Judge Sentences Drug Abuser to Church
Reported by Donna - June 1, 2005
Today on Studio B with Shepard Smith, he spoke with Judge Andrew Napolitano about a judge in Kentucky who sentenced a man to either, jail, rehabilitation or church. I used the above title because this is what the banner on Fox read when the story was playing.
Andrew Napolitano stayed true to the law as he usually does on Studio B and when he's not playing 'host' later in the evening. But this time he interjected some 'coddling' of the Fox audience in explaining why it was wrong for the judge in Kentucky to sentence the man to 'church'.
In a segment titled 'Before the Bench' (becoming more and more a regular segment), Smith and Napolitano spoke about the judge in Kentucky and his decision.
The following is my transcript, paraphrased, but pretty much word for word.
Shepard Smith: Alternative sentencing is becoming a popular option with judges, having grafitti offenders paint over the wall or have a judge have a woman give over her her season tickets for football season.
Now, in Kentucky, a judge has sentenced a drug abuser to either go to jail, to rehab or to church. Here in Studio B is our senior judicial analyst, Judge Andrew Napolitano.
Andrew Napolitano: The fertile minds of judges seems to know no limit.
SS: Can you do that? (Sentence someone to 'church')
AN: No, you cannot do it. You can order the person who breaks the schoolhouse window to wash the windows because washing windows does not involve a fundemental liberty like speech or thought or a religion.
Now, and you and I might be in favor of going to church as are a lot of our viewers (gee, you think?), as might the judge, but the judge is part of the government and the government can't force someone to go to church because that forces them against their will to violate their right 'not' (his emphasis) to go to church.
SS: Well, you might argue that, some may argue that this person was given the option of going away to the hoosegow (yes, Smith said this word) or given the option of doing community service or going to church.
AN: That's the judges argument. I'm not forcing you, you have chosen this among the three. Obviously, there's some subtle pressure to choose going to church.
SS: I'd say.
AN: Because, whatever you think of church, it's a lot more pleasant than jail or rehabilitation (says who?).
But when it comes down to someting like fundemental liberty like speech or travel or thought or privacy, the government can't coerce you and it can't tempt you.
For example, the judge couldn't say 'you can stay out of jail if you promise to vote for the democrats'. Or 'you can stay out of jail if you criticize George W. Bush'. That would be 'forcing' (his emphasis)speech as opposed to allowing the person to freely choose their speech.
SS: And even if you gave them the option of jail, rehab or trashing George W. Bush, that still wouldn't be fair.
AN: Right, because you are giving them a benefit, staying out of jail in return for tampering with their right to make free choices. In one case speech in another case worship.
SS: What would you say to this judge, judge? I mean, judges do some freaky stuff.
AN: He might be going from his heart rather than his head. And, I would say if the person doesn't belong in jail, if they have a habit, let them go to rehab, but let them decide whether to worship or not and if so, where.
SS: Is there a lot more God in court lately? Or is it just that we're hearing more about it?
AN: I think we're hearing more about it. In 37 states the judges are elected and in many of those states they are elected by a local constituency, not statewide. They may very well want to appeal to the religious interests of the local constituency. That's where 'God' comes into court, when judges are up for reelection. That's when they tend to do things that they think the voters would want them to do.
I don't think we want that in judges. I think we want them to be brutally fair.
SS: People also find God in jail.
AN: Absolutely, they come out and they become preachers.
SS: Thank you, Judge Napolitano.
Comment: I think that the segment was factual, though, please note that Napolitano had to get in the 'Now, and you and I might be in favor of going to church as are a lot of our viewers' part. It's like he's saying that it's the 'right' thing to do according to you and me and our viewers , but it's not the law. I especially enjoyed the way he was convincing the viewers that this couldn't be done, using the examples of 'having to vote for democrats' or 'criticizing George W. Bush' to prove his point.
And please check out the exchange where Smith gives the example of trashing George W. Bush not being fair and Napolitano turns around and says 'Right, because you are giving them a benefit...' So now it's a benefit to be able to trash George W. Bush? (Just a little levity)
And Napolitano softened the blow by saying that the judge was going with his heart, not his head. No activist judge here, he meant well.
But I'm still pondering - is church better than jail or rehab? Like they say, we report, you decide.
