Some combinations inherently go together, like chocolate and peanut butter. Others initially sound like a good idea (e.g. chili mixed with jalapeno peppers) but later have regrettable after effects. Requiring a defendant to make a charitable contribution as a sentencing condition is a combination that falls into the latter category.
Proponents of this sentencing practice argue that requiring a defendant to make a charitable contribution more effectively forces the defendant to accept responsibility for his or her actions. One minority view is found in State v. Peiger, 692 A.2d 1273 (Conn. 1997), in which the Connecticut Supreme Court affirmed a defendant’s sentence which included a condition that he make a $2,500 contribution to the hit-and-run victim’s treating hospital. The court noted that the contribution was “an effective rehabilitative penalty because it force[d] the defendant to confront, in concrete terms, the harm his actions have caused” and likely would affect him differently than a “traditional fine, paid to the State as an abstract and impersonal entity.” Id. at 1278.
Former Indiana Court of Appeals Chief Judge Wesley Ratliff, however, viewed the issue differently. In Ratliff v. State, 596 N.E.2d 241, 243 (Ind. Ct. App. 1992), the Indiana Court of Appeals determined a trial court judge did not err when he ordered two defendants to make contributions to a charity of their choice as they had agreed to do in their plea agreements. Chief Judge Ratliff (no relation to the defendant) reluctantly concurred, reasoning the defendants could not propose the charitable alternative in their plea agreements and then later claim error. Id. at 244. Nonetheless, he warned that, “But for the invited error rule, I would not concur, because I see a great potential for mischief in permitting a criminal defendant in effect to buy his way out of trouble by making a charitable contribution….Therefore, I believe plea agreements proposing a charitable contribution in lieu of penalty should not be accepted.” Id.
Judicial ethics committees and judicial conduct organizations that have weighed in on the matter have echoed Chief Judge Ratliff’s concerns and urged judges to discontinue such sentencing practices. See “Charitable Contributions as Part of a Sentence,” Judicial Conduct Reporter, Vol. 21, No. 4 (Winter 2000). In 1986, the Indiana Commission on Judicial Qualifications expressed its disapproval of a plea agreement that required a defendant to contribute to a county victim fund in lieu of paying a fine. (Ind. Adv. Op., December 16, 1986). The Commission “likened the practical effect of this sentencing practice to a ‘payoff’ in order to receive decisional favor.” See Ratliff, 596 N.E.2d at 242; see also Campbell v. State, 551 N.E.2d 1164, 1171-72 (Ind. Ct. App. 1990) (Sullivan, J., dissenting).
In Public Warning of McDougal (Texas, June 30, 1999), the Texas Commission on Judicial Conduct issued a public warning to a judge who had given traffic defendants the option of making donations to a private charity in exchange for dismissal of their tickets. By agreement with the city attorney, the judge routinely advised defendants during arraignment that the city attorney could offer them a plea bargain to make a donation to a charity of the city attorney’s choice in exchange for a dismissal of their tickets. The judge was aware that in virtually all cases the city attorney selected the city public safety committee as the designated charity, which was an organization that assisted in providing services and contributions to the city’s police department. The Texas Commission found that each time the judge granted a motion to dismiss he implicitly approved the city attorney’s selection of the public safety committee and risked creating the public perception that the police department was in a position to influence him. Id.
In addition to those scenarios, other ethics committees have disapproved of judges requiring a defendant to make a charitable contribution directly as part of a sentence (Florida Adv. Op. 84-11, 87-6; Missouri Adv. Op. 172 (1998)); as an option in lieu of performing community service or paying a fine (Michigan Adv. Op. JI-48 (1992); Missouri Adv. Op. 180 (2002); Kansas Adv. Op. JE-108 (2001) but cf. Campbell, 551 N.E.2d at 1169 and Ratliff, 551 N.E.2d at 243); as a condition of community supervision (Texas Adv. Op. 241 (1999)); or as an option for paying a civil contempt citation (Hawaii Adv. Op. 01-1).
Typically the rationale for these advisory opinions is that such sentencing practices violate ethical rules prohibiting judges from organizational fundraising and are inconsistent with a judge’s duties to avoid the appearance of impropriety and to not abuse the prestige of office to advance other’s private interests. Id. A Missouri judicial ethics committee additionally reasoned that providing defendants with the option of making a charitable donation in lieu of community service potentially could have a disparate impact and result in “unfair justice” because only wealthier defendants would have the ability to buy out the community service term. (Missouri Adv. Op. 173 (1999).
So what should a judge do when faced with a situation in which the parties propose that the defendant make a charitable contribution instead of receiving some other penalty? My best piece of advice is to refer the parties to the advisory opinions in this area in the hopes that they will see that agreeing to a charitable donation as a sentence alternative rarely is a wise idea (in fact, it is almost never a good idea).
If that doesn’t alleviate the problem, then the judge should look carefully at the proposed term and consider the potential ethical ramifications. Is the amount of the donation particularly significant? Did the defendant have the option as to where the donation should go? Is the charitable donation reasonably related to the crime committed and, thus, arguably could further defendant’s rehabilitation? Does the prosecutor, the court, law enforcement or a related office have an interest in the charity or could benefit from the gift? What penalty is the donation in lieu of? Will acceptance of the agreement lead to public distrust of the court system? After that analysis, the judge also might want to consult with several judicial colleagues on the trial bench (or staff for the judicial qualifications commission) about the propriety of the proposed disposition. If the judge finds that his colleagues raise their eyebrows, then he has a pretty good idea as to what the public, appellate court, and judicial qualifications commission also might think.
In the end, the prudent judge who wants to avoid the ethical heartburn that arises with these situations likely will come to the following conclusion—when it comes to the judge’s sentencing orders, charity is better left at home.
