Now in Legal Rebels:
Posted Jun 01, 2008 01:00 pm CDT
Imprisoned in Iowa for bank robbery, Jesse Wiese felt utterly hopeless. He saw no future for himself. He saw no meaning in life.
The way Wiese tells it, his outlook changed when he joined the InnerChange Freedom Initiative, a faith-based prison program to reduce recidivism. There he found life skills and vocational training, mentors and a community to support him. By Wiese’s release in 2006, he was on a different path.
“After the program, I have confidence in who I am as a person,” says Wiese, who became an InnerChange program coordinator in Iowa. “I left with positive self-esteem and a belief that human life has value and that there is purpose.”
But the InnerChange program and others like it face serious legal hurdles. A recent decision by the St. Louis-based 8th U.S. Circuit Court of Appeals found that the program, run by an evangelical Christian organization, violated the constitutional separation of church and state. Americans United for Separation of Church and State v. Prison Fellowship Ministries, 509 F.3d 406 (2007).
The 8th Circuit panel “reaffirmed the principle that the government can’t directly fund a social service that has religious content,” says George Washington University law professor Robert Tuttle, an expert on religious-based initiatives.
“This decision will help make it easier to explain to government officials that this really is where the law stands,” says Tuttle. “There’s this idea that somehow religious programs are especially effective, and that may well be, but this is the current state of the law.”
President Bush has pushed to increase collaboration between the government and faith-based community programs. Many cash-strapped states have turned to faith-based programs to solve problems facing their overcrowded prisons. For example, a 2006 report by Ohio corrections officials noted that the state’s prison population was at a record high and urged faith-based approaches to reduce recidivism.
“States need these programs because prisoners need to be rehabilitated. The old system of lock them up and throw away the key doesn’t help to integrate these inmates back into society when they are released,” says Eric Rassbach of Washington, D.C., national litigation director for the Becket Fund for Religious Liberty, which has been involved in the case since it reached the 8th Circuit.
“Given state prison budgets, it makes no sense for prison systems to turn down cost-effective rehabilitation programs with demonstrated results that happen to be offered by faith-based organizations,” Rassbach says.
The 8th Circuit ruling stems from a lawsuit filed more than four years ago by D.C.-based Americans United for Separation of Church and State. The group challenged the InnerChange program at a medium-security prison in Newton, Iowa. InnerChange programs are run by Prison Fellowship, a group founded by Charles W. Colson after he returned from a prison sentence for his part in the Watergate cover-up.
Prison Fellowship runs faith-based treatment programs at prisons in Arkansas, Kansas, Minnesota and several other states. Inmates are offered the opportunity to receive drug and alcohol treatment, adult education and individualized counseling. In Newton, the program was started in 1999, when the state began to look for external resources to help tackle recidivism.
The InnerChange program was dominated by Bible study, religious revivals and church services, according to the appeals court. Participants were housed in living quarters that afforded greater privacy than the typical cell. They also were allowed more family visits and computer time. There were no equivalent nonreligious programs, the appeals court wrote.
“We’ve got a proven program,” says Mark Earley, president of Prison Fellowship. “It’s a tough program. But for those who stick with it, we’re seeing great results,” says the former Virginia attorney general who now lives in Lansdowne, Va.
What bothered Americans United—as well as a federal judge and the 8th Circuit panel—was the pervasiveness of the religious instruction and lack of alternatives within the prison. In a brochure quoted by the court, the program describes itself as a “24-hour-a-day Christ-centered, biblically based program that promotes personal transformation of prisoners through the power of the Gospel.”
“The main concern that we had in this case was the funding of an exclusive Christian program that wasn’t really welcoming of any other faith and was singled out for very special access to proselytize to a sitting duck population,” says Ayesha N. Khan, legal director for Americans United for Separation of Church and State. “Prison authorities wander onto legal thin ice when they allow a single religion to set up shop in prison.”
In 2006, U.S. District Judge Robert Pratt of the Southern District of Iowa ruled that the InnerChange program was “pervasively sectarian” and unconstitutional for that reason. 432 F. Supp. 2d 862.
Affirming, the 8th Circuit panel said in December that the InnerChange program’s efforts at religious instruction amounted to indoctrination and “had the effect of advancing or endorsing religion” in violation of the establishment clause.
The appeals court emphasized that inmates had “no genuine and independent private choice” to receive rehabilitation services from an organization other than the one run by Prison Fellowship.
The unanimous decision was authored by U.S. Circuit Judge Duane Benton, but it is one of the other panel members—former Supreme Court Justice Sandra Day O’Connor—who makes legal observers take notice.
O’Connor, who has been hearing appellate court cases since her resignation from the high court in 2005, provided the key vote in some of the most significant cases concerning separation of church and state, including McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005).
“What were the odds that the swing vote for religion cases on the Supreme Court for 20 years would end up hearing this important religion case in the Court of Appeals,” says Doug Laycock, a constitutional law professor at the University of Michigan who has been tracking the case.
However, advocates of faith-based programs also point to part of the appeals court decision that they find encouraging.
In the lower court ruling, Pratt ordered that the program be halted and that Prison Fellowship return about $1.5 million it had received from the state of Iowa because the group should have known the program was unlawful.
But the appeals panel disagreed, saying that “even if there were some risk associated with the program, it cannot be said that resolution of this case was clearly foreshadowed.”
The panel wrote that Pratt had not considered testimony from prison officials about the benefits of the program: “In shaping equitable relief, a court should consider the views of prison administrators.”
Rassbach says, “Forcing Prison Fellowship to give back the money it had earned in return for several years of rehabilitation services would have had a chilling or even freezing effect on other faith-based organizations.”
In the meantime, the case is slowly having an effect on how the federal and state prison systems handle programs within prison walls.
In early June 2006, the Federal Bureau of Prisons announced that it was suspending plans for Bible-based treatment programs in six prisons.
The InnerChange programs no longer receive any government funding, according to Earley. In February, the Iowa Department of Corrections notified Prison Fellowship that the program was being terminated. According to the terms of the agreement, prison officials can cancel the program if enrollment falls below 60 inmates. The latest graduation ceremony boasted fewer than 30 prisoners.
Meanwhile, Iowa is considering allowing Prison Fellowship to continue working with prisoners, but as an outside volunteer service with scheduled visits inside the prison as opposed to a program with living quarters for participants and other privileges. Iowa is recruiting other programs as well, according to Iowa Department of Corrections spokesman Fred Scaletta.
“Everyone wants to find ways to reduce recidivism, but prison officials have to provide programs that protect the civil rights of all prisoners,” says Barry Lynn, executive director of Americans United.