Prison Systems Can Respect the Religious Rights of Muslims. State Government Should Ensure They Do.

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For years, civil rights organizations have litigated cases on prison systems’ failures to respect the rights of Muslim plaintiffs to practice their faith. In a report published last week, the civil rights organization Muslim Advocates examines the treatment of incarcerated Muslims.

The report sets out to answer two broad questions. The first is a numerical one. How many people in state prison identify as Muslim? Previously available figures showed that 12 percent of people in federal prisons are Muslim.

In response to records requests to 49 states and the District of Columbia, Muslim Advocates received data from 34 state prison systems. For those 34 states, Muslims are, on average, overrepresented in the prison population by a factor of eight. In some states, they are overrepresented by a factor of 18. (The figures cannot be extrapolated to the U.S. prison population as a whole, given the lack of data from many states, including California, which has the second-largest prison population among the states behind Texas, whose data is included.) Of the states that responded to the request, Muslims make up more than 20 percent of the prison population in three, as well as in the District of Columbia. Across the U.S., Muslims are around 1 percent of the general population.

The reasons for the overrepresentation are not fully known, as the study’s main author told Vice, but “possible factors are the growth of the Muslim population in the U.S. generally, increased surveillance, harsher sentencing, and enforcement for Muslim communities, as well as conversions in prison.”

Despite the fact that Muslims make up a large, and growing, portion of people who are incarcerated, prisons systems vary greatly in how they respect the rights of incarcerated Muslims. This was the second question Muslim Advocates set out to examine. Through a review of over 163 recently filed federal lawsuits, and a review of policies in place in every state and the District of Columbia, the report identified the most common problems that Muslims experience in practicing their faith while incarcerated, and the large variation in state corrections systems’ policies on how to facilitate their freedom to practice.

In the lawsuits reviewed for the report, the most common complaints were about difficulty obtaining religiously compliant diets and about access to group worship. In more than a third of the cases, plaintiffs described being denied halal food to break fast during the month of Ramadan and other times. In many cases, requests to worship in a group, even occasionally, are subject to scrutiny not applied to group worship by members of other faiths.

The report highlights the fact that people who sue in federal court are inevitably a small fraction of all those who believe their rights have been violated. Yet, “roughly every three days, one Muslim prisoner is sufficiently aggrieved by the lack of accommodation he or she faces to file a federal lawsuit. To file such a lawsuit, a prisoner must pay fees and overcome other serious obstacles to litigating, including the inability to obtain legal representation, fear of retaliation, difficulty conducting legal research, and lack of materials for mailing.”

In comparing policies across states, the researchers found enormous variation. “The level of accommodation of Muslim practices is highly variable across states, even though the same strict legal standard imposed by RLUIPA [the Religious Land Use and Institutionalized Persons Act of 2000] applies to all states.” This variation, the report’s authors argue, suggests that, “in most cases, the non-accommodating policies are unnecessarily burdensome and not connected to any ‘compelling’ prison interest, and hence, are in violation of federal law.”

The report discusses what is perhaps the most well-known example of, at best indifference, and, at worst, hostility to the religious beliefs of Muslims from this year, the execution of Domineque Ray in Alabama. It was routine in Alabama for a Christian chaplain to be present in the execution chamber. Ray, a Muslim, requested the presence of his imam. The state denied the request.

Judges in the 11th Circuit appellate court granted a stay, describing what they saw as a “powerful Establishment Clause claim.” But the Supreme Court, in a 5-4 decision, overturned the stay, saying Ray had waited too long to object. He was executed, while his imam watched from the viewing room.

The 11th Circuit’s decision to issue a stay read: “The central constitutional problem here is that the state has regularly placed a Christian cleric in the execution room to minister to the needs of Christian inmates, but has refused to provide the same benefit to a devout Muslim and all other non-Christians.” As Justice Elena Kagan wrote in her dissent, “the clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”

In Slate, Dahlia Lithwick’s appraisal of the majority’s decision was stinging: “This is a court that has staked its moral legitimacy on the proposition that religion, above all, is at the very core of humanity, to be elevated in all instances no matter the competing interests. In so many faiths, there is no more sacred moment than entry and departure from this life. But never mind. For a court that cannot bear the thought of a religious baker forced to frost a cake in violation of his spiritual convictions to be wholly unaffected at the prospect of a man given last rites by a member of another faith borders on staggering.”

Ray’s case illuminates the challenge of even dying in accordance with the tenets of ones faith if one is Muslim in prison. As the new report demonstrates, across the country, people in prison also face challenges over the more quotidian aspects of practicing their faith, including the food they seek to eat and the chance to make daily prayers.

Today, the challenges affect a significant portion of people in state prisons. But the fact that there is a gulf between the best state policies and the worst demonstrate that it is amply possible for corrections systems to devise policies that accommodate the rights of Muslims in prison. The report also makes clear that the struggles of Muslims fighting to observe their religion have had implications for the rights for all imprisoned people.

At a time when anti-Muslim action and rhetoric is a given from the White House, it is important to recognize that this issue is squarely within the purview of state governments. Governors, in particular, who appoint corrections commissioners, should be held accountable for the treatment of Muslims in the prisons they run.