In 1990, a landscaper 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, sentenced Warner 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 him 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. These courts have based their decisions on 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 Gov. Frank Keating harshly criticized such decisions. Writing last December 13 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 the 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 co-founder 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.
One appeal the U.S. Supreme Court refused to hear was from a state decision against New York's Department of Corrections. New York's highest court ruled against the department in 1996 when the latter made inmate David Griffin's entry into a prison family reunion program contingent on his participation in the department's 12-step substance abuse program.
In the absence of a definitive national precedent, similar cases will continue to percolate up through the courts. Meanwhile, in reaction to Griffin, New York prison officials designed new legal strategies to compel inmates to participate in the state corrections treatment program. Prison officials argued in the District Court for Northern New York that Troy Alexander's repeated objections to participating in the 12-step program were not based on genuine conviction. But last September, the court rejected this argument because it required the state to evaluate people's religious beliefs (or lack thereof), which the First Amendment was designed to avoid in the first place.
Defendants who are accused of 12-step coercion invariably claim that AA is a spiritual, not a religious, program. Keating defends this notion at length. Yet "God," or "Him," or a "higher power," is mentioned in half of the 12 steps. Keating singles out as essential "AA's elegant third step: 'Came to believe that a power greater than ourselves could restore us to sanity.'" (Note to Keating: This is actually AA's second step.) Like other AA defenders, Keating says that this higher power can be anything, "a dead ancestor, a tall tree, or the group itself."
But does Keating really mean that belief in trees can "restore sanity"? For their part, the courts have rejected such arguments. As is the case with many AA groups, those that Robert Warner attended in 1990 began with a religious invocation and ended with a Christian prayer. More basically, New York's highest court pointed out in its decision in Griffin that "a fair reading of the fundamental A.A. doctrinal writings discloses that their dominant theme is unequivocally religious....While A.A. literature declares an openness and tolerance for each participant's personal vision of God,...the writings demonstrably express an aspiration that each member of the movement will ultimately commit to a belief in the existence of a Supreme Being of independent higher reality than humankind."
Although Keating was on George W. Bush's short list for attorney general, he apparently cannot distinguish religious from secular. He details from AA's "Big Book" -- which records stories about AA's early members and outlines the group's principles -- how a desperate Bill Wilson "asked God to intervene, saw a brilliant burst of light, and felt immense peace." But New York's high court used this story as evidence that AA is religious: "'Bill's Story' describes the spiritual transformation of one of the co-founders of A.A., in which he finally achieved salvation from his alcoholism by 'enter[ing] upon a new relationship with my Creator.'" Although Keating claims all religions can embrace the 12 steps, the American Jewish Congress filed a friend-of-the-court brief in support of Griffin.
The courts have not forbidden 12-step treatment in prisons or DUI programs. As Keating recognizes, "The courts said Twelve Step involvement could not be mandated; they did suggest that courts and parole authorities could continue to require involvement in some form of treatment or recovery program as long as there is a secular, 'non-religious' alternative." It is true that the courts in these cases have made clear that the absence of an alternative was the deciding factor. Keating instead devises this non sequitur: "Pluck out all the references to God or spiritual elements, the rulings said, and you'll be fine. As a result, hundreds of court and prison system bureaucrats across America are busily engaged in sad and ludicrous efforts to rewrite Bill Wilson's Twelve Steps."
According to Keating, the court is attacking practices that "promise potential reductions in the national crime rate of up to 50 percent!" But this claim confronts a difficult reality. AA has grown exponentially, from 100 members in 1939 to 1.16 million members currently, according to the AA Web site. (Keating puts this figure at more than 2 million people.) At the same time, a 1997 survey conducted at the University of Georgia found that more than 90 percent of private treatment programs are based on AA's 12 steps. Why, then, is our prison population at record levels, and why is so much of this crime associated with substance abuse? Keating approvingly refers to a Department of Justice finding that most criminals are substance abusers, including a "staggering 83 percent of state inmates."
Keating cites several studies that have found that inmates who complete treatment and continue to attend AA have better records than untreated prisoners and parolees. However, studies that include dropouts from treatment groups in their calculations have reported different results. For instance, a 1999 study of Texas' correctional substance abuse treatment programs found that those who participated in an in-prison program had the same recidivism rates as non-participants. Although those who completed the program did better than untreated offenders, those who entered but did not complete the program did worse. Moreover, probationers enrolled in treatment in Texas had an overall higher recidivism rate than non-participants.