This Article discusses faith-based prison programs that immerse prisoners living in residential units within a prison in a religious atmosphere. Part One analyzes the constitutionality of these programs under the Establishment Clause of the First Amendment. It notes that state action in the prison context receives more deference from courts than outside the prison context, and that prisoners' constitutional rights are more constricted than free persons" Part I proceeds to analyze the constitutionality of faith immersion programs in prisons, in light of the Supreme Court's precedents dealing with prisoners' rights and the Establishment Clause. States can defend immersion programs on the grounds that these programs are reasonably related to several important penological objectives, including the interests in reducing recidivism rates, protecting institutional security, promoting the aims of restorative justice, and accommodating inmates' religious needs. In addition, the immersion programs can be constructed in ways that meet the "voluntariness" and "neutrality" requirements subsumed within the Establishment Clause.
Part II of this Article discusses how religious immersion programs in prison can best be structured to survive First Amendment challenges. Part II proposes several important features of an immersion program that will likely enable it to survive or avoid Establishment Clause challenges: prisoners must be fully informed about the nature and requirements of an immersion program before they enter it; prisoners must be allowed to freely chose whether or not to enter such a program, and should not face a penalty either for deciding not to enter the program or for attempting to exit the program; prisons must adopt policies and training regimens designed to ensure that immersion programs continue to comply with the commands of the Establishment Clause; prisons must not allow conditions in a faith-based section of a prison to diverge too widely from conditions in sections of the prison with a comparable security level; and prison officials ought to allow the religious aspects of an immersion program to be conducted largely by individuals from the private sector, rather than government employees. Part II concludes that, properly constructed, immersion programs hold substantial promise to advance penological objectives while surviving constitutional challenges.
Lynn S. Branham,
"Go and Sin No More": The Constitutionality of Governmentally Funded Faith-Based Prison Units,
U. Mich. J. L. Reform
Available at: https://repository.law.umich.edu/mjlr/vol37/iss2/2