'The Devil is in the Details': A Continued Dissection of the Constitutionality of Faith-Based Prison Units

Abstract:     
Faith-based prison units can afford prisoners who choose to be housed in them the concentrated and sustained spiritual nourishment that they believe they need to grow spiritually or in other ways. But critics claim that these units abridge the Establishment Clause. This Article debunks two of the arguments most frequently asserted against the constitutionality of faith-based units. The first is that prisoners cannot exercise a "true private choice" in the "inherently coercive" environment of a prison to live in such a unit. But court decisions confirm that confinement does not abnegate the voluntariness of other decisions made by prisoners, such as whether to make inculpatory admissions as a precondition to being admitted into a prison treatment program. It is also noteworthy that the government's employment of prison chaplains is constitutional. To conclude that a prisoner can exercise a "true private choice" to receive religious services from a prison chaplain but cannot exercise such a choice when deciding whether to live in a faith-based unit betrays what Justice Scalia lamented is a "trendy disdain for deep religious conviction." The Article also refutes the argument that faith-based units reflect governmental favoritism towards religion barred by the Establishment Clause. Even if the units did not further such secular goals as the reduction of recidivism, the units can be a legitimate means of relieving or diminishing burdens the government itself has imposed on inmates' ability to grow spiritually while they are incarcerated.

Number of Pages in PDF File: 34

Keywords: Establishment Clause, Faith-based units, Prisoners, Prisoners' rights, Recidivism, Religion

JEL Classification: Z00

Accepted Paper Series