Probe of religious discrimination in prisons include faith-based ministries

Religious discrimination in prisons, including the role of faith-based rehabilitative programs, was the subject of a briefing before the U.S. Commission on Civil Rights, which is examining the topic as part of its annual report to Congress and President George W. Bush to be submitted later this year.

The commission, an independent and bipartisan agency charged with monitoring federal civil rights enforcement, heard testimony from 11 experts including a prison warden, the vice president of the world’s largest faith-based organization serving prisons, a lawyer who has successfully sued faith-based prison programs, and a U.S. Department of Justice (DOJ) official who has previously worked for a religious prison program.

Patrick Nolan, a former legislator, former prisoner and currently vice president of Prison Fellowship, the world’s largest faith-based organization serving prisons, said religious programs are vital to changing the lives of prisoners and that religious volunteers offer prisoners hope and prepare them for a return to society.

But Alex Luchenitser, senior litigation counsel for Americans United for Separation of Church and State, told the commission that tax dollars should not be used to support prison ministry programs that coerce inmates into participation and warned that government officials must ensure that prison ministry programs are operated in accordance with the First Amendment principle of the separation of church and state.

“[T]he government must not coerce any person to take part in religious activity,” Luchenitser stated in written testimony filed with the commission. “Thus, the government must not provide individuals any incentive to modify their religious beliefs and practices, or to undertake religious indoctrination.”

Americans United last year won a federal appeals court ruling against government funding of a Prison Fellowship fundamentalist Christian program called the InnerChange Freedom Initiative, operated in an Iowa prison. The courts initially ordered Prison Fellowship and InnerChange to reimburse the state for money spent on the program. In December, the 8th U.S. Circuit Court of Appeals affirmed that government support of the InnerChange program was unconstitutional, but reversed the ruling ordering repayment of money.

Luchenitser said six other states have InnerChange programs and other states also have intensive faith-based programs in their prisons. He said state officials should ensure that inmates are not pressured or enticed into joining those programs.

Steven T. McFarland, director of the DOJ Task Force for Faith-Based and Community Initiatives and a former officer for Prison Fellowship, told the commission that the First Amendment requires prisons to accommodate religious beliefs but also prohibits the government from promoting religion or favoring one faith over another.

He said it is not a violation of the First Amendment for prisons to pay for chaplains or religious counseling programs, nor does the Constitution prohibit chaplains or volunteers from sharing their personal religious beliefs with inmates at any time. The only requirements are that inmate participation must be voluntary and the message must not be construed to threaten prison security.

McFarland said the law, based on recent court decisions, also permits prison officials to offer voluntary faith-based residential programs. He said the Supreme Court ruled in 2002 that the First Amendment permits government to provide the programs as long as the programs have a secular purpose, the inmates’ participation is voluntary and the program is available to many inmates, inmates have a “genuine and independent private choice” among religious and secular programs, and inmates have a secular alternative with benefits comparable to the religious option.

To meet the Supreme Court standards, the federal Bureau of Prisons last summer began soliciting bids from non-government organizations to train inmates 40 hours per week in secular topics such as getting and keeping a job, working with people and resisting drug abuse. McFarland said the Bureau will also ensure that inmates who choose the religious programs do not get collateral benefits or incentives.

Chaplain Gary Friedman, chairman of Jewish Prisoner Services International, said prison ministries, especially those with a proselytizing bent, find prisons “to be fertile turf” for religious discrimination.

“Though proselytizing is officially prohibited on government property, prison officials often turn a blind eye to such activity or allow it to occur under the guise of simple ‘sharing of one’s faith,’” Friedman’s prepared remarks state. The situation is further aggravated because “inmates are a literally captive and vulnerable population,” Friedman said.

The commission also heard testimony on the impact and influence of two laws that address religious discrimination and prisoners’ rights. In 1993, Congress enacted the Religious Freedom Restoration Act (RFRA) to exempt religious organizations from certain federal regulations.

The Supreme Court later found RFRA unconstitutional as it was applied to state governments. In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act (RLUIPA), to ensure that the protections offered under RFRA would apply to the states. RLUIPA also specifically ensured religious protections for prisoners.

Despite the laws protecting prisoners’ religious rights, some panel experts — including an imam and a Wiccan chaplain — said religious discrimination in prisons ranges from institutional rigidity to flagrant abuse.

“While both the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act initially appeared to be good tools for preventing obstruction of religious exercise in prisons, they have produced mixed effectiveness and unintended consequences,” Friedman’s written testimony states.

He said the definition of “religious exercise” in both acts is overly broad and has not been narrowed by case law; the courts have provided little guidance on how a prisoner’s sincerity about religion can be determined without discriminating, and no government entity including the DOJ, has been sanctioned for not enforcing RLUIPA.

“We are actually very displeased with our prison system and believe it is in need of ongoing reform as our courts have affirmed. The system is not perfect,” Abu Qadir Al-Amin, an imam with the San Francisco Muslim Community Center, stated in prepared remarks. “There have also been documented cases of racial intolerance along with religious intolerance that have involved Muslim chaplains being escorted off of the institutional grounds in a very humiliating and demeaning manner.”

Frank Cilluffo, director of the Homeland Security Policy Institute at George Washington University, said limited access to religious practices may threaten security in a country with the world’s largest prison population and the highest incarceration rate.

“The inadequate number of Muslim religious services providers increases the risk of radicalization,” Cilluffo wrote in testimony given to the commission. “It creates an opportunity for extremists ... to exploit by filling the role of religious services providers. A solution is more, not fewer, Muslim religious services providers.”

Cilluffo co-authored a report with Gregory Saathoff, executive director of the Critical Incident Analysis Group at the University of Virginia, that has been the focus of a hearing by the Senate Committee on Homeland Security and Government Affairs.

Saathoff told the commission that RFRA has allowed a forum for grievances to be brought forward and addressed, and RLUIPA may serve as a means to limit the potential for religiously promoted radicalism, violence or terrorism.

“Indeed, it may well decrease the likelihood that extremists will exploit otherwise unaddressed grievances in order to foment violence,” state Saathoff’s prepared remarks.

As part of its year-long review of civil rights enforcement by the DOJ, the commission will hold another panel briefing September 12 at its Washington, D.C. headquarters on religious discrimination in the workplace. The commission is also in the process of sending questionnaires to selected prisons to gain more information about religious discrimination in the prisons.

— Anne Farris, Roundtable on Religion and Social Policy correspondent