Can an Ohio judge let a sentenced offender make a charitable donation instead of performing a community service sanction?

Plain-English summary

The Board addressed a proposed court program that would let an offender, who has difficulty performing a community service sanction because of work restrictions or hardship, request to make a charitable contribution to an IRS-recognized charity instead. The court would never order the option; the offender would have to request it. The Board noted it cannot interpret the sentencing statutes or decide whether Ohio law authorizes such a substitution, because that authority lies with the Office of the Ohio Attorney General and the courts, not the Board.

Within its ethical authority, the Board concluded that, unless authorized by law, a judge should not grant the request. First, Jud. Cond. R. 1.1 and 2.2 require a judge to comply with and uphold the law, and "law" includes the statutes that govern community control sanctions; the Board found no express provision permitting a charitable contribution to fulfill a community service sanction, and pointed to Lane v. Phillabaum holding it improper to require charity donations as a diversion condition. Second, Rule 1.2 (public confidence) is undermined because allowing money to substitute for a sanction lets offenders with means influence their own sentencing.

Third, the Board concluded that allowing the substitution conveys the impression that the financial interests of a charity are influencing sentencing and may appear to use the office to advance or solicit for charities, contrary to Rule 1.3 (prestige of office) and Rule 2.4(C) (a judge shall not convey or permit the impression that any person or organization can influence the judge). The Board added that Rule 3.7 bars a judge from soliciting charitable contributions outside narrow exceptions, none of which applied. It surveyed advisory opinions and discipline cases from other states (including Kansas, Nevada, Pennsylvania, Colorado, Arkansas, Louisiana) reaching similar conclusions, noting Colorado allowed it only where express statutory authority existed and the charity was neither chosen nor suggested by the court.

In practice

The opinion holds that, under the Ohio Code of Judicial Conduct, a judge should not grant an offender's request to replace a community service sanction with a charitable contribution unless the substitution is authorized by law. Per the opinion, the analysis rests on the duty to uphold the law (Rules 1.1 and 2.2), the duty to promote public confidence given the risk that offenders with money gain influence over their sanctions (Rule 1.2), and the duty not to convey that money or outside organizations influence sentencing (Rules 1.3 and 2.4(C)). The opinion treats the existence of statutory authority as a legal question outside the Board's authority.

Common questions

Q: Can an Ohio judge accept a charity donation instead of making an offender do community service?

A: The opinion concluded a judge should not, unless authorized by law, because absent legal authorization the substitution conflicts with the judge's duty to uphold the law under Rules 1.1 and 2.2.

Q: Does it matter that the offender, not the judge, requests the option?

A: The opinion concluded the ethical concerns remain because the judge holds the power over whether money may substitute for a sanction; allowing it lets offenders with money influence their sanctions and conveys outside influence, contrary to Rules 1.2, 1.3, and 2.4(C).

Q: Could a statute change the answer?

A: The opinion noted it cannot interpret the sentencing statutes, and that whether Ohio law authorizes such a substitution is a legal question for the Attorney General and the courts; it cited Colorado's opinion permitting the practice only where express statutory authority existed.

Background and rules framework

The opinion interprets the Ohio Code of Judicial Conduct: Jud. Cond. R. 1.1 and 2.2 (comply with and uphold the law), R. 1.2 (public confidence), R. 1.3 (prestige of office), R. 2.4(C) (external influence), and R. 3.7 (soliciting charitable contributions). It situates the analysis against Ohio's felony and misdemeanor sentencing statutes (including R.C. 2929.15, 2929.17, 2929.25, 2929.27) while declining to interpret them.

Citations and references

Rules of Professional Conduct:

• Ohio Jud. Cond. R. 1.1, 2.2 (comply with and uphold the law)
• Ohio Jud. Cond. R. 1.2 (public confidence); R. 1.3 (prestige of office); R. 2.4(C) (external influence)
• Ohio Jud. Cond. R. 3.7 (soliciting charitable contributions)

Statutes:

• R.C. 2929.11, 2929.21 (purposes of felony and misdemeanor sentencing); R.C. 2929.15, 2929.17(C), 2929.25, 2929.27(A)(3) (community control sanctions); R.C. 2949.11 (disposition of fines)

Cases:

• Lane v. Phillabaum, 182 Ohio App.3d 145, 2008-Ohio-2502, improper to require charity donations as a diversion condition
• Arkansas Judicial Discipline and Disability Comm'n v. Proctor, 2010 Ark. 38; In re Johnson, 1 So.3d 425 (La. 2009); In re Davis, 946 P.2d 1033 (Nev. 1997), discipline for ordering payments to charities

Other opinions cited:

• Kansas Sup. Ct. Judicial Ethics Advisory Panel JE 108 (2001); Nevada Comm'n on Judicial Discipline Op. JE 00-003 (2000); Pennsylvania Judicial Ethics Comm. Informal Op. 5/6/3; Colorado Sup. Ct. Judicial Ethics Advisory Bd. Op. 2008-7 (2008): charitable contributions as part of a sentence

See also

• Ohio BPC Op. 2009-011: Judge's Charitable Contributions and Name Recognition
• Ohio BPC Op. 2009-010: A Judge Thanking Jurors

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_10-004.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.supremecourt.ohio.gov

                                  OFFICE OF SECRETARY




                                  OPINION 2010-4
                                 Issued June 11, 2010

SYLLABUS: A judge, who has sentenced an offender for a felony or a misdemeanor
offense, should not grant the offender’s request to fulfill a community control sanction of
community service by making a financial contribution to a charitable organization. First,
unless authorized by law, a judge’s granting of an offender’s request to replace a
community control sanction with a financial contribution to a charitable organization is
not ethically proper under Jud. Cond. Rules 1.1 and 2.2, which require a judge to uphold
the law. Second, unless authorized by law, a judge’s permission to an offender to make a
financial contribution to a charity, instead of serving a community control sanction as
sentenced, does not promote public confidence in the independence, integrity and
impartiality of the judiciary as required by Jud. Cond. Rule 1.2 for it allows offenders
with money to assert influence over their sentencing sanctions. Third, unless authorized
by law, a judge’s use of judicial power to allow an offender to make a financial
contribution to a charity, in lieu of serving a community control sanction as sentenced,
conveys the impression that money and outside influence impacts sentencing and thereby
contravenes Jud. Cond. Rules 1.3 and 2.4(C), which prohibit external influence on
judicial conduct.

OPINION: This opinion addresses a question regarding a judge granting an offender’s
request to make a charitable contribution in lieu of serving the community control
sanction of community service.

   Is it proper for a judge who has sentenced an offender for a felony or a
   misdemeanor offense to grant the offender’s request to replace a
   community control sanction of community service with a financial
   contribution to a charitable organization?

Introduction

Under the proposed facts, a court is considering implementing a program allowing
charitable financial contribution from offenders to replace community service
requirement in limited situations. The court would consider a request to make a
charitable contribution in lieu of completing a community control sanction from a
Op. 2010-4 2

defendant who is having great difficulty in performing community service because of
work restrictions or other valid reasons. The court would review each request to assure
that the offender had a unique situation or a hardship. The court would review whether
the proposed charity was recognized as a charity by the Internal Revenue Service. The
court would never order an offender to participate; the offender would have to request the
option of charitable contribution in lieu of serving the community control sanction.

A judge’s sentencing of a felony or misdemeanor offender is a somber responsibility.
The overriding purposes of felony and misdemeanor sentencing are “to protect the public
from future crime by the offender and others and to punish the offender.” Ohio Rev.
Code Ann. §§ 2921.11(A), 2929.21 (West 2006).

When sentencing an offender, a judge’s conduct must be ethical and the sentence must
comply with the law. The Ohio legislature has enacted sentencing guidelines and
sanctions. As to felony offenses, see, e.g., factors to consider in sentencing (R.C.
2929.12); sentencing guidelines (R.C. 2929.13); prison terms (R.C. 2929.14); community
control sanctions (R.C. 2929.15); community residential sanctions (R.C. 2929.16);
nonresidential sanctions (R.C. 2929.17); financial sanctions (R.C. 2929.18); sentencing
hearing (R.C. 2929.19). As to misdemeanor offenses, see, e.g., sentencing considerations
(R.C. 2929.21); imposing sentence (R.C. 2929.22); jail terms (R.C. 2929.24); community
control sanctions (R.C. 2929.25); community residential sanctions (R.C. 2929.26);
nonresidential sanctions (R.C. 2929.27); financial sanctions (R.C. 2929.28).

Under Ohio law, community service is a community control sanction that a judge has
discretion to order pursuant to R.C. 2929.15 and 2929.17(C) in the sentencing of certain
felony offenses and pursuant to R.C. 2929.22 and 2929.27(A)(3) in the sentencing of
certain misdemeanor offenses.

The Board of Commissioners on Grievances and Discipline does not have authority to
interpret laws governing sentencing or to render advice as to the application of the
sentencing laws. Thus, the Board cannot advise as to whether Ohio law provides for a
judge to allow an offender to substitute a charitable contribution in place of serving a
community control sanction of community service as sentenced.

The Board of Commissioners on Grievances and Discipline may render advice as to
whether conduct is ethical. See Gov. Bar R. V(2)(C). In addition to the ethical
requirement of upholding the law, several other ethical requirements are implicated by a
judge allowing a defendant to substitute making a charitable financial contribution for
serving a community control sanction as sentenced. The ethical requirements are
addressed below.

Applicable rules in the Ohio Code of Judicial Conduct

A judge is required by the ethical rules to comply with the law.
Op. 2010-4 3

                                Jud. Cond. Rule 1.1

   A judge shall comply with the law.

                                Jud. Cond. Rule 2.2

   A judge shall uphold and apply the law, and shall perform all duties of
   judicial office fairly and impartially.

As defined, “‘[l]aw’ encompasses court rules, including this code [Ohio Code of Judicial
Conduct] and the Ohio Rules of Professional Conduct, statutes, constitutional provisions,
and decisional law.” Terminology, Ohio Code of Judicial Conduct. As already stated,
the Ohio legislature has enacted laws regarding sentencing guidelines and sanctions that
judges must uphold.

The requester of this opinion has not brought to the Board’s attention, nor is the Board
aware of, any express provision in the law that would permit a community control
sanction of community service imposed by sentence to be fulfilled by a defendant’s
financial charitable contribution. The Board is aware of a case in which a judge’s
requirement of a financial charitable donation as a requirement of a pre-trial diversion
program did not comport with the law. In Lane v. Phillabaum, 182 Ohio App.3d 145,
150, 2008-Ohio-2502, the court of appeals for the twelfth appellate district, noted, inter
alia, that it is improper under R.C. 2949.11 for a trial court, to require, as a condition of a
pre-trial diversion program, that students charged with alcohol-related criminal offenses
make donations to a particular charity or nonprofit organization. R.C. 2949.11 requires
that unless otherwise required by law, fines be paid into the treasury of the county in
which the fine is assessed.

A judge must promote confidence in the judiciary and avoid abuse of the prestige of
judicial office.

            Jud. Cond. Rule 1.2 Promoting Confidence in the Judiciary

   A judge shall act at all times in a manner that promotes public confidence in the
   independence, integrity, and impartiality of the judiciary, and shall avoid
   impropriety and the appearance of impropriety.

      Jud. Cond. Rule 1.3 Avoiding Abuse of the Prestige of Judicial Office

   A judge shall not abuse the prestige of judicial office to advance the personal or
   economic interests of the judge or others, or allow others to do so.

           Jud. Cond. Rule 2.4 External Influences on Judicial Conduct

   (C) A judge shall not convey or permit others to convey the impression that any
   person or organization is in a position to influence the judge.

Op. 2010-4 4

Jud. Cond. Rule 3.7 is also pertinent. That rule prohibits a judge from soliciting
contributions for charitable organizations, unless permitted by one of the narrow
exceptions in the rule. None of the narrow exceptions applies here.

By permitting an offender to substitute money instead of serving a community control
sanction as sentenced, a judge erodes public confidence in the independence, integrity
and impartiality of the judiciary. The result is that offenders with money gain influence
over their sentencing sanctions. This does not promote confidence is the administration
of justice as required by Jud. Cond. Rule 1.2.

By allowing an offender to make a financial contribution to a charity in lieu of
completing a community control sanction as sentenced, a judge conveys the impression
that the financial interests of a charitable organization are inappropriately influential to
the judge’s conduct in making sentencing decisions that protect the public and punish an
offender. Further, it may appear to the public that the judge is using the judicial office to
advance the interests of charitable organizations or to solicit funds for charitable
organizations.

Judicial power, especially in sentencing criminal defendants, should not be used to
influence financial contributions to charities. Regardless of whether the offender chooses
the charity or the judge directs the financial contribution to a charity, the ethical concerns
are present because the judge has the power over whether money can be used as a
substitute for a community control sanction. Unless there is authorization by law, a
judge’s conduct in allowing an offender to make a financial contribution to a charity in
lieu of serving a community control sanction conveys the impression that money and
outside influence impact sentencing and thereby contravenes Jud. Cond. Rule. 1.3 and
Jud. Cond. Rule 2.4(C).

Other views regarding charitable contributions as part of sentence

The issue of charitable contributions as part of sentences has been the subject of advisory
opinions and judicial conduct cases in other states. For an overview see Cynthia Gray,
Charitable Contribution as Part of a Sentence, Judicial Conduct Reporter (American
Judicature Society) Winter 2000 at 1, 4-6. Since that article, more advisory opinions
have been written on various aspects of charitable contributions and sentences. See, e.g.,
Kansas SupCt, Judicial Ethics Advisory Panel, JE 108 (2001) responding to the question
of whether a judge may permit a defendant, convicted of a misdemeanor, to make a
contribution to a charity of the defendant’s choice in lieu of imposing the usual fine. The
Kansas committee stated that “[a] judge may not authorize an alternative to a fine unless
authorized by statute to do so. Further, if the judge imposes the suggested alternative and
makes an order to that effect, the judge is advancing the private interest of whatever
charity defendant selects.” Nevada, Comm’n on Judicial Discipline, Op. JE 00-003
(2000) advises that “in the absence of any statute, rule, or canon that authorizes judges to
order or approve charitable contributions as part of the resolution of a criminal or civil
Op. 2010-4 5

proceeding, it is the opinion of the Committee that judges may not order or approve
charitable contributions to public or private charities as part of a sentence or plea
agreement in a criminal case or as a sanction in lieu of a fine in a civil action.”
Pennsylvania, Judicial Ethics Comm. of the Pennsylvania Conference of State Trial
Judges, Informal Op. 5/6/3 advises: “A judge cannot directly or indirectly suggest to a
lawyer that a contribution to a charity may be made in exchange for judicial action or
inaction. A lawyer who sua sponte suggests that the lawyer will contribute to a charity to
avoid or promote judicial action or inaction would be bribing the judge, which would
create the appearance of impropriety and therefore require the judge to recuse.” But see,
Colorado SupCt, Judicial Ethics Advisory Bd, Op. 2008-7 (2008) the board noted there is
express statutory authority and advised that “[a] judge may approve a deferred–sentence
agreement that requires a defendant to make a donation to a specific charity, as long as
the charity specified in the agreement is neither chosen nor suggested by the court.” The
board noted its conclusion is limited to the deferred-sentencing context and stated
“[t]here may be other circumstances in which judicial approval of such a contract term, in
the absence of the express statutory authorization found here, might conflict with the
Code of Judicial Conduct. This opinion is therefore not intended to extend a court’s
authority to set conditions of probation.”

Judicial discipline has been invoked for improperly requiring defendants to pay money to
charitable organizations. For example, the Arkansas Supreme Court removed a judge
from office, for among other misconduct, failing to respect and comply with the law and
failing to promote public confidence in the integrity and impartiality of the judiciary by
enforcing the payment of civil fees by defendants with time in jail or with the threat of
jail, knowing that the money would go to non-profit corporation to which the judge was
affiliated. Arkansas Judicial Discipline and Disability Comm’n v. Proctor, 2010 Ark. 38,
2010 WL 271343 (Ark.). The Louisiana Supreme Court publicly censured a judge for,
among other misconduct, ordering defendants charged with drug offenses to pay money
to private organizations without ascertaining whether the organizations met the criteria
required by statute. In re Johnson, 1 So.3d 425 (La. 2009). The Nevada Supreme Court
affirmed the determination of the Commission on Judicial Discipline to remove a
municipal court judge from office, for among other misconduct, suggesting that criminal
defendants contribute money to charities on a list the judge prepared, in lieu of paying
fines to the city. In re Davis, 946 P.2d 1033 (1997).

Conclusion

In conclusion, this Board advises as follows. A judge, who has sentenced an offender for
a felony or a misdemeanor offense, should not grant the offender’s request to fulfill a
community control sanction of community service by making a financial contribution to a
charitable organization. First, unless authorized by law, a judge’s granting of an
offender’s request to replace a community control sanction with a financial contribution
to a charitable organization is not ethically proper under Jud. Cond. Rules 1.1 and 2.2,
which require a judge to uphold the law. Second, unless authorized by law, a judge’s
permission to an offender to make a financial contribution to a charity, instead of serving
a community control sanction as sentenced, does not promote public confidence in the
Op. 2010-4 6

independence, integrity and impartiality of the judiciary as required by Jud. Cond. Rule
1.2 for it allows offenders with money to assert influence over their sentencing sanctions.
Third, unless authorized by law, a judge’s use of judicial power to allow an offender to
make a financial contribution to a charity, in lieu of serving a community control sanction
as sentenced, conveys the impression that money and outside influence impacts
sentencing and thereby contravenes Jud. Cond. Rules 1.3 and 2.4(C), which prohibit
external influence on judicial conduct.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the
Attorney’s Oath of Office.