Joni J. Jones Assistant Attorney General

Transcription

1 Joni J. Jones Assistant Attorney General Utah Attorney General s Office September, 2012

2 What laws are involved? Who should be trained on the law? What can happen if the institution violates the law? What are the essentials that administrators need to know?

3 You can measure the civilization of a society by the way it treats its prisoners. * tt ib t d t D t k th f *attributed to Dostoevsky, author of Crime and Punishment

4 Get tough on crime mentality, mandatory sentencing, and budget cuts have increased prison populations and decreased focus on rehabilitation As of 2003, there were more than 2 million people in prisons or jails in the United States Recent estimates show that total federal, state, and local adult correctional population, including those supervised in the community is approximately 6.7million Rehabilitate or Punish? American Psychological Ass n, July 2003, Vol 34, No. 7, 46 Rediscovering Compassion: An Evaluation of Kairos Horizon Communities in Prison

5 Bureau of Justice Statistics recidivism

6 Out of 272, 111 inmates released from prisons in 15 states in 1994, 67.5 % were rearrested for a felony or serious misdemeanor within 3 years; 46.9 % were reconvicted itd These offenders accumulated 744,000 charges within 3 years of release Bureau of Justice Statistics recidivism

7 ... exposure to religion is the best hope we have for rehabilitation of a prisoner. Senator Orrin Hatch, October 27, 1993

8 In 1833, two Frenchmen studied American prisons systems and concluded prisoners participation in religion resulted in a 1 in 20 recidivism rate Most modern empirical studies do not show a clear correlation between an inmate s participation p in religious programing gand rehabilitation Anecdotal evidence of the benefits of religion in rehabilitation g shows a strong correlation

9 Spiritual development and study have proven to be some of the most valuable tools for rehabilitation and to prevent recidivism. Isaac M. Jaroslawics, Director of Legal Affairs for the Aleph Institute,

10 Religious observance by prisoners is strongly correlated with successful rehabilitation. Charles W. Colson, President, Prison Fellowship Ministries, 1997

11 No data on religious affiliation of inmates is maintained PEW Research Center surveyed prison chaplains in 50 states, who reported their personal estimates of religious affiliation among inmates 2/3 Christian Protestants 51% Catholics 15% Other Christian less than 2% Muslims 9% Other non Christian groups less than 5%

12 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof

13 Equal Protection Clause of The Fourteenth Amendment No state shall... deny to any person within its jurisdiction the equal protection of the laws.

14 The Religious Land Use and Institutionalized Persons Act (RLUIPA)

15 Passed after Religious Freedom Restoration Act (RFRA) was held to be unconstitutional Passed without a single no vote Appliesto anyinstitutionwhichaccepts accepts federal funding Does not apply to federal prisons

16 No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution... unless the government demonstrates... the burden... (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that ( ) g compelling governmental interest.

17 1. Does the prison s restriction put pressure on the inmate to modify his religious conduct? Or 2. Does the prison s restriction prevent the inmate from engaging in religious activity in a way that is more than a mere inconvenience?

18 The burden of showing that an accommodation cannot be made is on prison officials Officials cannot merely state that a particular practice would present a security threat Extensive, detailed, specific testimony is typically p y yp y required

19 Reprinted by permission. I Did It His Way, Johnny Hart, 2009, Thomas Nelson Inc. Nashville, Tennessee. All rights reserved.

20 The practice must be religious The practice does not have to be an official tenet or required practice of the religion The only test is that the belief must be The only test is that the belief must be sincerely held

21 Religious beliefs are not required to be consistent, or logical, or acceptable to others. Governmental questioning of the truth or falsity of the beliefs themselves is proscribed by the First Amendment. A religious belief can appear to every other member of the human race preposterous, yet merit the protections of the Bill of Rights. Popularity, as well as verity, are inappropriate criteria. United States v. Ballard, 322 U.S. 78, 86 87, 64 S.Ct. 882, , 88 L.Ed (1944). Justice William O. Douglas

22 Prison officials must avoid any predisposition toward conventional religions so that unfamiliar faiths are not branded mere secular beliefs. Religions now accepted were persecuted, unpopular and condemned at their inception. Africa v. Pennsylvania, 662 F.2d 1025, 1032 (3d Cir. 1981) (citing Malnak v. Yogi, 592 F.2d 197, (3d Cir. 1979)).

23 An inmate need not hew to any particular religious orthodoxy; it is enough for the [inmate] to demonstrate that a government has interfered withtheexercisethe exercise orexpression ofherorhis or his own deeply held faith. Werner v. McCotter, 49 F.3d 1476, 1479 n.1 (10th Cir. 1995)

24 Courts must be cautious in attempting to separate real from fictitious religious beliefs. Ochs v. Thalacker, 90 F.3d 293, 296 (8th Cir. 1996)

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26 Also known as Asatru Pagan religion based on ancient religious and moral ideas of Indo European tribes Dates back to antiquity; Christianity supplanted neopagan religions during Medieval period Uses Norse mythology Polytheistic; gods include Odin ( Woden s Wodens Day or Wednesday named after Odin) and Thor (Thursday named after Thor)

27 Odin worship does play a somewhat surprising role in the white supremacist movement. The Viking World Wiki According to one sociologist who has studied racist skinheads extensively, more and more skins are turning to Odinism.

28 The racist version of Odinism shares the Nazi view that might is right and a social Darwinist philosophy that sees the survival of a pure, white race as a goal to be achieved at all costs. Southern Poverty Law Center, Intelligence Report Spring 2000

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40 RLUIPA is a super First Amendment statute and puts the burden on prison officials If a prison is found to violate RLUIPA, the court can order injunctive relief and attorneys fees To successfully defend df da RLUIPA claim, li the prison must carefully document why a particular activity would present a security threat

41 Just saying an activity would present a security threat t is usually not enough In most cases officials should carefully consider whether some sort of accommodation can be made if the request is within reason Officials should be careful not to allow a practice for one religion but not another

42 Any attorney advising a corrections institution The prison Chaplin or religious volunteer coordinator Grievance coordinators