Standard P03:02:01: Access to Clergy

By Tate McCotter, NIJO Executive Director

KEY ISSUES:

KEY ISSUES:

Much attention in recent years has been made in the name of freedom of religion, both in the free world and within correctional facilities.  Cases like Holt v Hobbs have spurred further litigation testing how far the courts will go interpreting inmate religious rights with RLUIPA, First Amendment rights and state freedom of religion acts and statutes that now exist in many states.  Providing inmate access to clergy should be provided within policies and procedures in accordance with these rights.  However, this can be a challenging and arduous task for administrators.

The participation of clergy is widely considered and recognized as an important element of religious worship to most individuals, inmates included.   Inmates in custody obviously do not have the right to attend religious services outside of the facility1 so accommodations should be made by officials to permit members of the clergy access for religious services and counseling.  This can be a problematic supply and demand issue for jails.  First, clergy cannot be coerced to participate or extend their services into a jail by administrators.  Clergy nonparticipation may a result of lack of interest, geographic proximity, not wanting to enter a secure facility, not being able to gain security clearance/access based on jail rules, or a variety of other reasons.  Failure to have clergy available for every inmate does not violate the law.2

In Johnson v. Moore3 inmate Johnson claimed that the prison violated his right to freedom of religion because it did not have a paid chaplain of his faith on staff.  The court has held that the Constitution does not necessarily require prisons to provide each inmate with the spiritual counselor of their choosing. The court stated that inmate Johnson could not show that the prisons failure to provide a Unitarian Universalist Chaplain denied him the reasonable opportunity to exercise his faith.

When providing access to various clergy and providing religious services to inmates there are several factors to consider.

 

OPERATIONAL APPLICATION:

  • Examine the inmate population and religious beliefs held by the inmates. Ascertain the different types of religion beliefs held by the inmates and create a list of available and approved clergy.  Note there are some clergy that cannot enter the facility (see Legal Based Guideline P:03.02.02 Eligibility of Clergy to Enter Facilities) because of safety and security violations, which has also been defended by the courts.4   Also note that there are some inmates that may have a sincere religious belief and do not want access to clergy.

 

  • Build on the commonalities whenever possible and without compromising safety and security. Many jails have found that several types of Christian groups effectively shared a common religious service and/or clergy. This is common when although individuals may have their own beliefs they shared one common goal (such as Christianity).  The same can be made for other shared religious sects or faiths.

 

  • If an inmate requests clergy for a faith or religion that isn’t being provided, the inmate can be a good source of information for administrators to locate the clergy (they can provide the name and contact information). Then the clergy can inform them of the request for access.  If the inmate does not know the information, the inmate can let them know where to go to find out the information.  The facility should spend a reasonable amount of time to locate the information through community resources, internet, phone book, other informed clergy, etc.  Reaching out to the community and those resources can be a very effective and productive way to assist in accomplishing this and other related objectives to further the other penological goals and objectives of the jail.

 

  • Policies and procedures should provide access for inmates to clergy without prejudice but certainly can provide restrictions on when such access and services can be accommodated. Note that administrators provide access for inmates to clergy – not the other way around!  Well intentioned clergy may create a proselyting atmosphere if there are not clearly established policies, procedures and rules governing the access.  Officials should not impose religious practices, doctrines, or philosophies on inmates.   Policies should prohibit officials (and clergy/volunteers) from requiring inmates to attend services, speak with clergy, read religions texts, engage in religion based programs, or engage in any other involuntary religious activities or practices.5  Clergy should not be given unfettered unrestricted access.  Safety and security should always be the highest priority.

 

  • While a jail should not deny inmates the opportunity to religious worship, disruptive or dangerous inmates can be denied the opportunity to attend religious services held in group settings.6 These may include inmates who are placed in protective custody, administrative segregation or disciplinary segregation for various reasons.  There will be times when members of the clergy who choose to visit with these types of inmates will have to do so in a more restrictive environment.   Options may include visits through a cell door, in a barrier visitation room, or conducting the visit via video (if available in your facility).   Classification levels should never be compromised for group religious services.7

 

REFERENCES:

  1. Beasley v. Kontek, 433 F.Supp.2d 874 (N.D. Ohio 2006)
  2. McRoy v. Cook County Department of Corrections, 366 F.Supp.2d 662 (N.D. Ill. 2005); see also Ha’mim v. Lewis, 444 F.Supp.2d 715 (M.D. Tenn. 2006)
  3. Johnson v. Moore, 948 F.2d 517 (CA9 1991)
  4. Johnson-Bey v. Lane, 863 F.2d 1308 (CA7 1988)
  5. See Legal Based Jail Guideline P02.02.01
  6. Nelson v. Miller, 570 F.3d 868 (CA7 2009)
  7. Sharp v. Sigler, 408 F.2d 966 (CA8 1969); Gonzales v. Narcato, 363 F.Supp.2d 486 (E.D. N.Y. 2005); Allah v. Al-Hafeez, 208 F.Supp.2d 520 (E.D. Pa. 2002); Benford v. Wright, 782 F.Supp. 1263 (N.D. Ill. 1991)

 

DISCLAIMER:

The training materials provided are for use only within the scope of your jail and may not to be distributed otherwise without written permission by NIJO.  The information contained herein is to be used solely for training purposes and shall not be construed as legal advice.  Users of these materials should consult legal counsel to determine how the laws of their individual jurisdiction affect the application of these materials and guidelines to their individual circumstances.

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