June 28, 2004
Criminal defendants may be ethically offered the opportunity to perform services for certain companies/organizations to "work off" their restitution obligation under a criminal sentence, provided that:
A. Neither the Court nor any of its personnel is involved in soliciting or contracting with the companies/organizations who will be participating in the restitution program;
B. Neither the Court nor any of its personnel is involved in assigning defendants to the companies/organizations for work; and
C. Neither the Court nor any of its personnel is involved in the soliciting or handling of funds paid to victims in satisfaction of the order of restitution.
References: MCJC 2C, MCJC 3A, MCJC 5B(2); JI-48, JI-55, JI-64, JI-107, In Re Merritt, 431 Mich 1211 (1988).
***The Committee recognizes that there may be issues of law that may effect or prohibit the implementation of such a program which are not addressed in this opinion.***
A group of judges are considering implementation of a program that would assist criminal defendants in fulfilling the restitution portion of a sentence for conviction of a crime, and in turn assist victims of crime in receiving the ordered restitution.
The program as contemplated would have the following essential elements. A group of private individuals has agreed to form a 501(C)(3) organization to administer a restitution program called "RECOVER." The RECOVER entity would contract with a group of private companies/organizations that would agree to donate/contribute money to the RECOVER program. (The Committee passes no judgment on any issues of law, including but not limited to, whether such donations/contributions would be tax deductible.) The RECOVER program will in return agree to assign criminal defendants who opt for the RECOVER program to those companies/organizations to perform manual labor.
Once a criminal defendant has been sentenced to pay restitution, the defendant will be afforded the option of paying the restitution ordered, or if they chose, "working off" the restitution obligation through the RECOVER program. If they opt for the RECOVER program, the RECOVER entity will give them a choice of companies/organizations to work for, in return for a pre-determined hourly "credit" toward their restitution obligation for each hour worked. Once the defendant has performed enough hours of labor to pay for the restitution ordered, the RECOVER entity will pay the restitution amount directly to the victim, and the restitution obligation of the defendant will be satisfied.
No judges, court personnel and/or funding unit personnel would be part of the RECOVER entity or be otherwise involved in the administration of this program. The sole role of the Court system would be to identify criminal defendants who may qualify to "work-off" their sentence of restitution in this fashion, with some monitoring by the probation department to ensure that the restitution sentence is fulfilled. The probation department may also seek reimbursement from the RECOVER program for costs incurred in monitoring compliance with the restitution sentence.
The proposed program raises certain issues under the Code of Judicial Conduct. MCJC 2C provides in pertinent part that: "A judge should not use the prestige of office to advance personal business interests or those of others." The proposed program certainly does not contemplate advancing any personal business interests of the judges. While the program could arguably be viewed as advancing the business interests of the companies/organizations who chose to participate with RECOVER, so long as neither the judges nor any other court personnel are involved in soliciting and/or contracting with the participating entities, no violation of MCJC 2C is presented.
MCJC 5B(2) provides in pertinent part that: "A judge should not individually solicit funds for any educational, religious, charitable, fraternal, or civic organization, or use or permit the use of the prestige of the office for that purpose . . . ." The program as contemplated does not portend judges soliciting funds from any person or organization for any purpose, nor using the prestige of the office for that purpose. The proposed program is thus distinguishable from those sentencing programs found to be ethically prohibited since they involved the solicitation of funds from criminal defendants and/or their attorneys. We thus find no violation of MCJC 5B(2). Compare: JI-55 (judge may not impose a sentence requiring criminal defendant to pay money to local school district's substance abuse program); JI-48 (judge may not offer contribution of funds by criminal defendant to a charity designated by the judge in lieu of performing public service); In Re Merritt, 431 Mich 1211 (1988)(judge publicly censured for, inter alia, soliciting funds from attorneys for the assistance of indigent drug and alcohol abusers).
MCJC 3A(9) provides in pertinent part that: "A judge should adopt the usual and accepted methods of doing justice, avoid the imposition of humiliating acts or discipline, not authorized by law in sentencing and endeavor to conform to a reasonable standard of punishment . . . ." The proposed program is consistent with "usual and accepted methods of doing justice." Orders to perform public service, even with no compensation, are a common and accepted portion of many criminal sentences. In addition, while this Committee does not address issues of law, it is our understanding that an order of restitution is mandated by law for most crimes where a victim of criminal activity suffers direct financial loss. In view of the foregoing, and the fact that the program does not portend any sentence imposing "humiliating acts or discipline," it is our opinion that the proposed program does not violate MCJC 3A(9).
Some prior opinions of this Committee have suggested that any sentence not expressly "authorized by law" is ethically proscribed by MCJC 3A(9). See, e.g., JI-48, JI-55 and JI-107. To the extent those opinions expressly or impliedly state that any sentence not expressly "authorized by law" is unethical, whether they involve the "imposition of humiliating acts or discipline" or not, we believe them to overstate the ethical prohibition contained in MCJC 3A(9) and disapprove of those statements.
In summary, the RECOVER program as proposed does not violate the Code of Judicial conduct so long as: a) neither the Court nor any of its personnel is involved in soliciting or contracting with the companies/organizations who will be participating in the restitution program; b) neither the Court nor any of its personnel is involved in assigning defendants to the companies/organizations for work; and c) neither the Court nor any of its personnel is involved in the soliciting or handling of funds paid to victims in satisfaction of the order of restitution.