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Prisons face legal questions in managing inmate requests

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Ask and you shall receive, the Bible says, unless you’re behind bars, where accommodating prisoner-religious requests is more than a matter of just asking.

For those in prison, the complex legal questions that come with prisoner-religious rights have been in flux for more than two decades and remain the central points in lawsuits throughout the country on prayer practices, items inmates can possess in their cells and what foods they’re able to eat in order to comply with their particular beliefs.

That’s where prison officials and lawyers come in, evaluating the balance between safety and security and the need to have those religious requests accommodated.

aviva orenstein Orenstein

“This is an interesting area of law that I think a lot of people in the legal community don’t know about,” said Indiana University Maurer School of Law professor Aviva Orenstein, who studies this topic. “People would probably be surprised to learn about the very big divergence in what the First Amendment provides and how prisoner religious rights are protected. Essentially, religious rights of people are more protected in prison than those outside.”

Civil rights attorneys and those watching these issues say the claims arise on a regular basis in prison offender litigation and other lawsuits, and a federal suit involving a mandate to provide kosher meals for inmates continues to raise questions about Indiana Department of Correction practices.

Four inmates in state prison facilities are asking that the DOC be held in contempt for allegedly not complying with the 2010 ruling by U.S. Judge Jane Magnus-Stinson that ordered the state to offer kosher meals to inmates who request them instead of giving them less-costly vegan meals. The class-action suit filed in 2009 by Orthodox Jewish inmate Maston Willis at the Miami Correctional Facility contended the state’s cost-cutting policy of not supplying those meals violated his religious rights.

Magnus-Stinson ruled that the DOC violated the federal Religious Land Use and Institutionalized Persons Act (RLUIPA), which has been on the books since 2000.

The RLUIPA comes on the heels of a tug-of-war between Congress and the Supreme Court of the United States. The SCOTUS in 1990 held that the free-exercise clause of the U.S. Constitution doesn’t require accommodations of religious practices and that identical treatment of believers and non-believers satisfies the First Amendment. The court has never addressed whether it applies to prisons or if it conflicts with an earlier decision finding restrictions are allowed if they’re reasonably related to legitimate penological objectives. In response to the court action, Congress enacted the sweeping Religious Freedom Restoration Act to adopt a least-restrictive means test for public officials, but the SCOTUS struck it down and found the law couldn’t be applied to the states. Congress then passed the RLUIPA to address those state-specific issues, intertwining both religious land use and zoning issues with prisoner-religion rights.

In the Willis case, Magnus-Stinson found the state DOC violated the RLUIPA by not offering kosher meals. The state agency claimed it had a compelling government interest to keep costs down and that is why it stopped serving kosher meals. Willis and others were awarded $60 and the DOC was ordered to provide “certified kosher meals to all inmates who, for sincerely held religious reasons, request them in writing.” Although the DOC appealed, the state dropped that appeal after the DOC agreed to start offering kosher meals to inmates.

kosher The Indiana Department of Correction serves pre-packaged kosher meals to inmates who request the meals for religious reasons. (IBJ Photo/ Perry Reichanadter)

But that is not happening, according to ACLU of Indiana legal director Ken Falk.

“The court’s judgment in this case is clear, and the DOC is not free to disregard it,” he said. “The DOC does not have the right to deny these prisoners an intrinsic element of their religious beliefs.”

DOC spokesman Doug Garrison said the state believes it is complying with the court order by using the written request process to evaluate whether an inmate needs that special diet. The individual is required to submit a form, explaining his or her understanding of the kosher diet and how it fits in with the specific religious beliefs and practices.

“The law doesn’t require that everyone who raises their hand gets what they want, and we have to balance that need with the basic fact that we have to manage our prison system,” he said.

The DOC religious and volunteer services directors review and evaluate that information to make a determination, he said. They’ve received many types of requests, from various groups wanting to pray in certain areas and wear certain clothing to comply with their religious beliefs as well as inmates requesting to be able to possess certain items in their cells, he said.

ken falk Falk

The prison won’t do anything unlawful to accommodate a person’s religious beliefs, and something such as giving that person live snakes – a request that’s been made – won’t happen no matter what religious practices someone might have.

Cost doesn’t determine how the policy and requests are evaluated, but it does factor into the policy decisions, Garrison said. Currently, 48 inmates receive three kosher meals a day at a cost of $4.46 per meal, which is more than triple the cost of non-kosher options that cost $1.18 per meal.

“So much of this is dictated by a lengthy and complex law, and so clearly it’s a matter of wandering our way through litigation or negotiation on what the law means and how we handle these situations,” he said.

These types of RLUIPA claims are frequent, Falk said, and range from kosher diets to where and how often individuals can pray in prison. Some of those same issues have come up recently in the case of American-born Taliban fighter John Walker Lindh, who’s being held in Terre Haute. He has filed a federal suit with other inmates asking the Federal Bureau of Prisons to allow daily group prayers in their highly restricted cell blocks. The ACLU of Indiana is involved in that case, which is also before Magnus-Stinson in Indianapolis.

“Some restrictive (prison policies and) practices can’t be justified, like in this kosher diet suit,” Falk said. “They have this practice to fill out this written form to glean sincerity, which is problematic. There’s a lot of resistance, in the sense of corrections saying that we know how to run our prisons best. But one of the things we can’t say in the U.S. and through our courts is that your religious practices are silly and you can’t express them, and that’s what RLUIPA protects.”

For Orenstein, these prison cases present some of the most interesting aspects about the still-controversial RLUIPA.

“If you come out wanting special food because you follow the Religion of Steak and Wine, no that’s just not going to fly,” she said. “Some are clearly faking and just want better food, and they’re basically just causing headaches without any compelling interest in having this. Others are unnecessarily restricted or denied their legitimate religious rights. There has to be some reasonable balance.

“Wardens can become the stewards of religion and you don’t want them to be in the business of determining what a valid religious practice is and isn’t. But that’s what we have.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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