More than the citizens of most countries, Americans are either religious or in jail--or both. But what does it mean when imprisonment and evangelization actually go hand in hand, or at least appear to? What do "faith-based" prison programs mean for the constitutional separation of church and state, particularly when prisoners who participate get special privileges? In Prison Religion, law and religion scholar Winnifred Fallers Sullivan takes up these and other important questions through a close examination of a 2005 lawsuit challenging the constitutionality of a faith-based residential rehabilitation program in an Iowa state prison.
Americans United for the Separation of Church and State v. Prison Fellowship Ministries, a trial in which Sullivan served as an expert witness, centered on the constitutionality of allowing religious organizations to operate programs in state-run facilities. Using the trial as a case study, Sullivan argues that separation of church and state is no longer possible. Religious authority has shifted from institutions to individuals, making it difficult to define religion, let alone disentangle it from the state. Prison Religion casts new light on church-state law, the debate over government-funded faith-based programs, and the predicament of prisoners who have precious little choice about what kind of rehabilitation they receive, if they are offered any at all.
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About the Author
Winnifred Fallers Sullivan is professor of law and director of the Law and Religion Program at the University at Buffalo Law School, State University of New York. She is the author of The Impossibility of Religious Freedom (Princeton).
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Prison ReligionFAITH-BASED REFORM AND THE CONSTITUTION
By Winnifred Fallers Sullivan
PRINCETON UNIVERSITY PRESSCopyright © 2009 Princeton University Press
All right reserved.
Chapter OneThe God Pod
The Iowa Department of Corrections (DOC) was established in 1983. Its purpose was to centralize and modernize county correctional agencies and to begin to address overcrowding in prisons. Iowa had had a history of penal progressivism, but, like most of the rest of the United States, it was dealing in the early eighties with what, in retrospect, was just the beginning of the trend toward massive incarceration. The total inmate count for Iowa on October 1, when the DOC was created, was 2,650, housed in seven prisons. By 2006, at the time of the AU v. PFM trial, the inmate count had tripled, reaching more than 8,500. Yet no significant change had occurred in the overall population of the state in the intervening years. Iowa prisoners are now housed in nine prisons located in mostly rural areas around the state. The Newton Correctional Facility, a 750-bed, medium-security prison for men in which Inner-Change Freedom Initiative's Iowa program operated from 1999 to 2008, is located in the town of Newton, thirty-five miles east of Des Moines. The Newton facility was built in 1997 on the site of a former prison farm constructed in the early 1960s.
Iowa's correctional expansion parallels national trends. Over the course of the last thirty-plus years, a huge increase in the state and federal prison populations across the United States has resulted from years of "law and order" politics. Law and order politics led to the criminalization of an increased range of behaviors, including drug-related offenses, and a larger number of persons, including more juveniles, not to mention an increase in sentence length and the imposition of mandatory sentencing policies. Although for many years little public attention was paid to the intractable social problems created by criminalizing and imprisoning such a comparatively large number of people, today there is increasing political and academic notice of these issues. The political will to tackle them, however, remains distressingly weak.
The State of Iowa, in 2007, commissioned a professional assessment of its correctional facilities. The resulting report, State of Iowa Systematic Study for the State Correctional System, produced by the Durrant Group, a Des Moines-based engineering and planning firm, recommended substantial changes to the Iowa DOC, particularly with respect to mental and medical health treatment. The Durrant report revealed that 90 percent of Iowa prisoners suffer from substance abuse problems, and 30 percent suffer from mental health problems. Treatment capacity is only 1,894 places in substance-abuse treatment programs in any year for a prison population of 8,877. Mental health services are not meeting current professional standards and are grossly underfunded and understaffed. Prisoners are serving longer terms because of the lack of availability of places in mandated treatment programs. The Durrant report is sobering in its assessment of the facilities and services of the Iowa Department, noting outdated and inadequate facilities for treating an aging prison population, those with medical and mental illnesses as well as those with the special needs. A recent national study of safety in U.S. prisons confirms the Iowa findings.
With respect to InnerChange Freedom Initiative, the Durrant report mentions its presence in the Newton facility and the ongoing lawsuit, simply noting that there is no evidence as to its effectiveness. The Durant study also mentions that thought is being given to transforming Unit E, the part of the prison used by IFI, into a residential substance abuse facility, apparently without a faith-based ideology. Both the Department's own planning documents and the Durrant report stress the Iowa Department's dedication to treating the prison population with dignity and its conviction that most prisoners can successfully reenter the world at large.
At this time there seem to be two dominant models in the United States for incorporating religion into the urgent project of comprehensive prison reform. The older model saw religion as an accessory to secular rehabilitation programs provided through prison chaplaincies and through the incorporation of religious communities and volunteers in reentry programs administered by the state. Under this model, the overall responsibility for insuring safety, decent medical and mental health care, job training, and increased educational opportunities for prisoners belongs to the state. The new model creates comprehensively faith-based prisons, or wings of prisons. In this model, religion infuses every aspect of the prisoner's in-prison experience. Treatment, education, and job training take place in an environment that is explicitly religious. Still unresolved is whether these new projects are effective or can be designed in such a way as to be constitutional. Staffing them is also hugely challenging, as they are labor-intensive and require instructors with specialized knowledge. The Iowa Department has used both models.
This chapter offers a picture of Iowa's InnerChange Freedom Initiative in-prison, faith-based rehabilitation program using primarily the words of prisoners who testified at the trial. In later chapters I look at the understanding that Prison Fellowship Ministries and InnerChange Freedom Initiative have of what they are doing and where PFM and IFI fit in the context of American religious and correctional history, as well as current constitutional law regarding religion.
Building a Faith-Based Prison Unit
When the new correctional facility at Newton was being built in 1997, a shortage of funds meant that very little programming for prisoners was planned for the new facility. Indeed, the new prison was "value-engineered" to cut costs. "Value engineering" is a euphemism for lowering building standards to meet budget shortfalls. In this case, the result was, among other things, that one wing, Unit E, was built with wooden doors for cells, rather than metal ones, and with common bathrooms rather than in-cell toilets. Overall space for programming was also reduced because of financial constraints. In the several years before IFI was established at Newton, Unit E was used as an honor dorm to reward prisoners with good disciplinary records. With the advent of IFI and its takeover of Unit E in 1999, however, Unit E, now housing exclusively IFI prisoners, would come to be known by other prisoners at Newton as the "God Pod."
The director of the Iowa DOC from 1997 to 2000, Walter Kautzky, began his tenure as director as a veteran corrections professional. His first prison job had been in Florida in 1966, and he had subsequently worked in the state prisons of Washington, North Carolina, and Colorado, as well as in U.S. military prisons. Kautzky is now executive director of the Tony Lamberti Foundation, a Des Moines-based foundation that funds a number of social service programs for ex-offenders, including the Fund for Faith-Based Re-entry and Bridges for Iowa.
Director Kautzky testified at his pretrial deposition in AU v. PFM that as he anticipated the Newton facility being completed and coming on line he began to look for programming possibilities for the new prison: "We were so short of both money and resources to deal with the 750 people that we were loading into a brand new facility at Newton where we had literally cut out most of the ... program space." He explained:
We were, as a practical matter, looking for anybody that might help us put these offenders into some sort of productive activities. We were looking for a way, a very low-cost way, to utilize and put some activities in place within a very, very large, and very, very new prison where there were literally no activities. There was no space for education. There was a small library with a law library squashed into it, and there were a couple of very small rooms, and beyond that, there was almost nothing for these 750 folks to do.
Lacking productive activity for the prisoners in his new facility, Kautzky put the prisoners to work finishing the prison:
We even had the inmates put up the perimeter security fence, believe it or not, just in order to find something for them to do. We had them put in all the concrete for the basketball courts and volleyball courts and whatnot. But beyond that, when we ran out of that, there was no continuing basis for activities within the institution and clearly no money that was in contemplation from the Republican governor at the time to support programming. That simply wasn't in the cards."
Urgently needing programming, and persuaded that what he had heard about a new faith-based prison rehabilitation program in Texas might be effective, Kautzky said that he began to look into the possibility of introducing into the Newton prison what he called at trial "values-based" programming (pp. 1674, 1703, 1764, 1816-17).
Kautzky testified that he was particularly interested in the then relatively new in-prison, faith-based initiative at the Jester II facility in Sugarland, Texas (now known as the Carol S. Vance unit), a program created in 1997 and administered by Prison Fellowship Ministries. Kautzky and others who testified at the trial denied that "values-based" is a code word for faith-based, although there was considerable ambiguity in the testimony. "Values-based" is apparently, however, not a widely used term in corrections outside the faith-based context. Current professional corrections theory describes itself as being "evidence-based."
PFM is an international prison ministry founded in 1976 by Charles Colson, former adviser to President Richard Nixon, after his release from the federal prison where he had served his sentence following conviction for his part in the Watergate break-in scandal. Colson had pleaded guilty to obstruction of justice related to the burglary of the office of Daniel Ellsberg's psychiatrist. After serving six months of a two-year sentence he was granted early release because of his son's arrest on a drug charge. Colson reported at the time of his release that his conversion to Christianity, just shortly before his incarceration, had saved him from a prideful life dedicated to the exploitation of power and that he would henceforth work to bring the same conversion experience to other prisoners. He has spent his subsequent thirty-plus-year career ministering to prisoners, and he is widely admired for his dedication to improving the lot of prisoners through personal visits with prisoners, consulting with corrections departments, establishing specialized ministries, and lobbying for legislation. PFM is well funded and professionally staffed; in the fiscal year 2006-2007, its annual income was listed on a respected charity watchdog site at approximately $50 million. PFM's ministry is conducted through short-term Bible study programs as well as in other more comprehensive and elaborate programs, such as IFI, that are operated as para-church organizations. (PFM and IFI are described in greater detail in the next chapter).
Kautzky testified at the trial that, by the time he began working in Iowa, he had had a long professional association with Colson, whom he first met in 1979 when Kautzky was director of the North Carolina prison system. He testified about their friendship and of Colson's willingness to step in to troubled situations in prisons:
I've known Mr. Colson for a long time, 20 years, and I don't consider our relationship to be, you know, to be one that is personal, but at a business level. I have worked with him in Washington State, I have worked with him in Colorado-not with him personally sometimes, but at his request with the Prison Fellowship strategies that he had in mind, and I have been with him personally at the Walla Walla State Penitentiary in Washington State where we in fact went cell to cell. I was with him as we visited with prisoners on death row, and in other parts of a very troubled institution. And he was kind enough to come help try-help us sort out an almost impossible situation in Washington. And, again, his objective was to, you know, to leave a foundation of-a connection between the church community and those offenders who literally had very little going for them inside the institution. We did work through those issues in those respective states. (p. 938-39)
Kautzky summarized their relationship: "I consider him, you know, a professional friend in terms of his help to prisoners throughout the various states that I've been in. And in his role as Prison Fellowship he's reached out to me, and I've tried to help Prison Fellowship along the way" (p. 939). While resented by some for his competition with existing chaplaincies, Colson is respected among many correctional professionals for his long-standing willingness to work personally and directly with prisoners and prison administrators in difficult contexts.
Having admired Colson's work in the prisons and having met with representatives of PFM in Iowa, as well as with then Iowa Parole Board member Chuck Hurley and several Iowa state legislators who were interested in bringing faith-based prison programs to Iowa, Kautzky decided to send some of his staff to visit the IFI program then newly under way in Houston. At least one of the Iowa team, Kenneth Burger, then Iowa director of offender services, testified that he understood the purpose of the visit to be to determine whether Iowa should try to replicate the Texas program, but in a secular version. The other Iowa staffers knew, however, that financial considerations prohibited such an innovation. Indeed, one attraction of IFI for Kautzky and others was that it was largely privately funded and volunteer-staffed.
The Texas visit impressed all the Iowans with IFI's potential effectiveness in changing prison atmosphere and reducing recidivism. Asked by the lawyer for the defendants about his reaction to the visit, Kenneth Burger commented: "The thing that impressed me was the behavior of the inmates in the program. And then the warden also talked about the recidivism rate being much lower for the population that had completed the IFI program as compared to the folks in the general Texas system down there. And those were the things that impressed me the most" (p. 1587). In August 1998 Iowa issued an official request for proposals for an in-prison values-based program, closely modeled on the Request for Proposal (RFP) that had been used in Texas in 1997 when IFI was initiated there.
The Iowa RFP clearly announced to potential bidders that no state funding would be available. IFI's subsequent 1999 bid to Iowa, which was made following visits by IFI personnel to the Newton facility, was the only bid that was found to meet state specifications. In its negotiation with Iowa prior to finalizing the contract, IFI specifically requested that the program be allowed to use Unit E, the value-engineered wing of the Newton facility which was then being used by the prison as an honor dorm. After further negotiation, including IFI's successful appeal for state reimbursement for certain "nonsectarian" costs, IFI was awarded the contract, at an annual cost to Iowa taxpayers of approximately $300,000.
The contract between Prison Fellowship and the Iowa Department of Corrections was renewed each subsequent year until 2007. Although the program was substantially the same over the course of the contract, the payment scheme was adjusted to more nearly approximate what IFI and Iowa state lawyers apparently took to be the requirements of a voucher-like system, as had been approved by the U.S. Supreme Court for public funding of religious schools in Cleveland. Under this new scheme, beginning in the 2004-2005 contract year, the State of Iowa was charged for the IFI program on a per prisoner, per diem basis.
Excerpted from Prison Religion by Winnifred Fallers Sullivan Copyright © 2009 by Princeton University Press. Excerpted by permission.
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Table of Contents
CHAPTER 1: The God Pod 19
CHAPTER 2: A Prison Like No Other 64
CHAPTER 3: Biblical Justice 94
CHAPTER 4: The Way We Live Now 140
CHAPTER 5: Beyond Church and State 180
What People are Saying About This
In this wide-ranging and frequently brilliant book, Winnifred Fallers Sullivan mines her experience as an expert witness in the extraordinary case of the 'God Pod,' a section of an Iowa state prison administered by a faith-based organization that equated crime with sin.
Sarah Barringer Gordon, University of Pennsylvania Law School
Prison Religion is a remarkable and illuminating book. In narrating a court case over an Iowa 'faith-based' prison program, Sullivan manages to combine a balanced account of the trial and its backgroundinformative, fair, and detailedwith wide-ranging reflections on the problems of religion, secularism, and the law. Interdisciplinary in the best way, this book will be provocative and useful for lawyers, historians, and anyone interested in the complicated entanglement that binds evangelicalism and disestablishment in mutually assured misrecognition.
Michael Warner, Yale University
Winnifred Fallers Sullivan is one of the foremost interpreters of religion in American law, and in Prison Religion she invites us to consider how legal structures affect understandings of religious culture. This is the most provocative book on American evangelicalism that I have read in a very long time. It is also hard to imagine reading this book and not being challenged or changed by its portrait of the prison system.
Courtney Bender, Columbia University