RFRA objection to Sentencing Guidelines that provide for downward departure when a defendant has providedsubstantial as s istance

[Avi Schick]

Given the manner in which the Guidelines operate - a base offense number and then the application of enhancements or reductions for certain conduct  or circumstances - wouldn't a successful RFRA challenge merely result in the elimination of the downward departue for testifying against others?

Avi Schick
Deputy Counsel to the Attorney General
NYS Department of Law

>>> VOLOKH at mail.law.ucla.edu 09/06/02 07:40PM >>>
        Hmm -- I'm not sure why my reading is so broad.  Assume that the
prosecutor comes to the defendant and says:  "If you testify against your
coconspirators, we'll ask for a substantial assistance departure, which will
mean your prison term will probably be 4 years.  If you refuse to testify,
we won't ask for the departure, your prison term will probably be 6 years."
By telling the defendant that he'll likely serve 2 extra years in prison if
he doesn't do something -- something that his religion prohibits him from
doing -- isn't that a substantial burden on his practice of religion?

        Of course, this is an "incidental burden," in the sense that it
arises from a generally applicable law -- but I thought that the purpose of
RFRA was to make these incidental burdens be subject to strict scrutiny, if
they are substantial.  And as I said, it seems to me that the threat of
extra time in prison is indeed a substantial burden.  It may be a burden
that could pass muster under strict scrutiny, but how can it not be a
burden?

        Eugene

> -----Original Message-----
> From: Marci Hamilton [mailto:Hamilton02 at AOL.COM]
> Sent: Friday, September 06, 2002 8:40 AM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: RFRA objection to Sentencing Guidelines that
> provide for down ward departure when a defendant has provided
> substantial ass istance
>
>
> I must say I am puzzled by Eugene's broad reading of
> "substantial burden."  Are all incidental burdens on
> religious believers arising from generally applicable laws
> (like the Sentencing Guidelines) substantial burdens?  I
> always thought substantial burden was defined more narrowly,
> especially in the RFRA cases.
>
> Marci
>
>
>
> Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
> 55 Fifth Avenue
> New York, NY 10003
> (212) 790-0215
> (212) 790-0205 (fax)
> hamilton02 at aol.com
>