“Prison walls do not form a barrier separating prison inmates from the protections of the
Constitution”1
INTRODUCTION
On S...
Warith Deen Umar, was a prison chaplain who worked for over twenty years with the
Islamic program within New York’s Prison...
prisoners free exercise rights based on the arguments set forth in this note. In this note I
am also taking the position t...
to make facilities available without regard to race or religion.17 The Court also held that the
Muslim faith was a religio...
prison officials actions.24The factors included a valid rational connection between the prison
regulation and the legitima...
attending Jumu’ah. Applying the decision in Turner, the Court upheld the regulations, finding
that they did not violate th...
Once RLUIPA was enacted, many cases began filtering through the court systems, as
prisoners, especially Muslims, began usi...
In Holt, the petitioner was able to prove his burden by showing that he had a sincere
religious belief and that the prison...
Since its been enacted, RLUIPA, has been used in many cases by prisoners, to challenge
prison policies they believed infri...
criminal history, drug test and investigations by the U.S investigative services.57 Although
Chaplainis are required to pr...
as the fasted growing religion behind bars, approximately eighty percent of those seeking a faith
in Prison convert to Isl...
contractors, believing that it will reduce the spread of prison Islam. 70 However the challenge
facing officials, is that ...
animus from their experiences with the criminal justice system, provides a conclusion that prison
Islam could be spread ea...
III Analysis
Many Prison regulations have been enacted in order to prevent the spread of homegrown
terror in the form of “...
religious leaders is not a result of a prohibition by prison officials, but a snowball effect that was
created after the r...
to prison officials and facilities have not prohibited Chaplains or congregational services from
being held.95
As a result...
this kind of case, because safety and stability are compelling interests within prison facilitites
and they employed the l...
such as the case of Warith Deen Umar, in which radical ideologies had infiltrated the prison
population, but there are onl...
extremely important for inmates, especially when they are released from the facility, becase if
they are able to maintain ...
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Radicalized Islam

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Radicalized Islam

  1. 1. “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution”1 INTRODUCTION On September 11, 2001 the United States experienced the worst attack on American soil, since World War II. Once it was discovered that the attacks were acts of terror and Al-Qaida was behind them, the Government quickly moved for policies and regulations such as the patriot act, that would prevent such attacks from ever happening again.2 Although these regulations were created to prevent terrorism, it soon became clear that they were targeting American Muslims3. After the attacks, many Muslims began to face harassment of all kinds. From verbal harassment to hate crimes to being singled out by TSA, Muslims all across the nation were targeted because of their religion.4 A fear of terrorism, coupled with a religion not understood by many, Americans began to link Islam with terrorison, thus creating more discrimination against American Muslims.5 Although most of the fear and discrimination occurred within society, a substantial amount of fear and targeting occurred within the Unite States Prison Systems. A fear of the spread of radicalized beliefs became a major issue within Prisons all across the country shortly after 9/11 when the beliefs of a Prison chaplain began to surface.6 1 Turner v. Shafley, 107 U.S 2254, 2259 (S. Ct. 1987) 2 Jason Villemez, 9/11 to now: Ways we have changed, PBS(September 14, 2011 at 4:55 PM EST) http://www.pbs.org/newshour/rundown/911-to-now-ways-we-have-changed/) 3 Villemez, supra note 2 4 Villemez, supra note 2 5 Id. 6 PaulM. Barrett,How a Muslim Chaplain Spread Extremism to an Inmate Flock, Wall Street Journal (February 5, 2003, 12:01 AM ET), http://www.wsj.com/articles/SB1044395093714681453Isis: Homegrown terror.
  2. 2. Warith Deen Umar, was a prison chaplain who worked for over twenty years with the Islamic program within New York’s Prison system.7 For twenty years Umar not only ministered to thousands of inmates, but trained and recruited dozens of chaplains to aid in the Islamic program.8 After September 11, Umar shared his views on the attacks and the men behind them and stated that the hijackers, should be honored as martyrs and that the United States risked terrorism because it oppressed Muslims.9 He went on to state that, “Even Muslims who say they are against terrorism secretly admire and applaud the hijackers.”10 These statements coupled with the fear of terrorism led quickly to a new issue that faced the nation: fighting radicalized Islam within prison facilities. Throughout the country Prisons began implementing policies they believed would prevent radical Islam, while also protecting the safety of inmates and prison officials. The policies and regulations implemented were created for the purpose of preventing the spread of radical Islam, however they only caused more difficulties for those practicing a religion that has long been discrimnated against. Prison environments coupled with the fear of terrorism created after 9/11, have led many prison officials to create policies that would prevent this growth of radical Islam or "Prison Islam." Many policies, such as those that pertain to Chaplains and the requirements they must meet, were designed to prevent the ideals of radical Islam from reaching prisoners. Although many policies have been struck down by the courts as being unconstitutional and a violation of Prisoners First Amendment right, I believe that the policies regarding Chaplains do not violate RLUIPA and do not infringe upon the 7 Barret, supra note 6 8 Barret, supra note 6 9 Barret, supra note 6 10 supra
  3. 3. prisoners free exercise rights based on the arguments set forth in this note. In this note I am also taking the position that PrisonIslam is not as prevalent as many officials hold it to be and that Islam can actually be beneficial to those searching for hope while in Prison. EXPLAIN WHAT YOU WILL TALK ABOUT I HISTORY AND RELEVANT LAW During the 1960’s Muslims, in many prisons, did not have access to Islamic services.11 In many instances, Islam was not a recognized religion within institutions until a decision was handed down by the Supreme Court in Fulwood v. Clemmer.12 William T.X. Fulwood, a member of the Nation of Islam, was imprisoned in the Lorton Reformatory when he, along with several other inmates, complained that they had suffered religious discrimination.13 On several occasions, Fulwood, had requested the permission of prison officials to hold Islamic services, but was denied for a number of reasons.14 The Department of Corrections stated that Fulwood and others were denied these requests because the Muslim groups within the prisons, promoted racial hatred and therefore could lead to major security issues. 15 Before the Supreme Court, Fulwood claimed that his religious beliefs were infringed upon and that he was being punished solely because of his religious beliefs.16 The Court held that allowing some religious groups to hold religious services, while denying that right to another of the other faith was a violation of orders 11 Marie Dallam, Fulwood v. Clemmer, Encyclopedia of Muslim-American History (November 28, 2015) http://www.fofweb.com/History/MainPrintPage.asp?iPin=EMAH0105&DataType=AmericanHistory&Wi nType=Free 12 Dallam, supra note 11 13 Dallam, supra note 11 14 Fulwood v. Clemmer, 206 F. Supp. 370 (D.C Cir. 1962) 15 Marie Dallam, Fulwood v. Clemmer, Encyclopedia of Muslim-American History (November 28, 2015) http://www.fofweb.com/History/MainPrintPage.asp?iPin=EMAH0105&DataType=AmericanHistory&Wi nType=Free 16 Fulwood, 206 F. Supp at 370
  4. 4. to make facilities available without regard to race or religion.17 The Court also held that the Muslim faith was a religion within the constitutional provisions as to the freedom of religion, therefore setting the platform of Constitutional protections for Muslims within prison facilities.18 A year after the Fulwood decision was handed down, the Supreme Court was once again asked to decide on another free exercise case; a case which would set the standard of review in all religious based cases. In Sherbert v. Verner the Court held that a strict standard of review would be used in cases of free excercise19 In Sherbert the petitioner was denied unemployment compensation, because she could not work on Saturdays because of her religious beliefs.20 The Court held that this was a violation of her right to free exercise of religion, because it had put pressure on her to decide between employment or her religion.21 Through Sherbert, the Court held that the Government was now required to demonstrate a compelling interest and use the least restrictive means to justify even an incidental or indirect burden.22 Although this was the new standard for religious exercise cases, it was not applied across the board. In Turner v. Safley, petitioners, who were inmates in the Missouri Prison System, brought an action against the facility because it had restricted marriages between inmates and between inmates and civilians23 The court, using a rational basis standard, gave great deference to prison administrators and stated several important factors used to ascertain the resonablness of 17 Id. at 374 18 Id. at 373 19 Sherbert v. Verner,83 U.S. 1790 (S. Ct. 1963) 20 Id. 21 John W. Popeo, Combating Radical Islam in Prisons Within the Legal Dictates of the Free Exercise Clause, 32 New Eng. J. on Crim. And Civ. Confinement 135, 142 (2006) 22 Popeo, supra note 21 23 Turner v. Safley, 107 U.S 2254 (S. Ct. 1987)
  5. 5. prison officials actions.24The factors included a valid rational connection between the prison regulation and the legitimate governmental interest, whether or not there was another way for inmates to exercise their religion, the impact accommodation of the asserted constitutional right on guards and other inmates, and the absece of ready alternatives is evidence of the reasonableness of a prison regulation.25 According to the Court, Prison officials were in a better position to decide what was best for the facilities in regards to security and as long as inmates had other ways of excercison their religion, the Court was not going to strike down the policies.26 In the same year the Turner decision was handed down, a case involving Muslim inmates was also brought before the Supreme Court. In O’Lone v. Estate of Shabazz, Muslim inmates brought an action against New Jersey Prison officials arguing that they prevented the inmates from attending Jumu’ah, a Muslim congregational service held on Fridays, because it interfered with work schedules.27 The Court, as it did in Turner, applied a rationality standard of review and gave deference to prison authorities28 The Court held that heightened scrutiny would not be used when regulations effectively prohibit rather than simply limit particular exercise of consititutional rights. 29 The Court went on to hold that the presence or absence of alternative accomodations of inmates rights is a properly considered factor in reasonableness analysis rather than basis for heightened scrutiny.30 Since inmates had access to other forms of religious ceremonies, the Court was able to justify the prison policies that prevented the inmates from 24 John W. Popeo, Combating Radical Islam in Prisons Within the Legal Dictates of the Free Exercise Clause, 32 New Eng. J. on Crim. And Civ. Confinement 135, 142 (2006) 25 Turner, 107 U.S at 2262 26 Popeo, supra note 24, at 143 27 O’Lone v. Estate of Shabazz, 107 U.S. 2400, 2401 (S. Ct. 1987) 28 Id. at 2401 29 O’Lone, 107 U.S. at 2404 30 Id.
  6. 6. attending Jumu’ah. Applying the decision in Turner, the Court upheld the regulations, finding that they did not violate the inmates free exercise rights under the First Amendment because they were related to a legitimate penological objective.31 By 1990 the Supreme Court had reinterpreted the Sherbert strict scrutiny standard in free exercise cases in Employment Divison, Department of Human Resources of Oregon v. Smith.32 In Smith the Court held that a law that is facially neutral and of general applicability does not need to be justified by a compelling Governmental interest.33 Unsatisfied with this standard, Congress enacted the Religious Freedom Restoration Act, which once again held the Government to the Sherbert Strict Scrutiny standard in religious exercise cases.34 Although strict scrutiny was revived through this act in free excercises cases, it was not applied to cases involving inmates in prison facilities until City of Boerne v. Flores was argued before the Supreme Court.35 In Flores, petitioners brought an action against the city because a local zoning authority denied a permit for a Catholic Church through an ordinance of Historic preservation.36 In response to City of Boerne v. Flores, Congress imposed the strict scrutiny standard of review on state and local laws burdening religious liberty through zoning laws and prison policies through the Religious Land Use and Institutionalized Persons Act (RLUIPA).37 31 John W. Popeo, Combating Radical Islam in Prisons Within the Legal Dictates of the Free Exercise Clause, 32 New Eng. J. on Crim. And Civ. Confinement 135, 142 (2006) 32 Popeo, supra note 31, at 144 33 Popeo, supra note 31 34 42 U.S.C.A §2000bb-1 (West. Supp. 2015) 35 City Of Boerne v. Flores, 117 U.S. 2157 (S. Ct. 1997) 36 Id. 37 42 U.S.C.A §2000cc-1 (West. Supp. 2015)
  7. 7. Once RLUIPA was enacted, many cases began filtering through the court systems, as prisoners, especially Muslims, began using the act to bring claims against prison officials for infringing upon their free exercise rights. One such action was the Supreme Court case of Holt v. Hobbs, in which the petitioner brought an action under RLUIPA against a prison policy regulating the length of prisoner beards.38 In order to establish a claim under RLUIPA, the plaintiff has the initial burden of showing that, one, he seeks to engag in an exercise of religion, and two, that the challeneged practice substantially birdens that exercise of religion39 However in order to satisfy the first elelment of the plaintiffs burden, they must show that their request under RLUIPA is genuinely based on a religious belief.40 Once the plaintiff has satisfied their burden, it shifts to the Goernment, who must show that there was a compelling reason behind the restriction and that it was the least restrictive means of achieving that compelling interest41 According to the Court, the least restrictive means standard is demanding and it requires the Government to show that it lacks other means of achieving its desired goal without imposing a substantial burden on the exercise of religion by the objecting party.42 However, even though RLUIPA has set a higher burden for the Govenrment to meet, it has been held that security is of “particular security” and that the Courts are to apply due deference to the expertise of prison administrators.43 38 Holt v. Hobbs, 135 U.S. 853 (S. Ct. 2014) 39 Kroger v. Bryan, 523 f.3d 789 (7th Cir. 2008) see also, Jihad v. Fabian, 680 f. Supp. 2d 1021 (D. Minn. 2010) (Substantial burden exists if the prison policy significantly contrains religious conduct.) 40 Hobbs, 135 U.S. 853 (S. Ct. 1997) see, e.g Ajala v. West, No. 13-cv-546-bbc WL 2062090 (W.D Wis. May 4, 2015) 41 Holt v. Hobbs, 135 U.S. 853, 863-64 (S. Ct. 2014) (citing Burwell v. Hobby Lobby, 134 U.S. 2751, 2780 (S. Ct. 2014)) 42 Id. at 864 (citing Hobby Lobby, 134 U.S. at 2780) see generally,e.g Ajala v. West,No. 13-cv-546-bbc WL 2062090 (W.D Wis. May 4, 2015) (In determining whether a prison policy is the least restrictive means…the Court must give due deference to the expertise and experience of prison and jail officials) 43 Cutter v. Wilkinson, 125 U.S. 2113 (S. Ct. 2005) see also, Kroger v. Bryan,523 f.3d 789 (7th Cir 2008)
  8. 8. In Holt, the petitioner was able to prove his burden by showing that he had a sincere religious belief and that the prisons policy of prohibiting inmates from growing a beard past a half inch, substantially burdened his religious excercise44 The Government argued that the petitioner was allowed other means of religious excercises, but the court held that substantial burden under RLUIPA asks whether the Government has substantially burdened religious exercise, not whether the claimant was able to engage in other forms of religious exercise.45 The Government also contended that the compelling interest was prison safety and security and that the prohibition was the least restrictive means to achieve the interest, because inmates could hide contraband within their beards.46 Disagreeing with the Governmnt, the Court held that RLUIPA contemplates a more focused inquiry and requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law to the claimant.47 The Court in Hobbs, held that the prison policy of prohibiting inmates to grow beards beyond a half inch was a violation of the petitioners religious exercise, because it was not the least restrictive means of achieving a compelling governmental interest.48 The Prison allowed for prisoners with dermatological issues to grow a beard beyond the required length and in order to check for contraband the prison officials would comb through the inmates beards.49 The Court, through this fact, held that the policy was clearly a way to burden Muslims and that the least restrictive means would not be to prohibit beards longer than a half inch, but to comb through prisoners beards, as they did for those with medical issues.50 44 Hobbs, 135 U.S. at 861 45 Id. at 862 contra, O’Lone v. Estate of Shabazz, 107 U.S. 2400 (S. Ct. 1987) 46 Id. at 863 47 Id. (citing Burwell v. Hobby Lobby, 134 U.S. 2751, 2780 (S. Ct. 2014)) 48 Id. 49 Id. at 865 50 Id. at 864-66
  9. 9. Since its been enacted, RLUIPA, has been used in many cases by prisoners, to challenge prison policies they believed infringed upon the free exercise of their religion. Although many regulations and policies have been challenged, for the purposes of this note, policies specifically pertaining to Chaplains and inmate led services will be analyzed. According to the Department of Justice and the Bureau of Prisons specifically relating to all religious services provided in prisons, prisoners are allowed to recite prayers in their language, however services and sermons must be given in the English language.51 The Warden may also, periodically, review religious practices to determine whether they remain within the scope of what is best for the correctional facility.52And in regard to the supervision of inmates, religious programs led by inmates must require constant staff supervison.53 In addition to regulations pertaining to religious services, Chaplains ministering to inmates within the prison system, must also meet certain requirements. In order to become a Chaplain an individual must be younger than 37 and a citizen of the United States.54In addition to citizenship requirements, they must have earned a bachelors degree and have two years of full time pastoral experience in a ministry setting.55 They must also provide three references, sign a candidate certification and authorization form certifying that they will minister to inamates of other faiths and recive an endorsement from a national religious organization.56 Aspiring Chaplains must also go through extensive security screenings that include a review of their 51 28 C.F.R. §548.10 (WestLawNext through Dec. 10, 2015) (FederalBureau of Prisons statement on Religious beliefs and Practices) 52 supra, note 50 53 supra, note 50 54 U.S. Dept. of Justice. Office of the Inspector General: Review of the Bureau of Prisons’ Selection of Muslim Services Providers, OIG.gov, https://oig.justice.gov/special/0404/ (last visited December 20, 2015) 55 supra, note 53 56 supra, note 53 (this is difficult because there is no national Islamic Organization like there would be for the Catholic Church.)
  10. 10. criminal history, drug test and investigations by the U.S investigative services.57 Although Chaplainis are required to provide documents of their religious role in their religious communities, the Bureau of Prisons does not look into candidates past sermons or performances and they do not question Chaplains on their beliefs. In recent years there have been various cases that have entered the court system by inmates, challenging some of the regulations pertaining to Chaplains and religions within the prison system. In Jihad v. Fabian, the petitioner claimed that the prison officials failure to provide a Muslim Chaplain was a violation of RLUIPA.58 He claimed that this failure let to inadequate Islamic servides and it was a violation of this first Amendment right.59 The Court held that the lack of a Muslim chaplain did not rise to the level of substantial burden on Muslim prisoners ability to practice his religion.60 The court also held that refusal to allow Muslims to pray outside their cells, was the least restrictive means to achieve a compelling Governmental interest.61 Although this case does not have binding effect, it reveals the litigation challenging these policies. II SECONDARY SOURCES During the past decade, there has been a growing fear of terrorism within society. This fear coupled with a fear of homegrown terror has led many to believe that Radicalized Islam, or “prison Islam” is prevelant in the prison system and should be supervised carefully.62 Reported 57 supra, note 53 58 Jihad, 680 f. Supp.2d at 1021 59 Id. 60 Id. at 1026 61 Id. 62 Facts and Fictions about Islam in Prison: Assessing Prisoner Radicalization in Post 9/11 America, Institute For Social Policy and Understanding (Jan. 2013) http://www.ispu.org/pdfs/ISPU_Report_Prison_SpearIt_WEB.pdf
  11. 11. as the fasted growing religion behind bars, approximately eighty percent of those seeking a faith in Prison convert to Islam.63 Prison is an environment in which hoplessness thrives and many inmates hit rock bottom with no one to turn to. 64 The deprivation of liberty, goods, services, sexual realtionshiips and security inspire many hopeless inmates to search for the meaning of a croorectional environment, which is why many decide to convert. However conversion is quite distinguishable from radicalization because converts who have started a serious quest for peace are less susceptible to violent ideologies.65 Many social scientists believe that there is no relationhip between prisoner conversions to Islam and terrorism because there is little evidence that prisons are, “factories for terrorism,” and among those that do hold radical views the overwhelming majority never become involved in religious based violence or terrorism.66 They also dispute this ideal that conversion and terrorism are related because Muslim Prisoners are at the heart of prisoner rights movements and are using the legal system to make a difference instead of violence.67 In a report by the Inspector General it was stated that Muslims, because they lack supervision, had sufficient opportunities to minister extremist views to prisoners.68 In order to prevent this situation from occurring, policies such as requiring extensive background and drug tests for aspiring chaplains, were immediately put into place to prevent religious service providers from advocating violence.69 Prison officials have appointed chaplains, volunteer and 63 supra, note 62 64 supra, note 62 65 Spearit, Religion as Rehabilitation? Relections on Islam in the Correctional Setting, 34 Whittier Law Review 29, 38 66 supra 67 supra 68 John W. Popeo, Combating Radical Islam Within The Legal Dictates of the Free Exercise Clause, 32 New Eng. J. on Crim. And Civ. Confinesment 135, 141 69 supra, note 68 at 148-9
  12. 12. contractors, believing that it will reduce the spread of prison Islam. 70 However the challenge facing officials, is that Islam is unlike other religions because it has several multifarious, but legitimate sects.71 They must also deal with the disproportionate increase in the number of prisoners of non-Christian faiths, coupled with the rapid change of prison regulations.72 With so many established religions in society today, prison officials must deal with religious diversity on a broader spectrum.73 As a result of the new policies put in place, after 9/11 there was a scarcity of Muslim Chaplains in prsison and many of the services were being led by inmates.74 This lack of Muslim Chaplains, has severely harmed the system, because it has put a gap in leadership and many believe that this had added to the spread of prison islam, because inmates are the ones spreading violent ideologies.75 Many believe that these circumstances lead to radical agendas, because prisoner imams live with the inmates twenty four hours a day, compared to a weekly or monthy visit from outside imams.76 With more inmates leading religious services and these services not being supervised, as they should be, there has been space for more extreme versions of Islam. 77 Lack of Chaplaincy and inmate led services coupled with this tradition that inmates hold deep 70 supra, note 68 at 140 71 Popeo, supra,note 68 at 147 72 supra 73 supra 74 Facts and Fictions about Islam in Prison: Assessing Prisoner Radicalization in Post 9/11 America, Institute For Social Policy and Understanding (Jan. 2013) http://www.ispu.org/pdfs/ISPU_Report_Prison_SpearIt_WEB.pdf 75 Popeo, supra,note 68 at 138 76 SpearIt, Muslim Radicalization in Prison: Responding with Sound Penal Policy Or The Sound of The Alarm? 49 Gonz. L. Rev. 37, 60 (2013-2014 77 supra, note 76
  13. 13. animus from their experiences with the criminal justice system, provides a conclusion that prison Islam could be spread easily within the prison system.78 Although there have been reports of inmates, such as Richard Reid79, who were know to be radicalized in prison, it has been established through invesitgations and interviews with friends and family that these inmates adopted their extremist views well after they were released from prison.80 Reasearch has shown that the number of cases in which a recent inmate was involved in a terrorist attack is extremely small. 81The Islamic religion has been known to provide prisoners peace and normativity while incarceratied82 Islam has helped many inmates lead more productive lifestyles, especially for those trying to escape the gang lifestyle because it provides them an opportunity to “take a right instead of a wrong” and drop their baggage of hate and malice.83 As a strictly disciplined religion, Islam teaches inmates abstinence from drugs, alcohol and cigarettes cigarettes.84 It provides stablility and structure in an inmates life through communal prayer and Quranic recitation.85 Inmates are able to change their self image and maintain a positive identity that help them look past “being a criminal.”86 78 supra, note 76 79 Popeo, supra, note 68 at 138 (Reid was convicted of attempting to blow up an American Airines flight using explosives in his shoe) 80 supra, note 72 81 SpearIt, supra, note 76 82 supra, note 72 83 supra, note 72 84 supra 85 supra 86 supra
  14. 14. III Analysis Many Prison regulations have been enacted in order to prevent the spread of homegrown terror in the form of “prison Islam” within the Prison System.87 Policies that have required an increase in supervision over inmate led religious services and extensive requirements for Chaplains, are some of the few regulations, recently adopted by the Bureau of Prisons.88 However with the increasing number of religions within society today, including the many facets of Islam, coupled with the rapid change in prison policies and practices an issue arisies which questions the constitutionality of these policies in regard to the First Amenmdnet and RLUIPA. Although there has been some litigation regarding some of the policies enacted by facilities, they have yet risen to the level to file for a writ of certerorari, or have yet to enter the court system. Lack of a religious Chaplain, specifically Muslim Chaplains, is an issue that has appeared in some litigation, but has not become binding law as of yet.89 As stated within this note, in regard to Jihad v. Fabian, the court held that the lack of a Muslim Chaplain did not rise to the level of substantial burden on Muslim Prisoners ability to practice his religion.90 It could be strongly argued that no access to a religious chaplain, in any religion, could be a substantial burden on an individuals free exercise, because religious leaders are the center point in congressional services. Prisoners, especially are burdened by this lack of religious leadership because they are confined to one facility and have little control over the matter, so as a result, they are often left without a chaplain to lead their religious services. Unfortunatly this lack of 87 Popeo, supra note at 148 88 U.S. Dept. of Justice. Office of the Inspector General: Review of the Bureau of Prisons’ Selection of Muslim Services Providers, OIG.gov, https://oig.justice.gov/special/0404/ (last visited December 20, 2015) 89 Jihad v. Fabian, 680 f.Supp.2d 1021 (D. Minn. 2010) 90 Id. at 1026
  15. 15. religious leaders is not a result of a prohibition by prison officials, but a snowball effect that was created after the regulations regarding the appointment of chaplains was enacted.91 Increased regulations in the appointment of Chaplains and the requirements they must abide by, can easily be traced to this lack of Chaplains in the Prison system today and the issue becomes whether or not these regulations violate a Prisoners free exercise of their religion under RLUIPA. Extensive back ground checks, drug tests and educational requirments, are just some of the many conditions, aspiring chaplains must meet in order to work in the Prison system.92 These regulations were created in order to prevent radicalized ideologies from entering the prison system and influencing the population of inmates. As held in Cutter v. Wilkinson, the courts, in applying RLUIPA, must give due deference to the experience and expertise of jail administrators.93 Prison enviroments are of a particular expertise, because of the amount discipline needed to maintain a stable and safe environment for all those who enter them. Prison officiasl are in the best position to decide what is best for the facility, therefore, there is a strong belief that, in regards to regulations of aspiring Chaplains, the Court would give due deference to Officials and uphold the policies.94 In regard to the lack of Chaplains within the prison system, the Court will most likely find no substantial burden placed on prisoners, as a result, because facilities are not prohibiting Chaplains from entering the prisons, there is just a lack in general. Although it could be argued that this lack is the result of prison policies regulating chaplains, the Court in aaplying RLUIPA in prison settings will most likely strike down the argument because due deference will be given 91 supra, note 88 92 supra, note 88 93 Cutter v. Wilkinson, 125 U.S. 2113 (S. Ct. 2005) 94 Id.
  16. 16. to prison officials and facilities have not prohibited Chaplains or congregational services from being held.95 As a result of the shortage of religious leaders in prison facilities, many Prisons have allowed for religious services to be led by inmates, but with constant supervision.96 It could be strongly argued that this requirement for constant supervision, could substantially burden a prisoners free exercise of his religion under RLUIPA and as held in Holt v. Hobbs.97 If a case were to be brought through the court system, it could be strongly concluded that the plaintiffs argument would be struck down for a number of reasons. The Court would most likely not be able to identifiy a substantial burden because the congregational services were not prohibited within the facility and prisoners still had access to them.98 Even if there was an identified substantial burden, the Court would still uphold the policy because safety and prevention of raicalized ideologies is a compelling governmental interest and in order to achieve that interest, constant supervision of inmate led religious services is the least restrictive means.99 Like in Holt v. Hobbs, in which the Court struck down the policy because it was not the least restrictive means to achieving a governmental interest, the Court would most likely uphold the policy in 95 Id. 96 .S. Dept. of Justice. Office of the Inspector General: Review of the Bureau of Prisons’ Selection of Muslim Services Providers, OIG.gov, https://oig.justice.gov/special/0404/ (last visited December 20, 2015) 97 Hobbs, 135 U.S. at 861 98 42 U.S.C.A §2000cc-1 (West. Supp. 2015), see also, Hobbs, 135 U.S. at 861 (The Plaintiff has the burden of showing that a substantial burden was placed on their free exercise.) 99 42 U.S.C.A §2000cc-1 (West. Supp. 2015), see also, Hobbs, 135 U.S. at 861 (The Government must show a compelling Governmental interest and that they used the least restrictive means to achieve that Governmental interest)
  17. 17. this kind of case, because safety and stability are compelling interests within prison facilitites and they employed the least restrictive means in order to achieve that interest.100 Prison facilities are, often, unstable enviroments in which anger, and hoplessness run rampant throughout the population of inmates. After the attacks that took place on 9/11, fear of terrorism coupled with the statements made by Warith Deen Umar, led the Government on a quest to prevent the spread of prison Islam and homegrown terror. Susceptible to radical influences, prisoners, angered with the system and plagued with a feeling of hopelessness, often, gravitate towrd group or ideals that make them feel empowered and confident. Many Government Officials including the Inspector General, have made statements reagarding this matter and have emphasized the urgency of creating policies that would prevent the spread of radical ideologies.101 However, radical Islam within the Prison system, may not be as prevelant as the Govenrment believes it is. The cases of Richard Reid and Jose Padilla , are just two of the handful of cases which fuel the Governments argument that terrorism is being created in our prison systems.102 However, through these cases, it is very difficult to prove that these prisoners were actually radicalized in prison. Many reports, specifically from the friends and family of these individuals, have surfaced stating that the inmates adopted their radical views long after they were released from prison.103 It is not to say, however, that radicalization does not occur. There are a few cases, 100 Hobbs, 135 U.S at 864 101 John W. Popeo, Combating Radical Islam in Prisons Within the Legal Dictates of the Free Exercise Clause, 32 New Eng. J. on Crim. And Civ. Confinement 135 (2006) 102 supra, note 101 (Reid was convicted of attempting to blow up an American Airlines plane using explosives in his shoe and Padilla was arrested for his attempted detonation of a dirty bomb) 103 supra, note 101
  18. 18. such as the case of Warith Deen Umar, in which radical ideologies had infiltrated the prison population, but there are only few, indicating that prison Islam may not be as common as believed.104 Terrorism, unfotunatly, is a subject that is a leading concern in society today. With terrorist groups such as Isis on the rise and attacks occurring more frequently, like the recent attacks that occurred in France, many are beginning to blame Islam for the violence that has occurred. As a result of these events, Muslims across the country have been discriminated against because of their beliefs, especially Muslim inmates within the Prison facility. Although many have misinterpreted Islam as being a violent religion, it has actually left positive affects on many, especially prisoners.105 Islam, by character, is a disciplined religion, which requires members to follow strict guidelines, special diets and abstinence from alcohol and drugs.106 Prisoners benefit from Islam, because it helps them maintain the structure they so desperately need. Unfortunatly, those who have entered the prison system, wil most likely filter through it many times within their lives, because they lack the discipline needed to function in society. Islam provides inmates a chance to lead a successful life not only inside but outside of the prison system. Through prayer and structure, prisoners are able to maintain positive internal attachments.107 They are able to maintain an identity and stray away from the belief that all they are are criminals. This is 104 Jason Villemez, 9/11 to now: Ways we have changed, PBS(September 14, 2011 at 4:55 PM EST) http://www.pbs.org/newshour/rundown/911-to-now-ways-we-have-changed/) 105 Facts and Fictions about Islam in Prison: Assessing Prisoner Radicalization in Post 9/11 America, Institute For Social Policy and Understanding (Jan. 2013) http://www.ispu.org/pdfs/ISPU_Report_Prison_SpearIt_WEB.pdf 106 supra 107 supra, note 105
  19. 19. extremely important for inmates, especially when they are released from the facility, becase if they are able to maintain a more positive self image, they will be more likely to succeed outside of the prison walls. Plagued by this hysteria that is homegrown terror, many, including the Government refuse to look past the actions led by those who have perverted the Koran, to see that Islam is a positive ideology. Promoting positivity, stability and discipline, Islam is a religion that emphasizes structure and has proven to be beneficial to many, especially those within the prison systm who lack the skill deemed necessary to lead successful lives outside of the prison walls. IV Conclusion

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