The Volokh Conspiracy

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Volokh Conspiracy

Sentence reversed because court cited defendant's religiosity—and, apparently, perceived hypocrisy—as aggravating factor


Rita Miller's husband, Rodney Miller, was a CEO of a hospital in the Virgin Islands, and he was charged with embezzling funds from the hospital. The court froze an account owned by Rita, "which contained $700,000 in alleged unlawfully transferred funds to be forfeited in the event of Rodney's criminal conviction." "Miller violated the court's order by withdrawing approximately $400,000 from the credit union account," which led her to be prosecuted for being an accessory after the fact. "Unable to post bail, she remained in custody for approximately fifteen months," and eventually pleaded guilty, with the plea agreement calling on prosecutors to recommend "two years' incarceration with all but fifteen months suspended, restitution [of about $140,000], and a $5,000 fine."

The trial court, though, sentenced Rita to three years in prison, with credit for the fifteen months served, partly because, in its view, "sentencing the defendant to less than a year and-a-half incarceration, the [c]ourt finds to be too lenient, given the numerous violations of the [c]ourt's orders, with knowledge, with her intelligence, with her claims to Christianity and her theology degree, and the [c]ourt being in a position where it can only at this juncture issue a period of incarceration and restitution with no guarantee that restitution will ever be made." (Rita had stressed her theology and mentioned her Christianity in making the case for a light sentence.)

Wednesday, the Virgin Islands Supreme Court held that this was unconstitutional (Miller v. People):

[T]he Superior Court's … comment … indicates that it used Miller's religious affiliation as an aggravating factor to justify a harsher punishment…. [I]t went beyond permissibly acknowledging the facts included in the presentencing report and sentencing memorandum to impermissibly relying on Miller's religion to impose a harsher sentence….

This Court has previously warned against the use of religion in the sentencing process. A defendant's religion constitutes an impermissible sentencing factor. [Citing precedents from various states] And the United States Supreme Court thus has noted that it is error to "attach[] the 'aggravating' label to factors that are constitutionally impermissible or totally irrelevant to the sentencing process, such as for example the race, religion, or political affiliation of the defendant …." "[I]t is expected that [the Superior Court] knows and applies settled law," and its failure to do so in this instance makes the court's error plain [and thus justifying reversal even though no objection to it was made at trial]….

The People further argues that, even if the Superior Court did err, Miller invited the error because Miller invoked her religion "at every possible opportunity." This Court has held that "when a defendant, through his counsel, induces or encourages the Superior Court to commit an error, the invited error doctrine precludes that error from forming the basis for reversal on direct appeal." Significantly, the invited error doctrine applies when the appellant induced the specific error by her affirmative action.

The specific error here is the court's imposition of a harsher sentence, in part, because of Miller's "claims to Christianity." Although the presentence report and sentencing memorandum discuss Miller's theological training and involvement in the church, it can hardly be argued that the mention of her religious affiliation invited an increased sentence based on her religion. Miller exercised her First Amendment right when she openly referenced her religion and we refuse to hold that she invited error in doing so.

"The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires[.]" As a fundamental liberty, "religious expression [is] too precious to be either proscribed or prescribed by the [government]." To accept the People's contention that Miller invited error by openly professing her religious beliefs is to punish her for that profession in violation of her First Amendment rights.