Can a judge sentence a criminal defendant to pay money into a school or charitable education program?

Plain-English summary

The opinion addressed district judges who, in sentencing controlled-substance and minor-in-possession cases, ordered defendants to make a financial contribution to the local school district's substance abuse education program. The payments were part of the original sentence, not in lieu of community service or jail, and the judges exercised no discretion over disbursement, though they were sometimes consulted on whether a proposal fit the program. The judges asked whether the policy contravened the ethics rules.

The Committee drew on its earlier opinion JI-48, which barred a sentencing program giving offenders the option of community service or a cash contribution to judge-designated charities. While the facts here were distinguishable, the Committee found the underlying reasoning largely applicable. MCJC 5B allows a judge to participate in educational, charitable, and civic activities but bars a judge from personally soliciting funds or using the prestige of office to solicit. MCJC 3A(9) directs judges to avoid imposing discipline not authorized by law in sentencing. The Committee found no legal authority for the sentencing practice and noted that the court had created the program, set its parameters, and was consulted on its curriculum.

Citing In re Merritt, 431 Mich 1211 (1988), in which the Michigan Supreme Court publicly censured a judge whose fund gave the appearance of using judicial power to solicit money, the Committee concluded that unless a sentencing practice is authorized by law, imposing it is unethical. A program requiring parties to pay money allocated to charitable or civic purposes is akin to a solicitation by the judge and, however laudable its goals, is conduct prejudicial to the administration of justice.

Currency note

This opinion was issued in 1992 and interprets the Michigan Code of Judicial Conduct as it then stood. The MCJC has since been amended (the State Bar flags amendments effective August 1, 2013 to Canons 2, 4, 5, and 7, among other revisions), and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a judge order a defendant to donate to a school education program as part of a sentence?

A: Per the opinion, not unless the sentencing practice is authorized by law. The Committee concluded such a sentence functions as a judicial solicitation of funds.

Q: Does it matter that the judge does not control how the money is spent?

A: The opinion found that distinction insufficient; the court created the program, set its parameters, and was consulted on its curriculum, and the Committee found no legal authority for the practice.

Q: What authority did the Committee rely on?

A: The opinion relied on MCJC 5B and 2C (solicitation and prestige of office), MCJC 3A(9) (sentencing not authorized by law), its prior opinion JI-48, and In re Merritt, 431 Mich 1211 (1988).

Background and rules framework

The opinion interprets the Michigan Code of Judicial Conduct: MCJC 5B (charitable and civic activities; no personal solicitation of funds), MCJC 2C (prestige of office), and MCJC 3A(9) (avoiding discipline not authorized by law in sentencing). It builds on prior opinion JI-48 and the Michigan Supreme Court's decision in In re Merritt.

Citations and references

Rules of Judicial Conduct:

• MCJC 2C (prestige of office)
• MCJC 3A(9) (sentencing not authorized by law)
• MCJC 5B (charitable/civic activities; no solicitation of funds)

Other opinions cited:

• JI-48 (community-service-or-charitable-contribution sentencing)

Cases:

• In re Merritt, 431 Mich 1211 (1988), public censure for fund giving the appearance of using judicial power to solicit money

See also

• Mich Ethics Op. JI-104: Juror Records in Campaigns
• ABA Formal Op. 490: Judges Collecting Court Debts

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=764&Type=6

Original opinion text

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

JI-55

June 22, 1992

SYLLABUS

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).

TEXT

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.