Putting faith in prison programs, and its constitutionality under Thomas Jefferson's faith-based initiative.

• Author: Davids, James A.

In what appears now to be a bit of theological irony, ... Thomas Jefferson rooted his ideas about [the] doctrine [of separation between church and state not in secularism but] in the religious belief "that Almighty God has created the mind free ... [and, therefore] the Holy Author ... chose not to propagate [religion] by coercion ... as was in his Almighty power to do...." This Court makes no such assertions about the ultimate source of the law it must interpret. Just as the Court asserts no theological expertise in this matter, the Court is also not an expert in the field of prisoner rehabilitation. (1)

--Americans United for Separation of Church & State v. Prison Fellowship Ministries

With these words, the Honorable Robert W. Pratt, Chief Judge of the U.S. District Court for the Southern District of Iowa, attempted to narrow the issues in this significant case involving faith, prison reform, and the Establishment Clause. Yet in specifically excluding these "theological" (actually historical) and prisoner rehabilitation issues, Chief Judge Pratt missed the backdrop essential to understanding the First Amendment issues raised in this case, and foreclosed from the states the tools they "desperate[ly] need" to reduce the crime wave that occurs when prisoners are released. (2)

This Article addresses the issues that Chief Judge Pratt purposely and explicitly omitted in his decision. Part I examines the "faith factor" in prisoner rehabilitation, including the current involvement of religious organizations in prisoner rehabilitation and the question of whether faith transforms the lives of prisoners. Part II discusses the "theological irony" (3) noted by Judge Pratt and confirms what he instinctively sensed: the Founders' intent with respect to the Establishment Clause was to protect the religious conscience of Americans, not to prohibit the flow of public funds to faith-based organizations to perform social services effectively. The effectiveness of the organization providing the service, regardless of whether the organization is religious, irreligious, or a religious, is a primary focus of President Bush's Faith-Based & Community Initiative, (4) which this Article briefly addresses in Part III.

1. THE FAITH FACTOR IN PRISONER REHABILITATION

   Thomas Jefferson realized that faith-based organizations ("FBOs") are often the most effective deliverer of social services, a fact demonstrated when he recommended federal funding for the Roman Catholic Church to provide religious services to assimilate Native Americans into American belief and culture. (5) The effectiveness of FBOs is, of course, not limited to culture assimilation, but is found in many social areas, including prisoner rehabilitation. This Part, after looking at the crisis in America's prisons, discusses the role people of faith play in prisoner rehabilitation (including some promising faith-based programs identified for the U.S. Department of Justice), and then looks at whether faith itself can play a role in rehabilitating prisoners.

   1. American Prisons in Crisis

      The Attorneys General of Virginia, Alabama, Arkansas, Colorado, Florida, Kansas, Missouri, South Carolina, and Texas considered Chief Judge Pratt's examination of prison reform and the Establishment Clause in Americans United for Separation of Church & State v. Prison Fellowship Ministries (6) significant enough to file an amicus brief urging him to uphold the constitutionality of Iowa's contract with Prison Fellowship Ministries. (7) In their brief, the nine Attorneys General reported that their states face a public safety crisis fueled by the dramatic growth in the prison population; according to the Attorneys General, the number of people in state or federal prison jumped from 1,585,586 in 1995, to 2,135,901 in 2004, an increase of almost 35% in this ten-year period. (8)

      This growth in prison population (9) will not abate soon. Pew Charitable Trusts gathered experts to project the prison population in 2011, and they concluded that between 2007 and 2011 the prison population in state and federal prisons will increase by another 192,000 inmates to a total of 1.7 million, a number that exceeds the entire populations of Atlanta, Baltimore, and Denver combined. (10) This new growth carries a hefty price tag of $27.5 billion ($15 billion in new operating costs and $12.5 billion in new capital costs), (11) which must be added to the present cost of $60 billion, which is in turn a tremendous leap over the $9 billion spent in 1980. (12)

      The rising number of prisoners in the past was caused in part by fewer prisoners being released because of stiffer sentencing laws. (13) This drop in release of prisoners was, however, only temporary. Now, because of prison overcrowding and the fact that the tougher sentencing laws only delayed prisoner release, since 95% of all state prisoners are eventually released from prison, the number of prisoners released is actually increasing. (14) The U.S. Department of Justice's Bureau of Justice Statistics ("BJS") reported that "[i]n 2001, 592,000 offenders were released from State prison, a 46% increase over the 405,400 offenders that were released in 1990." (15) In 2003, more than 656,000 state and federal inmates were released to the community. (16)

      The release of hundreds of thousands of prisoners per year has resulted in a crime wave. (17) In 2002, BJS examined the recidivism (defined as re-arrests within three years of release) of prisoners released in 1994. (18) Of the 272,111 prisoners released from fifteen state prisons in 1994, (19) 67.5% had been re-arrested within three years of release. (20) Because not all arrests result in convictions, BJS also reviewed how many prisoners released actually returned to prison. BJS found that of the prisoners released in 1994, 51.8% were back in prison within three years of release, either for parole violations or for the commission of a new crime. (21) In short, two out of three prisoners released from prison are re-arrested within three years, and one out of two prisoners released are sent back to prison within three years.

      In addition to calculating the percentages for re-arrest and re-incarceration within three years of release, BJS calculated the number of crimes the prisoners released in 1994 had committed. BJS found that these 272,111 prisoners had

      accumulated more than 4.1 million arrest charges prior to their current imprisonment and acquired an additional 744,000 arrest charges in the 3 years following their discharge in 1994--an average of about 18 criminal arrest charges per offender during their criminal careers. These charges included almost 21,000 homicides, 200,000 robberies, 50,000 rapes and sexual assaults and almost 300,000 assaults. (22) With an average of almost three arrest charges per former prisoner within three years of release, there are literally thousands of new victims each year from released prisoners.

      The devastating effect of unreformed prisoners, however, is not limited to public safety and the thousands of new victims. Prisoner release affects "public health, economic and community well-being, and family networks." (23) With limited employment prospects, former prisoners struggle with "temptations from old friends, fatigue, employment difficulties, transportation problems, adjustments to a new environment, ... impatience, relational issues with family members and girlfriends, and financial struggles." (24) According to the Urban Institute's study of prisoner reentry, people entering prison have weak educational or vocational skills and limited work experience, along with many health issues (mental health, substance abuse, and communicable diseases. (25) While receiving little help with reintegration upon release from prison, these former prisoners must still face the same challenges that adversely affect their families, their neighborhoods (which typically lack the resources to meet these challenges), and society in general. (26)

      With the violence in prisons spilling into the streets because of the reentry of unreformed prisoners, with public health and safety deteriorating because of reentry, and with at-risk communities being placed even more at risk because of reentry, it is no surprise that the nine Attorneys General who filed the amicus brief in Prison Fellowship Ministries concluded that their correctional systems have failed and "the States are in desperate need of prisoner rehabilitation programs that actually reduce recidivism and are cost effective." (27) These top elected law-enforcement officials recognized that faith-based programs such as Prison Fellowship Ministries, challenged in Iowa, are a viable alternative to failed correctional systems. (28)

   2. The Role of Churches and People of Faith in Prisoner Rehabilitation

      Historically, religious beliefs have influenced the theories underlying punishment and prisoner rehabilitation, and have guided modern corrections. (29) Religious belief was the "foundation for the first U.S. laws governing criminal and delinquent behaviors," (30) and America's "first 'penitentiaries' were founded on the religious philosophy that the offenders should make amends with society and accept responsibility for their own misdeeds." (31) The religious community has historically provided prisoners, ex-prisoners, and their families with goods and services that include clothing, food, shelter, education, substance abuse counseling, victim assistance, and employment. (32) The legacy of religious influence on U.S. penitentiaries continues today, as FBOs provide services to more than seventy million Americans every year, financed by over $20 billion in privately contributed funds. (33) More could certainly be done, since many religious volunteers and FBOs serving their communities are "often starved for public and private financial support, technical assistance, and other help." (34)

      Religious teaching within the criminal justice system "focus[es] on...