"Join the Sierra Club!": imposition of ideology as a condition of probation.

• Author: Levine, Jaimy M.

INTRODUCTION

Donald J. Bohnert was an entrepreneur who created a business out of accepting hazardous waste for storage and disposal. The problem, however, was that Bohnert did not possess the appropriate permits to do this as required by Ohio's hazardous waste laws. Indeed, Bohnert never disposed of the waste he accepted; he transported it to rented storage lockers where it remained.(1) That is, until the local environmental agency discovered Bohnert's activities. Imagine Bohnert's emotions as the state attorney general's office instituted a criminal enforcement action against him, as he pleaded guilty, and as he was convicted of 207 counts of the illegal transportation, disposal, and storage of hazardous waste.(2) Whatever these emotions, however, imagine Bohnert's surprise on learning that to avoid serving two years in prison, he must for five years be a member of the Sierra Club,(3) a national environmental advocacy organization that promotes environmental preservation through a broad political agenda that includes lobbying and litigating.(4) Despite Bohnert's dismay at being forced to join a group whose views he does not support and whose views are not accepted by the mainstream of our society,(5) Bohnert submits to his required membership to avoid the alternative of prison life, the resulting loss of liberty, and the associated stigma.(6)

Bohnert has not been the only person faced with such a choice. Recently, several judges have sentenced people convicted of environmental crimes to serve time in the local Sierra Club.(7) Such "creative sentencing" aims to (1) promote rehabilitation of the offender, (2) ensure public safety by placing the offender under the continued supervision of law enforcement, and (3) minimize costs to the community by avoiding the expense associated with incarceration.(8) While creative sentences should be encouraged in light of the current crisis in prison capacity,(9) sentencing discretion that allows a judge to compel membership in a political advocacy organization has strayed too far.

Creative sentences stem from a court's statutory authority to place a convicted criminal(10) on probation in lieu of incarceration.(11) Authorizing statutes,(12) however, place few restrictions on probation and thus offer little guidance to a judge in determining who should be granted probation, the length of the probation term, and the particular conditions of an offender's probation." These statutes reflect the theory that because sentencing judges are often close to the particulars of each offender's background, they should be given discretion in granting probation and setting the terms and conditions of probation that best rehabilitate offenders and provide adequate public protection.(14)

Common conditions of probation include the payment of a fine, restitution to the victim of the offense, completion of a drug or alcohol treatment program, and maintenance of a satisfactory job.(15) Sentencing courts often attempt to make the punishment fit the crime. As creative conditions of probation, courts have prohibited women convicted of child abuse from becoming pregnant,(16) prohibited an offender convicted of pirating cable television services from watching cable television,(17) required driving under the influence offenders to participate in confrontation sessions with victims of drunk driving accidents,(18) allowed burglary victims to go into the burglars' homes and take anything they wanted,(19) and required a landlord convicted of building code violations to live alongside his tenants.(20)

Conditioning a probation on membership in an environmental advocacy organization such as the Sierra Club infringes on the First Amendment(21) right to be free from compelled speech.(22) The U.S. Supreme Court has recognized that the First Amendment protects the rights to "refrain from speaking"(23) and to be "intellectually and spiritually diverse or even contrary."(24) By imposing an ideology as a condition of probation, the sentencing court implicates this fundamental First Amendment right.

It is widely recognized, however, that a condition of probation is not improper merely because it infringes a fundamental right.(25) To promote rehabilitation while securing public safety, conditions of probation necessarily restrict a probationer's liberty.(26) Even the most basic condition of probation, that the offender refrain from further law-breaking activity during the probation term,(27) limits the probationer's liberty. If a probationer violates a condition of her probation by violating a collateral law, the probationer risks greater consequences than the nonprobationer. The probationer can be prosecuted for the collateral crime in the same way as the nonprobationer, but in addition, the court can revoke the offender's probation, in which case incarceration for the first conviction might be appropriate. Nevertheless, rehabilitation of the offender, public safety, and facilitation of law enforcement justify the imposition of this probation condition.

Whereas probation conditions that infringe fundamental rights are permissible because they directly relate to the purposes of probation, probation conditions that infringe on the First Amendment right to be free from compelled speech and association are not directly related to the purposes of probation. Presumably, education in the scope and application of environmental laws would facilitate both rehabilitation of an offender of environmental laws and protection of the public by giving the offender the tools to comply with these laws in the future. Yet the Sierra Club's agenda includes changing the current scope and implementation of environmental laws.(28) Imposing such an ideology on a probationer is unnecessary to rehabilitate the offender and assure future compliance with the law.

Moreover, the exercise of First Amendment liberty interests is essential to the successful rehabilitation of a probationer. Historically, First Amendment rights have been accorded "preferred status"(29) for several reasons. First, freedom of expression guarantees that the marketplace of ideas will ultimately reveal the truth.(30) Second, free speech is essential to "intelligent self-government in a democratic system."(31) Most important for the purposes of probation, freedom of expression promotes self-fulfillment, autonomy, and human dignity.(32) Respect for the structure of society begins with self-respect, and a probationer who is unnecessarily deprived of the chance to develop a sense of autonomy, and a sense of dignity for self and human life will be unable to transform those values into respect for society's legal order.(33) Furthermore, the probationer will perceive the unnecessary deprivation of her rights as indicative of the unfairness of the legal system; in turn, the probationer will be less inclined to respect and abide by society's legal structure in the future.

The recent proliferation of probation conditions that require an offender to associate with a particular ideology(34) compels an examination into the doctrines currently employed by courts reviewing probation conditions that infringe fundamental rights. While the Supreme Court has failed to articulate any standard by which such conditions should be measured, lower courts have been forced to develop their own doctrines to address this issue. Without coherent guidance, however, courts have defined several different standards, none of which have been applied with any certainty or regularity.(35) As sentencing judges continue to respond to the mounting prison crisis, the practice of alternative sentencing becomes more frequent, and as a result this lack of clear guidance becomes increasingly significant in affecting fundamental rights.

Part I of this Comment reviews the history, underlying authority, and conditions of probation in general. The basic standard of review applied to probation conditions is then construed. Part II surveys conditions of probation that restrict a probationer from engaging in constitutionally protected activity and the limits on imposing such conditions. This Part reveals the current lack of coherence among and within jurisdictions and the resulting inadequate protection accorded fundamental First Amendment rights.

Part III of this Comment analyzes conditions that infringe a probationer's First Amendment right to be free from compelled expression. This Part reveals that such probation conditions are only indirectly related to the purposes of probation, and that they in fact deprive the probationer of the opportunity for meaningful rehabilitation because they deny the probationer the right to develop self-respect, autonomy, and human dignity. This Part then proposes that probation conditions that impose an ideology merit a heightened constitutional scrutiny. Only when there are no less restrictive alternatives should an offender's probation be conditioned on an affirmative requirement that compels expression.

1. PROBATION AND CONDITIONS IN GENERAL

   1. Authority and Purposes of Probation

      The power to grant probation is purely statutory.(36) Both federal(37) and state(38) jurisdictions have enacted statutes authorizing probation. Under the Federal Probation Act,(39) in force for crimes committed prior to November 1, 1987, probation is authorized upon suspension of a sentence.(40) The court is authorized to condition probation "upon such terms and conditions as the court deems best."(41) The Act expressly provides as conditions of probation the payment of a fine, restitution to aggrieved parties, and support for legal dependents.(42)

      Courts have further relied on the permissive language in the Federal Probation Act to impose a wide variety of conditions on probation that are not expressly provided in the Act.(43) These discretionary conditions include, for example, a requirement that the probationer abide by all applicable laws,(44) a requirement that the offender not associate with...