Drunk with Power

Frank Keating, conservative governor of Oklahoma, complained in National Review Online about court decisions forbidding the government from imposing AA on prison inmates and DUI probationers. Aside from not knowing which of the 12 steps is which, when these decisions were made, and which courts made them, Keating is confused about the meaning of "secular" and "religious." Moreover, his delusion that all we need to cut crime is more AA is belied by the very statistics he cites. However, Keating need not worry that such decisions will reverse illegal and counterproductive practices that continue to prevail around the U.S.

Reason, May, 2001, pp. 34-38

The Case Against Court-Imposed 12-Step Treatments

Morristown, NJ

In 1990, a landscaper from Middletown, New York named Robert Warner pled guilty in a Woodbury, New York court to drunken driving charges, his third such conviction in a little over a year. Judge David Levinson, following the recommendation of the Orange County Department of Probation, gave Warner probation, sentencing him to attend Alcoholics Anonymous meetings for three years. In fact, OCDP specified AA participation in all its alcohol-related cases.

Warner soon objected to the AA meetings, but his probation officer ordered Warner back to AA. After almost two years, Warner filed a claim in Federal Court against the probation department. Warner, an atheist, said that it was unconstitutional for him to be sentenced to attend the 12-step program, which relied on God and a "higher power" as its method of addressing alcoholism, and at which prayer was a regular feature. In 1994, the federal District Court for Southern New York ruled for Warner, finding that "sending probationers to rehabilitation programs which engage in the functional equivalent of religious exercise is an action which tends to establish a state religious faith." The 2nd Circuit Court of Appeals affirmed the decision in 1996.

Warner's was the first in a series of successful challenges to the widespread practice of coercing defendants to participate in AA or in treatment programs based on its 12 steps. Since then, three other appeals courts have ruled against the practice; these are two state Supreme Courts (New York and Tennessee) and the federal 7th Circuit Court in Wisconsin. The basis for these decisions is the Constitution's Establishment Clause, which prohibits government-established religion. The U.S. Supreme Court has ruled that no government body can require religious participation of any sort.

Recently, Oklahoma's conservative Governor Frank Keating harshly criticized such decisions. Writing last December 13, 2000 for National Review Online, Keating complained bitterly that, "Apparently it wasn't enough to ban classroom prayer and remove Christmas displays from city parks; now the federal judiciary is after Alcoholics Anonymous, which has had the audacity—for two-thirds of a century—to mention God's name as it saved millions of lives." Other prominent politicians have derided these decisions, but only Keating has fully laid out the arguments in favor of compulsory 12-step participation, thus summarizing the resistance to these recent court decisions.

Keating's argument is filled with factual errors. For example, he writes as though the decisions about AA had just occurred, "66 years" after a vision that AA-cofounder Bill Wilson had in 1934. Keating further asserts that these decisions were made by "federal circuit courts. . . in Wisconsin and California." In fact, the four appellate courts that have ruled against the state imposition of AA or 12-step treatment did so in 1996-1997, and none of them was in California. Keating has apparently confused the Orange County, New York, of the Warner case with Orange County, California. In 1994, the federal District Court for Central California did rule on an Orange County, California, requirement that DUI offenders attend a self-help group, generally meaning AA. But, in that case, the court upheld the local court's reliance on AA as the main referral for convicted drunken drivers. Of critical importance for the court was that the law permitted the plaintiff to select a non-AA program, or to devise his own self-help program, to be approved by the county.

In Wisconsin, the 7th Circuit Court found that Oakhill Prison warden Catherine Farrey wrongfully compelled James Karr to participate in Narcotics Anonymous. If he refused, Karr faced being shipped to a tougher prison, while being denied parole. Considering that Karr was decided in 1996, Keating is not very convincing when he claims that this decision endangers "the widespread and growing practice of mandating AA involvement" for inmates and parolees. And, despite the Warner decision, as Keating himself notes, "AA meetings and some form of AA-based counseling or treatment have become almost standard conditions for probation" for DUI offenders.

Indeed, that development is precisely the problem. The decisions of the mid-1990s have been widely ignored by courts, prisons, and probation departments, partly because the U.S. Supreme Court has not ruled on the issue. Of course, the Supreme Court's refusal to hear a case does not necessarily mean that it accepts a lower court's decision, and the Court could uphold mandatory 12-step sentencing in the future.

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