Opinion 02-51
June 7, 2002
Digest: It is not unethical for a judge to participate in a plea bargain arrangement under which a defendant arrested for patronizing a prostitute will receive an adjournment in contemplation of dismissal, provided that the defendant agrees to attend and pay for the cost of participating in a “John School” program. But, the judge should not agree to set an amount that exceeds the cost of the John School, where such excess monies, are to be used to fund programs and organizations providing services for the rehabilitation of prostitutes.
Rule: Penal Law § 60.27; 22 NYCRR 100.1; 100.2(C); 100.4(C)(3).
Opinion:
The inquiring judge asks whether a judge may participate in a program conducted under the auspices of the local District Attorney, under which a person arrested for patronizing a prostitute is offered the opportunity to have his case adjourned in order to attend what is called a “John School.” As stated in the supporting materials provided:
The mission of the John School is to prevent recidivism through the education of the offender as to how his crime impacts adversely on the community, the prostitutes, as well as his own health and safety. This will be accomplished through the use of speakers from the Department of Health, the District Attorney’s Office, the Police Department, a social worker, a former prostitute and community leaders.
Under the proposed program, when an individual is arrested for patronizing a prostitute, he will be offered the opportunity to have his case adjourned in order to attend the John School. Upon the successful completion of the John School requirements, the defendant will receive an Adjournment in Contemplation of Dismissal (ACD). If the defendant fails to complete the John School Program, or does not agree to attend the John School, he will be ineligible for an ACD and will be offered a Violation with 10 days of community service.
The defendant would be required to pay a $500 fee to attend the John School, a not-for-profit organization. The school consists of 5 hours of classes in which the above mentioned speakers would conduct presentations and facilitate discussions. The classes would be held during the evening from 5 - 10 p.m. The monies collected for this program would first be applied to cover the costs of the program. The costs would include hiring a coordinator for the program, renting suitable space to hold the classes, as well as paying the speakers and other expenses, such as materials and travel. The defendants would be informed at the outset that any monies which exceed the costs would be dedicated to funding services for prostitutes . . . [emphasis added.]
Assuming that the plea and sentencing procedures are lawful, the question to be determined is whether a judge may, as a matter of judicial ethics, participate in the manner contemplated. At issue, is whether a judge, under these circumstances would be engaging in impermissible fund-raising, which is proscribed by section 100.4(C)(3) of the Rules Governing Judicial Conduct (22 NYCRR 100.4[C][3]) or is otherwise using the prestige of judicial office to advance the private interests of others. 22 NYCRR 100.2(C). Further, there remains the question of whether the independence of the judiciary may be impaired by such participation. 22 NYCRR 100.1.
In the opinion of the Committee, requiring the defendant to pay the cost of his participation in the John School is not unethical.1 Such a requirement cannot be characterized as fund-raising or as advancing the private interests of others. Our view is otherwise, however, with respect to requiring defendants to pay a sum beyond the cost of the program, which sum would presumably be used to fund organizations or programs engaged in the rehabilitation of prostitutes. It does not suffice, in our view, to state that such excess or residual sums are merely in the nature of “reparations to help those whom they [i.e., the defendants] have previously exploited.” The money, after all, would not be going to the prostitute who was patronized. Rather, it is to be used by those agencies and organizations for the purpose of providing rehabilitative services for prostitutes as a group, not the individual prostitute involved in that case. Indeed, there is a serious legal question as to whether a sentence which permits that to occur is authorized under section 60.27 of the Penal Law (§60.27: Restitution and reparation.) We do not address that question, but we do note that the excess funds would be disbursed by a “Multi-disciplinary Task Force” set up by the district attorney’s office. This does raise a question as to the independence of the judiciary under section 100.1 of Rules since it would not be the judge who is determining where the money is to be directed by a group created by the prosecutor.
In sum, we are of the opinion that a judge may order a defendant to pay the cost of his participation in the John School program, under the circumstances
described, but the judge should not set an amount which exceeds that cost where the excess is to be disbursed by a Multi-Disciplinary Task Force to fund organizations and programs to be used in providing service for the rehabilitation of prostitutes.
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1. We note that the question of what happens if a defendant is willing to participate but is unable to pay the cost of participation, has not been addressed in the materials provided.