Constitution Daily

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Constitution Check: Can a judge send a criminal to church instead of prison?

November 27, 2012 by Lyle Denniston


Lyle Denniston looks at a judge’s decision to sentence a teen to attend church for 10 years, and why that decision goes against the grain of the Founding Fathers.

The statement at issue:

“I feel like church is important.  I sentenced him to go to church for 10 years because I thought I could do that…. I think it would hold up, but I don’t know one way or another…. I think Jesus can help anybody. I know I need help from him every day.”


– Oklahoma judge Mike Norman, of Muskogee, in a statement quoted in The New York Times on November 22, discussing his decision to sentence a 17-year-old youth convicted of manslaughter to attend church regularly for a decade as an alternative to 10 years in prison. The Times story is here:

We checked the Constitution, and…

One of America’s oldest constitutional traditions—in fact, it predates the Constitution itself—is that the government can neither compel religious practice nor prohibit it. That doctrine of separation of church and state can be traced directly to James Madison, the “father of the Constitution.”


Oklahoma Judge Norman’s uncertainty about his authority to impose a church attendance requirement instead of a prison sentence on a youth found guilty of a serious crime raises questions about his preparation for the bench. It would be hard to pass through a law school, or at least through a constitutional law class, and not have been exposed to one of Madison’s most enduring principles of government.


In today’s rancorous debates about the role of religion in public affairs, it is sometimes argued that excluding religion from that realm represents hostility to matters of faith.  Madison surely did not understand separation in that way. And neither have many courts in interpreting the First Amendment’s Establishment Clause, broadly understood as enacting the separation principle.


Madison and Patrick Henry fought in Virginia’s colonial assembly in 1784 over Henry’s proposal to tax Virginians to support Christian churches and clergy. The measure ultimately was defeated, in considerable part because of the effect of Madison’s “Memorial and Remonstrance Against Religious Assessments.”


That document was a ringing endorsement of the doctrine of separation of church and state, but one of its basic premises was that government aid to religion—indeed, aid of any kind—was inevitably a threat to religious freedom. Historian Steven Waldman has described it as “a politically unifying synthesis of all the major arguments against an assessment and, more broadly, against any government involvement in religion….[It] was a rallying cry for religion unfettered and entirely voluntary.”


An often quoted statement in the Memorial reads: “The 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.  This right is in its nature an unalienable right.”


That is hardly an expression of hostility to religion. And the spirit of the Memorial was carried forward when the new American government was formed, and especially when the First Amendment was added with the Bill of Rights in 1791.

About Constitution Check

  • In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about its meaning and what duties it imposes or rights it protects.

Oklahoma Judge Norman, in choosing a sentence for 17-year-old Tyler Alred, had a considerable amount of judicial discretion.  If he thought a 10-year prison sentence was excessive for the youth, he could have suspended any such sentence, placed Alred on probation, and imposed conditions on that probation. In fact, the judge did adopt a probation alternative, and included in the conditions several specific requirements: he had to finish high school; enter training for a trade; and avoid alcohol, drugs, and tobacco for a year.


He could have added a requirement that Alred get some form of counseling.  But when he added the condition that the youth regularly attend church for 10 years, Judge Norman almost certainly ran afoul of the Madisonian principle of separation. His remark about getting help from Jesus suggested that he expected the youth to benefit from religious counseling, as such.


Because Alred and his family already were churchgoers, the family may well have concluded that the judge was simply adding a bit of enforcement to an ongoing practice of faith, and one that preserved Alred’s freedom. But, under separation principles, that converted the power of the state in the person of a judge into coercion to attend worship services on pain of violating his probation and going to prison.


The threat of losing probation—and, with it, his personal freedom—no doubt deprived young Alred of any choice in the matter of faith. He would either have to worship, or suffer the consequences. Would the judge henceforth monitor what young Alred did in church, or would it be enough that he merely showed up? Would he have to report his faith practices to a probation officer? The prospects for official entanglement in religion are obvious.


Again, one is reminded of Madison and his Memorial. He wrote: “We cannot deny an equal freedom to those whose minds have not yet yielded to the evidence which has convinced us. If this freedom be abused, it is an offence against God, not against man.”


Lyle Denniston is the National Constitution Center’s Adviser on   Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.


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