TABLE OF CONTENTS INTRODUCTION I. THE CONSTITUTIONALITY OF RELIGIOUSLY AFFILIATED PAROLE PROGRAMS: SCHOLARSHIP AND CASE LAW II. EXISTING LAWS, RULES, AND REGULATIONS GOVERNING PAROLE PROGRAMS & PAROLEE RIGHTS A. State Governments B. Federal Government III. CONSTRUCTING NEW RIGHTS AND PROTECTIONS A. Costs and Benefits: Religious Contractors are Successful and Necessary, as well as Constitutional B. Statutory Solutions: Lessons from RLUIPA and RFRA C. Non-Statutory Solutions: Affirmative Rights and Protections CONCLUSION INTRODUCTION
In early 2007, Barry Hazle completed a one-year prison sentence for methamphetamine possession and was released on parole. (1) As a condition of parole, he was required to complete a residential drug rehabilitation program approved by the California Department of Corrections and Rehabilitation (CDOC). (2) The only program available in his region used a version of the so-called "12-Step Program" pioneered by Alcoholics Anonymous (AA). (3) This rehabilitation model required participants to make various religious affirmations, including a belief in God or higher power. (4) As an atheist, Hazle objected to participating in such a program and requested that he be placed in one with a more secular outlook. But since the CDOC had not approved other rehabilitation programs in his area, his parole officer gave him no choice but to participate in the religious one or return to prison. (5) Upon learning of Hazle's reservations, program staff told him: "Anything can be your higher power. Fake it till you make it." (6) When Hazle refused to comply, he was thrown out of the program, declared in violation of parole, and returned to prison, where he remained for an additional 100 days. (7) After filing suit for First Amendment rights violations and six years of ensuing litigation, Hazle's claim was finally vindicated. (8) After the Ninth Circuit overturned a jury verdict for failure to award damages. Hazle settled with the CDOC and the company that managed the religious rehabilitation program for nearly two million dollars.9
Incidents of this sort are increasingly common for two reasons. (10) First, because atheists, agnostics, and other individuals with heterodox beliefs (hereinafter "heterodox prisoners" or "heterodox parolees") have come to occupy a larger share of America's religious landscape, it is expected that First Amendment issues like those that Hazle faced will continue to increase. (11) Although heterodox individuals are generally underrepresented in prison populations, (12) higher societal representation will naturally lead to a higher raw number of interactions with the criminal justice system and, specifically, the parole system. Second, and more importantly, the majority of modern parole programs are not organized or implemented by state departments of corrections (DOC) or the Federal Bureau of Prisons (BOP) (13) but rather by third-party institutions, a large number of which incorporate religious teachings and require participating parolees to submit to a higher power. (14) This is because legislatures have sought to offset the financial burden associated with containing more prisoners by outsourcing the administration of parole to such contracting third-party institutions. (15) Often, given the lack of alternative institutions, access to parole is essentially contingent on the profession or practice of religious faith. This situation has led to a non-trivial number of individuals-who, like Mr. Hazle, reject some or all religious teachings-to have been found in violation of their parole for attempting to protect their First Amendment rights (hereinafter "heterodox prisoners" or "heterodox parolees").
Instances of the problem Hazle experienced (hereinafter the "heterodox parolee problem"), however, have not occurred everywhere. Instead, they have occurred more frequently in those states and jurisdictions without any statutory, administrative, or regulatory protections allowing parolees to express philosophical dissent without adverse consequences as compared to those states that have implemented such protections. (16) This Comment argues that these protections are becoming increasingly necessary not only to protect heterodox parolees, but also to protect public budgets, which are strained when parolees initiate costly litigation to vindicate their civil rights. Though a handful of commentators suggest simply banning religious non-profits from administering parole programs to solve the heterodox parolee program, (17) this Comment rejects such an approach as it would achieve the first goal (protecting heterodox parolees) at the expense of the second (protecting public budgets). Rather, this Comment argues that an appropriate solution to the heterodox parolee problem must balance the rights of parolees, on the one hand, with the monetary and administrative interests of government apparatuses on the other.
Part I of this Comment provides background on several issues underlying the heterodox parolee problem. First, it surveys the vigorous scholarly debate on the constitutionality of outsourcing parole programs to religiously and ideologically affiliated non-profits. This part demonstrates a firm scholarly and judicial consensus finding that the practice is unconstitutional where participation in such programs is compulsory. Second, Part I examines the relevant cases, paying particular attention to common features in judicial reasoning and decision-making. This part finds that judges have vindicated parolees' constitutional claims with remarkable consistency, despite the fact that judges have uniformly declined to address the constitutionality of using religious non-profits to administer parole programs generally.
Part II examines the existing laws, rules, and regulations that govern parole programs. By and large, this Comment finds that legislators, bureaucrats, and other official decision makers fail to address the lack of parole protections for heterodox parolees. The handful of protections that do exist constitute a step in the right direction. But most are ambiguous or circuitous, and therefore insufficient for a society that is becoming less Christian and more likely to assert beliefs that conflict with the dominant philosophy of non-profit parole programs.
Part III focuses on the construction of new legal protections for heterodox parolees within the context of the country's existing rehabilitation infrastructure. After analyzing the costs and benefits to the government agencies responsible for corrections and parole, this Comment argues that the best solution to the heterodox parolee problem would not involve-as other commentators have suggested-an outright ban on religious parole programs. Instead, the solution would involve implementing rules and regulations barring penalties for sincere objections to religious parole programs. This Comment argues that existing laws (the Religious Land Use and Institutionalized Persons Act (18) and the Religious Freedom Restoration Act (19)), regulations (Charitable Choice (20)), and administrative rules (CDOC Memorandum Directive No. 08-06 (21)) provide strong guidance to this end. Existing laws protect prisoners' sincerely held religious beliefs and provide a framework enabling them to vindicate their rights in court. Given the continuity of focus and wealth of case law, implementing a modified version of the rights established by laws, regulations, and administrative rules provides the best guide for legislative action.
THE CONSTITUTIONALITY OF RELIGIOUSLY AFFILIATED PAROLE PROGRAMS: SCHOLARSHIP AND CASE LAW
Although this Comment emphasizes practical concerns over theoretical ones, the scholarly debate over the constitutionality of using religious nonprofits to administer parole programs, and how that debate accords with case law, provides a useful context for thinking about solutions. To the extent that commentators have addressed the topic, there is a clear consensus that religious rehabilitation programs violate the First Amendment's Establishment Clause only when they are effectively compulsory because no alternatives are available. (22) A zealous minority, however, has argued that the use of religious non-profits to administer parole programs is unconstitutional even if alternatives are available. (23)
To the chagrin of commentators arguing for the strict unconstitutionality of religious parole programs, no judge has decided the question. However, when the narrower issue of an individual's constitutional rights has arisen, courts have consistently vindicated the plaintiffs position. (24) As discussed above, Mr. Hazle filed suit under 42 U.S.C [section] 1983 claiming that his First Amendment rights had been violated when he was returned to jail for 100 additional days for failing to adequately participate in an in-patient drug rehabilitation program administered by a religious non-profit as required for parole. (25) However, Hazle only appealed on the issue of damages because he had already won summary judgment on the substance of his claim. (26) The district court judge awarded summary judgment on the substance of Hazle's claim because there was already a strong consensus that the First Amendment barred state actors from compelling prisoners and parolees to attend religious programs. (27) This part discusses how this consensus has evolved.
Supreme Court cases on the Establishment Clause are generally organized into two categories. (28) The first involves the government attempting to "coerce anyone to support or participate in religion or its exercise." (29) Such cases arise when "the state is imposing religion on an unwilling subject." (30) The Supreme Court has unequivocally held this type of behavior unconstitutional. (31) The second category of cases includes those involving government actors and institutions behaving in a way that benefits religions. (32) At least until recently, the Lemon test has been the preferred means of...