Criminal plots being hatched behind prison walls, recruitment of isolated and disenfranchised individuals, orders being given to extremists on the outside. These are serious threats to the security of both corrections facilities and society at large and their prevention is a source of frustration for many corrections administrators.

While the vast majority of inmates practicing religion in prison do so in a peaceful and constructive way, there are groups of inmates with extreme views who hide behind religion in order to commit crimes and pass on their beliefs.

"Particularly in this post-9/11 environment, analysts recognize that the prison can be a breeding ground for all kinds of security risks under the guise of being a religion and that's what is so tough - it's the balancing act [between religious rights and security threats] that corrections officials have to tackle," said Brian Levin, Professor and Director of the Center for the Study of Hate & Extremism at California State University, San Bernardino.

Levin said corrections officials need to think carefully about how they respond to these threats, recognize inmates' right of religion and, at the same time, be cognizant of, and take action against, groups that represent a threat inside or outside the prison. If they don't, then inmates may prevail either by furthering their cause or getting official status in court.

"Unfortunately [corrections officials] have to think out a possible court response, but so much of what the court relies on is situationally specific," said Levin. "It really comes down to the ability of corrections officials to show that their acts are reasonable and they are not targeting religious practices in a punitive way, but actual security threats themselves."

Many believe that the clock is ticking for corrections agencies to figure out this balance because extreme religious groups represent a legitimate threat inside the prisons that should be monitored.

Understanding the Threats

Mark Pitcavage of the Anti-Defamation League said there are four issues surrounding extremist groups that corrections agencies should consider. He said that while corrections agencies are typically aware of gangs and their activities, extremist groups also pose some of the same problems in that they are involved in organized crime or other types of criminal activity.

Furthermore, extremists who are incarcerated want to recruit others there. One example, he said, is with the members of the Montana Freemen group who were jailed in the 90s. While in jail, Pitcavage said, they started teaching their extremist tactics to others.

Corrections should also be aware, Pitcavage said, that extremist groups on the outside view prisons as fertile ground for recruitment and, once inside, extremists will continue to direct the actions of others on the outside.

Combating these actions take a strategy.

"For a long time prison systems have tended to consider extremists to be potential security threats. We support the efforts of state programs to develop vigorous security threat group intelligence units. Those who have the best units are best able to detect and prevent problems arising related to extremism," Pitcavage said.

The issue of monitoring extremist groups was raised in a report by the federal Office of the Inspector General published in May, which questioned some of the practices within the federal Bureau of Prisons regarding the selection of Muslim religious leaders.

The report, which investigated the practices of various institutions and made recommendations for change, highlighted several deficiencies in how the BOP selected and supervised Muslim religious service providers.

Included among this list in the report were concerns that the BOP typically did not examine the doctrinal beliefs of applicants for religious service positions to determine if they were inconsistent with BOP security practices; the BOP and FBI did not adequately exchange information about the BOP's Muslim endorsing organizations; the BOP does not effectively use the expertise of its current Muslim chaplains to screen, recruit and supervise Muslim religious services providers; BOP inmates often lead Islamic religious services and are subject to intermittent supervision from BOP staff and, within the BOP's chapels,  significant variations exist in the level of supervision provided by correctional officers.

According to published reports earlier this spring, a BOP spokesman said the agency has made changes since the review was initiated to better screen religious services providers. And, in testimony before the Senate's Subcommittee on Terrorism, Technology and Homeland Security last October, BOP Director Harley Lappin said that the agency has been sharing information with the FBI, National Joint Terrorism Task Force and other intelligence agencies regarding inmates with terrorist ties.

Nevertheless, some can understand why security might have been lax around the provision of services to Muslim inmates.

"The history of [followers of] Islam in prison is they have been very orderly. They stop drinking, get in fewer fights, and therefore for most of the last several decades it has been a pretty benign influence, or it didn't have a dangerous influence. And because they didn't pose a particular threat, prison officials developed a comfortableness," said Pitcavage.

Pitcavage also recognizes that the world has changed since 9/11 and so, too, must security practices.

"After 9/11, in our prison systems, [we learned] we weren't as sensitive as we might have been to issues of radical Islamists having a presence in our systems," he said.

The incidents that have taken place since then show why a closer look at some of the practices by these groups inside prison is needed. Pitcavage said in New York and Pennsylvania, Imams with a radical view of Islam have been able to talk with prisoners and some have been able to bring radical materials into prison libraries. Still other stories, such as the one of a radical Imam in Los Angeles sending materials to inmates in Texas, show the potential threats that exist.

Those threats come from many groups, however, not just radical Islamists. The followers of the World Church of the Creator, Five Percenters and others can pose a threat to prison security as they attempt to spread their message by claiming religious status.

But as corrections officials understand the seriousness of these threats, they also struggle to find a model to follow to address them. One of the main problems in regulating radical religious groups is that there is no consistent approach in the field. One system, for example, allows inmates to lead religious services, while another allows for no unsupervised gathering of inmates for religious purposes whatsoever.

Many believe that the testing of different state policies in court will help determine the right response for corrections agencies.

Balancing Legal Rulings and Security

Some state prison systems have already had their security practices scrutinized in the courts as inmates claiming religious group membership have filed lawsuits claiming their rights have been ignored or violated.

These cases have been filed by inmates under RLUIPA, the Religious Land Use and Institutionalized Persons Act, which was signed into law in 2000 by President Clinton. The statute replaces the protections afforded inmates under the Religious Freedom Restoration Act, which was determined unconstitutional by the federal courts.

RLIUPA reads in part, "No government shall impose a substantial burden on religious exercise of a person residing in or confined to an institution...even if the burden results from a rule of general applicability, unless...it is a furtherance of a compelling governmental interest; and is the least restrictive means of furthering that compelling governmental interest.

"RLUIPA puts the burden on the government. It was designed to protect the religious rights of prisoners, which historically have been denied. But prison officials say it places unreasonable restrictions on them," said Pitcavage.

While RLUIPA seems to protect inmates' religious rights, some of the case decisions that have come down regarding RLUIPA are in conflict. In New York, for example, a U.S. District court ruled that the corrections system was to treat the Five Percenters as a religious group. In Ohio, however, the Sixth Circuit court ruled that RLUIPA was unconstitutional.

"It's a tough line to walk. Any religious programming in a prison necessarily involves some government action whether it is relatively passive - permitting a volunteer to come in, or the more active role of hiring religious advisors or constructing programs such as faith-base activity," said Greg Trout, Chief Counsel for the Ohio Department of Rehabilitation and Correction.

The Ohio DRC is caught between two Sixth Circuit rulings that seem to contradict each other in regard to inmates' religious rights.

In one case the court ruled that RLUIPA basically advanced religion, therefore making it unconstitutional, and the second case decision stated that the DRC had to show that an Orthodox Jewish inmate was a security risk in order to impose its strict grooming standards.

"Typically, the court would say that if you have a legitimate security interest then it is applied to all inmates," said Trout. "This court said we had to show a particular security risk. That says that you have to apply your grooming requirements one inmate at a time. That's unrealistic."

Trout said the DRC attempted to have the case heard by the Supreme Court on appeal, but it was denied a hearing.

So for now, the DRC has to implement it security protocols somewhere between these two rulings. Trout said formally, the agency hasn't determined how it will do that.

Generally, though, the DRC will deal with religious requests from inmates individually and the wardens, Trout said, will have to know when they should bend on a rule and when they should hold fast.

In addition, Trout said that the DRC has no real plans to alter its conservative approach to security issues as they related to religious groups - including extreme religious ones.

"We've always been conservative regarding [extreme] groups. We call them security threat groups. You can have religious groups or groups that call themselves religious groups like the Aryan Nation offshoots. We track that type of activity as a potential security threat," he said.

And, it acts accordingly. The DRC, for example, does not allow the gathering of inmates unsupervised for religious activities and all volunteers for these activities need to be approved.

In New York, following the RLUIPA court ruling there, corrections officials have basically done what they have always done.
 
"Our first concern is what goes on in our prisons and how these people could influence what happens. In my operation, New York has always reinforced the premise that we treat each person as an individual," said Glenn Goord, Commissioner of the New York State Department of Correctional Services. "We don't care what group or gang you may or may not be a member of. We focus on people's behaviors."

The ruling from the New York RLUIPA case provided the Five Percenters group with the ability to be recognized as having a religious distinction, but its members must also register their affiliation with the department.

So the department still plans to monitor those inmates it deems a risk by listening to phone calls, reading mail and communicating with other law enforcement agencies.

"The practical reality is institutions are very large places. We're not set up to monitor every single thing that is going on. By the same token, there are some practical things we can do," said Anthony Annucci, Deputy Commissioner and Counsel for the NYSDOCS. "We are walking a careful line. There is no question there is the potential for some radical element to get a toe hold [in prison]."

According to Levin, who has followed the RLUIPA rulings related to corrections, for now agencies have to follow what the courts say in their region to determine how to respond to the religious requests of inmates.

While corrections agencies can't hamper religious practices, the security issues for individual inmates who pose specific threats are a reality.

Levin predicts that eventually the Supreme Court will take a RLUIPA case that will help clear up these conflicting legal rulings.

Meanwhile, corrections officials know how important it is to monitor potential security threats, and their decisions oftentimes are influenced by the everyday threats rather than a particular choice to hinder a specific group in a larger sense.

"It's really tough because on the one hand you have inconsistent opinions on the federal level, but in prison, decisions have to be made every day." said Levin. "[But] right now that is what we have on our plate and we have to work with it."

Resources:

A Review of the Federal Bureau of Prisons' Selection of Muslim Religious Services Providers
http://www.watchingjustice.org/pub/doc_225/Muslim%20Service%20Providers.pdf

"Terrorist Recruitment and Infiltration in the United States: Prisons and Military as an Operational Base. " Senate Judiciary Committee, Subcommittee on Terrorism, Technology and Homeland Security
http://judiciary.senate.gov/hearing.cfm?id=960

Statement of Harley Lappin, Director Bureau of Prisons, Senate Judiciary Committee, Subcommittee on Terrorism, Technology and Homeland Security
http://judiciary.senate.gov/testimony.cfm?id=960&wit_id=2318

Anti Defamation League
http://www.adl.org/adl.asp

Brian Levin - California State University, San Bernardino - 909-880-7711

Ohio DRC - 614-752-1150

NYSDOCS - 518-457-8182