Valuable New Details and Analysis of the BOP Religion-in-Prisons Program(s)

Marty Lederman

In two posts in recent weeks, I've written on the constitutional problems raised by a Bureau of Prisons program designed to facilitate prisoner rehabilitation through religious transformation.

It turns out that there is more than one BOP program at issue, and that the newer (yet-to-be-implemented) program is more constitutionally suspect than the older (existing) program -- although both raise serious concerns. In this extremely informative post at the site of the Roundtable on Religion & Soical Welfare Policy, Professors Chip Lupu and Bob Tuttle provide a great deal of further detail and constitutional analysis of the BOP programs. Highly recommended.

UPDATE: A few specific reactions to the Lupu/Tuttle post:

1. Lupu and Tuttle generally confirm the constitutional analysis I offered earlier. They add one other important constitutional objection: Providers would be entitled to discriminate in favor of prisoner participants of a particular religion. This, too, would be unconstitutional, in violation of the Free Exercise rights of disfavored prisoners.

2. In a transcript of an April 18, 2006, Pre-proposal Conference, a DOJ Official (Steve McFarland) indicates that the contractors would be entitled to choose employees on the basis of faith, as well. As I noted in my first post, these contractors are state actors -- they are administering an entire residential program, within federal facilities, in the service of government objectives, with participants chosen by the BOP. In effect, they are taking over the administration of the prison for a certain subset of inmates. Their religious employment discrimination, therefore, would appear to violate the Religion Clauses, and might also run afoul of Article VI, which provides that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." (There is virtually no caselaw on what constitutes a "public Trust under the United States" for purposes of Article VI. See note 46 of this memo. But certainly an argument could be made that a contract to, in effect, run a federal prison, and to administer the incarceration of persons imprisoned for having committed federal crimes, creates a "public Trust.")

3. Lupu and Tuttle point out that the various BOP documents and statements have been somewhat unclear, and even contradictory, on the question of whether the new Life Connections program ("LC2") would be limited to single-faith providers, or whether non-religious providers might also be eligible. (Multi-faith or ecumenical providers would not appear to be eligible.) As a result, Lupu and Tuttle conclude that perhaps the recent lawsuit challenging the program might not be ripe -- that it may be necessary to wait and see whether BOP allocates its contracts in a way that discriminates in favor of religious providers. I think they are a bit too generous in concluding that "the LC2 solicitation is not facially discriminatory." The BOP cover letter, and the pre-Solicitation Notice, and the comments at the 4/18 Conference, and the agency's public comments, all indicate that the program is designed for single-faith programs. At the very least, it's fair to assume from what BOP has represented that such single-faith programs will receive the vast majority of contracts. (Otherwise, why bother mentioning single-faith groups at all? Their participation is manifestly the whole point of this new program.)

In any event, the transcript of the Pre-Proposal Conference indicates that BOP will award the contracts by the end of June -- which would presumably moot any ripeness concern.

More importantly, the other constitutional infirmities -- the direct funding of religious activities; the operation of religious programs by state actors; the impermissible government objectives; the discrimination against participants and employees; etc. -- are all ripe for adjudication, because BOP has been forthright about its intent to act in a way that triggers each of these concerns, even if secular programs are eligible for some contracts.

4. Lupu and Tuttle suggest that the existing multi-faith program -- Life Connections 1 (LC1) -- might be constitutional, by analogy to the chaplaincy exception that I discussed in my initial post, because LC1 might be structured so as to facilitate inmates' own chosen form of religious exercise, which has been burdened by the fact of their incarceration. I'm skeptical. BOP does not tout LC1 as a program designed to alleviate burdens that the govenrment has placed on inmates' religious exercise. (Presumably the chaplaincy programs themselves are sufficient for that purpose -- along with provision of opportunity for worship, etc.) As the Request for Proposal Lupu and Tuttle cite indicates, the professed "goal of the Bureau of Prisons Residential Faith-based Program is to provide inmates living in a shared living space with intensive opportunities for holistic life restoration for the purpose of reducing recidivism and enhancing prison management." In other words, the program is in the service of a governmental objective, rather than representing an attempt to alleviate the burdens the government has imposed on inmates' religious freedom. Having said that, I should note that whether LC1 fits within the chaplaincy exception model may depend heavily on how it is being implemented, and therefore whether it is constitutional may depend on the facts.
Posted 10:38 AM by Marty Lederman [link]