TESTIMONY OF ISAAC M. JAROSLAWICZ,
DIRECTOR OF LEGAL AFFAIRS FOR
THE ALEPH INSTITUTE,
"THE NEED FOR FEDERAL PROTECTION OF RELIGIOUS FREEDOM
AFTER BOERNE v. FLORES."
MARCH 26, 1998
By the Grace of G-d. Mr. Chairman, thank you for allowing me the opportunity to appear before this honorable committee today in support of the need for federal protection of religious freedom after the United States Supreme Court decision in Boerne v. Flores, where the Court held that Congress' enactment of the Religious Freedom Restoration Act was unconstitutional as applied to the States. I am grateful for the chance to speak to this problem in a public forum, and I am hopeful that you can pass positive, reasonable legislation to meet the pressing demand for such federal action, especially in the environment where it is most needed and will do the most good -- the hundreds of state and local prisons around the country.
I can and will provide personal testimony as to the present reality of how, usually in the name of administrative convenience, many state prison administrators have returned to the pre-RFRA period and once again routinely trample upon legitimate minority religious practices with seeming impunity. In many egregious cases, they tolerate shameful racism and anti-Semitism by both inmates and staff.
My name is Isaac M. Jaroslawicz, and I am the Director of Legal Affairs for the Aleph Institute, a national, not-for-profit educational, advocacy and humanitarian organization that was founded over 16 years ago by Rabbi Sholom D. Lipskar at the express direction of Rabbi Menachem M. Schneerson, the Lubavitcher Rebbe, of blessed memory. Rabbi Schneerson, as you know, was the first religious leader in our nation to be awarded the Congressional Gold Medal of Honor. It was he who recognized the need to minister to those of our brothers and sisters who are enduring the lowest depths of our exile. It was he who named our group, noting that,
"In Hebrew, only one letter differentiates the word for "exile" or "imprisonment" ("gola") from the word for "redemption" ("geula"). That letter is Aleph, the first letter of the alphabet. The first step."
We have tried to live up to the Rebbe's ideal. Aleph's mission and mandate is narrowly focused and clear: to serve one of the pressing needs of our society by addressing significant issues relating to our criminal justice system. Among other things, Aleph helps state and federal departments of correction meet the legitimate religious needs of Jewish inmates.(1) We receive, on average, over 1,000 letters and telephone calls per month from inmates and their families, many of which concern unreasonable restrictions on religious practices in the prison environment, some of which I have appended to our written submission.
There are an estimated 6,000 to 8,000 Jewish men and women incarcerated in federal, state and local jails and prisons. This, out of a total population that now exceeds 1.5 million. And while it may appear to be a blessing that my co-religionists constitute such a minute percentage of that population, those who are imprisoned suffer immeasurably.
Judaism is unlike many religions in which adherents are offered salvation primarily for their beliefs or occasional ritual practice. Rather, Jewish law imposes a duty on its adherents to insure that all actions, including eating, drinking, talking, walking, sitting, dressing, transacting business, praying, studying, lying down and rising up, are all performed in a certain way for the sake of, and in a manner worthy of, serving our Creator.(2) Accordingly, the observant Jew's day is consumed with ritual, requiring such items as certain articles of clothing (e.g., a head covering such as a yarmulke and a prayer shawl), prayer books, Torah volumes and phylacteries.
Pre-RFRA, the religious concerns of the average prisoner were generally ignored. Prison personnel had little, if any, understanding of Jewish requests for religious services, and followed an institutional mind-set that traditionally regarded the unique petitions of Jewish inmates as a "burden to the system." Moreover, prison administrators had no concerns about facing Jewish riots, if only because of the low numbers of such inmates. As a result, many religious requests from Jewish men and women were ignored, purposefully delayed in "channels," or dismissed out of hand by unsympathetic supervisors. In worst-case scenarios, Jewish individuals attempting to meet legitimate religious needs were treated with suspicion, contempt, hostility, and even subjected to wrongful punitive actions.
If nothing else, RFRA forced prison officials to stop and think before simply denying requests for religious accommodation. Suddenly, the fact that such accommodation involved some bureaucratic inconvenience was no longer sufficient to sustain a denial. Indeed, although administrators vociferously complained that RFRA had increased litigation, the State of Texas, which filed an amici brief in Boerne, acknowledged that its Office of Attorney General handles 26,000 cases at any one time, of which only 2,200 were inmate related, and only 60 of those were RFRA-related. Brief of Amicus Curiae State of Texas, City of Boerne, Texas v. Flores, No. 95-2074 (U.S. 1997) at 7. Thus, the Texas brief noted:
RFRA-related cases represent .23 (that is, one-quarter percent) of the entire caseload of the Texas Attorney General's office, and about 2.7 percent of the inmate-related (non-capital punishment) caseload of the State of Texas. Moreover, of the approximately 60 RFRA-related cases, many of these are frivolous to be dispensed summarily.
Id. at 7-8.
My own experience demonstrated that the potential of litigation -- and the real risk that the prison system might lose -- fostered a much more cooperative effort to find solutions that worked for everyone. For example, in 1996 the State of Michigan Department of Corrections suddenly decided to prohibit the lighting of Chanukah candles at all state prisons. The asserted basis for the decision was "fire safety," notwithstanding that smoking, cooking and votive candles were all still allowed. Moreover, officials insisted on enforcing the ban even after some good-hearted institutional fire marshals offered to stand over the communal menorahs with fire extinguishers for the 40 minutes that the candles would burn. There is little doubt in my mind that the DOC's last-minute decision to allow menorahs came about because someone in their legal department told them they had a real risk of losing the litigation we threatened under RFRA -- and losing big.
In the aftermath of the Boerne decision, President Clinton reaffirmed the federal government's commitment to RFRA, and federal agencies appear to remain faithful to its dictates. The Federal Bureau of Prisons, under the able leadership of Director Kathleen Hawk and through the guidance of Assistant Director Wallace Cheney and Chief Chaplain Susan Van Baalen, has done a remarkable job of working to accommodate the religious needs of its population. Understandably, in a system that now houses over 100,000 inmates of diverse backgrounds at over 100 facilities across the country, there are still problems to overcome. But the basic commitment to accommodate legitimate religious practices is certainly present, consistent with the legitimate needs of institutional security and administration.
Unfortunately, the same cannot be said now for many state and county departments of corrections.
Having filed an amici brief ourselves supporting RFRA in the Boerne case with Prison Fellowship Ministries, I was present at the oral arguments before the Supreme Court. I listened as the Assistant Attorney General for the State of Ohio argued that federal protection of religious freedom was totally unnecessary, and that his state and others would certainly outdo RFRA on a local level if only given the opportunity. That has not proven to be the case. The State of Ohio still suppresses religious freedom, and joins many states, including, unfortunately, our own home state of Florida, in routinely refuse to accommodate Jewish religious prayer services and denies Jewish inmates the opportunity to obtain kosher food.
Immediately after the Supreme Court's decision in Boerne, the State of Washington's Department of Corrections issued a memorandum recommitting itself to the standard codified in RFRA. Unfortunately, that was the remote exception rather than the rule.
The State of Michigan has established a departmental rule formalizing its policy of refusing to recognize work proscription days such as the Sabbath and any religious holidays. And while it professes to provide kosher food at certain institutions, those institutions are only located in cold, isolated parts of the state, making it practically impossible for family members or clergy to regularly travel 800 miles or more to provide any visitation. Moreover, no Jewish prayer services are offered at these facilities, essentially forcing Jewish inmates to choose between family, food and prayer. In Michigan and many other states, Jewish religious texts are routinely rejected or confiscated. Religious items such as phylacteries are routinely barred.
Aleph has just filed an amicus brief in the United States Court of Appeals for the Third Circuit, because the Pennsylvania Department of Corrections now insists that Jewish inmates who request kosher food will have to subsist on a raw fruit, a vegetable, a granola bar and a "liquid nutritional supplement" - served for each and every meal. This, notwithstanding that other groups seeking accommodation, such as Muslim inmates, are offered hot, non-pork meals.
Many Jews in state prisons are afraid to even announce their religion, for fear of the anti-Semitic attitude of wardens, guards and other inmates -- especially in environments where groups such as the Aryan Brotherhood, the KKK, Black Muslims, the Black Mafia, Spanish Mafia, etc. flourish and sometimes control. Jewish inmates in Arizona have been knifed and beaten, then placed in isolated segregation "for their own benefit" while the perpetrators roam free. One inmate in Texas, Brett Cook, declared himself Jewish and requested accommodation. After refusing to withdraw a religious freedom lawsuit, he suddenly found himself transferred from a minimum to maximum security prison, where, apparently, neo-Nazi skinheads were alerted as to his imminent arrival. Within 15 minutes of his being placed on the compound, he was set upon by members of a gang and killed. The crime was never solved and, shamefully, the Texas Department of Criminal Justice quietly put the case on the shelf. The major who ordered the transfer was subsequently found responsible for retaliatory transfers in other instances.
Certainly, the senior officials in state government and administrators of some states' departments of corrections recognize the importance of allowing inmates to develop their spiritual side. Nevertheless, many rank and file staff and chaplains appear to believe that salvation can only come by following the beliefs and dictates of their own religion and beliefs. For example, almost alone among the states, the State of Texas filed its own amici brief in the Boerne case wholeheartedly supporting the Religious Freedom Restoration Act, and provided an excellent counterpoint to the sixteen states that filed a hysterical amici brief in opposition.(3) Yet, Rabbi Ted Sanders, the official Jewish chaplain for the Texas Department of Criminal Justice, has gone on the record to state that most of the other line chaplains in the Texas prison system fight everything Jewish, from releasing inmates for services, to denying them and confiscating prayer books, Bibles, talaisim (prayer shawls), yarmulkes, etc. In many instances, the chaplain or administration will confiscate needed Passover supplies, such as matzo and horseradish that the Rabbi provides, and say it's "contraband." Missionaries constantly try to convert Jewish inmates with promises of toothpaste and soap. Inmates are hounded if they wear a yarmulke in their cells while praying. Rabbi Sanders states that it seems to him that there is a deliberate attempt to make it impossible for Jewish inmates who want to attend Jewish services from doing so. Non-Jews who inquires about converting to Judaism are subjected to harassment and intimidation, too.(4) Unfortunately, the story is the same at many other state prisons around the country.
Even minor requests from Jewish inmates are often summarily denied. For example, we have received hundreds of letters from Jewish inmates around the country who advise us that administrators at their facilities regularly refuse to allow them to miss meals during a Jewish fast day and obtain a "sack lunch" to "break" their fast after nightfall. Lest anyone think that such requests unreasonably burden the system or constitute a legitimate threat to security, note that Muslim inmates are regularly granted such accommodations, particularly during the 30-day Ramadan observance.
The extremes of the insensitivity of the institutional mindset can best be seen -- but perhaps still not comprehended -- by reviewing Rabbi Sanders' statement, where he relates how prison authorities in Texas attempted to deny Max Soffar, a Jewish death-row inmate, the opportunity to have a Rabbi present at his execution, and insisted on only allowing a Christian minister to preside. Fortunately, Rabbi Sanders was able, albeit with some help, to have that offensive policy changed.
Of course, not all state prison systems have shown such callous disregard for such basic human rights. Illinois has just announced a unique partnership with Aleph's affiliated Rabbi in that state, Rabbi Binyomin Scheiman, that will insure that Jewish inmates at more than 20 prisons in that state will receive sufficient kosher-for-Passover foods to observe the upcoming holiday. Chaplain Leon Adams of the Vandalia Correction Center suggested that Prison Industries could deliver all the meals. Mr. Ronald Parish and Paul Swagmeyer at the IDOC headquarters in Springfield gave their enthusiastic approval. Other states, and many hundreds of chaplains of good faith employed in their prison systems, have contacted Aleph for donations of tens of thousands of pounds of matzo, grape juice, and other Passover supplies.
Contrast this, however, to Michigan, which refuses to allow us to ship matzo, the unleavened bread required to be eaten by Jews on Passover, to any of their high-security facilities. They assert that "outside" foods are prohibited, yet also adamantly refuse to purchase matzo on their own, essentially forcing all their Jewish inmates to violate their mandated religious practices. Now, unfortunately, I do not have RFRA as an equalizer to level the playing field. Expensive and wholly-unnecessary litigation may result.
While punishment is clearly necessary in a moral society, confinement itself is a grim failure according to numerous American and world penal experts. Behind the walls, the gates, the barbed-wire fences or the lines, ambitions, dreams and endearments are regularly snuffed out. Monotonous assembly line routines replace opportunities for personal growth. An emotionally scarred and unforgiven individual is the common product -- a man or woman who will one day reenter society -- but alone, stripped of dignity, societal rights and financial resources. Is it any wonder that we have the problems we do of recidivism?
"Modern" incarceration already imposes stunning hardships on the average prisoner. Aleph not only works with staff and inmates, but provides counseling and support to families of inmates, too. From our experience, the insidious damage incarceration wreaks on marriages is often irreparable. The cavernous rifts it creates between parents and children are tragic. The powerful emotions it fosters can be disabling: guilt, fear, isolation, depression, callousness, and a sense of failure. It is disheartening that America has managed to establish the world's most elaborate inventory and warehousing hubs for human beings -- and accomplishes little more.
Spiritual development and study have proven to be some of the most valuable tools for rehabilitation and to prevent recidivism. For the record, I have appended to our written submission those pages from our amici brief in the Boerne case that highlight the importance of religious exercise in the prison environment and traces our country's historical recognition of its importance in furthering legitimate penological goals and objectives.
Mr. Chairman, federal legislation, especially with respect to inmates, is appropriate and justified for at least three reasons: First, many states simply will not address these issues with a local-RFRA initiative, promises to the Supreme Court notwithstanding.
Second, because all state criminal justice systems obtain federal funding of one kind or another.
Third, a flourishing trade in interstate commerce has actually developed in living human beings. As a result of overcrowding in some states and overbuilding in others, states such as Texas, Michigan, Kansas, Oklahoma, Colorado and others each transfer or receive inmates from other states. Often, the receiving state does not offer the same religious tolerance as the shipping state. In many cases, Jewish inmates in one state who request accommodation find themselves shipped in the dead of night to a facility in another state hundreds or thousands of miles away from family and community.(5) The problem is exacerbated when such inmates are housed in county or private facilities in the receiving state. As Alex Taylor, Chaplain Coordinator for the Texas Department of Criminal Justice (and a person who has extended himself against overwhelming odds on behalf of religious freedom in Texas prisons) has noted, such persons are "out of reach" of the chaplaincy departments of the state prison system.(6) A federal statute - and a uniform standard that can be interpreted and developed by the courts - should eliminate the wide discrepancies that exist.
Such federal legislation is imperative for at least two reasons. First, because even if states do pass local religious freedom acts, they contain widely-varying standards. Many of the acts enacted or proposed specifically contain prisoner exemptions, primarily because local politicians do not have the fortitude to stand up to a powerful local prison industry and a mob mentality which believes that stripping human beings of every vestige of civilization and humanity is an appropriate way to deal with the issue of crime. Second, prisoners above all need a federal forum in which they can present their grievances. State courts, and the elected judges who often sit therein, are subject to the same pressures as local politicians. Moreover, in the growing number of cases where an inmate is convicted in one state but housed in another, issues of differing standards, jurisdiction and conflicts of law, will create a legal quagmire and subject the victim to the vicissitudes of which particular jurisdiction controls. Basic human freedoms of religious exercise should not be subject to such vagaries. Concerns about a wave of federal litigation were voiced but proven unfounded when RFRA was first enacted.(7) Today, of course, the Prisoner Litigation Reform Act is in effect, and will certainly serve to provide an additional limit on those frivolous claims that may be asserted by the litigious or insincere.
Mr. Chairman, it is important to continue the federal process of protecting one of our most-cherished rights -- the right to practice our religion. While I am sure there are good reasons in the free world to merit such protection, the deplorable conditions of which I am personally aware certainly cry out for your support. I thank you again for allowing us this opportunity to discuss these issues here today, and I thank Congressman Canady for recognizing the problem and moving forward in the House with a proposed solution.
1. Aleph has also created and implemented a host of programs that have been proven effective to rehabilitate inmates, to counsel and assist their families, and to provide moral and ethical educational programs inculcating universal truths and concepts common to all of humanity. Our written submission includes an extensive overview of Aleph's in-prison services, including religious freedom advocacy, visitations, educational material, holiday programs, and more.
2. Observant Jews follow 613 commandments found in the five books of Moses and derivative precepts expounded in the Oral Law (contained in writings such as the Talmud, the Code of Jewish Law ("Shulchan Arukh") and later rabbinic rulings) (collectively, the "Mitzvot" or "Halacha").
3. An amici brief in opposition to RFRA was filed by the States and Territories of Ohio, Arizona, Colorado, Delaware, Florida, Hawaii, Idaho, Mississippi, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, American Samoa, Guam and the Virgin Islands. The "factual" portion of the brief engages in a diatribe against RFRA and state prison systems, yet provides absolutely no statistics or factual basis to support its hyperbole.
4. See letter from inmate Dexter Hoover of Navasota, Texas, appended as an exhibit to our written submission.
5. See, e.g., Letters to the Editor, Intermountain Jewish News, March 13, 1998 (appended to our written submission) (many Jewish inmates in the Colorado correctional system were transferred to Texas after filing suits to obtain kosher food). In another, well-known example, Keith Phillips, now completing the federal portion of his sentence on a white collar crime at the low-security complex in Butner, North Carolina, was previously serving time for his offense in the Kentucky state system. He was forcibly removed from his prison cell and transferred to Alabama after requesting religious accommodation, on the asserted ground that his requests (for, among other things, kosher food) amounted to a threat to the "safety and security" of the institution. Thereafter, the warden at Easterling Correctional in Alabama was overheard screaming into the telephone to "get this guy from Kentucky out of my facility. He wants all these religious things and we don't have a budget for it." Ultimately, it appears that Kentucky State Senator Susan Johns intervened, Phillips was returned to Kentucky, and the state circuit judge reduced his sentence and freed him from the state system altogether.
6. Chaplain Taylor's letter to the Aleph Institute, dated November 25, 1996, regarding inmate Roderick Hardiman, a "transferee" from Colorado, is appended as an exhibit to our written submission.
7. The Texas amici brief in Boerne countered the "floodgate" argument extremely well, noting that "[c]onvicts in prisons . . . will always find other bases for bringing junk lawsuits. The free exercise rights of millions of Texans, in any event, should not be held hostage to a few dozen convicts looking for excuses to bring a lawsuit."