been provided to enable the Committee to hypothesize generic examples; other labels such as "public policy agenda" or "ideological advocacy" could also be used.

No facts have been provided which would allow the Committee to address the program content of such organizations in more than general terms. The ethics principles which must be observed are: (1) the danger of the sentence being perceived as lending the prestige of the judicial office to the private interests of the organization, MCJC 2C; (2) the danger that the sentence will be perceived as the judge's endorsement of a particular ideology or set of views which unfairly "slants" the judge's judicial actions, MCJC 1; and, (3) that a judge should remain "unswayed by partisan interests, public clamor, or fear of criticism," MCJC 3A(1).

If the judge has avoided using the prestige of office for the interests of the organization, and especially if the defendant has been allowed alternatives among the programs the defendant may attend which do not include a political agenda, the likelihood of the judge becoming identified with any particular agenda of the outside organization is slight.

If the outside organization is under contract with the court to provide the services, the contract should specify that the educational and rehabilitative programs which may be part of sentencing have no "political" content. Likewise, the contract should specify that the fee, if any, charged to defendant referrals be limited solely to the reasonable costs of the defendant's participation in the educational or rehabilitative program, and that no part of the fee may be allocated to the benefit of the organization's "political agenda."

If the outside organization is not under contract but in fact may receive sentencing referrals, the court should have some method of periodically reviewing the program content to ensure that the educational and rehabilitative needs of attendees are being met and that political components are not present in the educational and rehabilitative programs to which defendants may be sentenced.

CONCLUSION

It is not unethical for a judge in sentencing a defendant to offer as an alternative to incarceration that the defendant perform services or attend an educational or rehabilitative program, provided that:

(a) the alternative offered, excluding fines and costs authorized by law, is attendance at a program or performance of services and not payment of money;

(b) where more than one program exists which serves the educational or rehabilitative purpose, the defendant is given a choice of programs in which to participate rather than the sentencing judge making the designation;

(c) where only one program exists which serves the educational or rehabilitative purpose, the judge, the court, and court staff do not have a nonjudicial interest in, participate in, or otherwise operate or control the program alternative;

(d) any charges for the operation of the program are paid by the defendant directly to the program and are not assessed or handled by the court, are limited solely to the reasonable cost of the defendant's participation in the program, and a defendant is not denied access to the program for inability to pay the charge;

(e) the content of the program is limited to the educational or rehabilitative purposes prompting the sentence.