Now, this meta-study still isn’t at the point where law enforcement may be able to determine what is an unsafe level of THC for marijuana field sobriety testing. But, we’re probably getting nearer there.
More food for thought, especially in states with medical marijuana laws, as the linked story notes.
Here is news that may be of interest both to older readers and ones with older relatives and friends. It’s from the medpagetoday.com website. The article does assume that alcohol abuse is a “disease,” which some may find off-putting.
WASHINGTON — Medicare will pay for annual screenings for alcohol misuse and depression, the Centers for Medicare and Medicaid Services (CMS) announced.
The new services will be added to other covered preventive services at no additional cost to beneficiaries.
For a news summary of this case, google “Hazel v. Crofoot”
Full opinion below:
Hazle v. Crofoot, No. 2:08-cv-02295-GEB-KJM (E.D.Cal. 04/06/2010)
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
 No. 2:08-cv-02295-GEB-KJM
 2010.ECA.0004719< http://www.versuslaw.com>
 April 6, 2010
 BARRY A. HAZLE, JR., PLAINTIFF,
MITCH CROFOOT, INDIVIDUALLY AND AS PAROLE OFFICER OF THE CDCR; BRENDA WILDING, INDIVIDUALLY AND AS UNIT SUPERVISOR OF THE CDCR; MATTHEW CATE, INDIVIDUALLY AND AS SECRETARY OF THE CDCR; SCOTT KERNAN, INDIVIDUALLY AND AS CHIEF DEPUTY SECRETARY OF ADULT OPERATIONS OF THE CDCR; TIM HOFFMAN, INDIVIDUALLY AND AS DIRECTOR OF THE DIVISION OF ADULT PAROLE OPERATIONS IN CALIFORNIA; DEPUTY COMMISSIONER JALLINS, INDIVIDUALLY AND AS DEPUTY COMMISSIONER; AND WESTCARE, DEFENDANTS.
 The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
 ORDER GRANTING PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT, GRANTING DEFENDANT WESTCARE’S MOTION FOR SUMMARY JUDGMENT, and DENYING PLAINTIFF’S CROSS-MOTION FOR PARTIAL SUMMARY JUDGMENT*fn1
 Pending are three motions for summary judgment or summary adjudication concerning Plaintiff’s claims that Defendants violated his rights under the Establishment Clause of the First Amendment. Specifically, Plaintiff argues these rights were violated when he was required to participate in a “12-step” drug rehabilitation program containing religious components as a condition of his parole.
 Plaintiff filed a motion for partial summary judgment (“Partial Mot.”) on December 23, 2009. Plaintiff seeks a ruling in this motion that Defendants Mitchell Crofoot (“Crofoot”), Brenda Wilding (“Wilding”), and Richard Jallins (“Jallins”) are liable for violating his rights under the Establishment Clause by not relieving Plaintiff from a condition of his parole requiring him to attend a 12-step program with religious components after Plaintiff objected to the religious components. Defendant Westcare California, Inc. (“Westcare”) also filed a motion for summary judgment (“Westcare Mot.”) on December 23, 2009, in which it argues Plaintiff is unable to establish a causal connection between Westcare’s activities and his Establishment Clause claim. Westcare also argues in its motion that Plaintiff’s request for a taxpayer’s injunction enjoining Defendants from using state resources and funds to require parolees to participate in 12-step programs with religious components is moot. Lastly, Plaintiff filed a cross-motion for partial summary judgment (“Cross Mot.”) on January 26, 2010, in which he seeks a ruling that Westcare liable for violating his Establishment Clause rights. For the following reasons, Plaintiff’s partial motion seeking to establish the liability of Crofoot, Wilding, and Jallins is GRANTED; Westcare’s motion is GRANTED; and, Plaintiff’s cross-motion against Westcare is DENIED.
 I. Background
 Plaintiff “was incarcerated at California Rehabilitation Center, Norco, from February 27, 2006 to February 27, 2007, on charges pertaining to possession of illegal substances.” (Westcare’s Statement of Undisputed Facts in Support of Motion for Summary Judgment (“Westcare SUF”) ¶ 1.) “[Plaintiff] was released . . . on February 26, 2007, [and placed] on parole with the single condition that he attend and complete a 90-day ['12-step'] residential drug treatment program.” (Id. ¶ 2; Statement of Undisputed Facts In Support of Plaintiff’s Motion for Partial Summary Judgment (“Partial Mot. SUF”) ¶ 1; Statement of Undisputed Facts in Support of Plaintiff’s Cross Motion for Partial Summary Judgment (“Cross Mot. SUF”) ¶ 12.) Defendant “Mitch Crofoot was [Plaintiff's] parole agent at the time Plaintiff [participated in the drug treatment program].” (Partial Mot. SUF ¶ 4.)
 Westcare “contracts with the [California Department of Corrections and Rehabilitation ("CDCR")] as a regional Substance Abuse Services Coordination Agency (“SASCA”) for Parole Region I in California.” (Westcare SUF ¶ 11; Cross Mot. SUF ¶ 1.) As a SASCA, “Westcare creates a network of treatment facilities for parolees with drug-related convictions, and coordinates with the State to place parolees in these programs.” (Cross Mot. SUF ¶ 3.) “Westcare’s standard form contract with residential providers prohibits the providers from requiring the ‘SASCA participants to attend religious events or participate in religious activities. Any such participation is entirely optional for the SASCA participants and contractors may not impose a penalty for lack of participation.’” (Cross Mot. SUF ¶ 6.) A residential treatment facility is required to abide by the above provision in order to contract with Westcare. (Cross Mot. SUF ¶ 7; Smith Dep. 24:23-26:6.) “Empire Recovery Center (“Empire”) is a non-profit corporation which contracts with Westcare to provide substance abuse treatment and re-entry services to parolees upon release from prison.” (Westcare SUF ¶ 6.) “Empire is an independent contractor under the terms of the contract with Westcare.” (Westcare SUF ¶ 7.)
 “Prior to his release on parole in February 2007, [Plaintiff] told correctional authorities and Westcare representatives that he was an Atheist, and requested placement in a treatment facility that did not contain religious components to fulfill the condition of his parole.” (Cross Mot. SUF ¶ 13.) “A Westcare representative advised him that he should ask to be assigned to [Empire].” (Cross Mot. SUF ¶ 13.) Plaintiff was assigned to Empire in Redding, California. (Partial SUF ¶ 2; Westcare SUF ¶ 4.) Empire utilizes a 12-step recovery program, developed by Alcoholics Anonymous and Narcotics Anonymous, which includes references to God and a higher power. (Cross Mot. SUF ¶ 14; Partial Mot. SUF ¶ 3.)
 “While at Empire, [Plaintiff] notified Westcare representatives and told them that he objected to the religious 12-step program used by Empire, and asked to be transferred to a secular alternative.” (Cross Mot. SUF ¶ 15.) “[Plaintiff] also asked [Crofoot] whether he could fulfill his parole requirement through a secular recovery program.” (Partial Mot. ¶ 7; Cross Mot. SUF ¶ 16.) “[Plaintiff] told Crofoot that he objected to participating in the Empire program because he was an atheist.” (Partial Mot. SUF ¶ 6.) “Crofoot told [Plaintiff] that he needed to continue at Empire while Crofoot looked into the issue of whether secular programs were available, and told [Plaintiff] not to leave the Empire class in the meantime.” (Cross Mot. SUF ¶ 17.) “Crofoot called Westcare to ask whether a non 12-step program was available for [Plaintiff].” (Cross Mot. SUF ¶ 18.) “Westcare informed Crofoot that there were no secular treatment programs in the Northern California area.” (Westcare SUF ¶ 24.) “While waiting to hear back from Crofoot, [Plaintiff] contacted Westcare and again explained that he was an atheist and asked whether he could attend a secular program in lieu of Empire’s religious 12-step program.” (Cross Mot. SUF ¶ 19.) “Westcare representative Dawn Hall told [Plaintiff] that the only other available program was a faith-based program called Cornerstone, and that if he ‘didn’t like Empire, he really wasn’t going to like it at Cornerstone.’” (Cross Mot. SUF ¶ 20.) “After making inquiries, Crofoot told [Plaintiff] that there were no programs that were ‘non 12-step.’” (Partial Mot. SUF ¶ 9.) “Crofoot told [Plaintiff] that he could file an Inmate/Parolee Appeal [known as a "602 Appeal"], but that in the meantime [Plaintiff] should continue to participate in the Empire Program or he would be returned to prison.” (Partial Mot. SUF ¶ 10.) “[Plaintiff] presented Crofoot on April 3, 2007 with a 602 Appeal that set forth the basis for his objection to participation in the Empire program.” (Partial Mot. SUF ¶ 11) Plaintiff’s 602 Appeal states:
 As an Atheist I object to forced participation in any spiritual/religious activities. I am currently required to attend 90 days on in-patient treatment at the Empire Recovery Center in Shasta County. I have been told by my parole officer that I must complete the 90 days of spiritual treatment because there are no available secular recovery alternatives. [¶] Since the CDC cannot provide me with a secular alternative to 12-step based treatment I would like the in-patient treatment stipulation removed from my parole conditions so that I may return home ASAP.
 (Heller Decl. Partial Mot. Ex. B; Heller Decl. Cross Mot. Ex. L.) Plaintiff also attached to his 602 Appeal a document further explaining his beliefs as an Atheist and a summary of judicial opinions in support of his request. (Id.)
 “According to Crofoot, representatives of Empire told Crofoot on April 6, 2007, that [Plaintiff] ‘has been disruptive, though in a congenial way, to the staff as well as other students.’” (Partial Mot. SUF ¶ 12; Cross Mot. SUF ¶ 30.) “Crofoot’s understanding from the Empire representatives was that [Plaintiff] ‘was not being loud; he wasn’t throwing things around; he wasn’t stomping around; he wasn’t being boisterous and that sort of thing.’” (Partial Mot. SUF ¶ 13; Cross Mot. SUF ¶ 31.) “He was ‘sort of passive aggressive.’” (Partial Mot. SUF ¶ 13; Cross Mot. SUF ¶ 31.) “Crofoot spoke with his Unit Supervisor, Defendant Brenda Wilding, and concluded that the right thing to do was to refer Plaintiff to [the Board of Parole Hearings (the "BPH")] on a parole violation for failing to participate in the BPH-ordered program.” (Partial Mot. SUF ¶ 15.) “Wilding understood that [Plaintiff] objected to participating in the Empire  program because he was an atheist.” (Partial Mot. SUF ¶ 20.) “Wilding understood that Crofoot told [Plaintiff] that [Plaintiff] had to either participate in the [program] or be returned to prison.” (Partial Mot. SUF ¶ 21.) “Crofoot and Wilding decided together that [Plaintiff] needed to be returned to prison so that he could argue his case before the BPH.” (Partial Mot. SUF ¶ 16.) “Crofoot arrested [Plaintiff] on April 6, 2007 and booked him into the Shasta County Jail.” (Partial Mot. SUF ¶ 17.) “After arresting [Plaintiff], Crofoot called the [California Rehabilitation Center (the "CRC")], explained the circumstances pertaining to [Plaintiff], explained that he was requesting that [Plaintiff] be returned to custody, and obtained an oral order of return authorized by Deputy Commissioner Richard Jallins.” (Partial Mot. SUF ¶ 18.) “After the oral order of return was authorized from Deputy Commissioner Jallins, [Plaintiff] was sent back to prison.” (Partial Mot. SUF ¶ 19.) The “oral order questionnaire/authorization” signed by Crofoot and approved by Jallins, states in the Comments section: “Refusing to participate in residential program. Causing problems with staff that is effecting [sic] the other residents.” (Heller Decl. Partial Mot. Ex. C; Cross Mot. SUF ¶ 34.)
 “[Plaintiff] was incarcerated for more than 100 days, the bulk of which he spent in state prison in Norco, California.” (Cross Mot. SUF ¶ 35.) “On June 27, 2007, while Plaintiff was still in prison, he received a response from CDCR to his 602 appeal, denying the appeal.” (Cross Mot. SUF ¶ 36.) The response to Plaintiff’s 602 Appeal states:
 It would behoove you to take advantage of the tools that are offered to you to help you with your addiction, behavior, and adjustment to society. Per your Agent of Record, Mr. Crofoot, he has made attempts to locate treatment facilities to accommodate your preference, per Mr. Crofoot, Empire Recovery was the best suited for you. Your negative behavior toward staff caused you to be discharged from that program leaving your Agent of Record no other choice but to return you to CRC for further treatment. Therefore, your request is denied.
 (Heller Decl. Partial Mot. Ex. I.) The response is signed by William Crisologo, Associate Chief Deputy Commissioner, Board of Parole Hearings. (Id.)
 Plaintiff filed his Complaint in this case on September 29, 2008. After Plaintiff filed his Complaint, on November 18, 2008, the CDCR issued Directive No. 08-06, which states:
 Case law filed on September 7, 2007 in the United States Court of Appeals For The Ninth Circuit established that placement of a parolee into a religious based substance abuse program at the objection of the parolee was unconstitutional. As such, the Division of Adult Parole Operations (DAPO) cannot compel a parolee to participate in Alcoholics Anonymous (AA), Narcotics Anonymous (NA) or any other religious-based substance abuse treatment program as a condition of parole. [¶] Effective immediately, Parole Agents assigned to DAPO, shall not require that a parolee attend AA, NA, or any other religious based program if the parolee refuses to participate in such a program for religious reasons. Under these circumstances, the parolee shall be referred to an alternative non-religious program.
 (Cross Mot. SUF ¶ 37; Heller Decl. Cross Mot. Ex. O.) “Westcare did not receive a copy of this directive until it was produced in discovery in this action.” (Cross Mot. SUF ¶ 38.) “Westcare does not know what the term ‘alternative non-religious program’ as used in the Directive means.” (Cross Mot. SUF ¶ 39.) “The Directive has not altered the way in which Westcare conducts business.” (Cross Mot. SUF ¶ 40.) “To date, Westcare continues to contract solely with residential providers that use the 12-step program ‘in some form or fashion.’” (Cross Mot. SUF ¶ 41.)
 II. Legal Standard
 A party seeking summary judgment bears the initial burden of demonstrating the absence of a genuine issue of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). If this burden is satisfied, “the non-moving party must set forth . . . specific facts showing that there is a genuine issue for trial.” T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (quotations and citation omitted) (emphasis omitted). “All reasonable inferences must be drawn in favor of the non-moving party.” Bryan v. McPherson, 590 F.3d 767, 772 (9th Cir. 2009). “Here, cross-motions for summary judgment are at issue. [The Court] evaluate[s] each motion separately, giving the nonmoving party in each instance the benefit of all reasonable inferences.” A.C.L.U. of Nevada v. City of Las Vegas, 466 F.3d 784, 790-91 (9th Cir. 2006).
 III. Analysis
 A. Hazle’s motion for summary judgment on whether Defendants Crofoot, Wilding, and Jallins are liable for violating Hazle’s Establishment Clause rights
 Plaintiff seeks a partial summary judgment finding that Defendants Crofoot, Wilding, and Jallins (the “Parole Defendants”) are liable for violating his Establishment Clause rights by requiring him to participate in a 12-step drug rehabilitation program that contained religious components. Specifically, Plaintiff argues the Parole Defendants violated his First Amendment right under the Establishment Clause as follows: (1) “requiring him, upon threat of arrest or incarceration, to continue participating in a ’12-step’ program that contained religious components”; (2) “rejecting his requests to fulfill the treatment condition of his parole through a secular and non-religious program”; and (3) “arresting and incarcerating him based on his resistance.” (Partial Mot. 7:15-20.) The Parole Defendants respond, arguing it was Plaintiff’s “disruptive behavior” and “not [Plaintiff's] self-professed status as an Atheist [that] caused his dismissal from his substance abuse program, . . . arrest[,] and subsequent reincarceration . . . .” (Parole Defs.’ Opp’n to Partial Mot. 4:1-10.)
 “For the government to coerce someone to participate in religious activities strikes at the core of the Establishment Clause of the First Amendment, whatever else the Clause may bar.” Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007). The Ninth Circuit articulated the following test in Inouye v. Kemna “with regard to determining whether [Plaintiff] was [subject to] governmental coercion of religious activity . . . : ‘first, has the state acted; second, does the action amount to coercion; and third, is the object of the coercion religious rather than secular?’” Id. at 713. “First, [Crofoot] acted in his official state capacity as a parole officer to order [Plaintiff into a 12-step program that contained religious components]. That the state did not run the program itself is ‘of no moment.’” Id. (quoting Kerr v. Farrey, 95 F.3d 472, 479 (7th Cir. 1996)). It is undisputed that Crofoot, Wilding, and Jallins were acting in their official state capacities when they required Plaintiff to participate in the 12-step drug treatment program as a condition of his parole, and subsequently removed and incarcerated him for not participating in the program.
 Further, the Parole Defendants’ “action was clearly coercive: [Plaintiff] could be imprisoned if he did not attend and he was, in fact, ultimately returned to prison in part because of his refusal to participate in the program.” Inouye, 504 F.3d at 713 (emphasis added). The Parole Defendants argue Plaintiff was returned to prison because he was “disruptive” in the program. This argument rings hollow in light of the undisputed facts showing Plaintiff was only “disruptive” in the program “‘in a congenial way’” and “was ‘sort of passive aggressive.’” (Partial Mot. SUF ¶¶ 12, 13.) It is also undisputed that Plaintiff communicated his objection to participation in the Empire program and that Crofoot told Plaintiff he “should continue to participate in the Empire Program or he would be returned to prison.” (Id. ¶ 10.) It is further undisputed that Crofoot and Wilding concluded that “the right thing to do” was to refer Plaintiff to the Board of Parole Hearings “on a parole violation for failing to participate in the BPH-ordered program.” (Id. ¶ 15.) It is also undisputed that Deputy Commissioner Jallins authorized Plaintiff to be returned to prison because of Plaintiff’s failure to participate in the program. (Id. ¶¶ 18-19, 24.)
 “The final element requires somewhat more discussion.” Kerr, 95 F.3d at 479. It is undisputed that “Empire used a 12-step program that included references to God and a ‘higher power.’” (Partial Mot. SUF ¶ 3.) Further, Plaintiff’s following averments in his declaration have not been controverted:
 Shortly after arriving at Empire, I discovered that Empire used a “12-step” recovery program based [on] the principles of Alcoholics Anonymous (“AA”) and Narcotics Anonymous (“NA”), which contains religious components. Among other features, the “12-step” method used by Empire made references to God, involved acknowledgment of a “higher power,” and included prayer. [¶] I am an atheist, and was one in 2007. The substantial religious components to the “12-step” program administered by Empire conflicted with my beliefs. Prior to my release on parole, I had notified correctional authorities of my Atheism, and requested placement in a treatment facility that did not contain religious components.
 (Hazle Decl. ¶¶ 2, 3.) The Parole Defendants do not dispute that the Empire’s 12-step program contained religious components. “As such, on this summary judgment record and given the lack of dispute between the parties in question, . . . the third prong of [Plaintiff's] Establishment Clause test has been met as well.” Inouye, 504 F.3d at 713-14. Therefore, “the program runs afoul of the prohibition against the state’s favoring religion in general over non-religion,” because of the program’s use of a religious concept of a Higher Power through references to God and prayer. Kerr, 95 F.3d at 480. Accordingly, Plaintiff’s partial motion for summary judgment against the Parole Defendants is granted.
 B. Plaintiff and Westcare’s cross motions for summary judgment on Plaintiff’s Establishment Clause claim
 Westcare and Plaintiff each seek summary judgment on Plaintiff’s Establishment Clause claim. Westcare argues Plaintiff “cannot establish a casual connection between Westcare’s alleged acts and the violation of [Plaintiff's] rights.” (Westcare Mot. 6:3-4.) Westcare further argues “Plaintiff has no evidence to support coercion on the part of Westcare.” (Westcare Mot. 9:10-11.) Plaintiff argues Westcare “set in motion” the series of events leading up to the violation of his rights by “contract[ing] exclusively with 12-step facilities.” (Plt.’s Opp’n to Westcare Mot. 19:5-23.) Plaintiff also argues Westcare is liable for “ignor[ing]” Plaintiff’s “objections to the religious components of the program” once it became aware of them. (Plt.’s Opp’n to Westcare Mot. 22:20-23:2.)
 It is undisputed that Westcare contracts with the State of California to “create a network of treatment facilities for parolees with drug-related convictions, and coordinates with the State to place parolees in these programs.” (Cross Mot. SUF ¶ 3.) It is also undisputed that Westcare does not have the authority to require a parolee to attend or remain within a specific residential treatment facility once there. (Westcare SUF ¶ 15.) It is further undisputed that parolees can be transferred to treatment facilities in other counties to fulfill their parole conditions upon the approval of the parolee’s parole agent. (Cross Mot. SUF ¶ 22.) Since Plaintiff has not controverted Westcare facts with specific facts showing that Westcare had authority to require Plaintiff to attend or remain within a specific residential treatment facility, Westcare’s motion is granted, and Plaintiff’s motion is denied.
 C. Westcare’s Motion for Summary Judgment on Plaintiff’s Injunction
 Westcare also seeks summary judgment of Plaintiff’s request for an injunction, arguing that CDCR Directive No. 08-06, issued November 18, 2008, moots Plaintiff’s request. (Westcare Mot. 11:4-5.) The Directive states:
 Case law filed on September 7, 2007 in the United States Court of Appeals For
 The Ninth Circuit established that placement of a parolee into a religious based substance abuse program at the objection of the parolee was unconstitutional. As such, the Division of Adult Parole Operations (DAPO) cannot compel a parolee to participate in Alcoholics Anonymous (AA), Narcotics Anonymous (NA) or any other religious-based substance abuse treatment program as a condition of parole. [¶] Effective immediately, Parole Agents assigned to DAPO, shall not require that a parolee attend AA, NA, or any other religious based program if the parolee refuses to participate in such a program for religious reasons. Under these circumstances, the parolee shall be referred to an alternative non-religious program. (Heller Decl. Cross Mot. Ex. O.) Plaintiff responds, arguing Westcare has not met its burden of showing that his claim for an injunction is moot. (Opp’n to Westcare Mot. 23:22-23.)
 “A case m[ay] become moot if subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior c[annot] reasonably be expected to recur.” United States v. Concentrated Phosphate Ass’n, 393 U.S. 199, 203 (1968). Here, the uncontroverted Directive adopts a new policy that complies with the Ninth Circuit’s holding in Inouye. Such a conclusive change in policy, absent any indication that it was promulgated only in response to ongoing litigation, is sufficient to render the request for an injunction moot. See White v. Lee, 227 F.3d 1214, 1243-44 (9th Cir. 2000) (finding that a “memorandum represent[ing] a permanent change” in policy, that was “unequivocal in tone,” and “fully supportive of First Amendment rights,” mooted plaintiff’s claims for prospective relief). Therefore, this portion of Westcare’s motion is granted.
 IV. Conclusion
 For the stated reasons, Plaintiff’s partial motion for summary judgment on Defendants Crofoot, Wilding, and Jallins’ liability is granted, Westcare’s motion for summary judgment is granted, and Plaintiff’s cross-motion for partial summary judgment on Westcare’s liability is denied. Further, Westcare’s prevails on its argument that Plaintiff’s request for an injunction is moot.
 *fn1 This matter is deemed suitable for decision without oral argument. E.D. Cal. R. 230(g).
© 1992-2010 VersusLaw Inc.
115 F.3d 1068
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
No. 1760——August Term, 1994
(Argued: July 20, 1995 Decided: September 9, 1996)
Docket No. 95-7055
ORANGE COUNTY DEPARTMENT OF PROBATION,
Before: Winter, Leval, and Calabresi, Circuit Judges.
Appeal from a judgment of the United States District Court for the Southern District of New York (Goettel, J.), after a bench trial, finding the Orange County Department of Probation liable, under 42 U.S.C. § 1983, for violating the First Amendment’s Establishment Clause by recommending plaintiff’s participation in Alcoholics Anonymous as a condition of his sentence of probation. Affirmed.
Judge Winter dissents by separate opinion.
ROBERT N. ISSEKS, Goshen, N.Y., (Alex Smith, Middletown, N.Y., Of Counsel), for Plaintiff-Appellee.
RICHARD B. GOLDEN, Orange County Attorney, Goshen, N.Y., (M. Kevin Coffey, Antoinette Gluszak, Laurie T. McDermott, Of Counsel), for Defendant-Appellant.
LEVAL, Circuit Judge:
Orange County Department of Probation (“OCDP”), the defendant, appeals from a decision of the district court awarding declaratory judgment, nominal damages of one dollar, and attorney’s fees to plaintiff Robert Warner in his civil action under 42 U.S.C. § 1983. Warner claimed that a probation condition imposed on him as part of a criminal sentence, which required him to attend meetings of Alcoholics Anonymous (“A.A.”), forced him to participate in religious activity in violation of the First Amendment’s Establishment Clause, and that OCDP was responsible, in part because it recommended the A.A. therapy to the sentencing court as a condition of probation. OCDP argues on several grounds that it cannot be liable for Warner’s exposure to A.A. pursuant to a sentence imposed by the court. We reject OCDP’s arguments, and affirm the judgment.
On November 13, 1990, Warner pleaded guilty to driving drunk and without a license in violation of New York law. N.Y. Veh. & Traf. Law §§ 511(2), 1192(1)(McKinney 1986 & Supp. 1996). This was his third alcohol-related driving offense in a period of little more than a year. Judge David L. Levinson, of the Town of Woodbury’s Justice Court in Orange County, New York, accepted the plea and ordered the Orange County Department of Probation to prepare a presentence report.
The OCDP’s report recommended a term of probation with six special conditions, which the department routinely recommends in cases of defendants with alcohol problems. These included that the probationer “totally abstain from the use of intoxicating beverages,” avoid “establishment[s] where the primary business is the sale or consumption of alcohol,” and, as the fifth recommended condition, that he “attend Alcoholics Anonymous at the direction of [his] probation officer.”
These recommended special conditions were set forth on a standard form rider which OCDP routinely provided to sentencing judges in such cases. Judge Levinson sentenced Warner to three years of probation, imposing the special conditions recommended by the OCDP. In imposing these special conditions, Judge Levinson endorsed the Probation Department’s standard form.
Warner attended A.A. meetings at the direction of his probation officer, Neal Terwilliger, from November 1990 through September 1992. However, in January of 1991, Warner complained to Terwilliger that, as an atheist, he found the religious nature of the A.A. meetings objectionable. The probation officer instructed Warner to continue his attendance. Some months later, Terwilliger determined that Warner lacked sufficient commitment to the program; he directed Warner to attend “Step meetings” and to seek another more advanced A.A. member as a “sponsor” to give him guidance and encourage his adherence to the program. The Step meetings were devoted to discussion of A.A.’s “Twelve Steps,” which represented the heart of the therapy program.
The district court found that the program Warner was required to attend involved a substantial religious component. For example, the “Twelve Steps” included instruction that participants should “believe that a Power greater than ourselves could restore us”; “[make] a decision to turn our will and our lives over to the care of God as we [understand] Him”; “[a]dmit to God . . . the exact nature of our wrongs”; be “entirely ready to have God remove all these defects . . . [and] ask Him to remove our shortcomings”; and “[seek] through prayer and meditation to improve our conscious contact with God, as we [understand] Him.” (Emphasis in original.)
Group prayer was a common occurrence at the meetings Warner attended. They frequently began with a religious invocation, and always ended with a Christian prayer. The district court found that the program “placed a heavy emphasis on spirituality and prayer, in both conception and in practice.”
In July of 1992, Warner filed a motion in the Town of Woodbury Justice Court challenging the constitutionality of his consignment to A.A. The OCDP — after meeting with representatives from the local district attorney’s office — responded by offering Warner therapy in another program. The municipal court judge then dismissed Warner’s motion as moot. Warner subsequently brought this action in federal district court, seeking damages, as well as a declaratory judgment that OCDP had violated his First Amendment rights. After a bench trial, the district court found that compelling Warner to attend the program violated the Establishment Clause, and further determined that the OCDP was liable for the constitutional injury, notwithstanding that it was the sentencing judge — not the Probation Department — who had imposed the condition of A.A. participation. The court, however, found that Warner’s claims of financially compensable injury were not convincing, and thus awarded nominal damages in the amount of one dollar, plus attorney’s fees.
OCDP asserts that the trial court committed a variety of errors. First, it claims that it cannot be liable because, under New York law, the determination of probation conditions is solely the responsibility of the sentencing judge. Second, the OCDP argues that if it is responsible for Warner’s probation terms, it is protected from any damages judgment by a quasi-judicial absolute immunity. Finally, it contests the district court’s conclusion that requiring Warner to attend A.A. violated the Establishment Clause. We disagree with these contentions.
I.OCDP’s Responsibility for the Sentence
To establish OCDP’s liability for his sentence under 42 U.S.C. § 1983, Warner must first demonstrate that his injury resulted from a custom or policy of Orange County, as opposed to an isolated instance of conduct. Monell v. Department of Social Servs., 436 U.S. 658, 690-91 (1978); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 162-67 (1970)(describing congressional intent in creating liability for custom or practice). The OCDP’s recommendation that Warner be required to participate in A.A. therapy was unquestionably made pursuant to a general policy. This was one of six standard special conditions, set forth on a form captioned “Additional Conditions of Probation Pertaining to Alcohol,” which OCDP routinely submitted to sentencing judges in alcohol cases.
OCDP argues that it is nonetheless not legally responsible because it was the judge’s sentencing decision, not the Probation Department’s recommendation, that caused the harm. The County is certainly correct that in cases brought under § 1983 a super-seding cause, as traditionally understood in common law tort doctrine, will relieve a defendant of liability. Jeffries v. Harleston, 52 F.3d 9, 14 (2d Cir.), cert. denied, 116 S. Ct. 173 (1995); Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 561 (1st Cir. 1989); Wagenmann v. Adams, 829 F.2d 196, 212 (1st Cir. 1987). “[T]he Supreme Court has made it crystal clear that principles of causation borrowed from tort law are relevant to civil rights actions brought under section 1983.” Buenrostro v. Collazo, 973 F.2d 39, 45 (1st Cir. 1992); see Malley v. Briggs, 475 U.S. 335, 344 n.7 (1986); Monroe v. Pape, 365 U.S. 167, 187 (1961).
However, tort defendants, including those sued under § 1983, are “‘responsible for the natural consequences of [their] actions.’” Malley, 475 U.S. at 344 n.7 (quoting Monroe, 365 U.S. at 187). As the First Circuit has explained, an actor may be held liable for “those consequences attributable to reasonably foreseeable intervening forces, including the acts of third parties.” Gutierrez-Rodriguez, 882 F.2d at 561 (citations omitted). 1
A complex chain of events led to Warner’s participation in religious exercises at the A.A. meetings. Two candidates present themselves as possible superseding causes of his injury that might relieve OCDP of liability: First, as the County argues, the judge’s sentencing determination; second, the actions of the A.A. chapter that Warner attended.
A.Act of the Sentencing Judge
As the OCDP correctly points out, under New York law the determination of probation terms is a judicial task, which may not be delegated to probation officers. People ex. rel. Perry v. Cassidy, 257 N.Y.S.2d 228, 229 (N.Y. App. Div. 1965); see also People v. Fuller, 455 N.Y.S.2d 253, 256 (N.Y. 1982)(sentencing court must independently decide how much of probation department report to adopt). The probation department therefore argues that its role was purely advisory, and cannot have been the proximate cause of Warner’s injury.
The Supreme Court, however, in Malley v. Briggs, 475 U.S. 335 (1986), rejected a similar argument. Malley was a civil rights action under § 1983 against a state trooper who had procured a warrant for the plaintiff’s arrest by submitting an affidavit. Plaintiff claimed the affidavit was legally insufficient. The district court had dismissed the case, believing the police officer to be absolutely immune when swearing out a warrant. The Court of Appeals reversed, resuscitating the action. The officer argued in the Supreme Court not only that he was immune, but also that he was shielded from responsibility by his entitlement to rely on the judgment of the judicial officer in finding probable cause and issuing the warrant. The Supreme Court ruled that such reliance was not justified if “a reasonably well-trained officer in [the same] position would have known that his affidavit failed to establish probable cause and that he should not have applied for the warrant.” Id. at 345. If such was the case, the officer’s application for a warrant was not objectively reasonable, because it risked an unnecessary danger of unlawful arrest. “It is true,” the Court observed,
that in an ideal system an unreasonable request for a warrant would be harmless, because no judge would approve it. But ours is not an ideal system, and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should. We find it reasonable to require the officer applying for the warrant to minimize this damage by exercising reasonable professional judgment.
Id. Commenting on the claim that the judge’s decision to issue the warrant broke the “causal chain” between the application and the wrongful arrest, the Court noted that such an argument was “inconsistent with our interpretation of § 1983,” which makes defendants “‘responsible for the natural consequences of [their] actions.’” Id. at 344 n.7 (quoting Monroe, 365 U.S. at 187); see also Gutierrez-Rodriguez, 882 F.2d at 561 (defendants in § 1983 cases liable for consequences caused by “reasonably foreseeable intervening forces”).
The circumstances in Malley were more favorable than those here to the argument of exoneration by reason of the intervening decision of the judge. That is because a police officer applying for an arrest warrant appears in a partisan role. The magistrate to whom the application is addressed is automatically on notice that the application comes from an interested party and therefore knows that scrutiny is warranted. The probation officer, on the other hand, is not a partisan advocate aligned with either the prosecution or the defendant. He is a neutral adviser to the court. 2 Schiff v. Dorsey, 877 F. Supp. 73, 77 & n.1 (D. Conn. 1994) (describing analogous role of federal probation officer; “the sentencing judge’s need for complete and accurate information about an offender requires that he enjoy a relationship of the utmost trust and confidentiality with the federal probation officer”); see also Sharon Bunzel, Note, The Probation Officer and the Federal Sentencing Guidelines: Strange Philosophical Bedfellows, 105 Yale L.J. 933, 945 (1995) (describing historical role of probation officer as “neutral information gatherer with loyalties to no one but the court”). The district court noted a high likelihood of court adoption of such recommendations by the probation department.
Given the neutral advisory role of the probation officer toward the court, it is an entirely “natural consequence,” Malley, 475 U.S. at 344 n.7, for a judge to adopt the OCDP’s recommendations as to a therapy provider without careful scrutiny. Such action by a judge is neither “abnormal” nor “unforeseen.” Gutierrez-Rodriguez, 882 F.2d at 561.
Court adoption of the probation officer’s recommendation is particularly likely when the recommendation deals with a provider of therapy. Judges are unlikely to possess particularized information about the relative characteristics and merits of different providers of therapy. For this type of information, courts generally rely heavily on probation department recommendations. 3
Whether it was reasonably foreseeable that the sentencing judge would adopt the OCDP’s recommendation that Warner attend A.A. is a question of fact. See Springer, 821 F.2d at 876; Restatement (Second) of Torts § 453 cmt. b (1965). The district judge found a high likelihood that a judge would follow such a recommendation of the probation department. We review this determination for clear error, and find none. Fed. R. Civ. P. 52(a); Anderson v. City of Bessemer City, 470 U.S. 564, 572 (1985).
Finally, the dissent argues that, because Warner — following the advice of his attorney — sampled A.A. sessions prior to sentence and made no objection to their religious content at the time of sentence, the probation department’s recommendation was not a proximate cause of the injury. The dissent argues also that Warner’s conduct constituted consent. We are not persuaded by either argument.
The issue of proximate cause is not resolved by the mere fact that Warner’s failure to object was an intervening event, subsequent to the probation recommendation and prior to the sentence. The issue, as noted above, is whether, when probation made its recommendation, it was reasonably foreseeable that the recommendation would result in the harm. Warner’s failure to object was entirely foreseeable. Assuming his early visits made him aware of the full extent of the religious content of the A.A. therapy, it was not clear that Warner was aware at the time that the religious content gave him any legal basis to object, or that he had even told his lawyer about the religious content.
Furthermore, even if aware of his rights, he might well have been afraid to annoy the sentencing judge by objecting to the standard recommendation of the probation department. In short, for several reasons, it was entirely foreseeable at the time probation made its recommendation that Warner might not object.
For the same reasons and others, Warner’s conduct did not constitute consent. Had Warner either suggested A.A. as a condition of probation, or somehow communicated his agreement to such a condition, we might well agree with Judge Winter. But the mere fact of his presentence attendance, designed to demonstrate his commitment to rehabilitation, did not amount to a consent to the aspect of the sentence that essentially required him to attend religious exercises. A defendant facing sentence may well undertake daily attendance at mass in the hope of convincing the sentencing judge of his penitence. We do not see how such conduct, without more, could be construed as consent to a sentence of probation conditioned on daily attendance at mass. The defendant’s voluntary attendance may suggest that the illegal sentence caused him no great harm and may explain, in part, the setting of damages at $1, but it does not show consent.
B.Acts of Alcoholics Anonymous
The immediate cause of Warner’s injury was not the sentencing judge’s decision to send him to an alcohol rehabilitation program, but rather the actions of those who conducted the A.A. meetings Warner attended. Whether the religion-infused meetings should be regarded as a break in the causal chain between OCDP’s action and plaintiff’s injury, thus shielding the probation department from liability, depends, again, upon whether those actions were reasonably foreseeable to OCDP at the time it made the recommendation. Gutierrez-Rodriguez, 882 F.2d at 561; see also Malley, 475 U.S. at 344 n.7. On this point, the district court made no findings. The probation department was, of course, obligated to use reasonable care to inform itself of the suitability of therapy programs it recommended to the court, especially where such recommendations were repeatedly made as a matter of policy. Furthermore, the parties stipulated prior to trial that OCDP, when it formulated its policy of recommending A.A., was aware of the program’s Twelve Steps and of their deeply religious character. Accordingly, there can be no question as to the reasonable foreseeability of the religious nature of the program OCDP was recommending for Warner; OCDP was well aware of it. The actions of A.A. cannot be considered to have broken the chain of causation. OCDP is responsible for any resulting injury to Warner’s First Amendment rights.
II.Orange County’s Other Defenses
OCDP contends that even if its recommendation to the judge was a proximate cause of Warner’s sentence, it is immune from liability. It claims that probation department sentence recommendations are so integral a part of the judicial process as to benefit from an absolute quasi-judicial immunity similar to that enjoyed by prosecutors. Cf. Cleavinger v. Saxner, 474 U.S. 193, 200 (1985)(noting “exten[sion of] absolute [judicial] immunity to certain others who perform functions closely associated with the judicial process”); Imbler v. Pachtman, 424 U.S. 409, 420, 431 (1976)(prosecutor’s actions taken pursuant to prosecutorial function benefit from absolute quasi-judicial immunity).
Were this suit brought against the probation officer, Terwilliger, the claim for absolute immunity would likely have merit. We have held that actions of federal probation officers in preparing and furnishing presentence reports to courts are protected by an absolute immunity from suit for damages. Dorman v. Higgins, 821 F.2d 133, 137 (2d Cir. 1987). In so holding, we noted that this determination was consonant “with the similar conclusions of other circuits with respect to state probation officers operating within similar frameworks.” Id. at 138 (citing Demoran v. Witt, 781 F.2d 155, 157-58 (9th Cir. 1985); Hughes v. Chesser, 731 F.2d 1489, 1490 (11th Cir. 1984)). A district court of this circuit, recognizing the close similarities between the roles of New York state and federal probation officers in preparing presentence reports, has held that New York state probation officers benefit from a similar absolute immunity. Shelton v. McCarthy, 699 F. Supp. 412, 414-15 (W.D.N.Y. 1988).
This case, however, does not require us to determine whether New York state probation officers benefit from immunity covering their submission of presentence reports, for Warner did not name any probation officers as defendants. The suit is brought only against the Orange County Department of Probation. The question is thus whether the claimed immunity extends to the governmental entity. We find that it does not.
Although the Supreme Court has not yet ruled on the applicability of absolute quasi-judicial immunities to municipal government entities, it has repeatedly suggested that such protections are not available. In Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 113 S. Ct. 1160 (1993), Justice Rehnquist explained on behalf of a unanimous Court that past “decisions make it quite clear that, unlike various government officials, municipalities do not enjoy immunity from suit–either absolute or qualified–under § 1983.” Id. at 1162. 4 Similarly, in Kentucky v. Graham, 473 U.S. 159, 166-67 (1985), the Court indicated that the absolute prosecutorial immunity doctrine set forth in Imbler v. Pachtman, 424 U.S. 409 (1976), did not extend to claims brought against government entities under § 1983. “The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.” Id. at 167. These rulings follow directly from the Supreme Court’s decision in Owen v. City of Independence, 445 U.S. 622 (1980), which held that municipalities do not benefit from the qualified immunity of their officers.
Following the direction of these cases, we refused in Pinaud v. County of Suffolk, 52 F.3d 1139 (2d Cir. 1995), to extend the absolute prosecutorial immunity of the Suffolk County district attorney to the County itself. Id. at 1153 (citing Leatherman). 5 The Pinaud ruling guides our decision here, for in origin the quasi-judicial immunities of probation officers and prosecutors are closely linked. Indeed, our holding in Dorman v. Higgins that federal probation officers are protected by an absolute immunity in the preparation of presentence reports was grounded in significant part on the similarities between the prosecutorial function and the task of the probation officer, as well as probation officers’ close relationship to the judicial process. 6 Dorman, 821 F.2d at 136-37. As we have found in Pinaud that the absolute quasi-judicial immunity of prosecutors does not extend to the municipalities that employ them, the answer to the closely parallel question whether any immunity possessed by municipal probation officers would similarly benefit the municipality follows directly. We conclude on the basis of the authorities cited above that no such protection inures in Orange County by virtue of any immunity that may be possessed by its probation officers.
We are fortified in this view by our own opinions and those of other circuits, which have in a variety of contexts refused to extend immunities — either absolute or qualified — to municipalities. As Judge Posner has explained:
[T]he municipality’s liability for [its officials'] acts extends to acts for which the policy-making officials themselves might enjoy absolute immunity because the acts were legislative or judicial in character. Owen . . . so held with regard to the qualified immunity of municipal officers for their executive acts, and we cannot see why there should be a different result here just because these officers’ immunity is absolute rather than qualified.
Reed v. Village of Shorewood, 704 F.2d 943, 953 (7th Cir. 1983).
Also, in Goldberg v. Town of Rocky Hill, 973 F.2d 70 (2d Cir. 1992), we held that a municipality is liable for the unconstitutional acts of its legislature even though the legislators themselves are protected by absolute immunity. Id. at 74. We stated in that case that “there is no immunity defense, either qualified or absolute, available to a municipality sought to be held liable under 42 U.S.C. § 1983.” Id.; see also Ferran v. Town of Nassau, 11 F.3d 21, 23 (2d Cir. 1993)(“[T]he town and county have no § 1983 immunity.”), cert. denied, 115 S. Ct. 572 (1994); Reed, 704 F.2d at 953 (municipality has no absolute legislative or judicial immunity). Indeed, the circuit courts that have addressed the question are unanimous that the absolute immunity of local legislators does not extend to the municipalities they serve. See Berkley v. Common Council of Charleston, 63 F.3d 295, 296 (4th Cir. 1995)(en banc), cert. denied, 116 S. Ct. 775 (1996).
We are similarly not alone in the view that quasi-judicial absolute prosecutorial immunity does not extend to municipalities. The Ninth Circuit made a similar ruling in Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 681 (9th Cir. 1984)(“[Local governments] enjoy no immunity under § 1983 for damages.”). At least one circuit has even gone so far as to hold that the absolute judicial immunity of courts themselves does not extend to local governments where a municipal official acts in a judicial capacity. Reed, 704 F.2d at 953; Soderbeck v. Burnett County, 752 F.2d 285, 293 (7th Cir.),
cert. denied, 471 U.S. 1117 (1985); see also Haynesworth v. Miller, 820 F.2d 1245, 1272 n.227 (D.C. Cir. 1987)(noting that “municipality may . . . face § 1983 liability for the conduct of officials who enjoy absolute personal immunity” including liability for “conduct of a judge”). 7 In any event, we hold that even if OCDP’s probation officers are absolutely immune from liability, that protection does not extend to the County itself.
The County also argues that forcing Warner to attend Alcoholics Anonymous did not violate the First Amendment’s Establishment Clause. We disagree. The Supreme Court has repeatedly made clear that “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which ‘establishes a [state] religion or religious faith, or tends to do so.’” Lee v. Weisman, 112 S. Ct. 2649, 2655 (1992) (quoting Lynch v. Donnelly, 465 U.S. 668, 678 (1984)); see County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 591 (1989); Everson v. Board of Educ., 330 U.S. 1, 15-16 (1947); see also Katcoff v. Marsh, 755 F.2d 223, 231-32 (2d Cir. 1985) (observing that army chaplaincy program “meets the requirement of voluntariness by leaving the practice of religion solely to the individual soldier, who is free to worship or not as he chooses without fear of any discipline or stigma”).
The A.A. program to which Warner was exposed had a substantial religious component. Participants were told to pray to God for help in overcoming their affliction. Meetings opened and closed with group prayer. The trial judge reasonably found that it “placed a heavy emphasis on spirituality and prayer, in both conception and in practice.” We have no doubt that the meetings Warner attended were intensely religious events. 8
There can be no doubt, furthermore, that Warner was coerced into participating in these religious exercises by virtue of his probation sentence. Neither the probation recommendation, nor the court’s sentence, offered Warner any choice among therapy programs. The probation department’s policy, its recommendation, and its printed form all directly recommended A.A. therapy to the sentencing judge, without suggesting that the probationer might have any option to select another therapy program, free of religious content. Once sentenced, Warner had little choice but to attend the A.A. sessions. If Warner had failed to attend A.A., he would have been subject to imprisonment for violation of probation. See N.Y. Penal Law §§ 60.01(4), 65.00(2) (McKinney 1987); N.Y. Veh. & Traf. Law §§ 511(2), 1192(1) (McKinney 1986 & Supp. 1996).
Had Warner been offered a reasonable choice of therapy providers, so that he was not compelled by the state’s judicial power to enter a religious program, the considerations would be altogether different. Our ruling depends, as in Lee, on the “fundamental limitation imposed by the Establishment Clause” that bars government from “coerc[ing] anyone to support or participate in religion or its exercise.” 112 S. Ct. at 2655. In circumstances similar to our case, the New York Court of Appeals recently reached the same conclusion. Griffin v. Coughlin, No. 73, 1996 WL 317180 (N.Y. June 11, 1996). In Griffin, the New York court held that a prisoner’s family visiting privileges may not be conditioned on participation in a treatment program that adopts the “religious-oriented practices and precepts of Alcoholics Anonymous.” Id. at *1. The court emphasized that it was not proscribing A.A. programs offered to prisoners on a voluntary basis. Id. at *11. It was the coercive circumstances, conditioning a desirable privilege on the prisoner’s participation in a religious program, without alternative, that drove the New York court to find a violation of the Establishment Clause. 9
Orange County argues that even if Warner was forced to attend the meetings, he was not required to participate in the religious exercises that took place. The County argues that, as a mature adult, Warner was less susceptible to such pressure than the children who were required to stand in respectful silence during a school prayer in Lee v. Weisman, 112 S. Ct. at 2658-59; it points out that the Supreme Court expressly questioned whether the obligation imposed by the school in Lee might have been constitutionally tolerable “if the affected citizens [had been] mature adults.” Id. at 2658.
We do not find Orange County’s argument convincing. Although it is true Warner was more mature, his exposure was more coercive than the school prayer in Lee. The plaintiff in Lee was subjected only to a brief two minutes of prayer on a single occasion. Warner, in contrast, was required to participate in a long-term program of group therapy that repeatedly turned to religion as the basis of motivation. And when he appeared to be pursuing the Twelve Steps of the A.A. program with insufficient zeal — “Thirteen Stepping” in A.A. parlance — the probation officer required that he attend “Step meetings” to intensify his motivation. Warner was also paired with another member of A.A. as a method of enhancing his indoctrination into the group’s approach to recovery from alcoholism. Most importantly, failure to cooperate could lead to incarceration. Although the trial judge found that Warner’s success in remaining aloof diminished his damages to a token of one dollar, the fact that Warner managed to avoid indoctrination despite the pressure he faced does not make the County’s program any less coercive, nor nullify the County’s liability.
The County argues further that the non-sectarian nature of the A.A. experience immunizes its use of religious symbolism and practices from Establishment Clause scrutiny. The argument is at the very least factually misleading, for the evidence showed that every meeting included at least one explicitly Christian prayer. Furthermore, the claim that non-sectarian religious exercise falls outside the First Amendment’s scrutiny has been repeatedly rejected by the Supreme Court. As the Court made clear in Board of Education of Kiryas Joel v. Grumet, 114 S. Ct. 2481 (1993), “a principle at the heart of the Establishment Clause [is] that government should not prefer one religion to another, or religion to irreligion.” Id. at 2491; see also Allegheny, 492 U.S. at 591; School Dist. of Abington Township v. Schempp, 374 U.S. 203, 216-17 (1963). 10
Similarly, the County’s reliance on Marsh v. Chambers, 463 U.S. 783 (1983), is unavailing. In Marsh, the Supreme Court held that the Nebraska state legislature did not violate the Establishment Clause by commencing its sessions with a sectarian prayer. That opinion relied heavily on the long tradition of public prayer in this context. Id. at 786-90, 795 (noting “unbroken practice for two centuries in the National Congress”). The Court in Lee noted the significant differences between the opening ceremony of a state legislative session where adults are free to “enter and leave with little comment and for any number of reasons” and the powerful emotional compulsion for a child to be present at her high school graduation. Lee, 112 S. Ct. at 2660. The differences between the invocation at a session of the state legislature and Warner’s compulsory adherence to the A.A. program are even more obvious. 11
Resolving questions as to the reach of the Establishment Clause “of necessity [requires] line-drawing, . . . determining at what point a dissenter’s rights of religious freedom are infringed by the State.” Id. at 2661. We have little difficulty concluding that the constitutional line was crossed here.
We have considered Orange County’s other claims, and find them to be without merit. The judgment of the district court is affirmed.
WINTER, Circuit Judge, dissenting:
I respectfully dissent.
The pertinent facts concerning Warner’s plea and sentencing are not in dispute. He was arrested and pled guilty to his third alcohol-related driving offense in a year. Prior to meeting with the probation officer who would recommend a sentence, Warner voluntarily began to attend Alcoholics Anonymous meetings. This was on the advice of his lawyer, who, according to Warner’s testimony, believed “that the court would look upon me more favorably in the sentencing procedure if I can show that I was pursuing a program of rehabilitation.” The probation officer subsequently recommended to the sentencing court that Warner continue his ongoing attendance at A.A. meetings as a special condition of probation. The sentencing judge, who is obliged by state law to make an independent sentencing decision, imposed that condition. Warner registered no objection at the sentencing hearing and took no appeal. Later, he moved the sentencing court to relieve him of any obligation to attend meetings with a religious component and was quickly accommodated with a non-religious counseling program. Based on these facts, my colleagues hold that the county probation authority may be sued for damages under Section 1983 for violating the Establishment Clause.
My dissent is based on two of the available grounds. First, Warner waived his claim or, applying tort law, consented to the probation officer’s alleged intentional tort of recommending to the court attendance at A.A. meetings as a condition of probation. Indeed, Warner voluntarily began attendance at A.A. meetings before any involvement by the probation office in order to convince the sentencing judge that his voluntary selection of this particular rehabilitative program obviated the need for a stiffer sentence. Moreover, the judge exercised his exclusive authority to determine what sentence should be imposed. The imposition of the sentence by the court was, therefore, an independent cause that superseded the recommendation of the probation officer in causing the injuries. Second, the invocation of the Establishment Clause, rather than the Free Exercise Clause, puts into play a principle that portends changes in our penal system that are not required, in my view, by the Constitution.
I turn first to the consent and causation issues.
This lawsuit is an instance of remarkable gall. Warner voluntarily selected and began attendance at A.A. meetings on the advice of counsel in order to impress the sentencing court with his determination to overcome his alcoholism. Now he complains that a subsequent recommendation of a probation officer that he attend such meetings entitles him to monetary damages.
Although we do not have the minutes of the sentencing hearing, Warner’s testimony in the district court stated that his ostensible desire to attend A.A. meetings was to be used as a plus in his favor in persuading the sentencing court to be lenient. The judge thus imposed a condition of probation embraced by Warner on his own initiative. Warner never indicated to the sentencing court his view that a condition of probation requiring attendance at A.A. meetings rendered the proposed sentence unconstitutional. Nor did Warner appeal from the sentence imposed.
By any measure known to me, Warner’s conduct was a waiver, the purposefully planned abandonment of a known right or, in common law tort doctrine, consent to an intentional tort, a full defense under New York law. See Van Vooren v. Cook, 75 N.Y.S.2d 362 (App. Div. 4th Dep’t 1947); see also Prosser and Keeton on the Law of Torts § 18. I would hold, therefore, that his claim for damages is barred.
Even if the principles relating to injuries caused by negligence relied upon by my colleagues are applied, Warner’s claim fails. Warner’s initiative in voluntarily selecting and attending A.A. meetings and his failure to bring his present claim to the court’s attention were the cause of whatever constitutional harm he suffered from the recommendation of the probation officer. As his successful petition for state collateral review under N.Y. Crim. Proc. L. § 440.20(1) and the recent decision in the New York Court of Appeals in Griffin v. Coughlin, 1996 WL 317180 (N.Y. June 11, 1996), demonstrate, relief was his for the asking.
I also cannot agree with the “finding” that the sentencing judge did not make the independent judgment required of him by state law, see People ex rel. Perry v. Cassidy, 257 N.Y.S.2d 228, 229 (N.Y. App. Div. 1965), and that that judgment was not, in the jargon of negligence law, a superseding cause of Warner’s injuries. In my view and that of others, see People ex rel. Brown v. La Vallee, 211 N.Y.S.2d 728, 729 (1961); Honeycutt v. Ward, 612 F.2d 36, 41 (2d Cir. 1979), cert. denied, 446 U.S. 985 (1980), a heavy presumption of correctness attends proceedings such as the one before us where no error was brought to the attention of the sentencing judge. My colleagues, and the district judge, indulge in the contrary presumption, namely, that acceptance of the sentencing recommendation of a probation officer as to sources of treatment is merely “rubberstamping.” They do this notwithstanding testimony that New York judges frequently reject special conditions of probation recommended by probation authorities. They also ignore the possibility that recommendations of probation officers may be tailored to the known views of judges, creating a false appearance of rubberstamping.
Moreover, as noted, the record is not silent as to whether the particular sentencing judge would have imposed the requirement of attendance at A.A. meetings had Warner indicated his concerns about the religious aspects of A.A. In fact, it fairly shouts that the judge would have rejected the condition. After sentencing, Warner complained to the probation officer about the religious aspects of A.A. At this point, of course, the officer lacked power to alter the sentence. Warner then, for the first time, challenged the sentence by filing a petition under N.Y. Crim. Proc. L. § 440.20(1) (McKinney 1995) to set aside the pertinent part of his sentence on the ground that it was invalid. The court ruled that Warner could comply with the conditions of probation by going to a non-religious alcohol counseling program and denied the petition as moot. Indeed, Warner’s complaint alleged that “[a]s a result of the Town of Woodbury Justice Court’s Decision and Order, plaintiff is currently no longer required by his probation officer to participate in Alcoholics Anonymous but is, instead, required to attend an alternative program.” In short, Warner’s own papers indicate that as soon as the judge was alerted to Warner’s distaste for the religious aspects of A.A., the judge immediately altered that condition of probation. That being the case, the record support for the finding that the judge merely rubberstamped the recommendation of the probation officer is not apparent to me.
Furthermore, another finding, not made by my colleagues, is necessary to establish the recommendation of the probation officer as the legal cause of Warner’s injuries. To reach my colleagues’ conclusion, we would also have to find that an appeal from the sentence would have been fruitless because the New York appellate courts would simply not have given any consideration whatsoever to Warner’s constitutional challenge out of blind and unhesitating deference to the recommendation of the Orange County probation officer. Quite the contrary, we now know that relief was available. See Griffin.
Malley v. Briggs, 475 U.S. 335 (1986), works against Warner. The procuring of a search warrant is not an adversary proceeding, much less one like sentencing, in which the subject has a constitutional right to counsel and a hearing on the merits. Because the magistrate issuing a warrant is not subject to adversary argument revealing flaws in the application and affidavit, the magistrate’s intervening decision does not immunize the officer’s unreasonable conduct. Malley simply has no application to a proceeding that is adversary and subject to immediate appellate review.
I now turn to the use of the Establishment Clause to invalidate a condition of probation that requires attendance at A.A. meetings. I will assume that the religious aspects of A.A. are sufficient to trigger a violation of either the Establishment or Free Exercise Clause if the other requisites of such claims are met. Nevertheless, I do not agree that the Establishment Clause provides a basis for relief to Warner.
In finding an Establishment Clause violation, my colleagues rely heavily upon the fact the probation authority did not recommend to the sentencing court that Warner have a choice between A.A. and a non-religious rehabilitation program. As a result, he was, in their view, coerced into participation in A.A. (In my view, of course, he freely chose A.A.) Although, as my colleagues point out, coerced participation in religious ceremonies may be a factor in finding an Establishment Clause violation, see Lee v. Weisman, 505 U.S. 577 (1992), it is not a necessary element of such a claim, and a choice among all available options is not a remedy for a valid Establishment Clause claim.
Relevant Establishment Clause precedent bars governmental endorsement and support of religion even in contexts in which no coercion exists. The “preservation and transmission of religious beliefs and worship is . . . committed to private sphere,” Lee at 589, and government may not support religious practices even when those engaged in them have freely chosen to do so. Government may not aid “a single religion or religion generally,” School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 382 (1985), but must “maintain a course of neutrality among religions, and between religion and nonreligion.” Id. A law that merely facilitates citizens in the practice of their religion may, therefore, be invalid even though no non-believer is negatively affected — even as a taxpayer. See Board of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 114 S. Ct. 2481 (1994).
If attendance at A.A. meetings as a condition of probation violates the Establishment Clause, it is because such a condition entails governmental sponsorship of religion over nonreligion. Following the logic of Establishment Clause jurisprudence, it would seem to me that such a condition is a violation whether or not the only person directly affected, the probationer, preferred a religiously oriented program over a secular one. The lack of governmental neutrality is precisely what caused the Supreme Court in Grumet to strike down a state law establishing a school district for the Village of Kiryas Joel, which was populated only by persons with a common religion. And, in Lee, surely the plaintiff’s constitutional claim could not be satisfied by an offer of an additional ceremony at the high school graduation allowing speakers of her choice to express whatever spiritual or atheistic views — or disagreements with the spiritual or atheistic views of others — that were congenial to her.
Establishment Clause logic, if followed, therefore, would endanger any number of ubiquitous penal programs that are, in my view, clearly permissible. To take just two common examples, prisons may have chaplains, who systematically offer religious counseling, services, and other programs to prisoners. They may be selected, paid, and even monitored by state officials. Also, sentences to community service may involve service at soup kitchens, many of which are operated by churches where a meal begins with a prayer and religious tracts are distributed.
None of the programs described above violate the Establishment Clause in my view. Applying the three-part test established in Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971), each has a secular purpose in that they all further rehabilitation in one way or another. None have as a principal or primary effect the advancement or inhibition of religion. Any such effect is incidental. Finally, they do not lead to excessive entanglement of the government in religion. I very much doubt that substantial disagreement exists over this point. The state’s control over the lives and activities of prisoners certainly justifies its making religious programs available to them. Indeed, under our caselaw, a state must offer some congregate programs of a sectarian nature. See Salahuddin v. Coughlin, 993 F.2d 306 (2d Cir. 1993); Young v. Coughlin, 866 F.2d 567, 570 (2d Cir.), cert. denied, 492 U.S. 909 (1989). However, I also see no difference between the penal programs described above and Warner’s sentence so far as the Establishment Clause — in contrast to the Free Exercise Clause — is concerned.
To be sure, my colleagues do not hold that attendance at A.A meetings can never be a condition of probation. Indeed, they expressly state that Warner should have been given a choice, a statement I take to mean that persons facing a sentence for alcohol-related offenses may constitutionally be offered a choice between A.A. meetings (or other religiously-based rehabilitation programs) and alternative secular programs as a condition of probation. My disagreement is simply over whether such a choice is required, or even permitted, by the Establishment Clause.
I hasten to add that I do not view compulsory activity with a substantial religious component as a valid penal measure, at least where equally effective secular rehabilitative programs are available. See O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987) (restriction on free exercise rights must be reasonably related to valid penalogical interest). Compulsory attendance at religious ceremonies as part of a penal sentence surely raises serious issues under the Free Exercise Clause and might well require the provision of a choice between secular and sectarian programs. Warner makes no Free Exercise claim, however.
This is a decision with important ramifications. It transports tort doctrine of proximate cause and foreseeability drawn from the law of negligence to the judicial process. In so doing, it fails to give any recognition to the more appropriate rules governing intentional torts, to the power of a party to a court proceeding to avoid harm by raising objections and taking appeals, or to the role of the judge as an independent decision-maker. It thus may have implications for advocates as well as for those who advise judges. See Note 6, supra. It also brings to sentencing, probation, and penal institutions Establishment Clause doctrine that may not be easily cabined.
At a practical level, my colleagues’ decision exposes every probation authority in this circuit to suits for damages and attorney’s fees in virtually every case in which a recommendation of attendance at A.A. meetings has been made and accepted within the statute of limitations period, if no available alternative was offered and such recommendations were commonly made. Liability will follow no matter whether the defendant ever brought the constitutional issue to the attention of the sentencing court. Other claims of unconstitutional recommendations under Section 1983 will follow notwithstanding failure to make objections to sentencing courts.
I therefore respectfully dissent.
—- Begin EndNotes —-
1 The First Circuit went on to state:
A negligent defendant will not be relieved of liability by an intervening cause that was reasonably foreseeable, even if the intervening force may have “directly” caused the harm. An “unforeseen and abnormal” intervention, on the other hand, “breaks the chain of causality,” thus shielding the defendant from liability.
See also Stagl v. Delta Airlines, Inc., 52 F.3d 463, 473-74 (2d Cir. 1995)(under New York law liability turns upon whether the intervening act is “a normal and foreseeable consequence of the situation created by the defendant’s negligence”)(quoting Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 315 (1980)); Bonsignore v. City of New York, 683 F.2d 635, 638 (2d Cir. 1982)(same); White v. Roper, 901 F.2d 1501, 1506 (9th Cir. 1990); Marsh v. Barry, 824 F.2d 1139, 1143 (D.C. Cir. 1987)(question in § 1983 case where intervening cause is alleged is “whether the resulting harm was reasonably foreseeable”); Springer v. Seaman, 821 F.2d 871, 876-77 (1st Cir. 1987); Restatement (Second) Torts §§ 442A, 442B, 443, 447 (1965).
2 New York law prohibits a court from sentencing a defendant to a term of probation not agreed upon by the parties without first considering the probation department’s pre-sentence report (“PSR”). N.Y. Crim. Proc. § 390.20 (McKinney 1994). PSR’s include not only material the department thinks appropriate, but also any other information the court may direct the investigation to include. Id. at § 390.30(3)(a). Once written, PSR’s become confidential court documents. Id. at § 390.50(1). Although not formally located within the judicial branch, Bowne v. County of Nassau, 371 N.Y.S.2d 449, 452 (N.Y. 1975), New York statutes intimately tie the probation department to the sentencing process.
3 The dissent suggests that we malign New York’s judiciary by finding that the sentencing judge merely “rubber stamped” the probation office recommendation. We neither find nor imply any such thing. First, to say, as we do, that it was reasonably foreseeable that the sentencing judge would accept probation’s recommendation on this point does not imply that the judge did not make his own determination. Second, our discussion relates only to the selection of a therapy provider and not at all to the court’s determination of appropriateness of probation and of alcohol therapy. The selection of a provider of therapy is not an issue of law, and courts are ill equipped to perform this task without relying heavily on recommendations. For sentences involving alcohol abuse therapy, furthermore, the probation department’s role is particularly significant. New York law allows a judge to sentence a defendant to a term of probation conditioned on “participat[ion] in an alcohol . . . abuse program . . . approved by the court after consultation with the local probation department having jurisdiction, or such other public or private agency as the court determines to be appropriate.” N.Y. Penal § 65.10(2)(e)(emphasis added). The statutory requirement that the judge seek advice in approving a particular alcohol abuse program suggests judicial reliance on the department’s expertise in selecting a program.
4 Justice Rehnquist referred in particular to the Court’s decision in Monell v. New York City Dept. of Social Servs., 436 U.S. 658 (1978), overruling Monroe v. Pape, 365 U.S. 167 (1961), and holding that local governments were no longer absolutely immune from suit under § 1983. Monell expressly reserved the question of whether municipalities might be entitled to some more limited form of immunity. 436 U.S. at 701. In Owen v. City of Independence, 445 U.S. 622, 638 (1980), the Supreme Court rejected the notion that the qualified immunity of municipal officials extends to municipalities themselves.
5 See also Baez v. Hennessy, 853 F.2d 73, 75-76 (2d Cir. 1988)(noting Supreme Court’s agreement in dictum with view that absolute prosecutorial immunity does not extend to County government)(citing Kentucky v. Graham), cert. denied, 488 U.S. 1014 (1989). A few district courts had taken a different course, but these opinions were overruled by Pinaud. See Whelehan v. County of Monroe, 558 F. Supp. 1093, 1108 (W.D.N.Y. 1983); Armstead v. Town of Harrison, 579 F. Supp. 777, 782-83 (S.D.N.Y. 1984).
6 We noted, paraphrasing the Supreme Court’s language in Imbler setting forth the limits of prosecutorial immunity, that “a federal probation officer acts as an arm of the court and that . . . task is an integral part of one of the most critical phases of the judicial process.” Dorman, 821 F.2d at 137. And we made clear that federal probation officers deserve absolute immunity because they fall into a class of persons, such as prosecuting attorneys and witnesses testifying in judicial proceedings, whose activities require them to “perform functions [so] closely associated with the judicial process” that they “have also been accorded [absolute judicial] immunity.” Id. (citation omitted).
7 We do not imply that we would rule similarly where the asserted liability of the municipality derives from the conduct of a judge. A number of questions arise that may distinguish such a case. It is difficult to say that a municipal judge has “final authority to establish municipal policy” under state law at all, Walker v. City of New York, 974 F.2d 293, 296 (2d Cir. 1992), cert. denied, 507 U.S. 961 (1993); City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988) (plurality opinion), as such rulings are almost always — as here — appealable to higher courts within the state system. See Eggar v. City of Livingston, 40 F.3d 312, 314-15 & n.3 (9th Cir. 1994), cert. denied, 115 S. Ct. 2566 (1995); N.Y. Uniform Justice Court Act §§ 1701, 1702 (McKinney 1989). “Local” judicial decisions are therefore neither final, nor exclusively local. Eggar, 40 F.3d at 314-15 & n.3.
Moreover, when a municipal judge enforces state law he does not act as a municipal official or lawmaker, but rather serves only to effectuate state policies. See Eggar, 40 F.3d at 314-15; Johnson v. Moore, 958 F.2d 92, 94 (5th Cir. 1992); Bigford v. Taylor, 834 F.2d 1213, 1222 (5th Cir.)(judge’s “‘deliberate or mistaken departure from the controlling [state] law’ cannot be said to represent county policy”)(quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 486 (1986)), cert. denied, 488 U.S. 851 (1988); Carbalan v. Vaughn, 760 F.2d 662, 665 (5th Cir.), cert. denied, 474 U.S. 1007 (1985); Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980).
Courts have also denied municipal liability where — as is frequently the case — state law makes judges who are casually referred to as “county” officials in fact officers of state government, and a part of the state judicial system. See Eggar, 40 F.3d at 314 & n.3 (power of city judges under Montana law derives from state statutes, and the judges are in the hierarchy of the state judicial system); Woods v. Michigan City, 940 F.2d 275, 279 (7th Cir. 1991)(under Indiana law county courts are a branch of the “state’s constitutional system”); Thompson v. County of Rock, 648 F. Supp. 861, 866-67 (W.D. Wis. 1986)(denying municipal liability for acts of Wisconsin county court commissioners on grounds that they are in fact state officials). Since New York municipal courts are “part of the unified court system for the state,” N.Y. Uniform Justice Court Act § 102 (McKinney 1989), this logic might well apply in New York as well. Finally, we note that even in the event that the law were to allow a municipality to be liable for judicial actions, judges themselves may be protected against providing testimony as to their thought processes in issuing an opinion. A number of courts have so held in the context of federal habeas corpus review of state court decisions. See Weidner v. Thieret, 866 F.2d 958, 963 (7th Cir. 1989)(recommending that state trial judges offer testimony in federal habeas cases, if at all, by voluntary affidavit since “it would be unseemly for a federal district judge to summon the state trial judge as a witness . . . to give testimony and be cross-examined”); Washington v. Strickland, 693 F.2d 1243, 1263 (5th Cir. Unit B 1982)(prohibiting testimony of state trial judges in federal habeas cases on rationale underlying their initial decision, inter alia, for reasons of federalism and comity), rev’d on other grounds, 466 U.S. 668 (1984). A similar logic would apply in collateral review of municipal court decisionmaking under § 1983.
8 As noted above, the district court made no finding on OCDP’s awareness of the religious nature of the A.A. program. We nonetheless found OCDP’s responsibility by reason of the stipulation of the parties that OCDP knew the religious nature of A.A.’s Twelve Steps. The district judge’s finding of a violation of the Establishment Clause was based in part on several factors, recited above, that were not included in the Stipulation covering OCDP’s knowledge — particularly the prayers. Although there was no finding that OCDP knew (or should have known) of the prayers, the finding of Establishment Clause violation and of OCDP’s responsibility are adequately supported by the stipulated facts.
9 See also O’Connor v. California, 855 F. Supp. 303 (C.D. Cal. 1994)(no Establishment Clause violation where probationers were offered a choice between A.A. and a secular program).
10 Orange County relies upon Stafford v. Harrison, 766 F. Supp. 1014 (D. Kan. 1991), for the proposition that A.A. participation is not a religious exercise. Stafford involved a mandatory prison-based substance abuse program, structured around the principles of A.A. The court upheld the program, arguing that A.A.’s notions of a “higher power” and “God” were sufficiently flexible and non-denominational that the program could not be said to constitute a “religion.” This is a misapplication of First Amendment doctrine, which prohibits coerced participation in religious exercise of any variety for its favoritism of religion over non-religion. We decline to follow that case, which has been criticized for misreading relevant Supreme Court precedent. See Scarpino v. Grossheim, 852 F. Supp. 798, 804 n.5 (S.D. Iowa 1994); Warner v. Orange County Dep’t of Probation, 827 F. Supp. 261, 267 (S.D.N.Y. 1993).
11 The parties also offer analyses of this case within the much-maligned but still viable framework of Lemon v. Kurtzman, 403 U.S. 602 (1971). Compare Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 113 S. Ct. 2141, 2148 n.7 (1993)(noting ongoing viability of Lemon) with Lee, 112 S. Ct. at 2685 (Scalia, J., dissenting)(noting criticism of Lemon) and Lamb’s Chapel, 113 S. Ct. at 2149-50 (Scalia, J., concurring)(same). Whatever other tests may be applicable in the Establishment Clause context, the Supreme Court has made clear that “at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise.” Lee, 112 S. Ct. at 2655. Because sending Warner to A.A. as a condition of his probation, without offering a choice of other providers, plainly constituted coerced participation in a religious exercise, we find a violation of the Establishment Clause.
By James R. Milam, Ph.D.
November 17, 1995
Since its publication (some 30,000 original circulation) copies of the enclosed paper, The Alcoholism Revolution, are continuing to spread, and there is now clear evidence that this definitive statement is transforming scientific and professional understanding of addiction, inspiring a cleanup of the peer review scandal, and profoundly influencing pending healthcare and criminal justice reforms. Major media stories are already reflecting the more positive attitudes toward treatment and recovery.
Meanwhile, with only stop-gap measures available to address the social and fiscal crises of our time, there is a continuing urgency for this rectifying information to be more widely available in its present form. So I have mailed evolving versions of this letter with its enclosures to scientists, professionals, government officials, media members and others who by their cumulative actions and influence will help to finally put a stop to this cultural calamity. To this end, I ask that you read this information thoughtfully, and share it with still others.
As early responses indicate, The Alcoholism Revolution speaks eloquently for itself, but it is also necessary to address what may otherwise still seem to be an insurmountable obstacle to the more general dissemination of this “heretical” material. Some members of the broader scientific and professional community have been constrained, without substantive comment, to hold the paper in abeyance as extreme, or premature. The reason is as obvious as it is absolute. Everything in the paper is anathema to the long established peer review consensus in alcoholism. There is no interdisciplinary mechanism of substantive appeal, no higher scientific authority, and it is unthinkable for official scientific spokespersons to violate the sacrosanct hegemony of an intradisciplinary peer review procedure. Neither they nor the communications media have had any way to know that in the field of addiction research this obstacle has been more apparent than real. Thus the fact that the peer review process has long been corrupted and subverted is a necessary part of the story of the alcoholism revolution.
Over twenty years ago Mark and Linda Sobell began publishing research reports alleging that controlled drinking was a viable treatment option for alcoholics because having trained twenty to do so, “…many engaged in limited, nonproblem drinking throughout the followup period.” The Maltzman, Pendery, and West investigations (The Winter of Scholarly Science Journals, enclosed) found that both during the Sobell followup and continuing through 1981, with the exception of one patient whose initial diagnosis was questioned, all had been drinking alcoholicly, with multiple hospitalizations and incarcerations. Four had died of alcohol related causes, another had disappeared while drinking, and six had resorted to programs of total abstinence. None had been drinking non-problematically.
Peer review then denied relevant journal access to Maltzman and the other whistle-blowers, as an “investigative” panel of Sobell cohorts castigated the critics and absolved the Sobells, characterizing their research reports as “perhaps too enthusiastic.” The Sobells were defended on the ground that the control group, instructed by the Sobells to abstain, fared no better than those taught to moderate their drinking. This diversionary point is, of course, irrelevant to the fact that the Sobells blatantly lied about their critically important data.
It would be hard to overstate the enormous impact of the Sobells’ “demonstration” on both science and public policy. It was insider knowledge that all other attempts to justify the denial of physical addiction had instead confirmed it that put such heavy pressure on the Sobells to falsify their data, and that made their bogus reports the most widely cited and most influential in shaping the academic addiction literature through the 1970s and ‘80s.
In parallel, by the 1970s the academic chorus of denial, with Timothy Leary singing the lead, had successfully promoted marijuana as a completely harmless, nonaddictive recreational drug with no physical consequences. There was then a sharp rise in cocaine use. At the first sign of public alarm President Carter’s drug czar, psychiatrist Peter Bourne, quelled the concern with a reassuring White House bulletin: “Don’t worry about cocaine. It’s among the most benign of all drugs in widespread use.”
Herbert Fingarette’s 1988 book, Heavy Drinking, was pivotal in the abrupt national regression from the emphasis on intervention and treatment of addicts to almost complete reliance on condemnation and punishment of “abusers.” He cited the Sobells’ reports twenty times in his argument that there is no such thing as physical addiction, that abstinence treatment is both unnecessary and ineffective. Since it had been scientifically proven that alcoholics can learn to drink moderately, society should demand that they do so, and punish them if they don’t. Thus his primary contribution was to elevate the big lie to public prominence and respectability, supporting Stanton Peele’s raucous sound-bite presentation of it in the media. Incredibly, Fingarette has been the US representative on addictions to the United Nations, which explains the global ignorance of the scientific paradigm shift that has occurred behind the scenes of denial in this country, and our meager distorted information about how other countries are coping with the drug crisis.
Fingarette’s gullibility was one thing, but why was society so ready and willing to be duped? The answer was in the changing composition of society. By 1988 members of the aging baby-boom generation were ascending to society’s levers of control. Reared within the academically sanctioned drug culture of denial of addiction—the diabolic spawn of the older moralistic ignorance of addiction—they were programmed to believe that theirs was the enlightened view, and from the beginning consensual validation had precluded any concern with evidence. In flipping society back into its old moralisms, the task was not so much to persuade as merely to pander to the mind set of this rising majority—denial imbedded in ignorance. Never mind that Fingarette’s evidence and argument were specious. Who but a cross-threaded voiceless minority could know?
Although never mentioned in the long lists of psychosocial risk factors blamed for the growing problem of “drug-abuse,” clearly all such factors are preempted by this big lie—the denial of physical addiction—the seminal crime in the drug-crime epidemic. This deception alone, the cultural message that drugs are nonaddictive, and harmless when not being abused, fully accounts for the drug epidemic. Absent the truth freedom of choice is counterfeit, freedom of speech a mockery, and support for the proposal to decriminalize drugs a capitulation to the hoax that generates the problem.
Citing the failure of alcohol prohibition, blaming the current crime epidemic on the fact that drugs are illicit, is as disingenuous as reciting the psychosocial risk factors. While cocaine and other such drugs were legal up through the first decade of this century there was a major drug epidemic. Finally realizing that the drugs were destructively addictive for most users, the public rallied in full support of the Harrison Act, outlawing the drugs, and the epidemic subsided. According to historian David Musto, “Drug prohibition was a complete success.” The difference was that smirking members of academia and a huge entertainment industry were not flouting the law and, through a disinformed press, continuing to promote recreational use of drugs. On the other hand, one major reason alcohol prohibition failed is that for nine out of ten drinkers, regardless of how, why, how much or how long they might choose to drink, alcohol is not an addictive drug, and for them moderate recreational drinking truly is a valid option.
No, psychosocial “risk factors” are not causes of addiction. Along with the big lie, they help to determine exposure, but the cause is the addictive chemical in a biologically susceptible individual, and most drug users are addicted. It is not just the acute drug effect or the illicit drug seeking that are a problem. They are just the beguiling visible tips of the massive addiction-crime connection. Note that tendencies toward violent behavior have always been with us, and that psychosocial factors have always been precipitating causes. As explained in The Alcoholism Revolution, persisting even after drugs have cleared the blood stream, the chronic brain syndrome of untreated addiction increases (neurologically augments) all destructive response tendencies, thus escalating both the frequency and intensity of overt expression of these normally more controlled impulses. Rates of suicide and homicide and all other crimes and excesses are greatly increased regardless of the ready availability of drugs or alcohol. But with addiction commonly excluded from the consideration of causes, and drug use and “abuse” viewed as incidental symptoms, the cause of the whole inflamed response is attributed to the person and to the familiar psychosocial triggers, as though age old sexual tension, domestic conflict and social injustice somehow in recent generations have become extremely provocative of destructively insane behavior. Alternately, it seems that a failed morality has unleashed this abusive torrent, when in fact, naively thrust to the decoy front in this quixotic war, morality has been blind sided and savaged by the camouflaged foe of addiction. Unable to account for the pandemic destructive behaviors, the media can only describe them, as weird, strange, out of character, irrational, bizarre and mysterious.
The familiar comes to seem normal, but the cumulative loss of civilities and moral sensibilities has been devastating as for three decades the whole of society has been contagiously coarsened to accommodate this misattribution of the insanity of addiction. Through screaming music the nihilistic effluvium of toxic brains has been imprinted as social commentary on the brains of each new generation of innocents, the maudlin agonizing of dying brain cells has been flatteringly mistaken for existential angst, senseless violence has been viewed as social protest, and peeing on cultural icons has been hailed as an avant-garde art form.
And it is through this misattribution that society has unwittingly subsidized and enabled addiction by guiltily trying to assuage its abusive consequences instead of demanding and enabling clean and sober recoveries. Predictably, insane behavior, crime, and poverty have increased in proportion to ever increasing expenditures devoted to their reduction. Thus did the drug culture of denial and misattribution assure that all of the heroic social engineering and fiscal gymnastics intended to create the great society would instead produce the great alibi society, this blundering bankrupt world of psychobabble and victimhood.
And no, informing the addict that he has a disease does not let him off the hook for his bad behavior, as widely proclaimed. On the contrary, it is the only convincing way to put him on the proper moral hook, the enforceable imperative to do whatever it takes to get clean and sober, and stay that way, as the only way to heal the brain syndrome that produces the destructive behavior. When coerced into treatment, once detoxified and returned to sanity and selfhood virtually all patients gratefully accept this truth and its moral obligation—if presented unequivocally and explained thoroughly—and become self-motivated. Most fully recover, even many of the “hopeless.” None recover when their psychosocial alibis and complications are mistaken for causes.
By 1988 the lucrative exploitation of the addiction treatment industry by the “substance abuse” mentality had burgeoned out of control, and it was easy to contrive the public backlash against this “rip-off industry.” Contrived, because it was the same Sobell alliance that fostered the exploitation and then orchestrated the media blitz. They focussed the attack not on their own zero recovery psychogenic programs, but exclusively against the “disease concept.” During the two decades of peer review subversion, scientific evidence proving the high cost/effectiveness of the abstinence oriented programs had been purged from public view. Bereft of scientific legitimacy, they were helpless to differentiate themselves or to defend against the attack, and the voice of recovery disappeared from the national dialogue. Well over half of the better private inpatient programs, ranging downward from eight thousand dollars per treatment sequence and yielding full recovery rates of some two-thirds, have been forced to close, and most of their financially starved public funded counterparts have been compromised to become cheap but extremely costly revolving doors. Meanwhile, at some $25,000 per inmate, per year, the prisons are bulging with alcoholics and drug addicts whose predictably recurrent crimes and incarcerations are secondary to the insanity of unrecognized or wrongly treated addiction.
The surviving treatment programs remain impotent pending public disclosure of the truth, and in their silence we hear the loud replay of the hostile code words of the truly failed psychogenic strategies of the 1970s, “We need to try alternative treatments.” The 44 of these highly varied “alternative” programs in the notorious Rand followup study (including anger management, harm reduction, and dual diagnosis treatments) cruelly provided temporary diversions, but uniformly yielded zero recoveries from this progressive fatal disease. Their future failures are predictable because in their inverted view of cause and effect, addiction doesn’t cause dysfunctional behavior, dysfunctional behavior causes substance abuse (John Bradshaw). If we learned anything from the 1970s it was that increased funding of this wrong premise in whatever guise only produces more colossal failures. So keep your eye on the really big money, in the “dual-diagnosis” replay, and the other Trojan Horses–the “harm reduction” and “moderation management” programs that also smuggle the alcoholics’ old alibis back in as causes.
But enough already of the 50-year obsession with alternatives to what works–the cosmetic tweaking and fiddling within the failed paradigm. As sincere curiosity and respect replace programmed ignorance and contempt, academics can discover and help improve, and multiply, the effective abstinence programs. Just honest scientific validation replacing dishonest disparagement will significantly increase patient confidence and therefore treatment effectiveness.
Take heart from the many signs that the revolution is under way, and gaining momentum. In a historic preemptive move, early in 1994 the principal culprits in the subversion of peer review were very visibly hooked off the academic center stage into the wings. Confronting the ensuing disarray, top officials of the American Psychological Association then suspended their campaign to subordinate addiction to mental health, appealed to their biologically oriented members to assert new leadership in this area (APA Monitor, July, 1994), and began a reassessment of peer review procedures. To the same end, top government agencies have just announced prophylactic peer review changes required for future research funding.
Alas, in a face-saving stall some members of the old guard are now attempting to trivialize the biogenic model by equating addiction with the nerve-transmitter effects of heavy drinking, the normal effects also produced by heavy drinking in nonalcoholics, and similar to the effects of excessive running or stamp collecting. But this denial of genetic susceptibility to addiction will not long prevail because enlightenment is spreading too fast, and government alcoholism and drug funding priorities are already shifting to support remedial professional education and training in the disease of addiction. Of course, the broader default position is still psychogenic. Even with unlikely retractions by the Sobells and their cohorts or published repudiations, it could take many years to glean enough valid information from the chaff comprising the vast inverted “substance abuse” literature to assemble the biogenic paradigm. On the other hand, as growing awareness of the true gestalt reaches a kind of critical mass, in an edifying figure-ground reversal the whole academic literature can be quickly flipped right side up.
In a most promising parallel development, the American Bar Association Task Force on the Drug Crisis has recently discovered and adopted the biogenic model.
It is also evident that the broader public pendulum has started to return from its extreme swing to interdiction and punishment. Drug courts are proliferating, and growing numbers of reformers are discovering the hard data confirming the enormous reduction in crime and healthcare costs following comparatively small investments in effective addiction treatment. So now the really huge question is this: To what will the pendulum return? Will selected addicts merely escape the revolving prison doors to join the throng still cycling in the traditional zero recovery healthcare and welfare caseloads, and the financially compromised revolving door programs? Or will there be a substantial reduction of all caseloads through enlightened leadership and rigorous measures of prevention, intervention and treatment of the core problem, addiction? Heaven help us if we merely continue to follow the advice attributed to Yogi Berra, “If you come to a fork in the road, take it.”