Source: Courthouse News
Texas discriminates in limiting religious services for Muslim inmates to one hour a week, under supervision by guard, chaplain or volunteer, a federal judge ruled. Bobby Brown raised the challenge by resurrecting his 1969 class action against the Texas Department of Corrections over its treatment of Muslim inmates. Though the department, now known as the Texas Department of Criminal Justice or TDCJ, was bound by a 1977 consent decree to treat Muslim inmates equally as compared with adherents to Catholic, Protestant and Jewish faiths, it moved to terminate the consent decree in August 2012.
The consent decree required Texas to include copies of the Quran in prison libraries, hire five Muslim chaplains, provide pork-free diets, and let adherents possess Islamic literature and keepsakes. Muslim, Jewish, Catholic, Protestant and Native American inmates were allowed under the decree to an average of six hours of religious activities a week.
The decree also permitted inmate-led religious services under "indirect" supervision that entailed a guard checking in from time to time on the meeting through windows, or with video cameras and audio recordings. When the TDCJ obtained a stay of that order, however, it implemented a policy against inmate gatherings in groups of more than four for religious services unless a guard, chaplain or outside volunteer is present. This reduced religious services for Muslim inmates to one hour a week based on the availability, or lack thereof, of Muslim chaplains and volunteers.
Thanks to the availability of more volunteers and chaplains for other faiths, however, inmates of these groups continued to enjoy the weekly average of six hours of religious activities. U.S. District Judge Kenneth Hoyt sided with Brown on April 30. Noting that Islam requires its followers to participate in Jum'ah - prayer sessions that must occur every Friday just after noon - Hoyt found the TDCJ's new policy effectively prohibits Muslim inmates from practicing this tenant of their faith.
This conclusion relies on the relative dearth both of Muslim chaplains in the TDCJ system and of possible volunteers from the community - few Muslims live around Texas prisons where Muslim inmates are incarcerated. The ruling notes that there are 6,775 Texas inmates who identify as Muslim, and 88,504 Protestant prisoners. There are 111 prisons in the TDCJ system and just five Muslim chaplains who are each assigned to an average of 20 units. The fact that most Muslim inmates are assigned to prisons in rural areas far from cities with large Muslim populations results in the TDCJ not having enough Muslim community volunteers to oversee the inmates' services, Hoyt found.
Hoyt also pointed out that the TDCJ gives Jewish and Native American inmates access to each other and to community volunteers of their faith by assigning them to specific prisons. "By contrast, there are no units designated as Muslim units in close proximity to Muslim citizen volunteers - that consideration was not contemplated by TDCJ in assigning Muslim inmates to housing units," Hoyt wrote. "The neutrality problem is exacerbated with regard to Muslim inmates because the most sacred event in Islam - Jum'ah - must occur shortly after midday on Fridays, a day when potential volunteers are at work and unable to travel to prison units to participate," he added. "Protestant services are commonly held on weekends when many potential volunteers are available to travel to TDCJ's units. Hence, TDCJ's policy, or lack thereof, on Muslim housing assignments and Islam's mandatory Friday services effectively precludes volunteer-led Muslim religious activities on Islam's holiest day."
The TDCJ failed to show that security concerns justify the policy change. Citing testimony from prison chaplains in the case, Hoyt said there was no evidence of "any incident, event or episode involving a security or safety threat of any kind at any time during the thirty-five years the consent decree remained in effect."
The TDCJ also could not support its demand for having a guard or a volunteer supervise religious services to prevent the discussion of unauthorized activities. This argument conflicts with the fact that indirectly supervised groups of inmates can play dominoes, participate in choir and band practice, and work in prison craft shops, according to the ruling. Hoyt also found that the TDCJ could not cite cost concerns as justification for its policy change because its new policy requires an increase in staff to supervise Muslim religious services, while a guard was not necessary under the consent decree regime.
The TDCJ's new policy violates the establishment clause of the First Amendment, which gives Muslim inmates the right to be free from discriminatory policies, Hoyt held. "TDCJ openly favors the Protestantism and disfavors Islam by devoting state resources to the former disproportionately," the 35-page ruling states. "Specifically, TDCJ provides resources for volunteer led services in the form of staff-provided security, screening, volunteer training, meeting space, record-keeping, and scheduling, and provides other expenditures that support primarily Protestant volunteers."
Hoyt also concluded that the new policy violates the free-exercise clause of the First Amendment and the Religious Land Use and Institutionalized Persons Act. The ruling reinstates three provisions of the consent decree and enjoins application of the new policies to Muslim and Jehovah's Witness inmates. Edward Mallett, an attorney for the plaintiffs, said he is happy with the ruling. "As the court said the facts show that they were establishing Protestant Christianity as the state religion in the prisons," Mallett said in an interview. "By the way I am a Protestant Christian, I'm an Episcopalian, but there's very convincing evidence - convinced me and convinced the judge - that participation in religious activities is good for rehabilitation and lowers recidivism and helps keep prisons peaceful and safer, and so it's a good thing."
Though Mallett said "we won across the board when were entitled to win," he added that both sides will be filing motions to amend the ruling. "There are things that we don't like and there are things the attorney general doesn't like," Mallett said. "And then I anticipate the attorney general will pursue their appellate remedies and ask the 5th Circuit to set aside the order." The attorney general's office did not immediately respond to a request for comment