Requiring Church Attendance as a Bail Condition

Today’s Mississippi Supreme Court decision in Mississippi Commission on Judicial Performance v. Dearman orders that Mississippi Justice Court Judge Theresa Brown Dearman be reprimanded and suspended for 30 days for — among other things — requiring church attendance as a condition of bail:

In April 2006, Judge Dearman presided over the initial appearance of Philipe D. White, who was charged with felony possession of a controlled substance, cocaine base. Judge Dearman set White’s bail at $2,500 and, as a condition of bail, required White to attend church at least once a week….

In a … case in October 2009, Judge Dearman set Christopher T. Gray’s bond at $5,000 and, as a condition of his bond, required him to attend church twice a week. He had been charged with sale of a controlled substance….

By engaging in the following conduct, Judge Dearman knowingly misused her office by: (1) sua sponte reducing bonds and charges without proper motion; (2) conditioning the reduction on church attendance; (3) exceeding her authority by altering bonds after a defendant had been released on bond or had waived preliminary hearing, or after a preliminary hearing had been conducted; (4) permitting others to create the impression that they were in a special position to influence her as a judge; (5) initiating and inviting ex parte communications; and (6) presiding at her nephew’s initial appearance.

As the six-item list shows, Judge Dearman’s reprimand was also based on a good deal of other misconduct, including one matter that raises a different First Amendment question — whether the judge can be faulted for “author[ing] columns in a local newsletter in which she discussed her differences with the sheriff and advocated for her policy in drug cases of setting low bond amounts with conditions,” a matter on which the majority and the dissent disagreed. But I’m pleased to say that the judges agreed that the church conditions were indeed not legally authorized (though the dissent suggested that they may have been mere error, and not a basis for formal discipline). Ordering a person to attend church, on pain of being sent to jail if he doesn’t comply, is pretty clearly unconstitutional, even under the views of the dissenters in Lee v. Weisman (1992), and certainly under the view expressed in the Lee majority opinion.

Note that Mississippi Justice Court judges need not be lawyers, and the dissent suggests that Judge Dearman in fact is not a lawyer.