Barring Faith

Published Date: July 17, 2006 | Topics: Constitutional Issues, Religion

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by Robert George & Gerald Bradley  | July 17, 2006 12:00 AM

TO FULLY APPRECIATE the wrong headedness of a federal district court’s recent decision expelling a faith-based program from an Iowa prison, it is necessary first to take a backward glance at the history of religious involvement in corrections in the United States.

As long ago as 1790, some Philadelphia notables sought an alternative to capital punishment, then the statutory penalty for many felonies. Most of these reformers were Quakers, and they found their alternative in long-term imprisonment. The Quakers built the country’s first prison–right behind Independence Hall. Then they faced another challenge: How would the prisoners spend their years of confinement? Most important, what would be the overriding aim of “doing time”?

The Philadelphians decided they would try to transform the criminal’s character. To do so, they imposed a regimen of solitude, hard work, and religious renewal. They sought to convert the offender–not to a particular church, but to a God-fearing life of decent behavior. While it was easy to see that society would gain, the Quakers were motivated by what they considered their Christian duty to attend to their erring brothers.

The Quakers’ approach caught on, and it gave the institution they created its generic name: penitentiary, as in “penitent.” More recently, the “pen” has come to be called a “correctional institution.” Same basic idea.

Similarly, for a long time in America, state authorities sent misbehaving kids to “asylums” or “reform schools” run by church groups. Perhaps the most famous product of these institutions was a boy named George, who at age 7 was deposited by indifferent parents at Saint Mary’s Industrial School for Boys in Baltimore in 1902. (About half the residents of Saint Mary’s were sent there by courts.) A Roman Catholic order, the Xaverian Brothers, ran the place. When he was just 19, George Herman “Babe” Ruth signed to play with the Boston Red Sox.

Religious groups were squeezed out of the “corrections” picture a long time ago. Sunday services in prisons never stopped, of course, and chaplains were usually on hand. But the religious purpose of punishment–to reform character, to prompt an inner change, to convert the miscreant–had mostly withered away by the turn of the twentieth century. Prisons became unforgiving places where hard men did hard time.

In the mid-1960s another sea change swept through the criminal justice system. Once again the idea was to make men better, this time via “rehabilitation.” This “triumph of the therapeutic” largely supposed that criminal behavior was not chosen, but rather was caused by personal maladjustment and oppressive social conditions. Prisoners could be improved by counseling, vocational training, and a better environment. It didn’t work very well, and that particular era of good feeling soon passed.

The tide had turned again by 1985. The primary aim of punishment became simply to keep criminals off the streets. Thus, we warehouse dangerous people. First-time offenders may receive leniency. But two strikes and you are out of circulation for a long time. Three whiffs and you are probably doing life. This plan is working, in that crime rates are way down.

But the prisons are full. The Quakers’ question about the point of doing time is now largely a redundancy: The point of doing time is just that, to be isolated from the law-abiding citizens on whom criminals prey. Far from aiming to transform anyone’s character, this system seems to suppose that few prisoners will be reformed.

Nevertheless, courts and corrections authorities understand that it would be better for all concerned if prisoners actually did mend their ways. Everyone wins when a prisoner discovers that he would rather, after all, be good. He is happy. The people who might otherwise be his victims are happy. And the government is spared the burden of further warehousing him.

To forestall recidivism, then, is still a goal of prisons–a secular purpose if ever there was one. But how to do it? Reforming character is no longer part of the “corrections” skill set. Prison authorities are most keenly interested in security: No one escapes, no one injures a guard, there are no gang wars. Meanwhile, the dramatic secularization of our constitutional law makes it impossible for the contemporary state to do what the Quakers did–deliberately foster religious renewal. Even on the subjects of morals and character, those who run prisons have to tread carefully lest they be seen as trying to impose religious morality.

So anyone who would combat recidivism faces a puzzle: How to instill in a prisoner the personal qualities that constitute decent character and will be indispensable to a law-abiding life outside–self-respect, responsibility, integrity, respect for others, pride in accomplishment, gratitude–without pushing religion? If prisons are going to attempt moral reform, they will have to do it indirectly, in creative partnership with private groups. That is because the groups that are in the character-forming and transforming business tend to be religious. Reforming prisoners, then, offers a terrific opportunity for “faith-based” social services, provided through cooperation between institutions of civil society and government, for the common good.

In no other arena is this cooperation more fitting. When it comes to “rehab” programs for inmates, for the drug-addled, for the alcoholic–when it comes to any service that engages the will, individual choice, the character of the recipient–government is necessarily ham-handed. Changing minds and hearts is not the strong suit of the bureaucrat. Instead, it is private charities, especially religious ones, that have the skills, the motivation, the experience. And they perform–none more successfully than Prison Fellowship.

Charles Colson founded Prison Fellowship shortly after his release from prison in 1976 for Watergate misdeeds. What began as a simple prison ministry has grown into a model for the faith-based delivery of needed “secular” services.

But on June 2, Iowa federal district court judge Robert W. Pratt threw a huge roadblock in its way by declaring the work of Prison Fellowship in an Iowa prison to be an unconstitutional violation of the First Amendment’s prohibition of “laws respecting an establishment of religion.” What’s worse, the judge’s reasoning threatens the very concept of faith-based social services in partnership with government–an idea supported by politicians from Bill Clinton to Bill Frist and endorsed in the 2000 presidential campaign by both Al Gore and George W. Bush.

What happened in Iowa? On March 24, 1999, Prison Fellowship and its affiliated ministry InnerChange Freedom Initiative (IFI) contracted with the Iowa Department of Corrections to provide programs at the Newton Correctional Facility. Prisoners would not be required to participate. In the words of the Iowa judge, IFI is “a faith-based program designed to transform prisoners into good citizens, to reduce the recidivism rate of current inmates, and to prepare inmates for their return to society by providing educational, ethical, and religious instruction.” Those 18th-century Quakers would have understood.

According to Warden Terry Mapes at Newton, anyone could see the results–the transformation of the prisoners enrolled in IFI. “It’s the pro-social behavior. It is the thing that we hope [in] corrections will make a difference.” For a relatively modest sum of money, the warden said, he got “a substance abuse program, . . . a victim impact program, . . . a computer education program,” and a lot more. It sounds like a partnership that was good for the prison, the in mates, and the community at large.

What’s more, the court found “no evidence” that promoting religion was the program’s main concern. On the contrary, it concluded that state officials’ “primary purpose” in awarding the contract was “to reduce recidivism among Iowa inmates.”

So, why did Judge Pratt say the warden’s contract with IFI violated the Constitution? Three related arguments can be discovered in the court’s sprawling and undisciplined opinion.

The first reason is the judge’s startling conclusion that Prison Fellowship and IFI are, in fact, “state actors” and thus are no more permitted to espouse Christianity (or any other faith) than is the state of Iowa itself. The court declared that reducing recidivism was a “state function” and, apparently, that anyone who contributed to its discharge was a “state actor.” From there the court proceeded readily to its conclusion, for it is indeed the law under the First Amendment that states may not prefer one religion to another. IFI, a Christian ministry, clearly does.

By this reasoning, of course, not only comprehensive anti-recidivist programs inside prisons, but also all sorts of faith-based programs outside (pre- and post-conviction) plausibly viewed as “anti-recidivist” would be illegal.

The second reason the court gave was alleged “coercion.” Both Prison Fellowship and IFI are nondenominational Bible-based ministries, and advertised themselves as such to Iowa prisoners. No one was required to participate in their activities. Even after inmates had chosen to participate, they remained free to leave the program and return to the usual prison routine. Inmates who chose to participate were not required to convert to Christianity. They were told from the outset what the expectations and content of the program were. And every inmate who testified at the Iowa trial said he was promised nothing by the prison authorities for enrolling in IFI. Each testified that it was his personal choice to participate–uncoerced and unbribed.

The court brushed aside these inconvenient facts with the observation that prisons are “inherently coercive environments.” Somehow this negated the freedom of choice that participants in IFI said they had experienced. What’s more, any chance that the ill effects of the court’s reasoning can be confined to faith-based programs inside the coercive environment of prisons is diminished by the court’s analogy to a separate case, one involving a homeless shelter in Idaho run by a religious group. Someone enrolled in a program at the shelter challenged the expectation that he would attend religious meetings. This plaintiff, although participating in the program voluntarily, resented having to give a reason for not attending a particular religious meeting.

The Idaho court ruled that expecting an explanation–which could be as succinct as “I am a Muslim”–violated the Constitution. Because the Christians running the shelter had a service contract with the government, according to the Idaho court, they were a “surrogate” for the state. Just as the state of Idaho or the city of Boise may not ask why you don’t want to pray, so too the Christians offering you shelter. They have to behave, in other words, as if they are the state of Idaho or the city of Boise.

And this brings us to the third and most important reason the court found for its ruling, the one that undermines the very concept of faith-based social services provided at public expense. The Iowa court said that there is “no set of circumstances under which state funds could support the transformational values-based treatment methods employed in the InnerChange Program.” The reason was that the “secular” and the “sectarian” aspects of its programming were inseparable. That made IFI “pervasively sectarian.” Judge Pratt cited Supreme Court cases saying that “pervasively sectarian” institutions may not receive direct government grants. (These dubious precedents, with their complicated tests and definitions, are themselves under continuing attack, both on the High Court and among commentators. But that is a story for another day.)

What the Iowa court did, then, was point a dagger at the heart of the faith-based provision of social services. Of course IFI is “pervasively sectarian,” if that means that religion is an ineradicable element of its programming and is believed to be essential to the program’s success. According to Judge Pratt’s logic, if religion is an integral component of a provider’s programs, then that provider may under no circumstances receive government grants.

Prison Fellowship and IFI have announced their intention to appeal this appalling decision. Anyone who supports the faith-based charitable initiative now seeking firm footing in our legal culture should support that appeal. But those whose specific concern is to help people behind bars should be in the vanguard of seeking the reversal of Judge Pratt’s ruling.

Charles Colson and his group have done this country and many thousands of imprisoned souls a great but largely unheralded service these 30 years. They do not do it for praise. But it still smarts when a federal judge kicks them in the hindquarters for their effort.

And this is precisely what Judge Pratt did. He charged the state of Iowa and IFI with the “intentional choice” to “inculcate prisoners as a treatment for recidivist behavior.” And for that offense, he said, not only must IFI cease to receive public payment, but it must repay all the money expended at the Newton facility–despite the fact that Prison Fellowship won its contract in a fair competitive bidding process and fully delivered the services it had agreed to provide. In effect, then, IFI and Prison Fellowship are being fined $1.7 million for the sin of violating a Constitution that exists only in the mind of Judge Pratt.

The Quakers of Philadelphia are turning over in their graves.

Robert P. George is McCormick professor of jurisprudence and director of the James Madison Program at Princeton University. Gerard V. Bradley is professor of law at the University of Notre Dame.

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