By General Counsel K. Hollyn Hollman

Hollman HeadshotPrisons are dangerous places where security is the primary concern. They are designed for involuntary confinement of individuals, including dangerous ones, who have failed society’s standards. That is the unsurprising emphasis of the Arkansas Department of Correction’s position in Holt v. Hobbs, a case brought by an inmate serving a life sentence in a maximum security prison for a violent crime.

Religious liberty, however, is a fundamental value that should be protected, even in prisons. Congress said so when it passed the Religious Land Use and Institutionalized Persons Act (RLUIPA). RLUIPA, like the Religious Freedom Restoration Act (RFRA) on which it was modeled, is written in broad terms that prohibit the government from imposing substantial burdens on religious practice unless narrowly tailored to serve a compelling government interest.

Of course, Congress knew that protecting religious liberty in the unique context of prisons must take account of special governmental concerns. RLUIPA’s legislative history indicates that the statute should be applied with “due deference to the experience and expertise of prison and jail administrators in establishing necessary regulations and procedures to maintain good order, security and discipline, consistent with considerations of costs and limited resources.”

The question in Holt v. Hobbs is whether RLUIPA allows the prison to deny a Muslim inmate’s request to grow a half-inch beard in accordance with his faith but in conflict with a “no beards” policy, which the state claims is necessary for security and identification purposes. A broader underlying issue is what kind of deference should be given to prison officials.
During oral arguments, the justices seemed disinclined to give deference to the state’s stated security concerns. Justice Samuel Alito drew laughter when he suggested that the prison could require inmates to comb their beards so that anything hidden, like “a tiny revolver,” would just fall out. Indeed, the oral arguments were dominated by the suggestion that, in this case, the state’s arguments were unbelievable.

In addition to the support from a wide range of religious and civil liberties organizations, including the BJC, the plaintiff’s case was also bolstered by a group of former prison wardens who filed an amicus brief, which deserves particular attention. It made four important points.

First, RLUIPA’s requirement to consider specific requests and weigh them against prison regulations is consistent with good prison administration. The brief states: “[T]houghtful consideration is not only necessary to give meaning to RLUIPA’s protections, it leads to sound policy that promotes more effective security while simultaneously better meeting inmates’ needs.”

Second, reviewing prison policies by comparing practices with those of other prisons encourages sound policy and efficiency, and it should be encouraged. Thirty-nine states and the District of Columbia permit beards in prison. Yet, Arkansas failed to consider that industry standard and establish any basis for tighter restrictions on grooming standards. “Certainly deference to the expertise of prison officials is warranted in many contexts. But no deference is appropriate where, as here, Respondents made no showing of any careful analysis or familiarity with industry practices applicable to Petitioner’s requested accommodation.”

Third, the prison officials noted that a “no beards” policy is a weak approach to prevent hiding forbidden objects or ensuring inmate identification. The interests of deterring contraband and maintaining proper identification of prisoners are better served by other policies that would not violate religious grooming standards. “[The state’s] broad assertion that beards present a contraband secretion risk is simply not credible nor deserving of any deference.”

Fourth, a body of evidence demonstrates that allowing inmates to practice their religion may lead to security and broader rehabilitative benefits. The group of former wardens states that, instead of increasing security concerns, they believe “that allowing inmates to practice their religion is likely to result in inmate behavior that alleviates security concerns and contributes to other goals of prison administration.”

The former wardens explicitly recognize that important religious rights of inmates must sometimes give way to prison security concerns. But, like the congressional sponsors of RLUIPA, those who have been on the front lines of running prisons recognize that “prison officials sometimes impose frivolous or arbitrary rules” that unnecessarily restrict religious liberty. In the view of these former wardens, this case is “precisely the type Congress was concerned about—where vaguely articulated security concerns are being used to justify an outdated and unwarranted policy depriving an inmate of his religious rights.”

From the October 2014 Report From the Capital. Click here to read the next article.

Click here for this month’s cover story on the oral arguments in Holt v. Hobbs.