The Judge and Jesus

By: Eric J. Davis

Last week a Judge here in Harris County began allowing probationers to shorten their community service hours by working through a Christian workbook used by prison ministries. By his own acknowledgment, he was trying to help people. He expressed frustration at seeing young defendants turn down probation, which would help them avoid a conviction, in favor of a conviction and a fine. He was trying to creatively approach the situation. He was bringing new ideas into the game and trying to tackle an elusive problem that had scored so much pain in the lives of many. So elusive has the problem been that many judges have stop trying anything new. They have resorted to running conviction factories, manufacturing broken lives. But this Judge wanted to try something he heard had worked. He took some caution in doing so. Prior to asking them whether or not they wanted to work through the workbook, he asked them their faith so as not to impose religious views on someone of a different faith.

No doubt, this action appears to violate the first amendment's prohibition of government establishing religion. But it is not violative of the fifth or sixth amendments, neither of which say anything about religion. There is no phrase "separation of church and state" in the Constitution. Government is only prohibited from establishing religion and from prohibiting the free exercise of religion. Further, the Constitution specifically limits "Congress," not the courts. Arguably, the Judge's program may be government imposing religion on people, which both establishes religion and inhibits the free exercise of religion (the desire for the absence of religion is religion). Confronted with the legal problems associated with his actions and the fact that people were offended, the Judge relented and vowed never to engage in this conduct again. His conscious SUSTAINED! people's objections to his conduct. He gave the explanation above and seemed sincere in doing so.

But some in our local defense bar were up in arms about it all. For them, the judge's apology was insufficient. They wanted to pierce his hands and feet with the metal rods of their anger and then fasten him to the tree of their self-righteousness. A friend who was a personal injury lawyer once told me that no one cries louder than a wounded Republican. Well, no one is slower to forgive than a wronged criminal defense lawyer. We who ask for mercy ought to be willing to freely extend mercy.

Our local group had a meeting to discuss what we should do. Many of my friends know that I hate going to meetings. Especially meetings to talk about doing something. I figure we should just do it. So I never attend those types of meetings. But I made time and I attended this meeting. At the meeting someone said, "It was the most offensive thing that could have possibly happened." I stopped and asked myself, "In what world do these lawyers live?" For someone to think that this was the most offensive thing that could have happened told me how out of touch some lawyers are with real people. Real people have more pressing concerns. And there are issues at the Courthouse that are more pressing. With all of the ability, energy and power that lawyers have; wasting our time and resources on this issue is a sin and a shame.

I expressed this opinion in so many words at the meeting and, as expected, it was not received well. Some were upset with it. And I am sure I have ruined relationships with some lawyers who were in attendance. But there were some lay people (non lawyers) who were in the room during the meeting and listened to most of the discussion. As I was leaving the courthouse, one of them approached me on the courthouse steps and asked to shake my hand and said, "What you said needed to be said.... We need more people to stand up like you did." After some refection, I realize that we as lawyers are out of touch with the people we serve. How can we effectively tell the stories of their pain and struggles if we do not try to walk a block in their shoes? Are we no better than the judges and prosecutors about whom we complain? Do we pass judgment quickly on people and pay no attention to their motives? Do we condemn people, giving them no opportunity to return? If we do, then we are no better than those we oppose.

For more information on the Consitution, see this video and constitutional lecture.