Really interesting constitutional questions raised by a woman who pleaded guilty to driving while intoxicated being sentenced to eight years in jail, five years probation and substance abuse counseling. It’s none of those conditions that raise the constitutional concern. It’s this:
From the Herald Online:
“Under normal circumstances, the judge wouldn’t have the authority to do that,” said Kenneth Gaines, a University of South Carolina professor of law specializing in civil and criminal litigation. “You can’t just arbitrarily add anything you want to a sentence.
“But if she consented, it’s really not an issue. It’s critical that the defendant was in entire agreement with it.”
Tolley’s attorney, Amy Sikora, a York County public defender, said Tolley was thankful for the assignment. She has already started working on it.
But I’m not certain that is enough to overcome the constitutional concerns.
Regardless of whether Tolley consents to the judge’s sentence, the sentence still represents state action and thus implicates the First Amendment. And the sentence might run afoul of the First Amendment by being a government endorsement of religion (generally, though probably not specifically because Job is a shared book) and by entangling government in a religious function—after all, the judge will need to read and evaluate Tolley’s summary of the book, right?