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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. "So we broke with England for the right to "off" our preborn progeny at will, and allow the processing plant doing the dirty deeds (dirt cheap) to profit on the marketing of those "products of conception." I was completely maleducated on our nation's founding, it would seem. (But I know the ACLU is hard at work to remedy that, too.)" Well, you know, we're just following in the footsteps of our founders who raped women, raped slaves, raped children, maimed immigrants, sold children, stole property, broke promises, broke apart families, killed natives... You know, good God fearing down home Christian folk! :/

  2. Who gives a rats behind about all the fluffy ranking nonsense. What students having to pay off debt need to know is that all schools aren't created equal and students from many schools don't have a snowball's chance of getting a decent paying job straight out of law school. Their lowly ranked lawschool won't tell them that though. When schools start honestly (accurately) reporting *those numbers, things will get interesting real quick, and the looks on student's faces will be priceless!

  3. Whilst it may be true that Judges and Justices enjoy such freedom of time and effort, it certainly does not hold true for the average working person. To say that one must 1) take a day or a half day off work every 3 months, 2) gather a list of information including recent photographs, and 3) set up a time that is convenient for the local sheriff or other such office to complete the registry is more than a bit near-sighted. This may be procedural, and hence, in the near-sighted minds of the court, not 'punishment,' but it is in fact 'punishment.' The local sheriffs probably feel a little punished too by the overwork. Registries serve to punish the offender whilst simultaneously providing the public at large with a false sense of security. The false sense of security is dangerous to the public who may not exercise due diligence by thinking there are no offenders in their locale. In fact, the registry only informs them of those who have been convicted.

  4. Unfortunately, the court doesn't understand the difference between ebidta and adjusted ebidta as they clearly got the ruling wrong based on their misunderstanding

  5. A common refrain in the comments on this website comes from people who cannot locate attorneys willing put justice over retainers. At the same time the judiciary threatens to make pro bono work mandatory, seemingly noting the same concern. But what happens to attorneys who have the chumptzah to threatened the legal status quo in Indiana? Ask Gary Welch, ask Paul Ogden, ask me. Speak truth to power, suffer horrendously accordingly. No wonder Hoosier attorneys who want to keep in good graces merely chase the dollars ... the powers that be have no concerns as to those who are ever for sale to the highest bidder ... for those even willing to compromise for $$$ never allow either justice or constitutionality to cause them to stand up to injustice or unconstitutionality. And the bad apples in the Hoosier barrel, like this one, just keep rotting.

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