Judicial ethics committees have consistently advised that, absent express legal authority, a judge may not require a contribution to a charity as part of a sentence. In addition, judicial conduct commissions have disciplined judges for requiring a charitable contribution as part of a criminal disposition.
The rationale for the rule is that a judge may not personally solicit contributions to charitable organizations or use the prestige or power of the judicial office to do so and incorporating a charitable contribution into a sentence is in effect solicitation of funds. The prohibition applies even if the judge is simply approving a plea bargain or allows the defendant to choose where the donation goes. Further, it applies when the contribution is in exchange for dismissal or withholding adjudication or in lieu of attorney sanctions or community service
An article on charitable contributions as part sentencing was published in the winter 2000 issue of the Judicial Conduct Reporter and will be up-dated in the next issue. You can sign up to receive notice when a new issue is available at http://www.ncsc.org/newsletters. In the meantime, below are summaries of advisory opinions and cases issued since the original article.
- When a statute authorizes a judge to approve a deferred sentence agreement in which the defendant agrees to pay a sum certain to a designated charity, a judge may approve such an agreement as long as the judge does not choose or suggest the charity. Colorado Advisory Opinion 2008-7 .
- A judge may not order that attorneys or litigants pay a fine for civil contempt or other sanctionable conduct to a specific charity or to a charity or worthy cause selected by the person being sanctioned. Hawaii Advisory Opinion 2001-1.
- A judge may not permit a defendant who has been convicted of a misdemeanor to make a contribution to a charity of the defendant’s choice in lieu of imposing the usual fine of $300. Kansas Advisory Opinion JE-108 (2001).
- Pursuant to the recommendation of the Judicial Tenure Commission to which the judge consented, the Michigan Supreme Court censured and suspended for 30 days a magistrate who advised defendants to purchase tickets to a charitable event in exchange for having their tickets dismissed. In re Shannon, 637 N.W.2d 503 (Michigan 2002).
- A judge may not accept a plea bargain if the judge knows that a precondition to the recommendation is payment of money to a specified charity, the county treasury, or a county crime reduction fund. Missouri Advisory Opinion 176 (2000).
- A judge may not require donations to a county school fund in lieu of a fine even as a condition of probation or part of a plea bargain. Missouri Advisory Opinion 180 (2002).
- A judge may not as part of a criminal sentence order a convicted defendant to make a charitable contribution or approve a plea bargain agreement between the prosecutor and the defendant that includes the defendant’s agreement to make a charitable contribution even if the judge does not select the charity or the amount of the contribution. Nevada Advisory Opinion 2000-3 .
- A judge may approve a plea bargain agreement that includes the defendant’s donation of money to the county STOP DWI program as long as the judge determines that the plea bargain is legally appropriate and ethical under the code of professional responsibility. New York Advisory Opinion 2008-67 .
- A judicial officer may not approve a stipulated order of continuance in which the city prosecutor and defendant agree to case dispositions in which money is to be paid to the city that is not in accord with statutory provisions. Washington Advisory Opinion 2004-5.