March 27, 2014
This responds to your inquiry (13-191) asking whether it is ethically permissible for a judge to refer a defendant, as part of his/her sentencing, to the “Alive at 25" program.
The Committee has previously ruled on this particular issue and advised that (Opinion 10-124):
where it is legally appropriate to do so, there is no ethical bar to a judge making a referral to a specific program or service offered by a governmental or not-for-profit entity, rather than providing a list of programs, where the specific referral is motivated not by mere favoritism ... but instead by the judge’s individualized assessment of the defendant’s needs and the particular facts and circumstances presented. Such individualized determinations are fundamental to a judge’s adjudicatory duties, and, as long as they do not impermissibly promote private interests, the Committee sees no ethical obligation to ensure that referrals to educational and rehabilitative services and programs are evenly distributed
Since “Alive at 25" is specifically targeted for defendants in a particular age bracket and is a government program, there is no ethical prohibition to referring eligible defendants to this particular program. However, where more than one program is available for the same class of offenders, the judge should provide a list of the available programs instead of referring a defendant to one specific program (see e.g. Opinions 10-27 and 08-35).
Enclosed for your convenience are Opinions 10-124; 10-27; and 08-35 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice
Appellate Division, First Dept. (Ret.)