Wednesday, September 12, 2007

Consitution School

Prison Religion & The Arrest Clause

First Amendment and Prison Libraries

Federal prison libraries are being raided.

U.S. Constitution: First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Bureau of Prisons has cleared the shelves of federal prison libraries of all religious texts not on an approved list.


In order to combat terrorism and violence of course.

Huh? Whatsast you say?

Seriously. The Bush administration, champion of religious freedom for evangelicals everywhere, has trashed religious libraries for...wait for it...reform jews, Muslim, Catholics, Mormons, and other religions, limiting all prisoners to just 150 books and 150 tapes/CDs each per approved religion from an approved list. An approved list of religious books? WTF?

What books are on this list and who selected them?

Removed from the shelves, books and recordings used daily in prison for 20-30 years by deeply devout Jews and Muslim inmates donated by regional congregations.

And here's the real Catch-22. The government didn't provide any additional funding to go with the list of authorized books -- just "These are the only books and recordings you may have." After prison authorities pulled everything not on the list off the shelves, many prisons were left almost empty of religious material.
NY Times

Chaplains were directed by the Bureau of Prisons to clear the shelves of any books, tapes, CDs and videos that are not on a list of approved resources. In some prisons, the chaplains have recently dismantled libraries that had thousands of texts collected over decades, bought by the prisons, or donated by churches and religious groups.

Some inmates are outraged. Two of them, a Christian and an Orthodox Jew, in a federal prison camp in upstate New York, filed a class-action lawsuit last month claiming the bureau’s actions violate their rights to the free exercise of religion as guaranteed by the First Amendment and the Religious Freedom Restoration Act.

Traci Billingsley, a spokeswoman for the Bureau of Prisons, said the agency was acting in response to a 2004 report by the Office of the Inspector General in the Justice Department. The report recommended steps that prisons should take, in light of the Sept. 11 attacks, to avoid becoming recruiting grounds for militant Islamic and other religious groups. The bureau, an agency of the Justice Department, defended its effort, which it calls the Standardized Chapel Library Project, as a way of barring access to materials that could, in its words, "discriminate, disparage, advocate violence or radicalize."

Ms. Billingsley said, "We really wanted consistently available information for all religious groups to assure reliable teachings as determined by reliable subject experts."

But prison chaplains, and groups that minister to prisoners, say that an administration that put stock in religion-based approaches to social problems has effectively blocked prisoners’ access to religious and spiritual materials — all in the name of preventing terrorism.

"It's swatting a fly with a sledgehammer," said Mark Earley, president of Prison Fellowship, a Christian group. "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."

The Bureau of Prisons said it relied on experts to produce lists of up to 150 book titles and 150 multimedia resources for each of 20 religions or religious categories — everything from Bahaism to Yoruba. The lists will be expanded in October, and there will be occasional updates, Ms. Billingsley said. Prayer books and other worship materials are not affected by this process.

The lists are broad, but reveal eccentricities and omissions. There are nine titles by C. S. Lewis, for example, and none from the theologians Reinhold Niebuhr, Karl Barth and Cardinal Avery Dulles, and the influential pastor Robert H. Schuller.

Religious groups that work with prisoners have privately been writing letters about their concerns to bureau officials. Would it not be simpler, they asked the bureau, to produce a list of forbidden titles? But the bureau did that last year, when it instructed the prisons to remove all materials by nine publishers — some Muslim, some Christian.

The plan to standardize the libraries first became public in May when several inmates, including a Muslim convert, at the Federal Prison Camp in Otisville, N.Y., about 75 miles northwest of Manhattan, filed a lawsuit acting as their own lawyers. Later, lawyers at the New York firm of Paul, Weiss, Rifkind, Wharton & Garrison took on the case pro bono. They refiled it on Aug. 21 in the Federal District Court for the Southern District of New York.

"Otisville had a very extensive library of Jewish religious books, many of them donated," said David Zwiebel, executive vice president for government and public affairs for Agudath Israel of America, an Orthodox Jewish group. "It was decimated. Three-quarters of the Jewish books were taken off the shelves."

Mr. Zwiebel asked, "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?"

The lists have not been made public by the bureau, but were made available to The Times by a critic of the bureau’s project. In some cases, the lists indicate their authors’ preferences. For example, more than 80 of the 120 titles on the list for Judaism are from the same Orthodox publishing house. A Catholic scholar and an evangelical Christian scholar who looked over some of the lists were baffled at the selections.

Timothy Larsen, who holds the Carolyn and Fred McManis Chair of Christian Thought at Wheaton College, an evangelical school, looked over lists for "Other Christian" and "General Spirituality."

"There are some well-chosen things in here," Professor Larsen said. "I’m particularly glad that Dietrich Bonhoeffer is there. If I was in prison I would want to read Dietrich Bonhoeffer." But he continued, "There’s a lot about it that’s weird." The lists "show a bias toward evangelical popularism and Calvinism," he said, and lacked materials from early church fathers, liberal theologians and major Protestant denominations.

The Rev. Richard P. McBrien, professor of theology at the University of Notre Dame (who edited "The HarperCollins Encyclopedia of Catholicism," which did make the list), said the Catholic list had some glaring omissions, few spiritual classics and many authors he had never heard of.Schools in.
Is this a violation of the First Amendment and why?

Prisoners don't give up religious freedom at the jailhouse door. They clearly have a right to worship as they see fit. However prisoners don't -- for example -- have the right, even if they're indigenous people of the Americas, members of specific tribes where doing so is central to their religious practices, prisoners have no right to use peyote while in prison. Why? Because the State has an overriding interest in maintain order and discipline in the prison which applies to all prisoners. In this example the BOP is not singling out any one prisoner for specific discrimination based on their religious practices; they are applying the same necessary rules to everyone.

The State may not arbitrarily apply just any rules they choose however. Before they may lay down a rule which goes up against a consitutional right retained by the inmates -- for example, the BOP determining what religions are on an approved list and which religious texts are okay to be carried in a library, just to pick an example randomly -- the State must demonstrate with what is know as "strict scrutiny" that it has a compelling reason for this rule, that there isn't any other way to have handled its problem without imposing this restriction on the constitutional rights of the inmates. That's the threshold test for the courts to even consider if the prison may act this way. To get on the field, the BOP has to meet strict scrutiny. Then it must demonstrate the rule actually works, doesn't violate the constitution on its own grounds, and other stuff.

The BOP loses this fight. But...

I'll bet cash money it won't matter, that even when the inmates win the law suit, they end up losing. Explanation follows...

There are easily other ways the prison system could have handled their concern for religious books which incite violence than basically doing what the constitution flat-out prohibits, establishing a religion.

Government setting up authorized religious texts and non-authorized religious texts is as bad as it gets from a constitutional point of view. If you are either an emerging religion or a major religion with a book not on the approved list (say a reform Judaism book), you're hosed. Government in the United States is not allowed to chose sides between religions. Period.

But it won't matter when it all shakes out in court. Once the prisoners win their case the judge will order the Bureau of Prisons to give them their books, tapes, cds & videos back.

"Oops, your Honor" the BOP will cry. "They've all been destroyed. So sorry." And unfortunately it will exceed -- it actually won't, but he (and it will be a he) will say it does -- exceed the authority of the white male Republican judge sitting on the case.

Final predicted verdict: Prisoners win easily, their old libraries "accidently" destroyed, Bush appointed judge refuses to order sanctions on BOP, no money to replace texts, prisoners screwed, no one gives a damn, one more step towards establishing an approved state religion. And the Supreme Court denies cert.

Article 1 Section 6 and Larry Craig

Remember our special friend Larry?

An interesting Article I argument came to us from Idaho via our favorite legal blog The Volokh Conspiracy.:
Sun Valley Online

If the senator had been a better student of the U.S. Constitution, his arrest may never happened at all, and if the U.S. Constitution is followed, as of course it should be, the senator’s arrest and guilty plea will have to be vacated.

"Senators and Representatives shall be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same." The only exceptions are for treason, felony and breach of peace, and the senator, of course, was charged with a misdemeanor.

Since the senator was on his way to Washington, and did in fact cast a vote on the evening of the day on which he was arrested, his arrest and subsequent questioning were, technically speaking, unconstitutional.

If the senator had flashed the Constitution at the officer as soon as the officer flashed his badge at him, the officer would have had no choice but to release the senator to go on his way.
Here's all of Section 6.
U.S. Constitution: Article I Section 6.

The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.
Yeah, nice try.

But wrong. People really should read the whole section, not just the parts that favor what they want to do. That part about "breach of the peace"? That's what makes this a non-starter. Nothing like a crime to "breach the peace."

As Professor Volokh points out, the Arrest Clause applies only to protection from civil cases, not criminal arrest, as the Supreme Court made clear in Williamson v. United States (1908).

Were it otherwise, no member of Congress could be arrested for drunk driving, fraud, or any other crimes so long as Congress was in session, and while I'm sure they'd give themselves that if they could, we all know that simply isn't so. *waves to Representative Kennedy and former Representative Delay*

You can't stop a member with a civil suit (although you can disrupt a Presidency, *sighs*.) But you absolutely may throw their ass in jail.

Sorry Senator Craig. Your home-state crowd was thinking, but the consitutional approach won't fly.