Faith-Based Prison Program Unconstitutional

[Brown]

The Eighth Circuit Court of Appeals (which serves several Midwestern States) has just issued a decision in the case of Americans United for Separation of Church and State v. Prison Fellowship Ministries, Inc.

One of the judges hearing this case, and concurring in the decision, was retired Supreme Court Justice Sandra Day O’Connor.

At issue was a faith-based prison inmate program implemented in Iowa. Actually, to say that InnerChange is faith-based is an understatement. Its program consisted of heavy-duty indoctrination in Christian (particularly Protestant) dogma. Read the opinion for details about the program.

The program was ostensibly voluntary:

Inmates are not required to join InnerChange. No one from the DOC [Department of Corrections] or InnerChange threatens punishment, reduction in privileges, or otherwise pressures inmates to participate. If inmates join, no one from the DOC or InnerChange promises a reduced sentence or earlier parole.

Further, there was no discipline applied if an inmate got kicked out of the program.

As it turned out, though, InnerChange had access to some pretty nice prison facilities: doors the prisoners could open, toilets with dividers, and a library and computer room with no security cameras. To use these desirable facilities, you had to be a part of InnerChange. There were other “special treatments” as well, but you had to be in the program to get them. There was no other program (secular or otherwise) available to the prisoners: it was InnerChange or nothing.

The State started out with the notion of trying to fund only the “non-religious” aspects of InnerChange. In addition, the DOC had a secular purpose in mind, namely, trying to find a way to deter prisoners from committing new crimes after being released.

Americans United for Separation of Church and State filed suit to stop what it believed was a violation of the First Amendment. Americans United prevailed in the Federal District Court.

Before reaching the merits, the Eighth Circuit had to decide whether Americans United had standing to sue. The Eighth Circuit ruled that Americans United did have standing (although if the US Supreme Court were to expand the rationale of a case decided last term—discussed in this thread—then Americans United’s standing might be in jeopardy). The Eighth Circuit waded through a few other procedural matters before reaching the merits of the case.

To analyze whether aid has the effect of advancing or endorsing religion, three criteria are decisive: whether government aid (1) results in governmental indoctrination; (2) defines recipients by reference to religion; or (3) creates excessive entanglement.

The InnerChange program was in trouble on the first two counts (the Eighth Circuit concluding that the DOC’s “administrative cooperation” with InnerChange was not “excessive entanglement.”). This meant that the program was implemented in violation of the US Constitution, and the Iowa Constitution as well.

The Eighth Circuit noted that those who joined this heavily religious (but supposedly voluntary) got all sorts of perks that others in the pokey didn’t get:

In the present case, plaintiffs demonstrated (and defendants do not seriously contest) that the InnerChange program resulted in inmate enrollment in a program dominated by Bible study, Christian classes, religious revivals, and church services. The DOC also provided less tangible aid to the InnerChange program. Participants were housed in living quarters that had, in previous years, been used as an “honor unit,” and which afforded residents greater privacy than the typical cell. Among other benefits, participants were allowed more visits from family members and had greater access to computers.
…
For contract years 2000 to 2004, religious indoctrination can reasonably be attributed to Iowa’s funding.

The Eighth Circuit further noted that in administering aid, including aid in prisons, the state must not discriminate on the basis of religion. And yet the state funded InnerChange, which was unabashedly based upon religious discrimination:

For contract years 2000 to 2004, the InnerChange program was not allocated on neutral criteria and was not available on a nondiscriminatory basis.

Prisoners may be among the lowest orders of humanity, but they have some rights, and one of those rights is a right to aid offered on a basis that is religiously non-discriminatory:

In this case, there was no genuine and independent private choice. The inmate could direct the aid only to InnerChange. The legislative appropriation could not be directed to a secular program, or to general prison programs. ... For the inmate to have a genuine choice, funding must be “available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited” and the inmates must “have full opportunity to expend . . .aid on wholly secular” programs.

The District Court was affirmed on the issue of unconstitutionality of the program, but the District Court was reversed on the issue of whether there ought to be a full refund of funds spent on the program. Those who brought the suit, said the Eighth Circuit, really should have moved for an injunction early on:

Critically, the plaintiffs did not seek interim injunctive relief to prevent payment by the DOC during litigation, strengthening Prison Fellowship and InnerChange’s reliance on those payments.

A refund is still apparently required for all funds paid after the issuance of the District Court’s decision, however.

 

[Brown]

Here's a link to a report on the decision from the Des Moines Register. A few items of note:

• Similar treatment programs are sponsored at prisons in Arkansas, Kansas, Minnesota, Missouri and Texas. Minnesota is in the Eighth Circuit, so its program may be directly affected by the decision.
• The Eighth Circuit left the door open for the program to continue (provided that it was applied in a constitutional manner, which presumably means that it must be applied in a non-discriminatory manner and that non-preferential alternatives must be provided). The Iowa attorney general's office says that a decision has not yet been made as to whether the program will be shut down. Predicition: The faith-based program will have to be shut down, as there is no way that the state can provide equal facilities and perks to all of the faith-based programs that would be competing, as well as a secular program (which can be provided even if the faith-based programs cannot). Whether there's donation-based funding or not, the expense of such a thing is simply too great. As the Eighth Circuit noted, a comparable non-religious program was almost twice as expensive.
• The president of Prison Fellowship--a former attorney general in Virginia--said he was generally pleased with the appeals court ruling, and that constitutional problems can be solved by operating the program solely with donations. He should probably read the ruling again, because he apparently does not understand it. Either that, or he isn't a very smart lawyer, or he's living in a world of fantasy.
• Some people say--and the Eighth Circuit apparently agreed--that there are some success stories associated with the program. But no one seems to be suggesting that there might be better success with, say, a system based upon principles from the Quran. And no one has so far come forward with numbers of those who participated in the program, and after release, decided to return to criminal activity.

 

[fishbob]

Brown:
Thanks for the update.

I can not think of the term 'Faith-Based Program' without a big mental picture in flashing red letters of the modifier 'insidious' in front of it.

 

[Fnord]

A little cherry-picking music, please...

The program was ostensibly voluntary:Further, there was no discipline applied if an inmate got kicked out of the program.

There was no other program (secular or otherwise) available to the prisoners: it was InnerChange or nothing.

The State started out with the notion of trying to fund only the “non-religious” aspects of InnerChange. In addition, the DOC had a secular purpose in mind, namely, trying to find a way to deter prisoners from committing new crimes after being released.

Americans United for Separation of Church and State filed suit to stop what it believed was a violation of the First Amendment. Americans United prevailed in the Federal District Court.

Okay ... now what? Are there any secular (non-religious) programs in place to eliminate recidivism? Are there any that actually work more than 50% of the time? Can their records be independently verified? Who funds them?

I'm not challenging anything -- this is not a "Religion v. Secularism" post. I really want to know what non-religion-based programs to rehabilited convicted criminals actually work.

Links?

 

[ponderingturtle]

Okay ... now what? Are there any secular (non-religious) programs in place to eliminate recidivism? Are there any that actually work more than 50% of the time? Can their records be independently verified? Who funds them?

Fewer and fewer. Education and job training is not much of a popular program as it used to be.

And how do you define working 50% of the time? Is that a 50% reduction in the recidivism rate, or just a 50% recidivism rate?

 

[Fnord]

And how do you define working 50% of the time? Is that a 50% reduction in the recidivism rate, or just a 50% recidivism rate?

I'll grab a few numbers out of my back pocket, just to use for examples.

If less than 50% of the inmates released ever commit another crime, then the program may have potential.

If less than 29% (an arbitrary number) ... then the program may be effective.

If less than 17% (another arbitrary number) ... then maybe the program needs just a little more tweaking and/or funding.

Of course, in order to be 100% effective, it would take either a miracle, or a mandatory death sentence for any criminal offense (and maybe some civil offenses, as well).

So, are there any non-religion-based programs that actually work?

 

[ponderingturtle]

I'll grab a few numbers out of my back pocket, just to use for examples.

If less than 50% of the inmates released ever commit another crime, then the program may have potential.

If less than 29% (an arbitrary number) ... then the program may be effective.

If less than 17% (another arbitrary number) ... then maybe the program needs just a little more tweaking and/or funding.

Of course, in order to be 100% effective, it would take either a miracle, or a mandatory death sentence for any criminal offense (and maybe some civil offenses, as well).

So, are there and non-religion-based programs that actually work?

link

A 1986 study by the NYSDOCS found that the return rate of a sample of offenders who earned a GED while incarcerated was substantially lower (17.1%) than the Department's overall return-to-custody rate (26.3%) (Macdonald & Bala, 1986).

In July 1989, the Department produced a report that improved upon the 1986 study by expanding the scope and the sample size of the study and included results from a more comparable control group (NYSDOCS, 1989). The 1986 study included only 14 facilities, while the 1989 study included all facilities. The 1986 study tracked a sample of 205 offenders while the 1989 study tracked 4,226 offenders. Finally, the 1986 study compared the return-to-custody rate of the sample of offenders who earned a GED while incarcerated to the overall Department return-to-custody rate. In contrast, the 1989 study compared the return rate of offenders who earned a GED while incarcerated to the return rate of offenders who were admitted to DOCS without a high school degree and who did not earn a GED while in DOCS. Offenders who earned a GED while incarcerated returned at a much lower rate (34.0%) than those offenders who did not (39.1%) (NYSDOCS, 1989). This difference was found to be statistically significant.

 

[drkitten]

Okay ... now what? Are there any secular (non-religious) programs in place to eliminate recidivism?

Lots. Education appears to be key.

From this article:

Post-Secondary Correctional Education and Recidivism: A Meta-Analysis of Research Conducted 1990-1999
Journal of Correctional Education, Jun 2004 by Chappell, Cathryn A

Abstract

The relationship of post-secondary correctional education (PSCE) and recidivism has been widely studied with various, idiosyncratic results. A meta-analysis of ten years of existing studies was conducted to synthesize a portion of the past research. This study demonstrates, using relevant studies reported from 1990 - 1999, that there is a positive correlation (+.31) between PSCE and recidivism reduction. These results are statistically significant. Four subsets, or moderator analyses, were also positively related to recidivism reduction and statistically significant. These included (1) PSCE program completers versus completers and participants; (2) reincarceration only as the recidivism construct; (3) length of recidivism measure; and (4) studies using control groups to negate possible selection bias. It is hoped that this information will increase interest, justification, and funding of future PSCE programs.

Are there any that actually work more than 50% of the time?

From that same article:

A recent study shows that inmates with at least two years of college have a 10% re-arrest rate, compared to a national re-arrest rate of approximately 60%.

Of course, getting two years of college while in prison is a substantial accomplishment, probably out of range of most prisoners. But you get some benefit even from taking GED classes.

The NIJ funded "Preventing Crime: What Works, What Doesn't, What's Promising" project found the following:

o Incarceration of offenders who will continue to commit crime prevents
crimes they would commit on the street, but the number of crimes
prevented by locking up each additional offender declines with
diminishing returns as less active or serious offenders are incarcerated
(Visher, 1987; Cohen and Canela-Cacho, 1994) [see pp. 9-6 to 9-11].

o Rehabilitation programs for adult and juvenile offenders using
treatments appropriate to their risk factors reduces their repeat offending
rates (Andrews et al., 1990; Lipton and Pearson, 1996) [see pp. 9-15 to 9-
19].

o Drug treatment in prison in therapeutic community programs reduces
repeat offending after release from prison (Wexler et al., 1992, 1995;
Martin et al., 1995) [see pp. 9-41 to 9-43].

[...]

o Correctional boot camps using traditional military basic training fail to
reduce repeat offending after release compared to having similar offenders
serve time on probation or parole, both for adults (Flowers, Carr, and
Ruback, 1991; MacKenzie, 1991, MacKenzie et al., 1995) and for
juveniles (Peters, 1996a, 1996b, 1996c; Bottcher et al., 1996) [see pp. 9-27
to 9-31].

o "Scared Straight" programs bringing minor juvenile offenders to visit
maximum security prisons to see the severity of prison conditions fail to
reduce the participants' reoffending rates and may increase crime
(Finckenauer, 1982; Buckner and Chesney-Lind, 1983; Lewis, 1983) [see
pp. 9-14 to 9-15].

o Shock probation, shock parole, and split sentences, in which offenders
are incarcerated for a short period of time at the beginning of the sentence
and then supervised in the community, do not reduce repeat offending
compared to the placement of similar offenders only under community
supervision and increase crime rates for some groups (Vito and Allen,
1981; Vito, 1984; Boudouris and Turnbull, 1985) [see pp. 9-14 to 9-15].

o Home detention with electronic monitoring for low-risk offenders fails
to reduce offending compared to the placement of similar offenders under
standard community supervision without electronic monitoring (Baumer
and Mendelsohn, 1991; Austin and Hardyman, 1991) [see pp. 9-24 to 9-
25].

o Intensive supervision on parole or probation (ISP) does not reduce repeat
offending compared to normal levels of community supervision, although
there are some exceptions; findings vary by site (Petersilia and Turner,
1993; Deschenes et al., 1995) [see pp. 9-19 to 9-24].

o Rehabilitation programs using counseling that does not specifically
focus on each offender's risk factors fail to reduce repeat offending (from
meta-analysis by Lipsey, 1992) [see pp. 9-15 to 9-19].

o Residential programs for juvenile offenders in rural settings using
"outward bound," wilderness, challenge, or counseling programs fail to
reduce repeat offending significantly in comparison to standard training
schools (Deschenes et al., 1996a; Greenwood and Turner, 1993) [see pp.
9-33 to 9-37].

[...]

o Drug courts that ordered and monitored a combination of rehabilitation
and drug treatment reduced repeat incarcerations compared to regular
probation among offenders convicted of a first-time drug possession
felony (Deschenes et al., 1996b) [see pp. 9-47 to 9-48].

o Drug treatment in jails followed by urine testing in the community has
been found in one study to reduce repeat arrests compared to drug-using
inmates who did not receive treatment and followup (Taxman and Spinner,
1996) [see pp. 9-45 to 9-46].

o Intensive supervision and aftercare of minor juvenile offenders,
primarily status offenders like runaways or truants, reduced future
offending relative to status offenders who did not receive enhanced
surveillance and services in North Carolina. The finding held true for first
offenders but not for those with prior delinquency in one experiment (rated
level 5 on the Maryland Scale) (Land et al., 1990) [see pp. 9-37 to 9-41].

o Intensive supervision and aftercare of serious juvenile offenders in a
Pennsylvania program reduced rearrests compared to putting offenders on
probation (Sontheimer and Goodstein, 1993) [see p. 9-39].

o Fines for criminal acts in combination with other penalties may produce
lower rates of repeat offending (Gordon and Glaser, 1991), and day fines
may produce lower rates of technical violations (Turner and Petersilia,
1996) than sentencing offenders to community-based corrections without
fines [see pp. 9-12 to 9-14].

Whew. Lotta cut'n'paste there. But hopefully that is a detailed enough answer to your question that we can get on to arguing about the politics.

 

[Brown]

Further update: Prison Fellowship Ministries apparently thinks it won the case. Read the response from an Americans United blogger here.

Yet Prison Fellowship Ministries and their attorney, Eric Rassbach of the Becket Fund for Religious Liberty, immediately issued press statements trumpeting their great victory.

Said Rassbach in a press release: “This is a huge victory for faith-based programs….This court decided faith-based organizations aren’t automatically suspect just because they are faith-based. States have to consider what the programs are actually doing.”
...
Prison Fellowship officials say they’ll just keep funding the program with private funds. But that would also be inconsistent with the court’s ruling. Inmates should have access to effective rehabilitation programs that don’t require them to embrace a certain religion.

It's easy for the simple-minded to mush over the issues. So what if the prisoners had to learn about Jesus? The program was voluntary! Besides, a little Jesus never hurt anyone.

And yet, the particular program was in itself disdainful of certain forms of Christianity--notably Catholicism--and apparently fostered extremely rude and hostile remarks toward those who did not follow lock-step with InnerChange's brand of Jesus. Yes, the good old Prince O' Peace Himself was being used as an excuse to create less peace.

Even more to the point, to get governmental benefits (notably better facilities and computer access), the prisoners had to sign on to InnerChange's particular brand of Jesus. If the program required prisoners to sign on to a particular version of Islam, most people would have no difficulty at all perceiving a problem. (What were convincing arguments before suddenly become totally unconvincing, even revolting: So what if the prisoners had to learn about Islam? The program was voluntary! Besides, a little Islam never hurt anyone.) When it's their own religion in question, many people seem to have a blind spot in their intellectual capacity.

 

[Fnord]

"Inmates should have access to effective rehabilitation programs that don’t require them to embrace a certain religion."

This does not mean "Eliminate any and all faith-based programs." It means "Make non-faith-based programs available."

These non-faith-based programs will be funded by your secular tax dollars, of course. This is good.

Faith-based programs relying on private donations is also good.

I see the situation, so where is the problem?

 

[drkitten]

This does not mean "Eliminate any and all faith-based programs." It means "Make non-faith-based programs available."

And specifically, "Make non-faith-based programs that are equivalent to any and all faith-based programs available."

Faith-based programs relying on private donations is also good.

I see the situation, so where is the problem?

Actually, it could be very bad and very expensive. Suppose I create a "faith-based program," entirely funded by me, that offers an absurdly privileged environment for those prisoners who share my particular sect of Invisible Pink Unicornism (BBHHH), at an estimated costs of $10,000,000 per prisoner per year. If the government accepts and authorizes my program, then the government will have to offer equivalent privileges to every other qualified prisoner without regard to faith. So I'll pay ten million per year for the one IPUist, and the state of Texas will pay $1,600,000,000,000 to provide that for the 160,000 Christian prisoners.

If I counted the zeros correctly, that's 1.6 trillion dollars. Even in Texas, where everything is larger, that's a large sum of money.

 

[Darth Rotor]

The State started out with the notion of trying to fund only the “non-religious” aspects of InnerChange. In addition, the DOC had a secular purpose in mind, namely, trying to find a way to deter prisoners from committing new crimes after being released.

One would think that was generally in the public interest.

Americans United for Separation of Church and State filed suit to stop what it believed was a violation of the First Amendment.

Americans United prevailed in the Federal District Court.

This meant that the program was implemented in violation of the US Constitution, and the Iowa Constitution as well.

Got it.

And yet, the particular program was in itself disdainful of certain forms of Christianity--notably Catholicism--and apparently fostered extremely rude and hostile remarks toward those who did not follow lock-step with InnerChange's brand of Jesus. Yes, the good old Prince O' Peace Himself was being used as an excuse to create less peace

Also noted, and a core matter of condoned evangelizing on the state's dime/facility.

I did not see a tabulation of the recidivism rate for this program's participants.

Did I miss a link?

DR

 

[Fnord]

And specifically, "Make non-faith-based programs that are equivalent to any and all faith-based programs available."

Ooo ... "Separate but Equal" ... It's worked so many times before ...

 

[Brown]

Actually, it could be very bad and very expensive.

The Eighth Circuit's opinion gives an idea as to how expensive it can be. It appears that the goal of the state was not to "program" the prisoners with Christianity (I'm using the term "programming" not in the cult-like sense, but in the sense of having prisoners participate in a helpful program, which is how the Eighth Circuit uses the term). Rather, the state was trying to save a buck or two. InnerChange was the cheapest provider, the lowest bidder by a pretty substantial margin. Sure, it was InnerChange's goal to "program" the prisoners with Christianity (here I do intend the cult-like sense), but the state's goal was basically to get the prisoners some aid--that would hopefully help them fit in and deter them from committing future crimes--at the lowest cost.

The unfortunate part was that, to get the aid (and the other benefits that came with it), a prisoner had to sign on to a particular view of Christianity and had to engage in all sorts of religious conduct.

Even if there were programs to suit the religious taste of every prisoner, there were only so many prison facilities available. As you can see from the opinion, the shortage of equal facilities was part of the problem, too.

 

[Darth Rotor]

The Eighth Circuit's opinion gives an idea as to how expensive it can be. It appears that the goal of the state was not to "program" the prisoners with Christianity (I'm using the term "programming" not in the cult-like sense, but in the sense of having prisoners participate in a helpful program, which is how the Eighth Circuit uses the term). Rather, the state was trying to save a buck or two. InnerChange was the cheapest provider, the lowest bidder by a pretty substantial margin. Sure, it was InnerChange's goal to "program" the prisoners with Christianity (here I do intend the cult-like sense), but the state's goal was basically to get the prisoners some aid--that would hopefully help them fit in and deter them from committing future crimes--at the lowest cost.

It seems that this might be a case of the Road to Hell (or rather, stumbling over the Establishment Clause) being paved with good intentions. Follow the money, thanks for that elaboration.

DR

 

[patrick767]

So if I'm reading that right the Court found two problems with the program. One, it was at least partially funded with public money. Two, prisoners in the program received preferential treatment over those who were not.

That means the program can continue if these two issues are resolved. They must be funded with private donations and prisoners cannot receive prison privileges that are not available to other inmates. They didn't ban the programs outright.

 

[Brown]

So if I'm reading that right the Court found two problems with the program. One, it was at least partially funded with public money. Two, prisoners in the program received preferential treatment over those who were not.

That means the program can continue if these two issues are resolved. They must be funded with private donations and prisoners cannot receive prison privileges that are not available to other inmates. They didn't ban the programs outright.

The Court did not ban the InnerChange program outright. From the opinion:

Prison Fellowship, InnerChange, and the DOC object that the injunction is overbroad, claiming it bars InnerChange from ever contracting with the DOC. ...

To the contrary, the injunction, in context, applies only to programs like those operating before the district court’s order and funded by the unconstitutional structures for those years.
...
The district court did not forever ban Prison Fellowship and InnerChange from operating in Iowa.

As for whether you're reading it right, you check this yourself by reading the actual opinion, using the link in the original post. You can currently click on "Opinions By Month/Year" and then click on "062741P.pdf 12/03/2007 Americans United v. Prison Fellowship" (issued 3 December, 2007). Keep in mind that part of the problem is not preferential treatment per se, but preferential treatment on the basis of religion.

 

[digithead]

Bear in mind that recidivism reduction is not always the goal of prison programming. Simply giving inmates something to do - be it programming, labor, or recreation - alleviates stress in the institution and increases the safety of inmates and staff. It can also reduce disciplinary infractions and other institutional deviance...

As Brown pointed out, the problem was not that a faith-based group was getting funding, it was that Christian inmates were getting reduced sentencing for participation in a program that was not available to inmates who followed other religions/no religion. So these non-Christian inmates could not get the same sentence reduction. Hence it violated the establishment clause...

As for faith-based programs, oftentimes religious groups are the only ones who want to volunteer in prisons. Having worked in two state prison systems, these groups save the state money and staff and many inmates avail themselves of the services of these groups, which, as I mentioned aboved, makes the institutions safer...

 

[Brown]

The District Court judge in Iowa who ruled against the faith-based prison inmate program has been at the center of a recently decided Supreme Court case. Although that case had nothing to do with religious issues (it was a case dealing with criminal sentencing), the judge took a rather contoversial stand, which the Eighth Circuit reversed but which the Supreme Court upheld.

According to the Des Moines Register:

Colleagues from around the country flooded U.S. District Judge Robert Pratt with congratulatory e-mails last week, after the U.S. Supreme Court agreed with him that judges should be allowed to decide whether drug defendants deserve to be locked up.
...
Pratt chortled when asked about being personally praised by the justices: "Someone asked me, 'Do you feel better about them saying nice things about you or about them kicking the snot out of the appeals court?' I said, 'I feel better about them kicking the snot out of the appeals court.' "