Fewer than 1% of inmates request kosher meals. (San Quentin Prison, California)
— by Kenneth R. Myers, Esq.
Last week, an Orthodox Jewish prison inmate ended his four-year-old lawsuit seeking a kosher diet, thanks to a recent court ruling requiring Florida to provide all Jewish prison inmates with a kosher diet.
This case is one of several that prison inmates and the U.S. Department of Justice have brought in the last few years, where state prisons have withheld the option of kosher meals for Jewish inmates.
The cases are brought under the Religious Land Use and Institutionalized Persons Act of 2000 (commonly referred to as RLUIPA) — the federal law that seeks to protect the right of inmates and other institutionalized persons to free exercise of religious practices. However, some state prison systems are slow to learn.
Providing kosher food for inmates is reported to about double the cost of the usual prison diet: an increase of between $4 and $5 per day for each inmate, according to the prisons. However, very few inmates (typically fewer than 1%) request kosher meals, according to the experience reported in the court decisions.
The courts therefore reject claims by the prisons that the cost of providing kosher food is burdensome. But the details of the cases suggest that there is more than cost at issue.
More after the jump.
Various prison systems have put up different bars to deter inmates from securing kosher meals:
- One prison requires the inmate to pass a test of knowledge of the rules of kashrut;
- another prison admits an inmate to the kosher food program, but removes him if he eats any “non-kosher” food (although the prison management does not appear to have enough knowledge to judge that question);
- yet another prison’s management examines the inmate’s historic practices and reaches its own determination of the “sincerity” of the inmate’s beliefs;
- and some prisons offer inmates the ability to purchase kosher food at their own expense.
In recent cases, the Justice Department and Jewish prisoners have prevailed over the state prison officials as to all of these arguments and stratagems. Yet, questions will continue to arise under RLUIPA, and the earlier-related Religious Freedom Restoration Act (familiarly known as RFRA).
These statutes legislate religious accommodation — specifically, relief from some legal requirement of general application, where that relief is practical. Simple? Not at all.
The range of circumstances that give rise to RFRA and RLUIPA claims is great and still growing (most recently in the form of dozens of challenges to the Affordable Care Act). The questions of what constitutes a sincere religious belief, and more importantly, what is a substantial burden on religious practice, draw the courts into an unfamiliar territory.
Each accommodation ordered by a court, and looked at differently, is a small establishment of one religion over all others. So the courts assiduously avoid “entanglement” by becoming involved in deciding religious issues, except for practice mandated under these two statutes.
The author is a member of the Church-State Committee of the Jewish Social Policy Action Network, an organization which frequently participates in religious liberty cases as amicus curiae (“friend of the court”), and a director of the Philadelphia Jewish Voice.
Today, more than 200 civil rights, voting rights and criminal justice organizations, including the Philadelphia Jewish Voice, sent a letter calling on the U.S. Census Bureau to seize a timely opportunity to research alternative ways to count incarcerated people in the decennial Census.
The letter expresses a national concern that the Bureau’s method of counting incarcerated people at prison locations, rather than in their home communities, leads to an unequal distribution of political power in state and local governments known as “prison gerrymandering.” The letter explains that incarcerated people are not considered residents of prisons for other purposes, but the Census Bureau’s method “concentrates a population that is disproportionately male, urban, and African-American or Latino in approximately 1,500 federal and state prisons that are far from their home communities.” The 210 organizations wrote:
We are concerned that the Census Bureau’s tabulation procedures distort the redistricting process, giving extra political influence to people who live near prisons while diluting the votes of residents in every other legislative district.
More after the jump.
Although the 2020 Census is seven years away, the Census Bureau is already deep in the planning process. The letter calls on the Bureau to pave the way for a national end to prison gerrymandering in 2020 by prioritizing research on how to count incarcerated people at home in the next census. “In order to develop the best possible methodology for fixing prison gerrymandering, the Census Bureau needs to address this research question now,” said Brenda Wright, Vice President of Legal Strategies at Dēmos.
The letter charges:
Failing to count incarcerated people at home for redistricting purposes undermines the constitutional guarantee of ‘one person, one vote’, with critical implications for the health of our democracy.
For that reason, the organizations note, four states and more than 200 counties and municipalities have made their own adjustments to Census Bureau data in order to avoid prison gerrymandering. But while state and local governments are increasingly devising their own solutions, many face unique constraints and only the Census Bureau can implement a comprehensive and standardized national solution.
The letter credits the Census Bureau with recognizing that prison gerrymandering causes significant problems for state and local redistricting. Specifically, the Bureau began to address the problem by releasing 2010 Census data on prison populations ahead of schedule in order to allow state and local governments to adjust their redistricting data to avoid prison gerrymandering. Peter Wagner, Executive Director of the Prison Policy Initiative, said:
The Bureau has made great progress towards enabling state and local governments to find creative solutions to prison gerrymandering, and now the Bureau must use the current planning period to ensure that the 2010 Census is the last one to tabulate two million incarcerated people outside their home communities.
The full text of the letter, including a list of signers, is available here.
For an inmate trying to maintain his connection to the outside world, a 15-minute phone call with a loved one might cost $17.00!
The Federal Communications Commission issued a notice of proposed rule-making, taking the first step towards federal regulation of prison calling rates. According to the satement of commissioner Mignon Clyburn:
The telephone is a crucial instrument for the incarcerated, and those who care about them, because voice calling is often the only communications option available. Most inmates along with their families and friends are low-income, so in-person visits due to distance and expense are infrequent. It is not uncommon for state prisons to be located hundreds of miles away from urban centers, but even in places where the facility is nearby, the engagement often requires a significant amount of time to clear security. And because many of these complexes are frequently overcrowded and ill-equipped to handle the volume of visitors, the wait (not even to mention the economic burden of missing work, etc.) is quite severe.
More after the jump.
On September 26, the New York Times had published an op-ed about the subject and explained:
The calls are expensive because they are placed through independent telephone companies that pay the state a “commission” — essentially a legalized kickback — that ranges from 15% to 60% either as a portion of revenue, a fixed upfront fee or a combination of both. According to a new report by the Prison Policy Initiative, a research group based in Massachusetts, depending on the size of the kickback, a 15-minute call can cost the family as little as $2.36 or as much as $17.
By November 9th, the PPI had collected 36,690 comments on the website Sum Of Us to send to the FCC, which helped the process. In fact, it was the third petition for this issue in the last decade:
In the first petition for rulemaking, filed in 2003, petitioners requested that the Commission “prohibit exclusive inmate calling service agreements and collect call-only restrictions at privately-administered prisons and require such facilities to permit multiple long distance carriers to interconnect with prison telephone systems”.
In the second petition, filed in 2007, petitioners proposed that the Commission require debit calling, prohibit per-call charges and establish rate caps for all interstate, interexchange inmate calling services.
— by Drew Kukorowski
Here at Prison Policy Initiative we’re always trying to think of better ways to explain the problem of prison gerrymandering to folks who may not have heard about it before. Prison gerrymandering is the practice of counting incarcerated people as residents of the prisons that detain them, and then using those numbers when election districts are redrawn in order to comply with the Supreme Court’s one person-one vote requirement.
When I first heard about this “miscount,” I wasn’t sure exactly who was harmed by it. Normally, we think that living next door to a prison is undesirable; in this situation, though, living next door to the prison is highly beneficial. That’s because the votes of people who live next door to a prison carry more weight than the votes of people who live in non-prison districts. I’m from North Carolina, and there’s a great example of this problem back home that helped me understand the harm caused by prison gerrymandering.
More after the jump.
There’s only one federal prison in North Carolina. But it’s a big one – FCI Butner just north of Durham in Granville County. In 2010, the Census counted about 4,500 people as residents of the Butner prison complex. But none of those incarcerated people can vote, and the vast majority don’t come from North Carolina, much less from Granville County (e.g., Bernie Madoff). Nonetheless, the Census counts them as residents of Granville County, and the county used those numbers to balance their county commissioner and school board districts during the last round of redistricting.
In the example I found, the people who live near the federal prison in Granville County get twice as much political influence as people who don’t. The Granville County commissioner and school board district – District 3 – with the big federal prison complex is about 50% incarcerated (52.5% to be exact). This is a huge benefit to the actual residents of District 3, but harms the residents of every other district in the county. That’s because the commissioner and school board member from the prison district only have to serve about 4,000 actual constituents. In all the other districts in the county, though, the commissioners and school board members each serve about 8,500 constituents. This means that you have less access to your elected representatives if you don’t live in the prison district. Or to put it another way, every 47 residents of the prison district have as much political power as 100 residents in other districts.
Smaller but still important is the effect of prison gerrymandering on state representative and senatorial districts. Newly drawn NC House District 2 is about 6.7% incarcerated if you take into account the federal and state prisons in Butner (there’s a state prison across the street from the federal prison that has about 1,000 inmates). And the new NC Senate District 20 is about 3% incarcerated. Again, the residents of those districts have more access to their state representatives because those representatives don’t have as many real constituents to serve as the representatives from districts without prisons.
While Granville County didn’t address its prison gerrymandering problem this time around, maybe it will in 2020. After all, there are more than 200 counties and cities around the country with prisons that decided not to use the prison populations when redrawing their district lines. To be fair, Granville County is required to submit its redistricting changes to the U.S. Department of Justice under the Voting Rights Act, and it was concerned that removing its prison population might raise a red flag with the U.S. Department of Justice. But of the 200 counties and cities that avoided prison gerrymandering, about 90 were required to have their plans approved by the U.S. Department of Justice, and all received that approval. Or maybe the North Carolina General Assembly will pass legislation – like Maryland and New York, have – mandating that state and local governments draw election districts based on their real populations. Maybe if Mr. Madoff runs for that school board seat then Granville County will realize that it’s absurd to count prisoners as local residents.