New Book: When American Religion Meets American Mass Incarceration

Insofar as America is (descriptively) exceptional,* two key differences setting America apart from its peer nations are mass incarceration and popular religiosity. Assuming the U.S. is most usefully compared with Canada, Australia, and Western Europe (I acknowledge not all will share this assumption), none of these peer nations match the U.S. imprisonment rate and few come close to American levels of church membership, church-going, or public professions of faith. Perhaps not surprisingly, then, many American prisons offer a wide array of faith-based programming (even, or especially, prisons where secular education and rehabilitation programming is meager: for instance, in Louisiana’s Angola State Prison, you can earn a BA from a Baptist theological seminary, but no non-Christian college courses are offered). An evangelical group, Chuck Colson’s Prison Fellowship Ministries, is among the most prominent national organizations sending volunteers into prisons and advocating for criminal justice reform.

How does this convergence of American religiosity with American imprisonment fit with the First Amendment’s ban on state-established religion? In her book Prison Religion: Faith-Based Reform and the Constitution (Princeton UP, 2009), Buffalo law professor Winifred Sullivan uses a recent lawsuit as a case study for considering this question. From the book’s introduction:

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Alabama Inmate Sues Over Banned Book – Douglas Blackmon’s Slavery by Another Name

Previously I noted Wall Street Journal reporter Douglas Blackmon’s book Slavery by Another Name, a history of the convict-lease system in Alabama. When an Alabama inmate, Mark Melvin, tried to read the book recently, officials at the Kilby state prison seized it, calling the book “incendiary.” Melvin is now suing in federal court with the help of the Equal Justice Initiative. From the New York Times:

Mr. Melvin never received the book. According to his lawsuit, he was told by an official at Kilby that the book was “too incendiary” and “too provocative,” and was ordered to have it sent back at his own expense.

He appealed, but in his lawsuit he says that prison officials upheld the decision, citing a regulation banning any mail that incites “violence based on race, religion, sex, creed, or nationality, or disobedience toward law enforcement officials or correctional staff.” (Mr. Melvin is white.)

So he sued.

A spokesman for the Alabama Department of Corrections said officials had not seen the suit on Monday and could not comment.

Mr. Stevenson, who is also the director of the Equal Justice Initiative in Montgomery, said he considered the lawsuit to be less about the rights of people in prison but primarily about the country’s refusal to own up to its racial history.

Montana Prisoner, Held in Solitary, Sues Over English-Only Letter Policy

The Montana ACLU has filed suit in federal court on behalf of a 26-year-old prisoner in solitary confinement at Montana State Prison, who alleges that prison officials are barring him from corresponding with his Spanish-speaking family in Guatemala. The AP reports:

Montana Department of Corrections policy allows prison officials to read any correspondence that isn’t a privileged letter from or to a judge, law clerk or the inmate’s attorney. The policy states any non-privileged correspondence will be withheld if it is in a “code or foreign language not understood by the reader.” …

[Plaintiff William] Diaz-Wassmer said he had no trouble receiving his mail during his first two years in prison. Some of those letters were in Spanish, and some in English.

But in May of last year, he received a notice from the prison staff that a letter from a friend was rejected because it was not written in English. Then a Spanish-language letter from his father also was rejected in August.

When Diaz-Wassmer complained, he said the mailroom supervisor told him the prison’s Spanish interpreter had departed, and that Diaz-Wassmer would receive letters again when another was hired.

Diaz-Wassmer is serving a 160-year term for “raping, killing and robbing a Livingston woman and then setting her house on fire to cover up the crimes.” According to the full complaint, which can be downloaded here (PDF), he has been held in solitary confinement since February 2010, spending 22 to 23 hours a day alone in his cell. Between prison restrictions and the high costs of phone calls and visits, letters are his primary way of communicating with his family. He claims that the prison’s effectively “English-only” policy violates his First Amendment rights as well as the Fourteenth Amendment’s Equal Protection clause.

Do Prisoners Have a Right to Hunger Strike?

With the California prison hunger strike continuing into its second week and now involving thousands of inmates statewide, I thought I’d reprise a post from 2010 about the legal implications of hunger striking. Disclaimer: I haven’t updated my research since then, but am simply re-posting the information in case it’s of interest. Links may be broken or out-of-date.

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If you’re on a hunger strike and someone force-feeds you, that sort of ends your strike, interfering with your First Amendment right to protest, but also with your Fifth/Fourteenth Amendment due process right to refuse medical treatment, as well as various state privacy rights you may have. In some cases, force-feeding could violate the U.N. Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment. By analogy, across the Atlantic, the European Court of Human Rights has in some cases found force-feeding to violate Europe’s provision against “inhuman or degrading treatment or punishment” (see PDF p. 7).

On the other hand, in the United States, prisons have an Eighth Amendment obligation to keep prisoners alive — or at least, in legalese, not to demonstrate deliberate indifference to a substantial risk of serious harm — and may also have various obligations under state law. So, if you’re on a hunger strike and you’re in prison, can the prison staff force-feed you? A Connecticut state judge recently ruled that it’s OK for prison staff to continue force-feeding a prisoner who’s been on a hunger strike for over two years (see also this commentary, criticizing the decision, from the UConn student newspaper, and this AP report). In an amicus brief in support of the prisoner in this case, professors from the Yale, Northeastern, and Western New England law schools had argued that force-feeding could violate not only the Constitution but also international law, and noted that the World Medical Association has condemned force-feeding.

As the WMA’s Malta declaration begins, hunger strikes “are often a form of protest by people who lack other ways of making their demands known,” including prisoners wishing to call attention to an individual or collective grievance. There’s been some confusion lately about whether or not there’s a hunger strike on in California’s prisons to protest the Three Strikes Law. Terry Nichols, the (other) Oklahoma City bomber,announced a hunger strike back in February to demand more healthful food. Last year the “shoe bomber” Richard Reid was reportedly on a hunger strike in 2009. In Texas, immigration detainees have been hunger striking since January, protesting conditions at the Port Isabel Detention Center. Although the legal issues are technically distinct, force-feeding was also an issue for Guantanamo Bay detainees.

The California Budget Crisis and Prisoners’ Religious Rights

The Jewish Daily Forward has an interesting article on how California’s budget crisis is affecting the Kosher Diet Program offered to Jewish prisoners:

Though state prisons continue to receive their kosher food allotments, said [Rabbi Lon] Moskowitz, the Jewish representative on the CDCR’s Chaplains Coordinating Committee, several of the facilities no longer have masgichim, or kosher food inspectors, to ensure that the allotments are, indeed, kosher.

Moskowitz, who is the Jewish chaplain at the California Men’s Colony, also told the Forward that

funds were lacking for essential religious artifacts, and for things such as “grape juice, matzo and candles for Shabbat.” Inmates, he said, “have less access to chapel services and true religious opportunities for prayer, study, penitential counseling, behavior modification programs and rehabilitation.” The situation for chaplains has become increasingly frustrating, he charged: “There is a steady move from being professional clerics to clerical workers spending most of the day doing administrative [work] and paperwork.”

California’s Kosher Diet Program was instituted in 2003 after a Jewish inmate brought a successful lawsuit under the First Amendment and RLUIPA, the Religious Land Use and Institutionalized Persons Act, the 2000 federal law that governs prisoners’ religious rights. The Forward article suggests that too many cuts to the Kosher Diet Program, or similar programs for inmates of other faiths, could invite further litigation from prisoners.

“The least transparent institution in our society”

The Charlottesville Daily Progress has an interesting Q&A with Virginia prisoners’ rights lawyers Jeffrey Fogel and Steven Rosenfield. Worth reading in full, but here are excerpts:

Q. Have you seen any changes to the DOC as a result of your litigation?

R. The changes are miniscule, when they come at all. But some of this is an opportunity for us to speak to the public and to ask the public to be looking at what is happening in prisons. This is the least transparent institution in our society.

We’ve made an offer on many occasions to sit down with them and say, ‘We can tell you all of the things we think are unconstitutional about what you’re doing, for example, with periodicals. We don’t need to litigate all of it.’ So far, they have expressed no interest in sitting down with us. …

F. Both Steve and I respect the fact that it is not an easy job, either running a prison system or working in a prison system. But there is no call for the kind of arbitrary conduct that we have been challenging. In fact, some of these things, like the censorship, … run directly contrary to every penological concern you could have about prisoners. Everything says that the best thing you can do is educate prisoners, and the more educational programs, the less likely they are to recommit crimes, which is a concern that everybody should have.

Connecticut Lawmaker Calls for Ban on Violent Books in Prison Libraries

American Libraries reports:

“It is important that we do our homework and establish a policy that not only keeps books like In Cold Blood out of the hands of violent criminals like Steven Hayes, but also a policy that will stand up to any legal challenges that are thrown its way,” Sen. [John] Kissel stated October 6. “Common sense is on our side and I believe we will be able to establish an effective policy without having to pass new legislation.”

Kissel and [Department of Corrections Commissioner Leo] Arnone confirmed that the corrections department would revise prison-library policy in about a month after examining how collection development is codified for federal prison libraries, and how those policies balance prison security against the threat of First Amendment lawsuits. …

“Somebody that is moved to commit a crime has much more going on in their lives than simply having read a few comic books or a novel or In Cold Blood,” Deborah Caldwell-Stone, deputy executive director of the American Library Association’s Office for Intellectual Freedom, told the AP October 3. The Prisoners’ Right to Read interpretation of ALA’s Library Bill of Rights acknowledges that prison librarians may be required by law “to prohibit material that instructs, incites, or advocates criminal action or bodily harm” but goes on to caution that “only those items that present an actual compelling and imminent risk to safety and security should be restricted.”

This call comes, of course, in the wake of the murders in Cheshire, Conn., for which Steven Hayes was recently convicted and sentenced to death. Jonathan Simon has some thoughts on why Hayes’s particularly horrifying series of crimes is likely to shape policy for years to come; Jill Lepore wrote about the case last year.

Did Oakland Police Illegally Jail Demonstrators Protesting Mehserle Sentencing?

That’s the allegation from the San Francisco chapter of the National Lawyers Guild (full message here):

Hundreds of heavily armed police from at least seven different Bay Area law enforcement agencies swarmed through downtown Oakland and the Eastlake neighborhood Friday night. “The police surrounded the demonstrators, trapping and arresting numerous people who were doing nothing but protesting the unjust sentence, including one of our legal observers,” explained NLG Executive Director Carlos Villarreal. “There has been a lot of media attention on a few incidents of property damage Friday night, but like we saw on July 8, the police action actually focused on shutting down the lawful political demonstration.”

Law enforcement agencies cost Oakland $1.2 million dollars on July 8, 2010, when a similar convergence of police agencies flooded the streets of Oakland in response to largely peaceful protests. November 5’s police actions were likely comparable, if not more expensive.

“To add insult to injury, the arrestees were booked into jail and held for 18 hours and more, even though California law requires that persons like these demonstrators, almost all of whom were arrested for minor offenses, be released immediately with a citation. We’ve been receiving many reports of arrestees being abused and subjected to unconstitutional conditions inside the jail,” Villarreal said.

The Oakland Tribune is reporting 152 arrests for “disturbing the peace” and “unlawful assembly”:

Growing Trend: Jails Around the Country Adopting Postcard-only Policies

I’ve noted a couple of lawsuits against jails that have adopted postcard-only policies for inmate correspondence. The Los Angeles Times reports that this is a nationwide trend that’s now spread from Joe Arpaio’s Maricopa County jails to at least seven states, including most recently, California’s Ventura County jail:

[Ventura County jail official Brent] Morris said that jail officials followed the emerging policy elsewhere through professional associations. They saw it as a way of both cutting security risks and freeing up staff. Two employees now spend most of their shifts sorting through mail flowing to and from 1,500 inmates.

“When you balance it with the challenge of budget and staffing, it seemed like a prudent thing to institute,” he said.

But for Los Angeles County, the tradeoff isn’t worth it, said Steve Whitmore, a spokesman for the Sheriff’s Department.

“We believe the mail coming to inmates is as important as their phone calls,” he said. “If we were to limit the mail, we believe we would see a rise in mental challenges, maybe even violence.”

UPDATE: Via Twitter, here’s a response from Just Detention International, which advocates for prison rape victims: “this could be problematic for organizations like JDI. We send important packets 2 survivors daily.”

ACLU Sues (Another) Colorado Jail over Postcard-only Policy

Back in August, the ACLU of Colorado filed suit against the Boulder County Jail over its postcard-only policy for inmates. This week, the same organization announced a second lawsuit against the El Paso County Jail in Colorado Springs over a similar policy. While the Boulder sheriff defended his policy on safety grounds — as a response to an incident in which two inmates sent letters to area children — the El Paso sheriff has appealed to more of a cost-benefit explanation. From the Gazette:

The policy, implemented last month, says prisoners can only use the small cards sold for 50 cents by the jail. [Sheriff Terry] Maketa has described the new policy as a money-saving move that makes the overloaded jail mail room more efficient.

It also makes it easier for jailers to screen inmate mail for illegal plots, including escape plans. Inmate letters dealing with legal matters are still allowed.

Ultimately, both policies might be traced to the example of neighboring Arizona, and specifically to Sheriff Joe Arpaio, who was among the first sheriffs in the country to require jail inmates to use postcards — namely, postcards bearing his picture. Whatever the motivation, jails in several states have recently issued postcard-only policies, including Florida (as I noted here), Oregon, and most recently, Washington State (as noted in this editorial, praising the change, from Spokane’s local newspaper).