Separation of Church and State

The Bureau of Prisons' violation of the
1st Amendment to the U.S. Constitution

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How the Bureau of Prisons established religion, and prohibiting the free exercise thereof:

In 2004-APR, the Office of the Inspector General of the U.S. Justice Department issued a report expressing concerns that federal prisons might become recruiting grounds for militant, violent religious groups. It recommended that inmate's access to religious books be limited. In 2006, the Bureau of Prisons (BOP) first provided the prisons with a list of nine publishers -- some Christian and others Muslim --who produced hate literature. They instructed the prisons to remove all materials by these publishers.

The BOP also concluded in a report that:

"The presence of extremist chaplains, contractors or volunteers in the BOP's correctional facilities can pose a threat to institutional security and could implicate national security if inmates are encouraged to commit terrorist acts against the United States." ₁

USA TODAY stated that the BOP review:

"... suggested audio and video monitoring of worship areas and chapel classrooms, and screening of religious service providers. It also recommended that prisons reduce inmate-led religious services and consider constant staff monitoring of inmate-led services." ₁

In 2007, the Bureau formed the Standardized Chapel Library Project in an effort to prevent inmates from accessing material in chapel libraries that might "discriminate, disparage, advocate violence or radicalize" them. Bureau spokesperson, Traci Billingsley, said: "We really wanted consistently available information for all religious groups to assure reliable teachings as determined by reliable subject experts." ₂

The Bureau arranged with a secret group of religious experts who included prison chaplains, seminary scholars, and members fo the American Academy of Religion. They provided a list of up to 150 book titles and 150 multimedia resources for each of 20 categories including the Baha'i faith, Buddhism, Roman Catholic, General Spirituality, Hinduism, Islam, Jehovah's Witnesses, Judaism, Messianic, Mormon, Nation of Islam, Native American, Orthodox Christian, Christian Science, Pagan, Protestant, Rastafarian, Sikh and Youruba. ₃ Prayer books and other worship materials were allowed as well. The Bureau plans to update the lists on a yearly basis.

Prison chaplains then started to purge the libraries of material not on a list of permissible resources. These included books, tapes, CDs, videos, DVDs etc. In some cases, major collections of thousands of texts were eliminated. Unfortunately, the Bureau did not provide any funding to purchase materials on the approved list that were not in the library. The result was that after the banned books were removed from some libraries, few material remained.

Reactions to the BOP program:

Some chaplains, groups who minister to prisoners,  and inmates were outraged.

“It’s swatting a fly with a sledgehammer. There’s no need to get rid of literally hundreds of thousands of books that are fine simply because you have a problem with an isolated book or piece of literature that presents extremism."  ₂

"I'm outraged to learn that you've been purging federal prisons of hundreds of books on religion, thus denying inmates their religious freedom as protected by the First Amendment."

"It is not the place of the Federal Bureau of Prisons to decide which books contain 'reliable teachings,' especially if that means denying access to best-selling titles and famed theologians."

"I respectfully request that you put an end to this absurd policy and immediately return the censored items to library bookshelves." ₄

Sojourners' members sent over 15,000 Emails within the first 48 hours after the Email writing campaign was started. ₅

“At some of the penitentiaries, guys have been studying and reading for 20 years, and now they are told that this material doesn’t meet some kind of criteria. It doesn’t make sense to them. They’re asking, 'Why are our tapes being taken, why our books being taken'? ... Many of the chaplains I’ve spoken to say these are not the things they would have picked [to be on the approved list]." He believes that the Project is not needed because chaplains routinely cull any material that incites violence or disparages groups. Also, donated materials are approved by prison officials.

"We must ensure that in America the federal government is not the undue arbiter of what may or may not be read by our citizens." ₅

Representative Jeb Hensarling of (R-TX) chairman of the committee, said:

"Anything that impinges upon the religious liberties of American citizens, be they incarcerated or not, is something that’s going to cause House conservatives great concern." ₅

"Otisville had a very extensive library of Jewish religious books, many of them donated. It was decimated. Three-quarters of the Jewish books were taken off the shelves. ... Since when does the government, even with the assistance of chaplains, decide which are the most basic books in terms of religious study and practice?"

"Government does have a legitimate interest to screen out things that tend to incite violence in prisons. “But once they say, 'We’re going to pick 150 good books for your religion, and that’s all you get,' the criteria has become more than just inciting violence. They’re picking out what is accessible religious teaching for prisoners, and the government can’t do that without a compelling justification. Here the justification is, the government is too busy to look at all the books, so they’re going to make their own preferred list to save a little time, a little money."

"There are some well-chosen things in here. I’m particularly glad that Dietrich Bonhoeffer is there. If I was in prison I would want to read Dietrich Bonhoeffer. ... There’s a lot about it that’s weird. [The lists] ... show a bias toward evangelical popularism and Calvinism."

He found that the lists lacked writings by the early church fathers, liberal theologians and major Protestant denominations.

"I would be completely sympathetic with Catholic chaplains in federal prisons if they’re complaining that this list is inhibiting because I know they have useful books that are not on this list." ₂

"In our world and especially in a prison system, where religious faith often seems to divide, my friends in Life Connections, assisted by their extensive religious library, deepened not only their faith but had a profound and positive impact upon Leavenworth federal prison. The purging of religious books from a federal institution hampers not only the discipleship of prisoners, but it should cause us to pause and ask ourselves how this happened in the name of freedom and safety." ₆

"It’s very important to have as much material as possible. What I know of Islam, and what I’ve been able to practice so far, has been as a result of the literature and the books I’ve been able to get ahold of. Unfortunately this purge has curtailed our short supply. ... I’ve seen the list of approved books, and 99 percent of them, we never had to begin with"

He mentioned that inmates were only allowed to keep five books of their own.

"We are outraged to learn that the Bureau of Prisons is removing religious texts from prison chapel libraries based solely on whether or not the books are on a short list of ‘approved’ religious books. A government agency should not have the right to determine what religious texts are 'appropriate' when our Constitution promises not only freedom of speech, but also freedom of religion. Moreover, it is illogical that the Bureau of Prisons is removing the very resources that may help incarcerated persons change their lives for the better.  The idea that removing religious books will create better citizens is ridiculous, and goes against the democratic fiber of our society."

"While we understand the need for prisons to maintain a safe environment and prevent terrorism, the problems addressed by the Bureau of Prison's policy are better solved by evaluating and restricting a particular resource, instead of denying prisoners access to a broad range of books they want and need." ₇

"... a policy that places an arbitrary numerical cap on the religious books and documents available to incarcerated persons infringes on their right to freedom of religious worship, observance and practice, and violates the Religious Freedom Restoration Act."  
 
"Under the Act, federal officials cannot substantially burden prisoners’ religious freedom unless they can demonstrate that the burden represents the least restrictive means of advancing a compelling governmental interest. In this case, the undoubtedly compelling interest in preventing violence and promoting prison security can be satisfied by means far less restrictive than a wholesale purge of all but a few religious texts."  
 
"An arbitrary cap is also inconsistent with international standards. The UN Standard Minimum Rules for the Treatment of Prisoners states in Rule 42 on Religion that '[s]o far as practicable, every prisoner shall be allowed to satisfy the needs of his religious life by … having in his possession the books of religious observance and instruction of his denomination'."  
 
"For many prisoners, religious texts are a crucial component in the process of rehabilitation and self-examination, a process that can help them safely and productively re-enter the community when they are released from prison."  
 
"The Bureau of Prisons should not set an arbitrary limit on the number of religious texts available to prisoners, and should ban only those texts that pose a demonstrable risk to prison security." ₈

Three inmates at the Federal Prison Camp in Otisville NY -- -- filed a lawsuit. One of the inmates is a recent convert to Islam; the others are a Christian and Jew. At first, they acted as their own lawyers. Later, lawyers at the New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison took on the case pro bono. They refiled the suit on 2007-AUG-21 in a Federal District Court.

The constitutionality of the Bureau's lists:

The constitutionality of creating a list of materials that contained "reliable teachings as determined by reliable subject experts" is troubling.

Prison Fellowship has indicated a number of concerns -- constitutional and otherwise -- about the book removal project:

Current status:

Reacting to strong condemnation from religious groups of all types -- from fundamentalists to progressives, civil libertarians, and members of Congress, the Bureau of Prisons decided to temporarily suspend the program. Books and other religious materials were taken out of storage and restored to the prison chapel libraries. The bureau distributed an Email on 2007-SEP-26 stating:

"In response to concerns expressed by members of several religious communities, the Bureau of Prisons has decided to alter its planned course of action with respect to the Chapel Library Project."

"The bureau will begin immediately to return to chapel libraries materials that were removed in June 2007, with the exception of any publications that have been found to be inappropriate, such as material that could be radicalizing or incite violence. The review of all materials in chapel libraries will be completed by the end of January 2008." ₁₀

Moses Silverman, a lawyer for three prisoners at Otisville, said:

"Certainly putting the books back on the shelves is a major victory, and it shows the outcry from all over the country was heard. But regarding what they do after they put them back, I’m concerned."

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "Inmates sue over clearing of religious books from libraries," USA TODAY, 2007-JUN-10, at: http://www.usatoday.com/
2. Laurie Goodstein, "Prisons Purging Books on Faith From Libraries," The New York Times, 2007-SEP-10, at: http://www.nytimes.com/
3. " 'Standardized Chapel Library Project' lists," The New York Times, 2007-SEP-21, at: http://www.nytimes.com/
4. "Take Action: Stop Censoring Prison Libraries," Sojourners, at: http://go.sojo.net/
5. Laurie Goodstein, "Critics Right and Left Protest Book Removals," The New York Times, 2007-SEP-21, at: http://www.nytimes.com/
6. Kevin Lum, "Karl Barth Belongs in Prison," God's Politics blog, 2007-SEP-14, at: http://blog.beliefnet.com/
7. Norman Oder, "ALA President Criticizes Bureau of Prisons, Just Before Policy Change Regarding Removal of Religion Books," American Library Association, 2007-SEP-27, at: http://www.libraryjournal.com/
8. David Fathi, "Human Rights Watch Urges Federal Bureau of Prisons Not to Re-Institute Broad Ban of Religious Books," Human Rights Watch, 2007-OCT-19, at: http://hrw.org/
9. "Bureau of Prisons: Standardized Chapel Library Project," Prison Fellowship, 2007-SEP, at: http://www.justicefellowship.org/
10. Neela Banerjee, "Prisons to Restore Purged Religious Books," The New York Times, 2007-SEP-27, at: http://www.nytimes.com/

Copyright © 2007 by Ontario Consultants on Religious Tolerance
Original posting: 2007-DEC-14
Last updated 2007-DEC-14
Author: B.A. Robinson