This is the first in a three part series regarding the exercise of religion within today’s jails. Decisions whether to allow or restrict an inmate’s ability to exercise their faith requires a balancing between respecting the inmate’s Constitutional Rights and the need to maintain institutional safety and security. No longer can an administrator just say “No”. The rationale for the decision is critical as well as considering alternative ways for the inmate to exercise their faith. This series of articles will lay out the historical journey of religious exercise within an institutional setting, beginning with the Free Exercise Clause. The second article in the series, will analyze The Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) and the current standard guiding religious exercise as imposed by the Legislature; and lastly, the series will end (for now) with an overview of the most current religious cases and how the various correctional facilities throughout the United States are applying the standards articulated in both Turner v. Safley and RLUIPA. It is an area of the law whether the waters are murky. It is wise for every correctional administrator to have a firm grasp of what is required before denying or restricting an inmate’s religious request. The time of digging in one’s heels and saying “no” has long since passed.

The First Amendment states,”Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise thereof [ ].” Correctional officials face the challenge then of balancing the institution’s need for safety and security with an in¬mate’s religious freedoms. However, with¬in the confines of the correctional setting,freedom to believe is not equivalent to the freedom to practice. Herein lies the dilemma and the reason for countless lawsuits challenging a jail or prison’s policies and procedures, which may in fact restrict religious practices within the institution. In order to understand where we are today with restricting religious freedoms within the institution, a journey back to the genesis of the religious rights case is in order.

In 1987, the United States Supreme Court decided two pivotal and landmark decisions that weighed heavily in favor of corrections officials. They were Turner v. Safley, 482 U.S. 78 (1987) and O’Lone v. Shabazz, 482 U.S. 342 (1987). Decided within only days of one another, both cases outlined the standard by which all First Amendment cases would be analyzed. What has become known as the “Turner” test allows restrictions on an inmate’s First Amendment rights where a valid, rational connection between the restriction(s) and a legitimate govern-mental interest exists. The Supreme Court laid out four factors to be considered when determining whether a regulation, in this instance, on religious exercise, violates an inmate’s constitutional rights:

  1. Whether there exists a “valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it;”
  2. Whether “there are alternative means of exercising the right that remain open to prison inmates;”
  3. “[T]he impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally” and
  4. The existence of obvious, easy alternatives may show that the policy is an ”exaggerated response” to legitimate prison concerns.

The Supreme Court noted that the Turner test balances the need “to recognize the continuing vital¬ity of the constitutional rights of inmates, and the fact that incarceration necessarily involves a retraction of some rights.” O’Lone v. Shabazz, 482 U.S. 342 (1987); Madison v. Riter, 240 F.Supp.2d 566 (W.D.Va., 2003). The High Court has also noted again and again that deference to the learned opinions of correctional administers is expected. Thus, the rationale for the decision is critical for the correctional administrator to articulate. In the event that an inmate’s religious requests cannot be granted, articulating any or all the ways and means that they can exercise their faith within the institution is also wise. A strong rationale and the “absence of ready alternatives,” according to Turn¬er, is evidence of the reasonableness of a prison regulation.” Turner, 4-82 U.S. at 89-90.

So how to apply the four-part test? In O’Lone v Shabazz, 482 U.S. 342 (1987), the New Jersey Department of Corrections was faced with just that question. The facts of the case, although paraphrased, are illustrative. Muslim inmates on work crew wanted to attend Jumu’ah, a religious prayer service on Friday afternoons. New Jersey DOC denied the request for the following reasons: Transporting the inmates back to the facility from the work site entailed bringing the entire crew back, since there was only one officer assigned to supervise. This was deemed unacceptable to the institution. Re-entry into the facility caused problems: the inmates and vehicles had to be searched at a high traffic time of the day (numerous deliveries being made etc….). The increased congestion and the curtailment of a normal workday for the inmate work crews was deemed operationally unacceptable to the facility as well. In addition, the creation of “special work crews” for Muslim inmates was also not deemed possible by the institution. These assignments are reserved for higher custody inmates and to avoid selecting a “select group” susceptible of being a cover for possible gang activities which could be viewed as having special privileges to other inmates was also unacceptable to the agency.

Even though New Jersey DOC denied the inmates’ request to attend Jumu’ah on Friday afternoons for all of the reasons articulated above,in the alternative, they allowed the inmates to attend other congregational prayer services during “non-work” hours; an Imam was provided for their spiritual guidance; religious diets were accommodated; and special arrangements made for the inmates during Ramadan.

The Supreme Court found that legitimate governmental interests existed for not allowing the inmate’s to attend Jumu’ah on Friday afternoons and that the agency had articulated the rationales for their decision. Alternative means existed for the inmate’s to still exercise their faith when they were not working. As for the “ripple effect” or impact of allowing an “all Muslim” or “special work crew” for Muslim inmates,this too was not deemed acceptable to the agency as articulated above and therefore the policy,as determined by the United States Supreme Court,was not an exaggerated response to legitimate prison concerns. No First Amendment violation.

Although a much older decision, the decision whether to enforce a hair cutting policy was well articulated in the following case. (Let me qualify by saying that haircutting policies have been litigated throughout the United States. Religious Hair Exemptions should be considered by each agency. In addition, length of stay IS relevant. A hair cutting policy is much easier to enforce in a prison where the expected stay of the inmate is longer than that of a jail. This case is merely an example of one facilities’ “rationale” for their decision-not the advice or opinion of this author). In Meggett v. Pennsylvania Dept. of Corrections, 892 A.2d 872 (Pa. Cmwlth. 2006), while an inmate’s belief that “the Creator Yahweh” mandated that he should not cut his hair was a sincerely held religious belief, a prison policy which limited “Afro style” hair length to four inches was reasonably related to legitimate prison interests in preventing the concealment and transportation of contraband, aiding in the identification of inmates, and improving inmate hygiene. These legitimate interests outweighed any rights the prisoner had to wear his hair in long dreadlocks. Applying Turner, the regulation was upheld. (It is noteworthy that RLUIPA, which will be discussed at length in the next article would more than likely not come to the same conclusion).

Under the First Amendment, whether it is a religious literature question or a religious article request, decisions to deny or restrict must be based on legitimate governmental reasons (i.e. safety and security) NOT because they are religious based. In other words, you are not denying spears in your facility because they are religious in nature, you are denying them because they pose a threat to the safety and security of the institution-specifically, the spear could be used as a weapon and the institution has a duty to protect the inmates etc….This is critical. The request must pose a risk or threat to the safety and security of the institution along with the accompanying rationale statement(s) supporting the decision. Although spears may not be allowed for “religious” use, the inmate would still be allowed to exercise his faith by praying, having access to his religious materials, literature and access to his/her religious counselor/advisor.

Regardless of the request or grievance filed by an inmate, the Turner Test is the four-part analysis that every correctional employee must know AND apply in rendering their decision. It is a phenomenal tool to use in ALL decisions made regarding First Amendment Right questions. Never underestimate the importance of the “rationale” statement. As a wise mentor of mine once said, “…as in football, you do not get penalized for ‘piling it on’”. Your rationale, the “why” is your greatest defense. The Supreme Court extends great deference to administrators so long as they can meet the requirements of the Turner Test. These “rationale statements” are your shield and weapon in the event of litigation and your coat of arms for elevating the level of professionalism in our industry.

In part two of this three part trilogy on religion in today’s jails, RLUIPA will be analyzed. It is the reigning test of RLUIPA, which replaces the Turner test creating some of the greatest challenges for correctional administrators when trying to navigate these religious requests by inmates. Both the Turner test and RLUIPA test are critical for every administrator to know when making decisions regarding inmate requests for religious accommodations.

Carrie Hill can be reached at or 612-306-4831.



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