an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
A Blatantly Unconstitutional Federal Religion-in-Prisons Program
The Department of Justice's Bureau of Prisons (BOP) has established "a residential multi-faith restorative justice program" entitled Life Connections. According to the Department of Justice:
The 18-month program is open to adult volunteer inmates in both male and female facilities in five BOP facilities across the country. The mission of the program is to reduce recidivism and bring reconciliation to victim, community and inmate through personal transformation using the participant's faith commitment. Inmates parate explore his faith's way to restoration with one's God, family, community, and self. Spiritual guides, brought into the facility under contract by BOP, lead small group studies of each faith's sacred texts. Participants also are matched with volunteer mentors of their faith who visit weekly, and are linked with a faith community at their release destination in order to enhance community reiticipate in religion-specific and interfaith program components designed to help the inmntegration.
BOP is now soliciting proposals from private parties to act as contractors to administer the Life Connections program. According to this March 31, 2006, letter, the proposal is for provision "of single-faith, residential re-entry programs" at one or more of six pilot sites in the federal prison system.
From all that appears, this program, and the funding that BOP plans to offer, is manifestly unconstitutional in several respects.
1. Most fundamentally, the program will involve direct federal financing of religious teaching and indoctrination. Under currently governing doctrine, repeatedly reaffirmed by the Supreme Court and most recently re-articluated by Justice O'Connor's governing opinion in Mitchell v. Helms, the Establishment Clause of the First Amendment forbids direct state financing of religious teaching and other forms of religious indoctrination. See generally pages 13-16 of this Office of Legal Counsel Opinion. As a unanimous Supreme Court has explained, the state may not directly fund programs that involve "explicitly religious content" or that are "designed to inculcate the views of a particular religious faith." Bowen v. Kendrick, 487 U.S. 589, 621 (1988). Indeed, even Justice Thomas's plurality opinion in Mitchell, which would have eased some of the constitutional restrictions established in the governing O'Connor opinion, did not take issue with this baseline "no direct funding" rule with respect to direct financial aid.
Therefore, even if the Life Connection program were not within and part of the federal prison system itself, but were instead merely a federal financial assistance program to private non-governmental operations outside the federal enclave, the funding of faith-intensive rehabilitation operations would be unconstitutional. Indeed, the Bush Administration itself has repeatedly taken pains to emphasize, with respect to its other faith-based programs, that recipients of direct federal aid "can not use any part of a direct Federal grant to fund religious worship, instruction, or proselytization. Instead, organizations may use government money only to support the non-religious social services that they provide. Therefore, faith-based organizations that receive direct governmental funds should take steps to separate, in time or location, their inherently religious activities from the government-funded services that they offer. Such organizations should also carefully account for their use of all government money."
On this ground alone, the Life Connections program is unconstitutional.
2. The very purpose of the program, acknowledged by BOP, is "to facilitate personal transformation." (See page 1 of Attachment II, here.) Indeed, one of the ten program goals is "spiritual development" (see page 3 of that attachment). These are constitutionally illegitimate state interests. The government is required to be neutral -- agnostic, really -- on questions of transformation and spiritual development. BOP suggests that its interest in spiritual development of inmates is in the broader service of trying to "reduce recidivism through promoting the virtues of productive work, respect for others, self-worth, responsibility, and accountability." Those are, of course, legitimate state goals. But the government cannot specifically aim at religious transformation as a means of accomplishing those secular ends. As Madison explained in his Memorial and Remonstrance Against Religious Assessments, employing religion "as an engine of Civil policy" is forbidden, not least because it is "an unhallowed perversion of the means of salvation." What is more, I think there's something profoundly disturbing -- whether or not it's constitutional -- in the federal government advancing the view that the virtues of productive work, respect for others, self-worth, responsibility, and accountability are correlated with religious transformation or faith; but that's a broader topic, perhaps for another post.
3. But the constitutional probelms are actually much worse than that, because Life Connections is not merely a private program funded by the government: It is a government program itself, within federal prisons, using federal contractors. The operation of the program therefore almost certainly would be deemed state action. See, e.g., West v. Atkins (private physician under contract to provide orthopedic services at a state-prison hospital on a part-time basis was a state actor acting under color of state law). And just as the state may not engage in religious teaching or indoctrination in its schools or other institutions, it may not do so in prisons, either.
What about prison chaplains, who are, after all, state employees? The religious conduct of prison (and military) chaplains is a narrow exception to the general rule that the state may not engage in religious activity. The theory is that because the state, by incarcerating prisoners in a government-controlled enclave, has prevented those prisoners from exercising their religion, the provision of chaplains is a permissible "accommodation" that alleviates a significant burden on religious exercise that the state itself has imposed. In order to re-establish a modicum of religious freedom for prisoners who cannot worship or receive religious counseling while in prison, many prisons permit clergy to perform such services for prisoners. Cf. Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985). That accommodation model has no application to the Life Connection program, which is not designed to provide prisoners the opportunity to engage in religious exercise that they would otherwise be denied, but is instead specifically designed to advance the state's own rehabilitative goals. Moreover, prison chaplains must minister to the religious needs of all prisoners on an ecumenical basis; their function is not to inculcate any particular religion. In this respect, too, the Life Connection program is not analogous to established chaplaincy programs.
4. Even in contexts where private religious organizations are eligible to be funded (or receive a contracting bid) on equal terms with secular organizations, it is well-established that the state may not prefer religious organizations. The criteria for decision must be neutral and secular, and the program may not "define its recipients by reference to religion." Mitchell, 530 U.S. at 813 (plurality); see also page 12 of this OLC Opinion. By soliciting applications for "single-faith, residential re-entry programs," BOP is expressly signaling a preference for religious providers. That's unconstitutional.
5. Moreover, denominational preferences are especially disfavored under the First Amendment. See Larson v. Valente. BOP's requirement of a "single-faith" organization violates this principle. Indeed, it's not immediately apparent why BOP would have any legitimate interest at all in having the programs be "single-faith."
I should note that, at least on its face, the BOP program would not necessarily raise two other constitutional problems often associated with Prison Fellowship programs. First, a DOJ spokesperson asserts that the program does not coerce or induce prisoners to adopt or feign religious adherence, because participation will be voluntary and the inmates who choose to take part will receive "no reduction in their sentence . . . no better facilities, same food, same privileges and disciplinary rules." Second, BOP insists (see page 5 of Attachment II, here) that participating inmates who are not adherents of the program's faith "may not be required to participate in religious ritual practices or creedal confessions inconsistent with their faith or practice," although they "must otherwise participate in all non-religious aspects of the faith-based program." This might be some small solace -- although it's not clear whether there will be any significant "non-religious aspects" of faith-intensive programs such as those operated by Prison Fellowships.
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With all of these constitutional infirmities, it is hard to imagine that the Office of Legal Counsel signed off on this BOP program. (Disclosure: I worked at OLC until November 2002, and in that capacity provided some legal advice about issues such as those discussed in this post. But I do not recall being involved in any specific discussion about the Life Connections program, and I was not and have not been privy to any OLC legal analysis in support of the Life Connections program, assuming any exists (which I do not know).) I would be surprised if any serious student of the Establishment Clause concludes that the program is constitutional. Unless I'm missing something rather significant, it's not a close call.
There's a journal article out on this: Richard R.W. Fields, Perks for Prisoners who Pray: Using the Coercion Test to Decide Establishment Clause Challenges to Faith-Based Prison Units, 2005 U Chi Legal F 451.
Chris: No, Zelman is about indirect funding, i.e., vouchers, where the decisions about where the dollars should go (or not go) are made by private parties who are given discretion to use the "vouchers" or not as they see fit.
There's no sign that the Life Connections program is a voucher-like program: BOP itself is accepting bids and will decide who gets the dollars. Hence, Kendrick and Mitchell control.
The inmates, though, are volunteers. I suppose there might be issues about spending money on religiously-based rehabilitation if there isn't any reduction in funding elsewhere, but the existence of the inmates' choices could be a Zelman-relevant circuit-breaker. At least, I'd expect that argument.