Prisoner Exemptions From State RFRAs

[Nicholas Miller]

My office is assisting with a number of state RFRA bills, and in some
places we are encountering resistance to including prisoners under the
protection of those bills.  Below is a short series of points I have put
together based on my experience and observations arguing against prisoner
exemptions.  I would be interested and grateful in any comments or
suggestions the list may have on it.  Nick Miller


Re-Thinking Prisoner RFRA Exemptions

Prisoners are not a popular group.  They don't have much political clout.
 Many people view them as having given up, by their conduct, the rights and
privileges they had in society.  Prisoners also tend to be a litigious lot.
 With time being one of their few assets, they spend a good deal of it
thinking up creative and often time consuming lawsuits.  Believe me, I
know, as I spent a good portion of the last two or three years of my life
defending against prisoner lawsuits in my capacity as an assistant
corporation counsel for the District of Columbia.  It is not surprising
then, that many state religious freedom restoration acts (RFRAs) are
targeted by amendments to exempt prisoners from their coverage.  Despite my
experiences defending against prisoner suits, I think such amendments are a
bad thing.  Here is why:

1.      Prisoner RFRA cases did not clog the federal court system.  Despite
widespread claims that prisoners abused RFRA's protections by bringing a
flood of federal lawsuits, the Justice Fellowship reports that prisoner
RFRA cases accounted for less than 1% of cases in the U.S. Courts in 1996.
 About 269,000 civil cases were filed in federal courts in 1995.  Of these,
about 41,000 were filed by prisoners, or nearly 15%.  Only something like
2000 of these cases, or less than 1% of the total civil suits filed, were
RFRA cases brought by prisoners.

Further, my experience was that prisoners never brought a case under a
single cause of action.  They would always throw in at least three
different amendments that they claimed had been violated and toss in the
prison-kitchen sink for good measure.  It is unlikely that withdrawing
RFRA's protections from prisoners will actually cut down on the number of
suits brought.  New and more creative causes of action will be stated.  If
we exempt prisoners from RFRA because they abuse it, do we then have to
exempt them from the fourth, fifth, sixth, eighth and fourteenth amendments
to the U.S. Constitution because they abuse those as well?

While many prisoner suits are frivolous, a substantial number are not.
 Perhaps it would be far more convenient and efficient to do away with
prisoner access to our court system.  But in the memorable words of one of
the judges I practiced before, if the courts are only about efficiency, and
not justice, we may as well all go home.

2.      RFRA did not interfere with legitimate prison operations.  Religious
liberty is not an absolute right in prison, or outside prison.  Under RFRA,
prisons had the right to curtail and limit prisoner religious activity that
posed a threat to the security or operations of the prison facility.
 Likewise, the state has the right to curtail the religious activity of
free citizens that threaten or endanger the lives, safety or rights of
fellow citizens.  But in prison, it is a given that the state, because of
its security and safety concerns, has an even greater right to intrude into
the lives of inmates.  This means that prisoners cannot exercise their
religious rights with the same expansiveness and breadth as non-prisoners.
 But even prisoners, as discussed in point three below, have a duty to
worship God.  A properly crafted RFRA will protect this right and yet still
allow prison administrators to maintain good order, security and
discipline.  It will prevent, however, prison regulation of religious
conduct that is grounded on mere speculation, exaggerated fears or post-hoc
rationalizations.  It has been my experience that, because of the scarcity
of personnel and resources, prison administrators often only run those
programs that they have to run.  If religious visitation and programming is
not a mandated right, administrators unsympathetic to religion may well cut
it out entirely.

3.      Religious liberty is a human right.  The Declaration of Independence
envisions the rights of humanity as a gift from God and as preceding the
existence of government.  Thus, the bill of rights should be understood not
as a civil grant of rights, but as a civil recognition of rights that exist
prior to and apart from the state.  While some rights do require community
involvement and existence to be realized (How could you "freely associate"
or exercise your "freedom of speech" in the absence of other people?),
religious freedom has a peculiarly private, individual aspect.  It can be
exercised solely between a person and God.

Indeed, most religions and enlightened philosophies recognize the
responsibility each individual has before God for his or her own
conscience.  This responsibility for conscience exists by virtue of being a
human being before God.  Up until the point the state chooses to execute
someone, prisoners are still human beings before God.  They thus continue
to have duties before God, and must have the corresponding right to
exercise those duties.  To hold otherwise, is either to deny the humanity
of prisoners, or to deny the universality of God and/or conscience.
 Neither of these is a safe proposition.  In exempting prisoners, we treat
religious freedom as a state created and state fostered policy that can be
withdrawn at the whim of the state.  If we exempt prisoners today, what
unpopular group will we exempt tomorrow?


By Nicholas P. Miller, Esq.
Executive Director
Council on Religious Freedom
110 N. Washington St., Suite 404
Rockville, MD 20850
(888) 590-8766
www.c-r-f.org