June 22, 1992
A judge may not impose sentences requiring criminal defendants to pay moneys which are allocated to educational, religious, charitable, fraternal, or civic activities, unless the sentencing practice has been authorized by law.
References: MCJC 2C, 3A(9), 5B; JI-48; In re Merritt, 431 Mich 1211 (1988).
In sentencing defendants in criminal cases involving controlled substances or a minor in possession of alcohol, judges of a district court order the defendant to make a financial contribution to the local school district's substance abuse education program. The goal of the education program is to reduce the likelihood that the students will become involved in the unlawful use of controlled substances or alcohol. The funds are used (a) to direct programming to students, (b) to purchase educational materials used in the sessions, and (c) to train instructors in preventive education.
The payments are part of the original sentence, and not in lieu of community service or jail time. The judges do not exercise any discretion regarding disbursement of the funds, but from time to time may be consulted regarding whether a particular educational proposal falls within the parameters of the program. Payments are payable to the school district or to the probation department.
The district judges ask whether the policy contravenes ethics rules.
In JI-48 we 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. The sum of money paid by the offender in lieu of performing community service work was set by the sentencing judge; the moneys were paid into the court clerk's office, deposited into a county "restitution" account, and subsequently sent to the charities with a cover letter from the sentencing judge describing the program and fund distribution. In that situation we opined that a sentencing judge may not give offenders the option of performing a designated number of hours of community service work or making a monetary contribution to a charity designated by the judge.
Although the facts presented here are distinguishable from JI-48, the underlying reasoning of that opinion largely applies. As noted in that opinion, MCJC 5B allows judges to participate in educational, religious, charitable, fraternal or civic activities, but clearly says a judge may not personally solicit funds for any civic/charitable organization, nor use the prestige of judicial office for solicitation purposes. See also MCJC 2C.
We further noted in JI-48 that MCJC 3A(1) provides a judge should be faithful to the law in performing adjudicative responsibilities, and that MCJC 3A(9) urges judges to "avoid the imposition of humiliating acts or discipline, not authorized by law in sentencing and endeavor to conform to a reasonable standard of punishment and not seek popularity or publicity either by exceptional severity or undue leniency." In this inquiry, it appears that the court created the educational program, established its parameters, and is consulted regarding its curriculum. As in JI-48, we are unable to find any authority in law which allows the sentencing practices described.
Finally, we again refer to In re Merritt, 431 Mich 1211 (1988), in which the Court ordered a public censure of a judge who established a fund which had for its original purpose, the assistance of indigent drug and alcohol abusers. Citing to the Michigan Constitution 1963, art 6, Sec 30, MCR 9.104(4), and MCJC 1, 2A and 3A(9), the 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 the conduct constitutes misconduct in office clearly prejudicial to the administration of justice.
Despite the factual distinctions among Merritt, JI-48, and this inquiry, the underlying rationale still applies. Unless a sentencing practice has been authorized by law, a judge's imposition of that sentence is unethical. A sentencing program by which a judge requires parties to pay moneys which are allocated to charitable/civic purposes is akin to a "solicitation" by the judge for that charitable/civic activity and contravenes MCJC 5B. A sentencing program, no matter how laudable the goals, which uses the power of the judicial office to solicit moneys is conduct prejudicial to the administration of justice.