28 October 2014

Drug Courts and The Establishment Clause

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

Religious organizations put a lot of work into helping their fellow man. Any drug court out there would be insane to ignore the resources provided by groups such as Catholic Charities or The Salvation Army. Even groups which are not specifically attached to a religion use faith as a tool (AA/NA).  However, in the modern world, with its veto of one, it's difficult for a drug court to use any of these programs unless it wants to risk being sued out of existence.

The latest collateral fuss in this area has come out of the 9th Federal Circuit Court: Hazle v. Crofoot. A probationer was ordered into a drug treatment program which had religious elements and had his probation violated when he refused to participate.  The trial judge determined factual culpability before there was even a trial and a jury was brought in to determine damages. The jury awarded no damages and Hazle did not object while the jury was still there for the judge to send back to put in some sort of nominal damages. The appellate court saves the case for Hazle by working around that tactical choice and sends the case back because when liability is determined the jury has to award some damages. Then the State of California agreed to pay Hazle $1,925,000. The settlement by California appears to make little or no sense unless there is some floor beneath which an award cannot go (no indication of this that I saw) or the settlement was less than another trial would cost (using the first jury as a barometer, the likely outcome seeming to be a nominal award).

The general reaction to all of this is to make sure that both religious and secular programs are options. Of course, this leads to at least two problems. The first is that in areas with smaller populations and low economic viability secular options are not likely to be available and drug court programs cannot carve out an individualized program for one or two individuals. Second, if pre-existing programs are supported by a religious group or have a religious component then requiring the creation of competing secular programs is "making a law respecting an establishment of religion." It is the government using its powers economic, legislative, and/or judicial to pull people away from a religious organization to a government created or sanctioned competitor. Even a choice to walk away from outside programs involving religion and only use government employed counselors in government run programs would be "making a law respecting an establishment of religion" in that it punishes an external program because it is religious.  In theory, unless the drug court started out with both religious and secular options when it began it will be caught between an individual's free exercise guarantee and the prohibition against inhibiting a religion. 

The reality is that drug courts will muddle through using whatever programs are available.  If that means in order to be viable the drug court has to use the six religion-attached treatment programs (no secular ones being available) then the drug court will do so or it will shut down. After all, sending someone to jail - without offering any treatment program - is always going to be constitutional. If Hazle's probation officer had simply sent him to the probation board and thence to jail there would have been no problem. It was the attempt to help Hazle by sending him somewhere to get help that started the trouble.

NEXT: The Standards in Virginia


Anonymous said...

You seem to be implying that it would be constitutional if the court were to say, "if you're religious (or pretend to be), you can go into this program and avoid jail. If you're not (or refuse to pretend), you go to jail." Is that seriously what you're implying?

Ken Lammers said...

No. I am pointing out that in order to follow the current rules set by the appellate courts as applied to reality the only actual constitutional option is to send everyone to jail - whether they are religious or not. Furthermore, this constitutional interpretation paints everyone into a corner. Athiests of America did not go around setting up programs to treat drug addicts. The Salvation Army, AA, Catholic Charities, &cetera did. If the government now begins to create or encourage the formation of programs with the sole purpose of excluding religion or pressures organizations to remove religious components that is the government inhibiting religion clearly violating the "making no law respecting an establishment of religion."

You are however on the correct track as to where the problem lies. Current constitutional interpretation of this clause allows a veto of one. Five thousand people go through the program and a single person objects because he is an athiest (or pretends to be so in order to get out of punishment or get a big check from the government) then the program isn't constitutional unless the government orders it to remove religion or sets up a competitor specifically to exclude religion - which is an unconstitutional act by the government.

TimS said...

I suspect some of the driver of the amount of settlement is a civil rights attorney fee shifting provision.