bickerton, lee, dang sullivan, lllp imited liability …say goodbye.” huy’s directors include,...

BICKERTON, LEE, DANG & SULLIVAN, LLLP A LIMITED LIABILITY LAW PARTNERSHIP JAMES BICKERTON 3085 Topa Financial Center, Fort Street Tower 745 Fort Street, Suite 801 Honolulu, Hawai‘i 96813 Telephone: (808) 599-3811 Email: [email protected] Attorneys for Amicus Curiae HUY

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI‘I RICHARD KAPELA DAVIS , MICHAEL HUGHES, DAMIEN KAAHU, ROBERT A. HOLBRON, JAMES KANE, III, ELLINGTON KEAWE, KALAI POAHA and TYRONE KAWAELANILUA‘OLE NA‘OKI GALDONES,

Plaintiffs,

v. NEIL ABERCROMBIE, in his official capacity as the Governor of the State of Hawai‘i; TED SAKAI, in his official capcity as Director of the Hawaii Department of Public Safety; CORRECTIONS CORPORATION OF AMERICA,

Defendants.

CIVIL NO.11-00144 LEK BMK (Declaratory and Injunctive Relief and other Civil Action) AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFFS’ OPPOSITION TO SUMMARY JUDGMENT; CERTIFICATE OF SERVICE HEARING DATE: January 13, 2014 TIME: 9:45 a.m. JUDGE: Hon. Leslie E. Kobayashi Dkt. 361

Case 1:11-cv-00144-LEK-BMK Document 439-1 Filed 12/20/13 of 26 PageID #: 9910

Schmidt12

Typewritten Text

EXHIBIT 1

TABLE OF CONTENTS FACTUAL BACKGROUND .................................................................................... 1 IDENTITY AND INTEREST OF AMICI CURIAE ................................................ 1 SUMMARY OF ARGUMENT ................................................................................. 2 ARGUMENT ............................................................................................................. 3

I. BY ENACTING RLUIPA, CONGRESS MANDATED THAT

COURTS APPLY THE MOST DEMANDING TEST IN CONSTITUTIONAL LAW TO THE RELIGIOUS EXERCISE CLAIMS OF PRISONERS ................................................................... 3

II. THE FACT THAT MANY INSTITUTIONS, INCLUDING CCA

FACILITIES, HAVE ACCOMMODATED INDIGENOUS RELIGIOUS SPACES SIMILAR TO THOSE REQUESTED HERE INDICATES CCA HAS NOT UTILIZED THE LEAST RESTRICTIVE MEANS AND THE REHABILITATIVE ASPECTS OF INDIGENOUS PEOPLE PRACTICING THEIR RELIGION CALLS INTO QUESTION CCA’S COMPELLING INTEREST CLAIMS ................................................................................................ 7

A. ACCOMMODATION OF SWEAT LODGES IN MANY

PRISONS RAISES A FACTUAL QUESTION AS TO WHETHER CCA HAS UTILIZED THE LEAST RESTRICTIVE MEANS ............................................................ 8

B. THE ESTABLISHED REHABILITATIVE BENEFITS OF

NATIVE PEOPLE PRACTICING THEIR TRADITIONAL RELIGIONS IN PRISON UNDERMINE CCA’S COMPELLING INTEREST CLAIM ....................................... 13

CONCLUSION ........................................................................................................ 17


ii

TABLE OF AUTHORITIES

Cases

Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004) ................................................................................ 4

Alvarez v. Hill, 518 F.3d 1152 (9th Cir. 2008) .......................................................................... 4, 6

City of Boerne v. Flores, 521 U.S. 507 (1997) .............................................................................................. 5

Cutter v. Wilkinson, 544 U.S. 709 (2005) .............................................................................................. 4

Fowler v. Crawford, 534 F.3d 931 (8th Cir. 2008) .............................................................................. 11

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 4 (2006) ...................................................................... 4

Greene v. Solano Cnty. Jail, 513 F.3d 982 (9th Cir.2008) ................................................................................. 6

Lindh v. Warden, Fed. Corr. Inst., Terre Haute, Ind., No. 2:09-CV-00215-JMS, 2012 WL 379737 (S.D. Ind. Feb. 3, 2012) ............................................................................................................. 13, 16

Lovelace v. Lee, 472 F.3d 174 (4th Cir. 2006) .............................................................................. 13

Moussazadeh v. Tex. Dept. of Crim. Justice, 703 F.3d 781 (5th Cir. 2012) ................................................................................ 5

Murphy v. Mo. Dep’t. of Corr. 372, F.3d 979 (8th Cir. 2004) ............................................................................. 13

O'Bryan v. Bureau of Prisons, 349 F.3d 399 (7th Cir. 2003) ................................................................................ 6

Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525 (11th Cir. 2013) .................................................................. 5, 13, 16


iii

Roybal v. Deland, Nos. C-87-0208A & C-87-8208G (D. Utah 1989) ................................... 9, 10, 11

Shakur v. Schriro, 514 F.3d 878 (9th Cir. 2008) ................................................................................ 6

Shimer v. Washington, 100 F.3d 506 (7th Cir. 1996) .............................................................................. 13

Sossamon v. Lone Star State of Texas, 560 F.3d 316 (5th Cir. 2009) ................................................................................ 4

Spratt v. R.I. Dep’t of Corr., 482 F.3d 33 (1st Cir. 2007) ........................................................... 4, 5, 6, 8, 12, 13

Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) .............................................................. 4, 5, 6, 8, 12

Washington v. Klem, 497 F.3d 272 (3rd Cir. 2007) ................................................................................ 5

Statutes

Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc ............................................................................ 1, 3, 4, 5, 12, 16

Other Authorities

146 Cong. Rec. S7774-76 (2000) .......................................................................... 3, 4

Andrew Knochel, Arizona Adding Sweat Lodge for Native American Inmates, Sacramento Bee, Oct. 27, 2013 ...................................................... 15, 16

Byron R. Johnson et al., Religious Programs, Institutional Adjustment, and Recidivism among Former Inmates in Prison Fellowship Programs, 14 Just. Q., 145 (1997) ................................................... 14


iv

Col. Dept. Corr., AR 800-01, Administrative Regulation: Religious Programs, Services, Clergy, Faith Group Representatives and Practices ............................................................................................................... 9

Suzanne J. Crawford & Dennis F. Kelley, American Indian Religious Traditions: An Encyclopedia (2005) ............................................................ 14, 15

Elizabeth S. Grobsmith, Indians in Prison: Incarcerated Native Americans in Nebraska (1994) ..................................................................... 10, 11

Laurence Armand French, Native American Justice (2003) ..................................... 9

Fed. Bureau of Prisons, P5360.09, Program Statement: Religious Beliefs and Practices ¶¶ 2, 20(f) (2004) ............................................................... 9

Graduate Research Fellowship – Final Report (2000), available at https://www.ncjrs.gov ......................................................................................... 13

Harvard Pluralism Project, Sweatlodges in American Prisons (2005), http://www.pluralism.org/ reports/view/103 ...................................................... 14

Settlement Agreement Trapp v. DuBois (March 20, 2003), available at: http://www.nativeweb.org/pages/legal/trapp/settlement.html ......................... 9

Carol Sisco, New Mexico Warden Says Prison Sweat Lodge No Problem: Utahns’ Fear Conjuring Ghosts, Salt Lake Trib., Nov. 9, 1986 ..................................................................................................................... 11

Wash. Dept. of Corr., DOC 560-200, Policy: Religious Programs ........................... 9


FACTUAL BACKGROUND Amicus Curiae Huy defers to Plaintiffs’ statement of the relevant facts.

IDENTITY AND INTEREST OF AMICI CURIAE

Amicus Curiae Huy submits this brief to address the central question raised

in this case: whether Defendant Corrections Corporation of America (CCA) has

sufficiently demonstrated that its complete ban on Native Hawaiians access to a

stone altar actually furthers a legitimate penological interest and whether a

complete ban is the least restrictive means of furthering that interest in accordance

with the Religious Land Use and Institutionalized Persons Act of 2000

(“RLUIPA”), 42 U.S.C. § 2000cc. All parties have consented to the filing of this

brief.

Huy is a nationally recognized, 501(c)(3) non-profit organization

headquartered in Washington State, which seeks to enhance religious, cultural, and

other rehabilitative opportunities for imprisoned Indigenous People, including

American Indians and Native Hawaiians. In the traditional Coast Salish language

known as Lushootseed, huy (pronounced “hoyt”), means: “See you again/we never

say goodbye.” Huy’s directors include, among others, the President of the

National Congress of American Indians, elected chairpersons of federally

recognized Washington tribal governments, a former Washington State legislator,


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and the immediate past Secretary of the Washington State Department of

Corrections (DOC).

Since 2010, Huy has participated as amicus before the Fifth Circuit Court of

Appeals, and in administrative rulemakings in California and Washington State, in

matters involving the religious rights and civil liberties of Indigenous prisoners.

Huy has also entered into a Memorandum of Understanding with the Washington

State DOC, under which it has facilitated the gifting of nearly $100,000.00 to the

DOC for Indigenous prisoner religious activities.

Additional information about Huy can be found at: www.huycares.org.

SUMMARY OF THE ARGUMENT

Defendant CCA has requested summary judgment in a case where the court

must apply the most demanding test in Constitutional law to their complete

prohibition of an aspect of Native Hawaiian prisoners’ religious exercise. The

Native Hawaiian prisoners in this case seek accommodation for a Pohaku O Kane,

a sacred space for prayer, refuge and atonement that utilizes a stone altar. The fact

that federal and state prisons throughout the country, including the two CCA

facilities here, have safely accommodated American Indian sweat lodge - a

ceremonial space that utilizes fire, stones, scalding hot and sharp objects, and metal

tools - raises a genuine issue of material fact as to whether a complete ban on the

Native Hawaiian stone altar and associated spiritual practices, is the least


3

restrictive means of furthering its asserted interest in safety. Because CCA can

accommodate a sweat lodge, it should be able to accommodate a similar outdoor

sacred space for similarly situated Indigenous inmates.

In light of a broader history of the benefits of accommodating the religious

practices of Indigenous People, CCA’s compelling interest claim is weak. Like

American Indian sweat lodges, which were once widely asserted to pose grave

safety concerns in prisons but have proven instead to have positive penological

impacts, it has not been demonstrated that prohibiting the Native Hawaiian stone

altar here will actually further CCA’s compelling interest in safety. Because CCA

has thus far not substantiated its claims sufficiently to meet RLUIPA’s rigorous

standard, genuine issues of material fact exist and summary judgment is not

appropriate.

ARGUMENT

I. BY ENACTING RLUIPA, CONGRESS MANDATED THAT COURTS APPLY THE MOST DEMANDING TEST IN CONSTITUTIONAL LAW TO THE RELIGIOUS EXERCISE CLAIMS OF PRISONERS. Congress enacted RLUIPA, in part, to curb frivolous and arbitrary rules and

regulations that had plagued prisoners’ religious exercise. See 146 Cong. Rec.

S7774-76 (2000) (joint statement of Sens. Hatch & Kennedy). Prisoners “are

unable freely to attend to their religious needs and are therefore dependent on the

government’s permission and accommodation for exercise of their religion.”


4

Cutter v. Wilkinson, 544 U.S. 709, 721 (2005). Under RLUIPA, a prison must

demonstrate that a substantial burden on religious exercise: (1) furthers a

compelling governmental interest and (2) does so by the least restrictive means.

Alvarez v. Hill, 518 F.3d 1152, 1156 (9th Cir. 2008). Congress mandated that

courts construe RLUIPA broadly in favor of protecting an inmate's right to

exercise his religious beliefs. Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir.

2005) (citing 42 U.S.C. § 2000cc-3(g)).

RLUIPA is an individualized inquiry. Spratt v. R.I. Dep’t of Corr., 482 F.3d

33, 42 (1st Cir. 2007). Blanket regulations “grounded on mere speculation,

exaggerated fears, or post-hoc rationalizations will not suffice to meet the act’s

requirements.” 146 Cong. Rec. at S7775. Rather, prison administrators must

explain how the imposition of an identified substantial burden meets RLUIPA’s

exceptions with reference to the people and circumstances presented by an

individual case. Sossamon v. Lone Star State of Texas, 560 F.3d 316, 332 (5th Cir.

2009) (citing Adkins v. Kaspar, 393 F.3d 559, 571 (5th Cir. 2004)); see also

Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-

31 (2006) (holding RLUIPA’s requirements must be satisfied through application

of the challenged law to the particular claimant whose religious exercise is being

substantially burdened).


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RLUIPA sets a high bar. “Requiring a State to demonstrate a compelling

interest and show that it has adopted the least restrictive means of achieving that

interest is the most demanding test known to constitutional law.” City of Boerne v.

Flores, 521 U.S. 507, 534 (1997). At least one federal circuit has held that

RLUIPA’s strict scrutiny standard requires prison administrators to demonstrate

that the substantial burden imposed actually furthers a compelling government

interest. Rich v. Sec’y, Fla. Dep’t of Corr., 716 F.3d 525, 533 (11th Cir. 2013).

When there is evidence that other institutions have accommodated a religious

exercise or otherwise utilized less restrictive means of furthering their interests,

prison administrators must explain why they cannot make similar accommodations

or adopt the less restrictive means. E.g., Warsoldier, 418 F2d at 999;

Moussazadeh v. Tex. Dept. of Crim. Justice, 703 F.3d 781 (5th Cir. 2012) (finding

requirement for a Jewish prisoner to purchase Kosher food not the least restrictive

means because state corrections department offered free Kosher food to Jewish

inmates at another facility); Spratt, 482 F.3d at 41; Washington v. Klem, 497 F.3d

272, 284 (3rd Cir. 2007). Absent significant differences between the facilities, an

accommodation at one facility creates a genuine dispute of material fact over

whether the challenged policy is least restrictive. Spratt, 482 F.3d at 42; see also

Moussazadeh, 703 F.3d 781.


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Prison officials are not automatically entitled to deference in their judgments

regarding safety and security. Spratt, 482 F.3d at 42. First, prison administrators

must explain and justify their judgments in some detail before a court can evaluate

whether deference is due. Id. Moreover, prison officials must actually consider and

evaluate less restrictive measures before interfering with a prisoner’s religious

exercise. “[N]o longer can prison officials justify restrictions on religious exercise

by simply citing to the need to maintain order and security in a prison. They now

must demonstrate that they actually considered and rejected the efficacy of less

restrictive measures before adopting the challenged practice.” Alvarez, 518 F.3d at

1156-57 (quoting Warsoldier, 418 F.3d at 999, and Greene v. Solano Cnty. Jail,

513 F.3d 982, 989 (9th Cir.2008)) (internal quotation marks omitted). A prison

defendant’s proffer of conclusory, unsubstantiated statements that it is employing

the least restrictive means will not suffice. Shakur v. Schriro, 514 F.3d 878, 890

(9th Cir. 2008); see also O'Bryan v. Bureau of Prisons, 349 F.3d 399, 401 (7th Cir.

2003) (“A governmental body ... must demonstrate, not just assert, that the rule at

issue is the least restrictive means of achieving a compelling governmental

interest.”).


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II. THE FACT THAT MANY INSTITUTIONS, INCLUDING CCA FACILITIES, HAVE ACCOMMODATED INDIGENOUS RELIGIOUS SPACES SIMILAR TO THOSE REQUESTED HERE INDICATES CCA HAS NOT UTILIZED THE LEAST RESTRICTIVE MEANS AND THE REHABILITATIVE ASPECTS OF INDIGENOUS PEOPLE PRACTICING THEIR RELIGION CALLS INTO QUESTION CCA’S COMPELLING INTEREST CLAIMS.

Although culturally distinct, American Indian and Native Hawaiian religious

practices bear qualitative similarities: both need communal spaces of worship for

Indigenous People that require access to the outdoors and thus involve unique

accommodations. In the prison setting, prison officials have raised the same

security concerns with regard to American Indian sweat lodges that CCA raises

here regarding Plaintiffs’ Pohaku O Kane (stone altar). Therefore, Huy believes it

would be particularly helpful to the Court to discuss concerns prisons have

historically raised regarding sweat lodges, how courts have disposed of those

concerns, and how sweat lodges are now accommodated in many prisons -

including the two facilities at issue in this case. Additionally, accommodating the

religious needs of Indigenous People has benefits in the prison setting that are

worthy of consideration when a court is faced with whether a prison policy actually

furthers compelling penological interests.


8

A. Accommodation of Sweat Lodges in Many Prisons Raises a Factual Question as to Whether CCA has Utilized the Least Restrictive Means.

Absent significant differences between the facilities, an accommodation at

one facility creates a genuine dispute of material fact over whether the challenged

policy is least restrictive. Spratt, 482 F.3d at 42; see also Warsoldier, 418 F2d at

999. In this case, it is not the similarity of the facilities that is significant, but the

similarities in Indigenous sacred space that creates a genuine factual issue over

whether CCA is employing the least restrictive means. The similarities in sweat

lodge and Pohaku O Kane as well as CCA’s ability to accommodate sweat lodge,

while refusing to consider accommodating Pohaku O Kane, calls into question

both CCA’s objection to accommodation and whether CCA has employed the least

restrictive means in this case. Therefore, there are genuine issues of material fact.

A sweat lodge is a sacred space for purification of the spirit and the offering

of prayers. During a sweat lodge ceremony, which can last up to eight hours,

inmates enter a covered dome-shaped structure (generally 7-12 feet in diameter and

4-5 feet high). Rocks are heated in a fire, to “red hot” temperature, and then taken

into the lodge (most frequently using deer antlers). Behind the closed door of the

heated lodge, the ceremony occurs and water is sprinkled on the rocks, creating

hot, steamy conditions. Sweat lodges require a concealed space (the lodge), along

with the use of fire, blunt instruments such as split wood and scalding hot rocks,


9

and sharp objects such as shovels and deer antlers as well as access to burning

embers and hot coals.

Nevertheless, many institutions within at least twenty correctional systems,

including the two prisons in this case, have found ways to accommodate its use

without incident. See Roybal v. Deland, Nos. C-87-0208A & C-87-8208G (D. Utah

1989); see also, e.g., Fed. Bureau of Prisons, P5360.09, Program Statement:

Religious Beliefs and Practices ¶¶ 2, 20(f) (2004) (Federal BOP allowing sweat

lodges); Ariz. Dept. of Corr., DO 904, Department Order Manual: Inmate

Religious Activities / Marriage Requests § 904.04 – 1.4.1.3 (2011) (Arizona); N.M.

Corr. Dept., CD-101101, -101301, Policy: Religious Programs CD-101301(D) &

att. at 1 (1994) (New Mexico); Col. Dept. of Corr., AR 800-01, Administrative

Regulation: Religious Programs, Services, Clergy, Faith Group Representatives

and Practices at E, J (2001) (Colorado); Wash. Dept. of Corr., DOC 560-200,

Policy: Religious Programs Directive IV.C at 8-9 (1991) (Washington). Several

prison systems were compelled to accommodate sweat lodges by courts or

settlement agreements. Laurence Armand French, Native American Justice 114

(2003); see e.g., Settlement Agreement, Trapp v. DuBois, (March 20, 2003),

available at: http://www.nativeweb.org/pages/legal/trapp/settlement.html. In those

cases, prison authorities invariably asserted that sweat lodges posed safety and

security threats in prison. However, these claims starkly contrast with the fact that


10

in the twenty prison systems allowing sweat lodges, they have been manageable

and have presented no significant infringement on penological interests. Roybal,

Nos. C-87-0208A & C-87-8208G (pursuant to LR 7.6, the opinion is attached

hereto as “Appendix 1”).

The exaggerated fears of prison administrators was best highlighted in a

1985 case brought by American Indian inmates in Utah. Roybal, Nos. C-87-0208A

& C-87-8208G. The federal magistrate in that case urged Utah prison officials to

confer with Nebraska prison officials, who were party to a consent decree

establishing the first prison sweat lodge in 1975. In the Utah case, Joseph Vitek,

former director of the Nebraska Department of Correctional Services, and

defendant in the Nebraska case, described the remarkable results of court ordered

sweat lodges this way:

[W]hat I did see specifically . . . [was] that a lot of Indians, not all of them, developed a great deal of self-esteem and pride in themselves. There was an apparent increase in what I call good grooming, the clothing, . . . there seemed to be a prideful thing that was kind of fun to watch. Sense of identity if you will.

Elizabeth S. Grobsmith, Indians in Prison: Incarcerated Native Americans in Nebraska (1994).

Vitek went on to describe how none of Nebraska’s safety concerns actually

manifested after sweat lodge ceremonies began in its prisons. Id.


11

In addition to Vitek, the Roybal court heard from Arizona and New Mexico

prison officials who testified that permitting sweat lodge practices did not impose

additional costs or concerns beyond those normally associated with prison

activities. Id. The official from New Mexico, George Sullivan, who was also a

thirty-year veteran of the Oregon prison system, was asked whether sweat lodges

posed a security risk or threatened other penological objectives and responded:

I can’t believe you’re asking this question. Fifteen years ago in Oregon we allowed our first [sweat lodge] and it was the most valuable, least offensive problem for administrators of anything we do . . . [Utah’s] imagined torment is simply that.

Carol Sisco, New Mexico Warden Says Prison Sweat Lodge No Problem: Utahns’

Fear Conjuring Ghosts, Salt Lake Trib., Nov. 9, 1986.

In the instances where courts have not compelled prisons to accommodate

sweat lodges, the rationale tracked its individualized inquiry into the plaintiff-

inmates and the concerns posed by the sweat lodge. For example, one case cited in

CCA’s brief supporting summary judgment was Fowler v. Crawford, 534 F.3d

931, 939 (8th Cir. 2008), a case denying maximum security prisoners access to

sweat lodge. In that instance, the court found it appropriate for the prison to deny

access to the fire, rocks, as well as sharp and blunt instruments given the plaintiff-

prisoners’ maximum-security designation. Id. at 939.

By contrast, in cases like the one sub judice, where the plaintiffs do not pose

such a security threat, courts have been less deferential to the fearful assertions of


12

prison administrators. See e.g. Warsoldier, 418 F.3d at 998 (distinguishing security

interests at minimum security facilities from maximum security facilities).

Moreover, it can be fairly argued that sweat lodges accommodated by these two

CCA facilities pose a more complex challenge than merely allowing the Native

Hawaiians here access to a stone altar, which does not involve any fire, any sharp

metal tools, or any seclusion. Given that RLUIPA requires an individualized

inquiry, the operative inquiry in this case is whether these plaintiffs pose a security

risk when granted access to their sacred space and ceremony: Pohaku O Kane.

For CCA to merely assert that access to the rocks comprising a sacred altar

poses a general security concern is insufficient. CCA’s assertions express the same

speculative fears raised in other cases involving sweat lodges – security fears that

simply have not borne out as more prisons have accommodated them. The fact that

many institutions, including the two CCA prisons here, accommodate other

Indigenous outdoor sacred space and ceremonies that are equally, if not more,

difficult, raises a genuine issue of material fact as to whether CCA is utilizing the

least restrictive means. Absent explanation by CCA of why it cannot make similar

accommodations or use similar less restrictive means, there is a genuine dispute of

material fact over whether its policies and practices satisfy RLUIPA’s mandate.

See Spratt, 482 F.3d at 42; Warsoldier, 418 F.3d at 1000. Therefore, summary

judgment is not appropriate.


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B. The Established Rehabilitative Benefits of Native People Practicing Their Traditional Religions In Prison Undermine CCA’s Compelling Interest Claim.

A Court must not blindly defer to a prison administrator’s position on

matters that implicate prison security and to prevail on summary judgment,

administrators must do more than merely assert a security concern. Spratt, 482

F.3d at 39 (quoting Murphy v. Mo. Dep't. of Corr., 372 F.3d 979, 988 (8th Cir.

2004)); see also Lovelace v. Lee, 472 F.3d 174, 190 (4th Cir. 2006) (“[A] court

should not rubber stamp or mechanically accept the judgments of prison

administrators ....”); Shimer v. Washington, 100 F.3d 506, 510 (7th Cir. 1996).

Moreover, prison administrators must demonstrate a nexus between their

prohibition on religious exercise and an actual furtherance of the claimed

compelling interest. Rich, 716 F.3d at 533; Lindh v. Warden, Fed. Corr. Inst.,

Terre Haute, Ind., No. 2:09-CV-00215-JMS, 2012 WL 379737 (S.D. Ind. Feb. 3,

2012).

Far from posing threats to prison security or administrative needs, religious

practice in prisons furthers rehabilitation and reduces recidivism. See e.g., Melvina

T. Sumter, Religiousness and Post-Release Community Adjustment: Graduate

Research Fellowship – Final Report (2000), available at https://www.ncjrs.gov


14

/pdffiles1/nij/grants/184508.pdf; Byron R. Johnson et al., Religious Programs,

Institutional Adjustment, and Recidivism among Former Inmates in Prison

Fellowship Programs, 14 Just. Q., 145 (1997).

Indigenous Peoples’ access to religious items and ceremonies have been

accommodated without undermining prison security needs, instead greatly

contributing to indigenous prisoners’ rehabilitation. See, e.g., Harvard Pluralism

Project, Sweatlodges in American Prisons (2005), http://www.pluralism.org/

reports/view/103. Indeed, “for some Native American prison inmates, walking the

red road in the white man’s iron house” through traditional spiritual practices like

sweat lodge “is the path to salvation, the way of beauty, and the only road to

rehabilitation and survival.” Suzanne J. Crawford & Dennis F. Kelley, American

Indian Religious Traditions: An Encyclopedia (2005). The same holds true for

Pohaku O Kane.

Corrections officials from around the country have recognized that

accommodating the religious practices of Native People is beneficial in the prison

setting. In one survey, Oregon stated that Native activities provide a sense of

stability to Native inmates and motivation to return to a more productive lifestyle

upon release. Grobsmith, supra, at 164. For Oregon prison officials, sweat lodge

and other religious programs are ways to reduce the high rates at which released

inmates commit crimes. French, supra, at 117. During one period studied, Oregon


15

had a 5 percent recidivism rate, compared to a national rate of almost 75 percent.

Id.

The Coconino County Jail in Arizona is one of the most recent facilities to

accommodate sweat lodge. Jim Bret, program coordinator of detention services at

the jail commented that it gives inmates there hope and motivation. He added,

“They're at a place where they want to reconcile with themselves. . . I think that's

the first step to reconciling with their families, with friends or with society at

large.” Andrew Knochel, Arizona Adding Sweat Lodge for Native American

Inmates, Sacramento Bee, Oct. 27, 2013,

http://www.sacbee.com/2013/10/27/5856232/arizona-adding-sweat-lodge-for.html.

California corrections officials have acknowledged that appreciation of

American Indian heritage reduced violence and afforded inmates a sense of pride

and brotherhood and that this cooperative attitude carried over into their social

reintegration into society. Grobsmith, supra, at 164. In the same survey, Idaho

prison officials reported that Native practices in prison enabled inmates to come

together in mutual self-help, stating, “It is definitely rehabilitative for those

individuals that have no direction in life or no concern or understanding for self or

others.” Id. Oklahoma officials stated that Native people’s participation in cultural

affairs has a positive effect on discipline. Id. There seems to be no question that for


16

Native people participation in such activities has a positive impact on

characteristics essential to rehabilitation. Id. at 165.

The widespread acknowledgement that religious activity aids rehabilitation

has given some courts pause when scrutinizing prison officials’ claims that a

specific religious practice poses a safety concern. See Lindh, 2012 WL 379737

(noting that inmate religious activity can promote positive behavior and aid in the

rehabilitation process). Given that participation in traditional activities and

ceremonies have indeed proven to have a positive, rehabilitative affect, one

questions whether CCD’s fears are justified and well-informed, or whether they are

simply speculative and exaggerated fears of worst-case scenarios. This is

especially important where, as here, the Court is compelled to apply the most

stringent judicial scrutiny to CCD’s assertions.

While it is true that Plaintiffs’ religious needs pose challenges, Defendants

have not demonstrated how completely prohibiting them actually furthers state

penological interests, as required by RLUIPA. Rich, 716 F.3d 399. To the contrary,

because the experience of numerous other prison systems demonstrates that

accommodating Native People’s access to their unique religious needs reduces

violence, positively affects discipline, reduces recidivism, and aids rehabilitation –

all important penological interests – there is a genuine issue of material fact as to

CCA’s compelling interest claims in this case.


17

CONCLUSION

Because genuine issues of material fact exist both as to CCA’s compelling

interests and whether it has employed the least restrictive means by refusing to in

any way accommodate Plaintiffs’ access to Pohaku O Kane, CCA’s Motion for

Summary Judgment should be DENIED.

DATED: Honolulu, Hawai‘i, December 20, 2013.

/s/ James Bickerton JAMES BICKERTON Attorney for Amicus Curiae HUY


IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI‘I RICHARD KAPELA DAVIS , MICHAEL HUGHES, DAMIEN KAAHU, ROBERT A. HOLBRON, JAMES KANE, III, ELLINGTON KEAWE, KALAI POAHA and TYRONE KAWAELANILUA‘OLE NA‘OKI GALDONES,

Plaintiffs,

v. NEIL ABERCROMBIE, in his official capacity as the Governor of the State of Hawai‘i; TED SAKAI, in his official capcity as Director of the Hawaii Department of Public Safety; CORRECTIONS CORPORATION OF AMERICA,

Defendants.

CIVIL NO.11-00144 LEK BMK (Declaratory and Injunctive Relief and other Civil Action) CERTIFICATE OF SERVICE

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was served

upon the parties listed below on December 20, 2013 by the method indicated.

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Served electronically through CM/ECF LEINAALA L. LEY, ESQ. [email protected] ANDREW B. SPRENGER, ESQ. [email protected] MOSES K.N. HAI, III, ESQ. [email protected] SHARLA ANN MALEY, ESQ. [email protected] Native Hawaiian Legal Corporation 1165 Bishop Street, Suite 1205 Honolulu, Hawai‘i 96813

Attorneys for Plaintiffs RICHARD KAPELA DAVIS , MICHAEL HUGHES, DAMIEN KAAHU, ROBERT A. HOLBRON, JAMES KANE, III, ELLINGTON KEAWE, KALAI POAHA and TYRONE KAWAELANILUA‘OLE NA‘OKI GALDONES

DAVID LEWIS, ESQ. [email protected] RACHEL LOVE, ESQ. [email protected] JAMIE GUZMAN, ESQ. [email protected] Struck Wieneke & Love, P.L.C. 3100 West Ray Road, Suite 300 Chandler, Arizona

Attorneys for Defendants TED SAKAI, in his official capacity as Director of the Hawaii Department of Public Safety and CORRECTIONS CORPORATION OF AMERICA


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APRIL LURIA, ESQ. [email protected] Roca Luria Hiraoka LLP Davies Pacific Center 841 Bishop Street, Ste. 900 Honolulu, Hawai‘i 96813

Attorney for Defendants TED SAKAI, in his official capacity as Director of the Hawaii Department of Public Safety and CORRECTIONS CORPORATION OF AMERICA

DANIEL M. GLUCK, ESQ. American Civil Liberties Union Hawai‘i P.O. Box 3410 Honolulu, Hawai‘i 96801

Attorney for Amicus AMERICAN CIVIL LIBERTIES UNION OF HAWAI‘I FOUNDATION

Served via U.S. Mail, Postage Prepaid

SHAWN WESTRICK Kawahito, Shraga & Westrick LLP 1190 South Budy Drive, Ste. 280 Los Angeles, California 90025

Attorney for Plaintiffs RICHARD KAPELA DAVIS , MICHAEL HUGHES, DAMIEN KAAHU, ROBERT A. HOLBRON, JAMES KANE, III, ELLINGTON KEAWE, KALAI POAHA and TYRONE KAWAELANILUA‘OLE NA‘OKI GALDONES


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DANIEL P. STRUCK, ESQ. Struck Wieneke & Love, P.L.C. 3100 West Ray Road, Suite 300 Chandler, Arizona

Attorneys for Defendants TED SAKAI, in his official capacity as Director of the Hawaii Department of Public Safety and CORRECTIONS CORPORATION OF AMERICA

DATED: Honolulu, Hawai‘i, December 20, 2013. /s/ James Bickerton JAMES BICKERTON Attorney for Amicus Curiae HUY


bickerton, lee, dang sullivan, lllp imited liability …say goodbye.” huy’s directors include,...

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