Faith on the Farm: An Analysis of Angola Prison?s Moral Rehabilitation Program Under the Establishment Clause

• Author: Roy L. Bergeron, Jr.
• Pages: 1221-1257

Faith on the Farm: An Analysis of Angola Prison’s

Moral Rehabilitation Program Under the

Establishment Clause

“Moral people are not criminals. That’s why moral

rehabilitation is the only true rehabilitation.”1

INTRODUCTION

The numbers are alarming: The United States leads the world

with the highest incarceration rate, with 756 out of every 100,000

people in jail.2 Louisiana leads the country in the same category

with 858 of every 100,000 citizens behind bars.3 Even when the

incarcerated are finally released, the chances are likely that they

will return to prison at some point within the next three years.4

With a systemic problem of these proportions, what should the

states do to combat this epidemic?

One proposed answer is to turn to religion.5 Some evidence

exists that faith-based programming can rehabilitate offenders and

Copyright 2011, by ROY L. BERGERON, JR.

1. DENNIS SHERE, CAIN’S REDEMPTION 52 (2005) (quoting Burl Cain,

warden of Louisiana State Penitentiary).

2. ROY WALMSLEY, KING’S COLL. LONDON, WORLD PRISON POPULATION

LIST 1 (8th ed. 2009), available at http://www.kcl.ac.uk/depsta/law/research/

icps/downloads/wppl-8th_41.pdf.

3. HEATHER C. WEST & WILL IAM J. SABOL, U.S. DEP’T OF JUSTICE,

PRISON INMATES AT MIDYEAR 2008—STATISTICAL TABLES 11 (2009). The four

states with the highest incarceration rates are all in the South. Id.

4. See, e.g., LA. DEP’T OF PUB. SAFETY & CORR., RECIDIV ISM IN ADU LT

CORRECTIONS (TOTAL POPULATION) (2010), available at http://doc.la.gov/wp-

content/uploads/stats/2k.pdf (finding that nearly 50% of inmates released from

Louisiana prisons are rearrested within 60 months); Reentry Trends in the U.S.:

Recidivism, BUREAU JUST. STAT., http://bjs.ojp.usdoj.gov/content/reentry/

recidivism.cfm (last visited Mar. 7, 2011) (finding in a 1994 study that more

than 65% of prisoners in 15 states were rearrested within three years of release).

5. This is precisely what a number of prisons have done. See, e.g., AWANA

LIFELINE, http://www.awana.org/lifeline (last visited Nov. 10, 2009) (Christian

inmate and children ministry); INNERCHANGE FREEDOM INITIATIVE,

http://www.ifiprison.org (last visited Nov. 10, 2009) (non-profit organization

providing religious programming for prisoners); KAIROS PRISON MINISTRY,

http://www.kairosprisonministry.org (last visited Nov. 10, 2009) (non-profit

volunteer prison ministry); see also Email from Robert Toney, Chaplain

Supervisor, La. State Penitentiary, to Gary Young, Project Coordinator, La.

State Penitentiary (Oct. 7, 2009, 03:52 CST) (on file with author) (Bible

Colleges are currently operating at prisons in Louisiana, Mississippi, and

Georgia).

1222 LOUISIANA LAW REVIEW [Vol. 71

reduce the likelihood of recidivism for participants.6 Armed with

this data, the Louisiana State Penitentiary (“Angola”) has adopted

a moral rehabilitation program that aims to reduce recidivism rates

and violence within prisons.7 However, by integrating faith-based

programs into state-funded prisons, the penitentiary risks violating

the First Amendment’s prohibition on a government establishment

of religion.8

This Comment analyzes the moral rehabilitation program

currently operating at Angola. The goal of this Comment is to

discover a way to effectively promote religious programming in

prisons and address legitimate penological concerns without

violating the Establishment Clause. Part I of this Comment

discusses the existing Establishment Clause jurisprudence and its

application to challenges in prisons. Part II then discusses the

major aspects of the moral rehabilitation program at Angola. Part

III analyzes the constitutionality of the Angola moral rehabilitation

program, and finally, Part IV suggests changes that could save the

program from constitutional challenges.

I. THE COURT’S APPROACH TO THE ESTAB LISHMENT CLAUSE

The First Amendment to the U.S. Constitution states in

pertinent part that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof.”9

6. See, e.g., Study: Prison Faith-Based Education Reduces Rates of

Recidivism; Basic Vocational Education Also Helps Recidivism, COR RECTIONAL

EDUC. BULL., Oct. 29, 2003, at 2. A five-year study released by the Louisiana

Department of Corrections “found that only 30 percent of released inmates who

receive faith-based education return to prison.” Id. The U.S. Department of

Justice states that 65% of inmates were rearrested within three years of release,

see Reentry Trends in the U.S.: Recidivism, supra note 4, while studies show the

number is closer to 46.6% in Louisiana. See LA. DEP’T OF PUB. SAFETY &

CORR., supra note 4 (keeping records for recidivism for 60 months after inmate

is released); see also LA. DEP’T OF PUB. SAFETY & CORR., RECIDIV ISM IN ADULT

CORRECTIONS (EDUCATION) (2010), available at http://doc.la.gov/wp-

content/uploads/stats/2t.pdf (finding 42.3% recidivism rate after 60 months for

prisoners involved in educational programming); LA. DEP’T OF PUB. SAFETY &

CORR., RECIDIVISM IN ADULT CORRECTIONS (FAITH BASED) (2010), available at

http://doc.la.gov/wp-content/uploads/stats/2u.pdf (finding 42.2% recidivism rate

after 60 months for prisoners involved in fai th-based programming).

7. See infra Part II.

8. See U.S. CONST. amend. I.

9. Id. Louisiana has a parallel provision in its constitution. LA. CONST. art.

I, § 8 (“No law shall be enacted respecting an establishment of religion or

prohibiting the free exercise thereof.”). Even if Louisiana did not have this

provision, the Establishment Clause has been held applicable to the states

through the Fourteenth Amendment. See, e.g., Lee v. Weisman, 505 U.S. 577,

2011] COMMENT 1223

The framers of the Bill of Rights envisioned a role for religion in

public life, but they were also aware of the corrupting power that

government and religion could have on one another.10 The

Religion Clauses of the First Amendment—the Free Exercise

Clause and the Establishment Clause—together provide the

appropriate balance between allowing government accommodation

of religious practices and preventing excessive government

involvement with religion.11 This balance reflects the policy of the

famous “wall of separation,” a phrase made famous by Thomas

Jefferson12 and often quoted by the U.S. Supreme Court in First

Amendment religion cases.13 In an attempt to draw the line

between these two clauses, the U. S. Supreme Court has developed

three tests to analyze violations of the first clause, the

Establishment Clause.

580 (1992); Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 205 (1963);

Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947). But see Van Orden v. Perry, 545

U.S. 677, 692–93 (2005) (Thomas, J., concurring) (arguing that the

Establishment Clause does not restrain states; states can choose which religions

to favor or disfavor); Wallace v. Jaffree, 472 U.S. 38, 113–14 (1985)

(Rehnquist, J., dissenting) (arguing that, as long as the government treats all

religions the same, the Establishment Clause does not prevent states from

endorsing religion) .

10. See, e.g., James Madison, Memorial and Remonstrance Against

Religious Assessments (1785), reprinted in Everson, 330 U.S. at 67

(“[E]cclesiastical establishments, instead of maintaining the purity and efficacy

of Religion, have had a contrary operation.”); see also Lee, 505 U.S. at 606

(Blackmun, J., concurring) (“The mixing of government and religion can be a

threat to free government, even if no one is forced to participate.”); Engel v.

Vitale, 370 U.S. 421, 431 (1962) (The “first and most immediate purpose [of the

Establishment Clause] rested on the belief that a union of government and

religion tends to destroy government and to degrade religion.” ).

11. See, e.g., Cutter v. Wilkinson, 544 U.S. 709, 719 (2005); Lee, 505 U.S.

at 589 (“The First Amendment’s Religion Clauses mean that religious beliefs

and religious expression are too precious to be either proscribed or prescribed by

the State.”).

12. Thomas Jefferson, Reply to the Danbury Baptist Association (1802),

reprinted in MARY C. SEGERS & TED G. JELEN, A WALL OF SEPARATION?

DEBATING THE PUBLIC ROLE OF RELIGION 125 (1998) (“I contemplate with

sovereign reverence that act of the whole American people which declared that

their legislature should ‘make no law respecting an establishment of religion, or

prohibiting the free exercise thereof,’ thus building a wall of separation between

church and State.”).

13. See, e.g., Larkin v. Grendel’s Den, 459 U.S. 116, 122–23 (1982);

Lemon v. Kurtzman, 403 U.S. 602, 614 (1971); Everson, 330 U.S. at 16;

Reynolds v. United States, 98 U.S. 145, 164 (1879).