Fired Prison Chaplain States Valid 1st Amendment Claim

In Holmgren v. State of Minnesota, (MN Ct. App., June 22, 2010, a Minnesota state appellate court held that a former prison chaplain's First Amendment free expression may have been violated when she was fired for speaking out against a new program being considered by the state which she believed would violate the Establishment Clause. Kristine Holmgren, employed as a non-denominational chaplain at the state's Shakopee facility, learned that the state-funded InnerChange Initiative Program was being considered for Shakopee. She believed the program's purpose was to convert inmates to Christianity using state dollars, and knew that a similar program was under court challenge in Iowa. (See prior posting.) She pressed the warden on the issue, including at a staff meeting, for which the warden fired her.

The court denied defendant's motion for summary judgment, concluding that the facts alleged by Holmgren were sufficient to establish a First Amendment violation. She at least raised a factual question as to whether she was speaking as a citizen rather than as part of her employment duties. Her criticisms involved a matter of public concern, and her right to speak about the issue outweighs the state's interest in an orderly work place. Defendant does not have qualified immunity because case law clearly establishes Holmgren's right not to be fired for raising potentially illegal conduct by government officials.

District Court Refuses To Dissolve Injunction In InnerChange Case

Last year in a widely publicized decision the U.S. 8th Circuit Court of Appeals held that a government funded, faith-based inmate rehabilitation program operated in an Iowa prison by InnerChange violates the Establishment Clause. (See prior posting.) Since the Iowa Department of Corrections has now terminated its contract with InnerChange, the program has ceased operation in Iowa, and InnerChange has paid back to the state all funds that the court had ordered it to return, in April the defendants in the case asked the federal district court to dissolve the injunction that had been issued.

In Americans United for Separation of Church & State v. Prison Fellowship Ministries, 2008 U.S. Dist. LEXIS 44291 (SD IA, May 19, 2008), an Iowa federal district court refused to do so at this time, but said it is wiling to reconsider dissolving the injunction in 18 months. In denying the current motion, the court said:

[T]he injunction does not result in the Court "micro-managing the Iowa prison system," nor does it fail to "'take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution.'" ... Indeed, were the State to contract with InnerChange for services unsupported in any way by government funds, such contract would not violate the existing injunction and would not necessitate Court intervention or review.

... Defendants have not satisfied their burden to show that the cessation of the InnerChange program or the repayment of funds has made compliance with the injunction more onerous, unworkable, or detrimental to the public interest, such that the injunction should be dissolved.

Iowa Ends Controversial Faith-Based Prison Program

Iowa officials have notified Prison Fellowship Ministires that its faith-based InnerChange program will be ended in Iowa prisons in mid-March. Sunday's Des Moines Register reported that under the state's contract with the program, the state can teminiate it if enrollment falls belaow 60 inmates. That will happen when 27 prisoners graduate from the program on March 14. Last year the U.S. 8th Circuit Court of Appeals ruled that the program could no longer be run on government funding. Since then it has been funded privately, but the state ended new enrollments by prisoners in the program.

8th Circuit Denies En Banc Review of Decision on Faith-Based Prison Program

The Quad City Times reports that yesterday the U.S. 8th Circuit Court of Appeals denied en banc review in Americans United For Separation of Church and State v. Prison Fellowship Ministries. Last month, a 3-judge panel concluded that a state funded faith-based rehabilitation program operated in an Iowa prison by InnerChange violates the Establishment Clause. (See prior posting.)

En Banc Review Sought Of 8th Circuit Decision On Faith-Based Prison Program

The state of Iowa and Prison Fellowship Ministries are seeking en banc review from the U.S. 8th Circuit Court of Appeals in Americans United for Separation of Church and State v. Prison Fellowship Ministries, Inc., (8th Cir., Dec. 3, 2007). The AP yesterday reported on the filing of the motion which seeks review of a decision by a 3-judge panel earlier this month. The panel concluded that a state funded faith-based inmate rehabilitation program operated in an Iowa prison by InnerChange violates the Establishment Clause. (See prior posting.)

8th Circuit Finds State Funding of Faith-Based Prison Program Unconstitutional

Yesterday in Americans United for Separation of Church and State v. Prison Fellowship Ministries, Inc., (8th Cir., Dec. 3, 2007), the U.S. 8th Circuit Court of Appeals held that a faith-based inmate rehabilitation program operated in an Iowa prison by InnerChange violates the Establishment Clause. The 3-judge panel included retired U.S. Supreme Court Justice Sandra Day O'Connor.

Even though inmate entry into the InnerChange program was voluntary and state funds were used only to pay for non-religious aspects of the program, the court held that direct payments to InnerChange for the years 2002-04 funded religious indoctrination in violation of the Establishment Clause of the U.S. and Iowa constitutions. It also found an Establishment Clause problem because participation in InnerChange was available only to inmates professing Christian beliefs. In 2005-07, funding changed from cost reimbursement to a per diem payment. The court held that this did not convert the program into one of permissible indirect aid. The court also rejected defendant's reliance on Turner v. Safley, a Supreme Court case which in the court's view applies to free exercise, but not to establishment clause, challenges in prison settings.

The court however reversed the district court's order that InnerChange repay funds it received from the state for periods before the trial court found the program unconstitutional. The court also emphasized that the district court injunction it was affirming applied to InnerChange only so long as it received government funding for operating the Iowa program.

Both sides have claimed victory in the Court of Appeals. Americans United issued a release praising the ruling, saying it is a major setback for the White House's faith-based initiative. Meanwhile, InnerChange issued its own release, saying that since InnerChange now operates in Iowa without state funding, the 8th Circuit's ruling effectively permits it to continue and reverses the trial court's order for it to repay $1.5 million it previously received in state funds.Yesterday's Des Moines Register covers the decision. (See prior related postings.)

Paper Profiles Faith-Based Prison Programs

USA Today this week end looks in-depth at faith-based prison facilities. While concluding that it is unclear whether the programs reduce recidivism, the article reports positively on the impact they have on individual prisoners who, for the first time, feel they are being treated with respect:

[E]vidence is strong that violence and trouble-making drop sharply in these programs, and they often are the only vibrant rehabilitation option at a time when taxpayer-funded alternatives have been cut back.

Elizabeth Alexander, director of the American Civil Liberties Union's National Prison Project, has qualms about whether the faith-based programs are fair to non-Christian inmates but hesitates to criticize them because they fill a void. Two decades of tough-on-crime policies have sharply reduced the number of rehabilitative prison programs, she said, and volunteer-driven religious initiatives offer states a low-cost way to meet some of the demand.

A federal district court decision in Iowa finding state support for InnerChange's faith-based prison program unconstitutional is now on appeal. (See prior posting.)

InnerChange: Latest Developments

On July 1, 2007, this blog reported (here) that Iowa prison officials have reached an agreement with the faith-based prison treatment program, InnerChange, permitting it to continue to operate-- at its own expense-- at Newton Correctional Facility pending the U.S. 8th Circuit Court of Appeals decision on whether the program violates the Establishment Clause.

Yesterday's Des Moines Register (IA) has an editorial calling that decision into question, writing "If the state desires to institute 'values based' programs aimed at reforming convicted criminals, it must be sure they are not disguised as government-sponsored avenues for evangelization."

Defendants have also filed two F.R.A.P. 28(j) letters providing supplemental authorities to the court. One relates to rates of recidivism for inmates in the program. The second discusses the Supreme Court's decisions in Hein v Freedom from Religion Foundation, 551 U.S. ____ (2007) (June 25, 2007) and University of Notre Dame v Laskowski, No. 06-582 (US June 29, 2007) (cert. granted, judgment vacated and remanded in light of Hein). Both of these cases are discussed here.

Defendants argue that the district court relied heavily on Laskowski, and "[t]hus the anomalous legal basis for allowing private, taxpayer plaintiffs to compel restitution to the government is gone, and the decision below granting that remedy should be reversed." Plaintiffs argue in reply that unlike the case in Hein, "InnerChange was funded for the last four years with appropriations by the Iowa Legislature specifically for the program." Plaintiffs also argue that "The restitution question is an issue of remedy, not standing. Hein does not impact the logic of prior cases that treated restitution as an available remedy...."

Iowa Permits Faith-Based Prison Program To Continue Pending 8th Circuit Decision

Iowa prison officials have reached an agreement with the faith-based prison treatment program, InnerChange, permitting it to continue to operate-- at its own expense-- at Newton Correctional Facility pending the U.S. 8th Circuit Court of Appeals decision on whether the program violates the Establishment Clause. The Des Moines Register yesterday reported that Prison Fellowship will be permitted to operate the program without the state funding it has been receiving, but authorities will be able to shut it down immediately if the 8th Circuit agrees with last year's district court decision invalidating the program. The district court suspended its order while the appeal is pending. Prison officials also said they intend to seek bids for a new "values-based" treatment program at Newton Correctional Facility next year.

8th Circuit Arguments Held On Faith-Based Prison Program; MP3 Version Available

The St. Louis Post Dispatch reports on yesterday's oral arguments in the U.S. 8th Circuit Court of Appeals in Americans United for Separation of Church and State v. Prison Fellowship Ministries, a case in which an Iowa district court held that InnerChange, a faith-based prison rehabilitation program financed with state funds, violates the Establishment Clause. The 3-judge panel in the Court of Appeals included retired U.S. Supreme Court Justice Sandra Day O'Connor. (See prior posting.) About 15 seconds into his argument, O'Connor cut off retired Iowa deputy attorney general, Gordon Allen to ask a question about recidivism rates in Iowa and in other states. An MP3 file of yesterday's entire oral argument can be played or downloaded from the 8th Circuit's website.

UPDATE: A fuller account of the oral arguments is available at this post from Anne Farris at The Roundtable [via Blog from the Capitol]. And here is a posting at Knippenblog (Joe Knippenberg) with links to the briefs and recent op-ed pieces on the case.

O'Connor On 8th Circuit Panel Hearing Challenge To Faith-Based Prison Program

According to the Associated Press, retired U.S. Supreme Court Justice Sandra Day O'Connor will be one of the three judges on a panel of the U.S. 8th Circuit Court of Appeals next week that will hear the appeal in Americans United for Separation of Church and State v. Prison Fellowship Ministries, a case in which an Iowa district court held that InnerChange, a state-financed faith-based prison rehabilitation program, violates the Establishment Clause. (See prior posting.) The district court opinion being appealed mentioned Justice O'Connor four times in its 140 pages as it referred to church-state decisions that she authored.

Minnesota Ends Funding Of Faith-Based Pre-Release Program

The Minnesota Department of Corrections is ending its $100,000 per year subsidy to the faith-based InnerChange prisoner pre-release program. Today's St. Paul Pioneer Press reports that the policy change was motivated by budgetary, rather than church-state, concerns. Department of Corrections Commissioner Joan Fabian said that after the state had negotiated its second 2-year contract with the group, she found out that InnerChange was operating in Texas prisons without charge. Apparently one of InnerChange's board members has told Fabian that it would operate free of charge in Minnesota as well. Iowa's InnerChange program was struck down by a federal district court, and the appeal of that decision is to be argued next week in the U.S. 8th Circuit Court of Appeals. However Minnesota contends that its program is sufficiently different that it would survive constitutional challenge.

Arkansas Faith-Based Pre-Release Program For Women Launched

Today Arkansas correctional officials will dedicate a faith-based pre-release program for women prisoners, according to the Associated Press. The program, InnerChange Freedom Initiative, will be operated by Prison Fellowship Ministries at the Wrightsville prison. A similar program for male prisoners is already operating in Arkansas. InnerChange in an Iowa prison has been found by a federal district court to be unconstitutional and the decision is currently on appeal to the 8th Circuit. (See prior posting.) Mark Earley, the program's CEO, says that unlike the Iowa program, the one in Arkansas is funded privately. The state pays only for housing and feeding the inmates. (See prior posting.)

Arkansas Governor Defends His Version of Prison InnerChange Program

According to the Associated Press yesterday, Arkansas Governor Mike Huckabee says that his state prison's InnerChange program is constitutional. He says that the Bible-based program in the Arkansas prison system is sufficiently different from Iowa's that the recent federal court decision striking down Iowa's faith-based program should not affect Arkansas. Huckabee says that the Arkansas program is totally funded by private contributions, is totally voluntary and does not require Christian conversion or belief to participate. It is designed to give inmates the skills they need to succeed in society. The only state funding involved is used to house and feed the participating inmates.

InnerChange Prison Program Held Unconstitutional

In a decision that could have broad implications for the Bush administration’s Faith Based Initiative, an Iowa federal district court yesterday held that a state-financed prison treatment program affiliated with Charles Colson’s Prison Fellowship Ministries is "pervasively sectarian" and violates the First Amendment’s Establishment Clause. (See prior posting.) Yesterday’s New York Times and today’s Washington Post report on the 140-page decision in Americans United for Separation of Church and State v. Prison Fellowship Ministries, (SD Iowa, June 2, 2006), which requires InnerChange to return $1.5 million in funding that it has received from the state of Iowa.

The court explained at length the evangelical Christian theology of InnerChange, and how it differs from the beliefs of a number of other Christian groups. It also explained the "transformational model" used by InnerChange in its program—one that instead of attempting to teach inmates to manage their behavior, attempts to "cure" prisoners by identifying sin as the root of their problems and changing their relationship with God. The court found that while the primary purpose of state officials in bringing the InnerChange program to Iowa was to reduce recidivism, funding of the program has the primary effect of advancing religion because state funds are being directed to a pervasively religious program. It concluded that it could not separate out the secular parts of InnerChange’s program for funding because the transformational model used makes it impossible to distinguish sectarian from religious aspects of rehabilitation. The court also found that participation by inmates in InnerChange was not the result of true private choice between alternative programs. There are a number of incentives for inmates to choose InnerChange, and there are no similar alternative secular programs for inmates to choose. Thus the state is unconstitutionally entangled with religion in the program.

Mark Early, president of Prison Fellowship Ministries, said the decision is so broad that it appears to ban a prison program like InnerChange even if it is privately funded. InnerChange plans to file an appeal. [Thanks to Douglas Laycock via Religionlaw for the lead, and to How Appealing for the link to the opinion.]

Closing Arguments In Trial Challenging InnerChange

The Des Moines Register reports on closing arguments that were presented Friday by lawyers in federal district court in Iowa in a case challenging InnerChange, a faith-based prison treatment program. Operating in Iowa and elsewhere, inmates in the program immerse themselves in Christian values. (See prior related postings 1, 2.) Americans United for the Separation of Church and State has sued Iowa prison officials and Prison Fellowship Ministries, which operates the program, claiming that InnerChange violates the Establishment Clause. The suit seeks repayment of $1.5 million in state funds that have been used for InnerChange.

Lawyers for Americans United argue that the program "requires and coerces inmates to take part in religious activities." They say it discriminates against other religious beliefs, particularly Catholicism, and provides special privileges to participants. These include an opportunity to complete treatment classes required for parole earlier than they could otherwise. Defense lawyers dispute these claims, saying no one is forced to participate and that participants receive no preference for paroles. "Inmates of all faiths and no faiths are welcome," said Anthony Troy, a lawyer for Prison Fellowship. He says that those of other faiths who join the program can continue to observe their traditions

Paper Discusses Prison Program InnerChange

Today's Boston Globe carries a long story on the faith-based InnerChange Freedom Initiative, an offshoot of the Prison Fellowship movement launched by Charles Colson, which has been adopted by 4 state prison systems, and will shortly expand to 2 more. Final arguments are scheduled on Feb. 17 in a case in Iowa in a challenge to the program that was filed by Americans United for Separation of Church and State.

Trial Begins On Faith-Based Prison Program

The Des Moines, Iowa Register reports that a trial begins today in U.S. District Court in Des Moines raising a Establishment Clause challenge to an Iowa prison treatment program based on Christian-oriented values. The program, the InnerChange Freedom Initiative, was established at the Newton state prison in 1999 by Prison Fellowship Ministries, founded by former Watergate figure Charles Colson. The Iowa Legislature has appropriated $310,000 from the Healthy Iowans Tobacco Trust for a "value-based treatment program" at the Newton prison. Former Virginia Attorney General Mark Earley, president of Prison Fellowship Ministries, said the state money is used for nonreligious purposes, such as vocational and general education programs, and for administrative costs. Private money covers other expenses, he said.