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Religious-worship burglary enhancement doesn’t violate constitutions

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The Indiana Court of Appeals ruled against a man who argued the enhancement of his burglary conviction to a Class B felony because he burgled a church violated the federal and state constitutions. In the first impression issue, the judges held the enhancement doesn’t violate the Establishment Clause of the First Amendment or Article 1, Section 4 of the Indiana Constitution.

Joshua Burke was charged with Class B felony burglary for his role in a break-in at an Indianapolis church. Indiana Code Section 35-43-2-1(1)(B)(ii) enhances burglary from a Class C felony to a Class B felony if the building or structure burgled is used for religious worship.

In Joshua Burke v. State of Indiana, No. 49A02-1006-CR-660, the judges analyzed whether this enhancement violates the Establishment Clause of the First Amendment over objections from the state that Burke argued in his motion to dismiss only that the statute violated the state constitution. Burke’s appeal is the first time in Indiana someone has argued that any statutory provision enhancing a crime when a structure used for religious worship is involved violates the Establishment Clause.

The Court of Appeals cited People v. Carter (Carter I), 592 N.E.2d 491, 495 (Ill. App. Ct. 1992), in which the Appeals Court of Illinois held that a provision allowing a trial court to consider as an aggravating factor the fact a crime occurred in or on the grounds of a place of worship immediately before, during, or after worship services, doesn’t violate the Establishment Clause. The 7th Circuit Court of Appeals agreed in Carter v. Peters (Carter II), 26 F.3d 697 (7th Circ. 1994), which it received after Carter’s habeas petition was denied in lower court. Both courts found the provision’s primary effect was not on people deciding whether to attend worship services, but on people who commit crimes there, wrote Judge Nancy Vaidik.

Judge Vaidik pointed out that comparable Establishment Clause challenges in other jurisdictions have reached the same conclusion.

“Section 35-43-2-1(1)(B)(ii)’s purpose is not to give added protection to structures used for religious worship but to ensure the appropriate sentence for the offender,” she wrote. “It reflects a legislative recognition that: (1) structures used for religious worship have a ‘traditional absence of security measures’ and are thus easy targets of crime, Carter II, 26 F.3d at 699, (2) crimes against structures used for religious worship are ‘more repugnant to the community,’ Carter I, 592 N.E.2d at 497, and (3) it takes more time to reform and rehabilitate those offenders who commit acts society deems more repulsive.”

The appellate court also concluded the statute doesn’t materially burden the right to be free from government preference for a particular religion or religion in general under Article 1, Section 4 of the Indiana Constitution.

“To the extent that the provision may benefit structures used for religious worship in the form of added protection, such benefit is too slight to frustrate Article 1, Section 4’s core constitutional value. That is, such benefit does not amount to an impairment of such magnitude that the right to be free from government preference for a particular religion or religion in general is unconstitutionally burdened,” she wrote.

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  1. CCHP's real accomplishment is the 2015 law signed by Gov Pence that basically outlaws any annexation that is forced where a 65% majority of landowners in the affected area disagree. Regardless of whether HP wins or loses, the citizens of Indiana will not have another fiasco like this. The law Gov Pence signed is a direct result of this malgovernance.

  2. I gave tempparry guardship to a friend of my granddaughter in 2012. I went to prison. I had custody. My daughter went to prison to. We are out. My daughter gave me custody but can get her back. She was not order to give me custody . but now we want granddaughter back from friend. She's 14 now. What rights do we have

  3. This sure is not what most who value good governance consider the Rule of Law to entail: "In a letter dated March 2, which Brizzi forwarded to IBJ, the commission dismissed the grievance “on grounds that there is not reasonable cause to believe that you are guilty of misconduct.”" Yet two month later reasonable cause does exist? (Or is the commission forging ahead, the need for reasonable belief be damned? -- A seeming violation of the Rules of Profession Ethics on the part of the commission) Could the rule of law theory cause one to believe that an explanation is in order? Could it be that Hoosier attorneys live under Imperial Law (which is also a t-word that rhymes with infamy) in which the Platonic guardians can do no wrong and never owe the plebeian class any explanation for their powerful actions. (Might makes it right?) Could this be a case of politics directing the commission, as celebrated IU Mauer Professor (the late) Patrick Baude warned was happening 20 years ago in his controversial (whisteblowing) ethics lecture on a quite similar topic: http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1498&context=ilj

  4. I have a case presently pending cert review before the SCOTUS that reveals just how Indiana regulates the bar. I have been denied licensure for life for holding the wrong views and questioning the grand inquisitors as to their duties as to state and federal constitutional due process. True story: https://www.scribd.com/doc/299040839/2016Petitionforcert-to-SCOTUS Shorter, Amici brief serving to frame issue as misuse of govt licensure: https://www.scribd.com/doc/312841269/Thomas-More-Society-Amicus-Brown-v-Ind-Bd-of-Law-Examiners

  5. Here's an idea...how about we MORE heavily regulate the law schools to reduce the surplus of graduates, driving starting salaries up for those new grads, so that we can all pay our insane amount of student loans off in a reasonable amount of time and then be able to afford to do pro bono & low-fee work? I've got friends in other industries, radiology for example, and their schools accept a very limited number of students so there will never be a glut of new grads and everyone's pay stays high. For example, my radiologist friend's school accepted just six new students per year.

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