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Is there ANYTHING you feel AA does improperly?
Sun, 06/24/2012 - 09:51
The point is coercion, Trish. The state can't condition benefits or withhold punishments (in prison or in the free world) based on one's participation (or lack thereof) in religious activity. I guarantee you I win this point.
"Hokey religions and ancient weapons are no match for a good blaster at your side, kid."
Sun, 06/24/2012 - 10:12
Go back and read my posts. You are so itchy to soap box these cases concerning infringement of the 1st amendment, that you miss my point.
My one and only point is everyone has a choice in the circumstances we all have presented here concerning the topic we are debating.
“The more I traveled the more I realized that fear makes strangers of people who should be friends.”
Sun, 06/24/2012 - 09:37
State, City or County chooses to disregard the law or better yet they choose to decide the law is not worth imposing, "then what was the purpose of the law"? The judges must have been in a liberal religious mood that day in San Francisco.
"For purposes of the First Amendment, having to choose AA or jail constitutes coercion in violation of the Establishment Clause. This is well established law."
Penny if what you are saying here is true, then how come every Judge, prosecutor, lawyer, probation officer, parole officer and prison officials all disregard what you are saying here today. People are being sent to AA because they made a choice, I personally would have them rather go to jail and serve their time for the crime. But thousands of educated scholars in law and criminal justice disagree with you and I. They don't see it the same way you do or they just choose not to see it.
People who have committed a crime are given a choice as part of their sentence, probation, or parole go to AA or finish out your sentence. Until there comes a time when the above authorities choose to include HAMS, SMART, SOS or whatever else there is, this today is their choice.
IMO, if you don't like it tough shit, don't commit the crime.
Another thing here, if we were talking about HAMS or SMART we would not even be having this conversation, I believe. Does everybody really think it would make a difference to the convicts or DUI offenders whether they were being sentenced to AA or HAMS, I really don't think it would matter to them either way. Most are not going because they think they have a alcohol addiction problem. They are going to serve out a sentence.
Oh, last Penny. You are never going to convince me that it is a bad thing for people to be coerced by a judge to go to AA. Jesus, give me a break.
Here!! Here!!The Honorable Lester Dutichop is now ready to sentence, Miss Penelope Drincapoo, you are hereby sentence to 6 mon's worth of meetings a the nearby AA meeting hall, "OR" you can hereby commence with your commuted sentence of one year in County Jail for your 3rd DUI offense. What shall you say Miss Drincapoo, "Oh!! my honor the wonderful judge, I will go to those dastardly AA meetings. Thank you, you are such a kind judge".
Persephone In Exile
Sun, 06/24/2012 - 09:20
Let's all take a moment to thank someone's Holy Doorknob that your opinion and "tough shit" don't constitute the legal system.
Sun, 06/24/2012 - 09:29
Well Trish, when push came to shove and Inouye sued because officials were disregarding the law, he won. Keep that in mind.
Sun, 06/24/2012 - 09:38
Oh, one more thing. State, county, and other officials don't get to decide that a constitutional law is not worth enforcing. This is a basic cornerstone of American constitutional federalism. See any high school civics book.
Sun, 06/24/2012 - 09:40
Penny, I'm having a bit of trouble understanding just how this is difficult to understand.
Sun, 06/24/2012 - 10:20
I can. Especially when you are more interested in what you have to say then listening to what others are saying.
Let me recap,
1) I have no argument with the cases won concerning AA being a religious organization.
2) People being coerced into AA for their crimes, I told you I have no sympathy there.
3) Courts, judges, lawyers, prosecutors, parole officers and probation officers disregarding the decisions made by the 9th circuit court. Why is this happening?
4) Why are people being sent to AA by the courts?
Sun, 06/24/2012 - 12:28
Yeah, I don't like people being mandated to AA, but I like even less that if they get the chance to avoid jail, instead of being glad, they say, "oh no...." They should get a "you know, that is right. Check in time at the jail is 0600."
Remember Christopher Stevens when you vote.
Sun, 06/24/2012 - 10:05
You think the judges sitting on those benches in the counties, cities and states out there in America haven't heard of this case, i bet they have. Seems they all ignore it.
Penny, you don't have an explanation for this phenomena either.
Sun, 06/24/2012 - 10:22
You'd be surprised at how little some trial judges know about this. Thankfully appellate court justices are much more astute.
Sun, 06/24/2012 - 10:06
How many have come up since? Seems somebody or something put a stop to it.
A bunch. So many, in fact, that the Inouye case established that a coercee can overcome qualified immunity and get monetary damages.
Sun, 06/24/2012 - 10:24
Here Trisha, read this from Inouye v. Kemna, 504 F. 3d 705 (2007):
Having held, first, as we must under Saucier, that there was a constitutional violation on the facts alleged, we now turn to the question at the heart of the parties' dispute: was the pertinent Establishment Clause law "clearly established" on this point such that a reasonable official would know that his or her conduct was illegal? Sorrels, 290 F.3d at 969. We find that it was. The vastly overwhelming weight of authority on the precise question in this case held at the time of Nanamori's actions that coercing participation in programs of this kind is unconstitutional.
In 2001 — indeed, until this case — our Circuit had not ruled on this question. "Absent binding precedent, we look to all available decisional law, including the law of other circuits and district courts, to determine whether the right was clearly established. We also evaluate the likelihood that this circuit or the Supreme Court would have reached the same result." Osolinski v. Kane, 92 F.3d 934, 936 715*715 (9th Cir.1996) (internal citations omitted). While officers cannot be "expected to predict the future course of constitutional law," Wilson v. Layne, 526 U.S. 603, 617, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), the law may be clearly established even if there is no case directly on point. Id. at 615, 119 S.Ct. 1692. It is enough if "in the light of pre-existing law the unlawfulness [is] apparent." Id. Here, Nanamori need not have relied on more general cases. He had a wealth of on-point cases putting him, and any reasonable officer, on notice that his actions were unconstitutional.
By 2001, two circuit courts, at least three district courts, and two state supreme courts had all considered whether prisoners or parolees could be forced to attend religion-based treatment programs. Their unanimous conclusion was that such coercion was unconstitutional. See Warner v. Orange County Dept. of Probation, 115 F.3d 1068, 1074-75 (2nd Cir.1997) (holding that it was a constitutional violation to impose participation in AA/NA as a probation condition); Kerr v. Farrey, 95 F.3d 472, 479-80 (7th Cir.1996) (same for prisoners); Alexander v. Schenk, 118 F.Supp.2d 298, 301-02 (N.D.N.Y.2000) (same); Warburton v. Underwood, 2 F.Supp.2d 306, 318 (W.D.N.Y.1998) (same); Ross v. Keelings, 2 F.Supp.2d 810, 817-18 (E.D.Va.1998) (same); Arnold v. Tennessee Board of Paroles, 956 S.W.2d 478, 483-84 (Tenn.1997) (AA/NA imposition unconstitutional as a parole condition); In the Matter of David Griffin v. Coughlin, 88 N.Y.2d 674, 691-92, 649 N.Y.S.2d 903, 673 N.E.2d 98 (1996) (AA/NA imposition unconstitutional with regard to a prisoner).
We note that this march of unanimity has continued well past March, 2001, when Nanamori acted. Indeed, a district court found a constitutional violation on nearly identical facts just one month later in April, 2001, finding, too, that the law at that time was "clearly established" and no qualified immunity was available. See Bausch v. Sumiec, 139 F.Supp.2d 1029, 1037, 1039 (E.D.Wis.2001). More recent courts have agreed. See Armstrong v. Beauclair, 2007 WL 1381790, *12-*13 (slip op.) (D.Idaho Mar. 29, 2007) (noting supporting rulings dating to 1996 and striking down AA/NA requirement as parole condition); Turner v. Hickman, 342 F.Supp.2d 887, 895-97 (E.D.Cal.2004) (collecting cases and adopting Kerr test to bar AA/NA as requirement for release on parole); Nusbaum v. Terrangi, 210 F.Supp.2d 784, 789-91 (E.D.Va.2002) (holding that there was a violation but finding qualified immunity because defendants were making a good faith effort to come into compliance with the law in prison context). The only case of recent vintage that upheld participation in an AA/NA program, decided in June, 2001, endorsed Kerr but held against the plaintiff prison inmate because he had a choice of programs and was not coerced to attend the one he challenged. In re Garcia, 106 Wash.App. 625, 24 P.3d 1091, 1096-97 (2001). Garcia is thus entirely consistent with our holding and with those of all the cases we have cited.
716*716 The district court reviewed much of this law before holding that a constitutional violation had occurred. Yet it held, nonetheless, that the law was not clearly established. The court reached this conclusion because it believed that there were a small number of "divergent opinions," even though it noted that a violation had been found "by the majority of federal district courts and state courts," along with the Seventh and Second Circuits. The district court's conclusion was in error, both legally and factually.
First, lack of complete unanimity does not mean that a legal principle has not been clearly established. Second, the "divergent opinions" the district court relied upon totaled three, all federal district court decisions, and each at least five years old by 2001. Third, as the district court itself noted in its merits discussion, two of these three cases — all except the oldest — are "distinguishable from the instant case in critical ways."
O'Connor v. California, 855 F.Supp. 303 (C.D.Cal.1994), a challenge to AA/NA imposed as part of a sentence for drunk driving, acknowledged that the program was "founded on monotheistic principles" but explained that it was "[s]ignificant to this Court's decision that the individual has a choice over what program to attend." Id. at 307-08 (emphasis in original). So O'Connor does not speak to the coercion issue.
The holding of Boyd v. Coughlin, 914 F.Supp. 828 (N.D.N.Y.1996), which did uphold a coerced program, was abrogated by the Second Circuit in Warner, and so was not good law at the time the district court relied upon it as a "divergent opinion." See Warner, 115 F.3d at 1074-75.
Of the cases that the district court felt could have caused a reasonable parole officer to be confused about the state of the law, this leaves only Stafford v. Harrison, 766 F.Supp. 1014 (D.Kan.1991). This case, a decade old in 2001, applied the Lemon test directly, did not consider the warnings against coercion dating back to Everson, and was decided using Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), deference because it regarded prisoners, not probationers. Stafford, 766 F.Supp. at 1016-17. This factually-distinct case, decided before Lee reemphasized the dangers of coercion in the Establishment context, simply is not enough to render the state of the law in 2001 anything less than clear.
This uncommonly well-settled case law alone is enough for us to hold that the law was clearly established, sufficient to give notice to a reasonable parole officer, in 2001. But there are additional factual circumstances in this case that persuade us still further. We consider them not for their subjective effect on Nanamori but for their objective effect on a reasonable parole officer in his fact-specific position. Anderson, 483 U.S. at 641, 107 S.Ct. 3034.
First, there was an ongoing federal suit against Hawaii prison officials over mandatory religion-based treatment programs, filed by Inouye, at the time when Nanamori imposed AA/NA as a parole condition. This suit, filed a year prior, focused on the constitutionality of coerced religion-based treatment programs and might well have put a reasonable parole officer on notice, 717*717 particularly with regard to the very plaintiff in the suit.
Second, on the present record, a jury could infer Nanamori had actual notice that his actions were unconstitutional, in the form of Inouye's letter to the Hawaii Paroling Authority objecting to such programs and attaching Kerr. The district court suggests that Kerr did not provide adequate notice because the court there granted qualified immunity, holding that the law was not yet clearly established. But it is Kerr, of course, which contributed greatly to establishing the law, and which lays out, convincingly enough to guide any officer facing the question since, why a constitutional violation occurs when AA/NA is simply required, without alternatives. A reasonable parole officer, reading Kerr four years after it had been decided, and making the effort to learn that, since it was decided, many courts have agreed with it and none have disagreed, would be put on notice by the decision.
Given all this, Nanamori's mistake as to the law was not reasonable. An officer in Nanamori's position, having available near-unanimous judicial invalidation of religious coercion in this and similar contexts, with a lawsuit in progress against the prison system for mandating participation in a similar program, and having Kerr in hand, should not have reasonably repeated the same mistake.
Sun, 06/24/2012 - 10:25
I like this part:
This uncommonly well-settled case law alone is enough for us to hold that the law was clearly established, sufficient to give notice to a reasonable parole officer, in 2001. But there are additional factual circumstances in this case that persuade us still further. We consider them not for their subjective effect on Nanamori but for their objective effect on a reasonable parole officer in his fact-specific position.
Sun, 06/24/2012 - 11:03
You keep trying to convince me of something that I am not arguing.
Turn the switch off.
Sun, 06/24/2012 - 11:24
Did that delay any sentencing at all? I don't have a problem if they want to shove and push because I would just say, fine, you can go to jail. It's the ony option left in many areas.
Sun, 06/24/2012 - 12:54
That is really unbelievable, Clara. You really think that people's rights should be violated just because they committed a crime? That they should only have the option of not serving jail time if they're willing to buy into chanting Christian prayers? What country do you think this is exactly?
Sun, 06/24/2012 - 12:59
Is that what Clara said? I thought she was anti-mandating.
“The essence of the independent mind lies not in what it thinks, but in how it thinks.”
― Christopher Hitchens, Letters to a Young Contrarian
Sun, 06/24/2012 - 13:03
Sun, 06/24/2012 - 13:05
Becket, I guess you missed this part:
"...I don't have a problem if they want to shove and push because I would just say, fine, you can go to jail. It's the ony option left in many areas."
Sun, 06/24/2012 - 13:11
I also don't have a problem with what Clara said because it is true. I believe the intent is to get help for the struggling addict and drunk.
Look what happened to Inouye, he is dead.
Sun, 06/24/2012 - 13:17
Yes, that is the intent. In which case, given the stats (and lack thereof), is AA really the best option? Which is beside the point that it's not really help, it's faith healing and praying. Which is unconstitutional to mandate someone to in this country.
Why is this such a problem for you? Or Clara or Becket? You can't send someone to a religious group as part of a sentence.
Sun, 06/24/2012 - 13:27
What else is there? Really?? We are talking about people who have placed themselves in situations where they ended up in prison. I haven't been there and I would venture to say 98 % of the members here haven't either.
So what if we ("we", meaning members here on OP) had the decision to seek treatment for Mr. Inouye, what would we do. I trust we are not just going to let him go free with no treatment at all? Like what actually did happen.
PIE, it isn't a problem for becket, Clara or myself, how many times do we have to say we agree with you. We don't want mandated people coming to AA. Would you please listen? I just want them to receive some help and at times I don't care if there 1st amendment rights are slighted a bit. There are a menace to society and to themselves.
Sun, 06/24/2012 - 13:29
You really can't come up with another solution beyond AA? Is it really AA or jail? What about all the other conditions of probation?
Sun, 06/24/2012 - 13:34
Conditions of probation? That they cannot associate with known felons? That they cannot own firearms? That they report to a PO regularly? Pay any restitutions? Inform the court if they have to move? Not drink too much?
The court expects a probationer not to drink too much? How are they going to monitor that? Or any of it for that matter? The courts cannot assume babysitting duties for the millions of criminals in this country. They can't keep them from killing each other in the joint.
Is this multi-faceted problem really one you expect to find answers for on the Orange Papers Forum??
Sun, 06/24/2012 - 13:41
Yes they can. They do it all the time. For example, they make you call in every day and tell you whether you need to report for testing that day.
Sun, 06/24/2012 - 13:48
I guess it is a start but don't bet on testing everyday. They don't have enough employees. Meth heads account for 85% of the inmates in our county jails where I live. The PO's are overwhelmed as it is.
Sun, 06/24/2012 - 13:59
AA/NA does not monitor whether they use so that is an irrelevant objection.
Sun, 06/24/2012 - 14:00
I know AA/NA doesn't monitor people?? What are you talking about?
Sun, 06/24/2012 - 14:14
When I suggested drug testing, you responded by saying we can't count on that because POs are already overburdened. I said that is an irrelevant objection since AA does not monitor anyway.
Sun, 06/24/2012 - 14:40
So they flunk and they go to jail. Square one, right? Let them serve out their actual sentences?
Sun, 06/24/2012 - 14:44
I don't know, Becket. But that is a policy question we can certainly discuss. Personally, I think it should depend on the crime. I fundamentally disagree with long prison terms for simple drug possession cases, but I don't have a problem with sending burglars and robbers to the pen for a long time.
Sun, 06/24/2012 - 15:35
The law is the law, it is either adhered to or broken. Yet white collar criminals are getting out early, and others are being released because there's no room in the prisons for them. I say more prisons is a good idea. You break the law, you get busted, you pay. No soft time. What is simple drug possession? Less than a kilo of cocaine? How will the laws change to accommodate the flourishing population of criminals?
Sun, 06/24/2012 - 15:47
My suggestion is to go soft on victimless crime but hard on crimes that directly create victims. I say "directly create victims" because one could argue that almost any crime indirectly creates victims. Anyway, here is the thing: if a person gets arrested for burglary and it turns out he has drugs on him, he'll probably face just as much (if not more) time for the dope than the burglary. That is fucked up IMO. I'd give his ass 10 years (or whatever) for the burglary and just drop the drug charges.
Sun, 06/24/2012 - 17:00
You mean a second victim, right? Are addicts and alkies not in some respects victims of their actions?
Sun, 06/24/2012 - 17:22
No, one cannot be a victim of one's own actions, at least not legally.
Sun, 06/24/2012 - 13:35
It doesn't matter what situation they placed themselves in, they have rights. If you cannot understand that, then I'm done with you. "We" don't have the right to decide anyone's treatment, unless we all collectively go into the legal profession. Thank the Holy Doorknob, yet again. If the courts are going to deem this worthy of treatment instead of jail, then they should provide the alternative themselves in a form that doesn't violate the rights of anyone. Far from "bashing" AA, either, shouldn't there be some proof that this works (and does no harm) before the justice system can send people there? I'd say that even it it didn't involve Christian prayer....
Sun, 06/24/2012 - 13:38
Persephone, to whom are you directing this post?
Persephone In Exile
Sun, 06/24/2012 - 16:35
"It doesn't matter what . . . "
I was legitimately asking a question. What are you going to do with an ex convict with a drug problem? If he doesn't want to go to AA, SMART, HAMS, SOS or a T/C voluntarily.
Sun, 06/24/2012 - 13:49
Ex convict? Trisha, I believe the law at present (except in a few places) states that you cannot force anyone into treatment. There are, however, TCs (therapeutic communities) and a few weird provisions. I'm no expert on this, though. But I know that with very few exceptions, you cannot force substance abuse treatment on someone. You did say "ex".
Sun, 06/24/2012 - 13:56
I know a few people who were mandated to 3/4 houses upon release from prison. They had to get a job, take piss tests everyday, and show if they once had a drug problem they were seeking help. Most of the help came from AA/NA. I am really not that up to date if people there are also going to other programs and lets not forget church. Many go to church for support.
You could force a convict to go to secular groups such as SMART.
Sun, 06/24/2012 - 14:03
Penny, how long can someone be mandated? Do you know? Is there a limit on how much treatment they can be mandated to once their debt to society is paid?
Sun, 06/24/2012 - 14:08
Typically they can be mandated for the entire length of their sentence. The maximum length a person can be sentenced for a particular crime is decided by the legislature.
Sun, 06/24/2012 - 14:10
PIE, they can't be mandated to treatment once they have served their entire sentence.
Sun, 06/24/2012 - 14:37
Penny, that's how I understood it, but seemed to be where Trisha was headed....somehow.
Sun, 06/24/2012 - 17:38
I am sure it is part of an early release, program. Which is a condition of their parole.
Sun, 06/24/2012 - 14:04
Here it comes. I have been waiting for this line of thought to emerge. I am surprised it took this long.....lol.
Sun, 06/24/2012 - 16:54
What happens when the nearest SMART meeting is 250 miles away? Wouldn't that create a hardship?