Church or Jail? An Alabama Alternative to Incarceration Program on Hold

Sept. 27, 2011— -- A Bay Minette, Ala., alternative to incarceration program that asks first-time, nonviolent offenders to choose between church or jail, was slated to start today but is being delayed for legal review by city officials, said Bay Minette Mayor Jamie Tillery.

"The city will ask the Alabama Attorney General to review the program as well. The city will reserve further comment until these reviews have been completed," Tillery wrote in an email to ABCNews.com.

The Restore Our Community program, called Operation ROC, was developed for those convicted of first-time misdemeanors, offering them the opportunity to either attend church once a week for a year and answer questions about the services, or go to jail and pay a fine. Right away, the program sparked controversy.

While Tillery said the first-time misdemeanor offenders would be offered a "menu of options," including community service, the American Civil Liberties Union stepped in to say church should not be among them.

"Even if the city offers other sentencing alternatives that are comparable to Operation ROC, which is far from clear, the First Amendment still prohibits the government from becoming entangled in core religious exercise, which includes attending church," ACLU attorney Heather Weaver told ABCNews.com. "The government may not serve as a conduit for church recruitment."

The ACLU would continue to investigate ROC, Weaver said, "to determine what additional steps should be taken."

On Monday, the ACLU sent a letter to Tillery, Bay Minette city council members and the chief of police, asking that the city end the ROC program and consider nonreligious alternatives to incarceration.

Both federal and state courts have ruled that government officials "can't make going to church or participating in religious activities part of an offender's probation, parole or sentence," said Weaver.

In the ACLU's letter, which cited the First Amendment's anti-coercion clause that states "no person can be punished … for church attendance or nonattendance," it argued that the state of Alabama would be compelling people to go to church if it institututed the ROC program.

Bay Minette Police Chief Mike Rowland did not return calls or respond to emails from ABCNews.com today, but he told local TV station WKRG, "We believe it is legal. We believe it is a great program. We're going to stick with this and we're going to move forward with it."

The ACLU, however, said that Bay Minette officials weren't offering offenders a constitutional choice.

"You can call it a choice, but it's a choice in name only," Weaver said.

Judges in Kentucky, Louisiana, Mississippi and Virginia have offered offenders the opportunity to go to church instead of jail, but state courts have ruled those decisions unconstitutional.

If Alabama does permit the ROC program to offer church as an alternative to fines and jail, Weaver said the ACLU might pursue litigation.

"We're going to keep all the options on the table at this point," she said.