What did the Commission originally say about choosing between fee-funded rehabilitation programs in sentencing?

Plain-English summary

The 1993 opinion discussed two fee-funded programs for spouse-abuse offenders. It urged judges to use objective factors such as service quality, cost, ability to pay, and cooperation with the court, and to avoid nonjudicial connections to programs receiving referrals.

The official PDF marks this opinion overruled. Opinion 97-678, issued October 3, 1997, expressly overruled it while allowing board service on the specific facts of a nonprofit youth rehabilitation facility with no funding based on the number of referrals.

Currency note

The official 1993 PDF is marked ‘Overruled by 97-678.’ Opinion 97-678, issued October 3, 1997, expressly overrules it and permits board service on the later opinion’s specific nonprofit youth-facility facts. The Alabama Supreme Court adopted the Alabama Canons of Judicial Ethics in 1975. Treat the original answer as historical context and check the later opinion and current Canons.

Common questions

Q: Is the 1993 answer still operative?

A: No. The official PDF and Opinion 97-678 identify it as overruled.

Q: What did the original answer emphasize?

A: Objective reasons for choosing a facility and avoiding nonjudicial connections to referral recipients.

Q: What did the later opinion allow?

A: Board service on its specific nonprofit youth-facility facts, including funding that did not depend on referral counts.

Background and rules framework

The original opinion cites Alabama Rule of Criminal Procedure 26.8 and Ala. Code § 15-18-8 on alternative sentencing; Opinion 97-678 later overrules it.

Citations and references

Other authorities cited:

• Alabama Rule of Criminal Procedure 26.8; Ala. Code § 15-18-8; Alabama JIC Opinion 97-678.

Other opinions cited:

• Alabama JIC Opinions 88-339 and 82-166 are cited in the original; Opinion 97-678 expressly overrules it.

See also

• AL Judicial Ethics Op. 93-473: Brother’s Firm

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 93-468
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

93-468
[Overruled by 97-678]
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
February 26, 1993
This is in response to your request for an advisory opinion from the Judicial Inquiry Commission. Your question is how should a judge avoid the appearance of impropriety in selecting one rehabilitative facility over another in sentencing spouse abusers. In your county, the County Mental Health Center operates an educational program for spouse abusers. Recently, the South Alabama Chapter of the National Safety Council developed a similar program. Both programs are available to the municipal and district courts as alternatives to traditional sentences. Both programs are financed in large part by requiring the defendant to pay a fee. Attendance at some type of rehabilitative program is a method of “alternative sentencing” encouraged under Rule 26.8. A.R.Crim.P. See also Ala. Code 1975, § 15- 18-8. In order to avoid any appearance of impropriety, a judge should make reasonable efforts to insure that neither facility is favored over the other unless there is an objective reason for sentencing a defendant to one particular facility. Objective reasons for sentencing a defendant to one particular facility rather than the other include, but are not limited to, such factors as the quality of services offered by that facility, the cost of treatment, the financial situation of the defendant, and the facility’s willingness to cooperate with the sentencing court. In this regard, a judge should insure that he or she has no non-judicial connection to the educational or rehabilitative program of any agency to which the judge is making referrals. See Advisory Opinion 88-339 (judge should not lease his building to Regional Council on Alcoholism to run DUI school where judge hears DUI appeals from lower court); 82-166 (judge who is a founder and director of a juvenile detention facility should not accept contributions on behalf of the building fund where facility was established to accept referrals from judge’s court). This advisory opinion has been reviewed and approved by the Judicial Inquiry Commission and is the opinion of the Commission.