“Prison walls do not form a barrier separating prison inmates from the protections of the

Constitution”1

INTRODUCTION

On September 11, 2001 the United States experienced the worst attack on American soil,

since World War II. Once it was discovered that the attacks were acts of terror and Al-Qaida was

behind them, the Government quickly moved for policies and regulations such as the patriot act,

that would prevent such attacks from ever happening again.2 Although these regulations were

created to prevent terrorism, it soon became clear that they were targeting American Muslims3.

After the attacks, many Muslims began to face harassment of all kinds. From verbal harassment

to hate crimes to being singled out by TSA, Muslims all across the nation were targeted because

of their religion.4 A fear of terrorism, coupled with a religion not understood by many,

Americans began to link Islam with terrorison, thus creating more discrimination against

American Muslims.5 Although most of the fear and discrimination occurred within society, a

substantial amount of fear and targeting occurred within the Unite States Prison Systems. A fear

of the spread of radicalized beliefs became a major issue within Prisons all across the country

shortly after 9/11 when the beliefs of a Prison chaplain began to surface.6

1 Turner v. Shafley, 107 U.S 2254, 2259 (S. Ct. 1987)2 Jason Villemez, 9/11 to now: Ways we have changed, PBS(September 14, 2011 at 4:55 PM EST) http://www.pbs.org/newshour/rundown/911-to-now-ways-we-have-changed/)3 Villemez, supra note 24 Villemez, supra note 25 Id.6 Paul M. Barrett, How a Muslim Chaplain Spread Extremism to an Inmate Flock, Wall Street Journal (February 5, 2003, 12:01 AM ET), http://www.wsj.com/articles/SB1044395093714681453Isis: Homegrown terror.

Warith Deen Umar, was a prison chaplain who worked for over twenty years with the

Islamic program within New York’s Prison system.7 For twenty years Umar not only ministered

to thousands of inmates, but trained and recruited dozens of chaplains to aid in the Islamic

program.8 After September 11, Umar shared his views on the attacks and the men behind them

and stated that the hijackers, should be honored as martyrs and that the United States risked

terrorism because it oppressed Muslims.9 He went on to state that, “Even Muslims who say they

are against terrorism secretly admire and applaud the hijackers.”10 These statements coupled with

the fear of terrorism led quickly to a new issue that faced the nation: fighting radicalized Islam

within prison facilities. Throughout the country Prisons began implementing policies they

believed would prevent radical Islam, while also protecting the safety of inmates and prison

officials. The policies and regulations implemented were created for the purpose of preventing

the spread of radical Islam, however they only caused more difficulties for those practicing a

religion that has long been discrimnated against.

Prison environments coupled with the fear of terrorism created after 9/11, have led

many prison officials to create policies that would prevent this growth of radical Islam or

"Prison Islam." Many policies, such as those that pertain to Chaplains and the

requirements they must meet, were designed to prevent the ideals of radical Islam from

reaching prisoners. Although many policies have been struck down by the courts as being

unconstitutional and a violation of Prisoners First Amendment right, I believe that the

policies regarding Chaplains do not violate RLUIPA and do not infringe upon the

7 Barret, supra note 68 Barret, supra note 69 Barret, supra note 610 supra

prisoners free exercise rights based on the arguments set forth in this note. In this note I

am also taking the position that Prison Islam is not as prevalent as many officials hold it

to be and that Islam can actually be beneficial to those searching for hope while in Prison.

EXPLAIN WHAT YOU WILL TALK ABOUT

I HISTORY AND RELEVANT LAW

During the 1960’s Muslims, in many prisons, did not have access to Islamic services.11 In

many instances, Islam was not a recognized religion within institutions until a decision was

handed down by the Supreme Court in Fulwood v. Clemmer.12 William T.X. Fulwood, a member

of the Nation of Islam, was imprisoned in the Lorton Reformatory when he, along with several

other inmates, complained that they had suffered religious discrimination.13 On several

occasions, Fulwood, had requested the permission of prison officials to hold Islamic services, but

was denied for a number of reasons.14 The Department of Corrections stated that Fulwood and

others were denied these requests because the Muslim groups within the prisons, promoted racial

hatred and therefore could lead to major security issues. 15 Before the Supreme Court, Fulwood

claimed that his religious beliefs were infringed upon and that he was being punished solely

because of his religious beliefs.16 The Court held that allowing some religious groups to hold

religious services, while denying that right to another of the other faith was a violation of orders

11 Marie Dallam, Fulwood v. Clemmer, Encyclopedia of Muslim-American History (November 28, 2015)http://www.fofweb.com/History/MainPrintPage.asp?iPin=EMAH0105&DataType=AmericanHistory&WinType=Free 12 Dallam, supra note 1113 Dallam, supra note 1114 Fulwood v. Clemmer, 206 F. Supp. 370 (D.C Cir. 1962)15 Marie Dallam, Fulwood v. Clemmer, Encyclopedia of Muslim-American History (November 28, 2015)http://www.fofweb.com/History/MainPrintPage.asp?iPin=EMAH0105&DataType=AmericanHistory&WinType=Free 16 Fulwood, 206 F. Supp at 370

to make facilities available without regard to race or religion.17 The Court also held that the

Muslim faith was a religion within the constitutional provisions as to the freedom of religion,

therefore setting the platform of Constitutional protections for Muslims within prison facilities.18

A year after the Fulwood decision was handed down, the Supreme Court was once again

asked to decide on another free exercise case; a case which would set the standard of review in

all religious based cases. In Sherbert v. Verner the Court held that a strict standard of review

would be used in cases of free excercise19 In Sherbert the petitioner was denied unemployment

compensation, because she could not work on Saturdays because of her religious beliefs.20 The

Court held that this was a violation of her right to free exercise of religion, because it had put

pressure on her to decide between employment or her religion.21 Through Sherbert, the Court

held that the Government was now required to demonstrate a compelling interest and use the

least restrictive means to justify even an incidental or indirect burden.22

Although this was the new standard for religious exercise cases, it was not applied across

the board. In Turner v. Safley, petitioners, who were inmates in the Missouri Prison System,

brought an action against the facility because it had restricted marriages between inmates and

between inmates and civilians23 The court, using a rational basis standard, gave great deference

to prison administrators and stated several important factors used to ascertain the resonablness of

17 Id. at 37418 Id. at 37319 Sherbert v. Verner, 83 U.S. 1790 (S. Ct. 1963)20 Id.21 John W. Popeo, Combating Radical Islam in Prisons Within the Legal Dictates of the Free Exercise Clause, 32 New Eng. J. on Crim. And Civ. Confinement 135, 142 (2006)22 Popeo, supra note 2123 Turner v. Safley, 107 U.S 2254 (S. Ct. 1987)

prison officials actions.24The factors included a valid rational connection between the prison

regulation and the legitimate governmental interest, whether or not there was another way for

inmates to exercise their religion, the impact accommodation of the asserted constitutional right

on guards and other inmates, and the absece of ready alternatives is evidence of the

reasonableness of a prison regulation.25 According to the Court, Prison officials were in a better

position to decide what was best for the facilities in regards to security and as long as inmates

had other ways of excercison their religion, the Court was not going to strike down the policies.26

In the same year the Turner decision was handed down, a case involving Muslim inmates

was also brought before the Supreme Court. In O’Lone v. Estate of Shabazz, Muslim inmates

brought an action against New Jersey Prison officials arguing that they prevented the inmates

from attending Jumu’ah, a Muslim congregational service held on Fridays, because it interfered

with work schedules.27 The Court, as it did in Turner, applied a rationality standard of review and

gave deference to prison authorities28 The Court held that heightened scrutiny would not be used

when regulations effectively prohibit rather than simply limit particular exercise of

consititutional rights. 29 The Court went on to hold that the presence or absence of alternative

accomodations of inmates rights is a properly considered factor in reasonableness analysis rather

than basis for heightened scrutiny.30 Since inmates had access to other forms of religious

ceremonies, the Court was able to justify the prison policies that prevented the inmates from

24 John W. Popeo, Combating Radical Islam in Prisons Within the Legal Dictates of the Free Exercise Clause, 32 New Eng. J. on Crim. And Civ. Confinement 135, 142 (2006)25 Turner, 107 U.S at 226226 Popeo, supra note 24, at 14327 O’Lone v. Estate of Shabazz, 107 U.S. 2400, 2401 (S. Ct. 1987)28 Id. at 240129 O’Lone, 107 U.S. at 240430 Id.

attending Jumu’ah. Applying the decision in Turner, the Court upheld the regulations, finding

that they did not violate the inmates free exercise rights under the First Amendment because they

were related to a legitimate penological objective.31

By 1990 the Supreme Court had reinterpreted the Sherbert strict scrutiny standard in free

exercise cases in Employment Divison, Department of Human Resources of Oregon v. Smith.32

In Smith the Court held that a law that is facially neutral and of general applicability does not

need to be justified by a compelling Governmental interest.33 Unsatisfied with this standard,

Congress enacted the Religious Freedom Restoration Act, which once again held the

Government to the Sherbert Strict Scrutiny standard in religious exercise cases.34 Although strict

scrutiny was revived through this act in free excercises cases, it was not applied to cases

involving inmates in prison facilities until City of Boerne v. Flores was argued before the

Supreme Court.35 In Flores, petitioners brought an action against the city because a local zoning

authority denied a permit for a Catholic Church through an ordinance of Historic preservation.36

In response to City of Boerne v. Flores, Congress imposed the strict scrutiny standard of review

on state and local laws burdening religious liberty through zoning laws and prison policies

through the Religious Land Use and Institutionalized Persons Act (RLUIPA).37

31 John W. Popeo, Combating Radical Islam in Prisons Within the Legal Dictates of the Free Exercise Clause, 32 New Eng. J. on Crim. And Civ. Confinement 135, 142 (2006)32 Popeo, supra note 31, at 14433 Popeo, supra note 3134 42 U.S.C.A §2000bb-1 (West. Supp. 2015)

35City Of Boerne v. Flores, 117 U.S. 2157 (S. Ct. 1997)36 Id.37 42 U.S.C.A §2000cc-1 (West. Supp. 2015)

Once RLUIPA was enacted, many cases began filtering through the court systems, as

prisoners, especially Muslims, began using the act to bring claims against prison officials for

infringing upon their free exercise rights. One such action was the Supreme Court case of Holt v.

Hobbs, in which the petitioner brought an action under RLUIPA against a prison policy

regulating the length of prisoner beards.38 In order to establish a claim under RLUIPA, the

plaintiff has the initial burden of showing that, one, he seeks to engag in an exercise of religion,

and two, that the challeneged practice substantially birdens that exercise of religion39 However

in order to satisfy the first elelment of the plaintiffs burden, they must show that their request

under RLUIPA is genuinely based on a religious belief.40

Once the plaintiff has satisfied their burden, it shifts to the Goernment, who must show

that there was a compelling reason behind the restriction and that it was the least restrictive

means of achieving that compelling interest41 According to the Court, the least restrictive means

standard is demanding and it requires the Government to show that it lacks other means of

achieving its desired goal without imposing a substantial burden on the exercise of religion by

the objecting party.42 However, even though RLUIPA has set a higher burden for the

Govenrment to meet, it has been held that security is of “particular security” and that the Courts

are to apply due deference to the expertise of prison administrators.43

38 Holt v. Hobbs, 135 U.S. 853 (S. Ct. 2014)39 Kroger v. Bryan, 523 f.3d 789 (7th Cir. 2008) see also, Jihad v. Fabian, 680 f. Supp. 2d 1021 (D. Minn. 2010) (Substantial burden exists if the prison policy significantly contrains religious conduct.)40 Hobbs, 135 U.S. 853 (S. Ct. 1997) see, e.g Ajala v. West, No. 13-cv-546-bbc WL 2062090 (W.D Wis. May 4, 2015) 41 Holt v. Hobbs, 135 U.S. 853, 863-64 (S. Ct. 2014) (citing Burwell v. Hobby Lobby, 134 U.S. 2751, 2780 (S. Ct. 2014))42 Id. at 864 (citing Hobby Lobby, 134 U.S. at 2780) see generally, e.g Ajala v. West, No. 13-cv-546-bbc WL 2062090 (W.D Wis. May 4, 2015) (In determining whether a prison policy is the least restrictive means…the Court must give due deference to the expertise and experience of prison and jail officials)43 Cutter v. Wilkinson, 125 U.S. 2113 (S. Ct. 2005) see also, Kroger v. Bryan, 523 f.3d 789 (7th Cir 2008)

In Holt, the petitioner was able to prove his burden by showing that he had a sincere

religious belief and that the prisons policy of prohibiting inmates from growing a beard past a

half inch, substantially burdened his religious excercise44 The Government argued that the

petitioner was allowed other means of religious excercises, but the court held that substantial

burden under RLUIPA asks whether the Government has substantially burdened religious

exercise, not whether the claimant was able to engage in other forms of religious exercise.45 The

Government also contended that the compelling interest was prison safety and security and that

the prohibition was the least restrictive means to achieve the interest, because inmates could hide

contraband within their beards.46 Disagreeing with the Governmnt, the Court held that RLUIPA

contemplates a more focused inquiry and requires the Government to demonstrate that the

compelling interest test is satisfied through application of the challenged law to the claimant.47

The Court in Hobbs, held that the prison policy of prohibiting inmates to grow beards

beyond a half inch was a violation of the petitioners religious exercise, because it was not the

least restrictive means of achieving a compelling governmental interest.48 The Prison allowed for

prisoners with dermatological issues to grow a beard beyond the required length and in order to

check for contraband the prison officials would comb through the inmates beards.49 The Court,

through this fact, held that the policy was clearly a way to burden Muslims and that the least

restrictive means would not be to prohibit beards longer than a half inch, but to comb through

prisoners beards, as they did for those with medical issues.50

44 Hobbs, 135 U.S. at 86145 Id. at 862 contra, O’Lone v. Estate of Shabazz, 107 U.S. 2400 (S. Ct. 1987)46 Id. at 86347 Id. (citing Burwell v. Hobby Lobby, 134 U.S. 2751, 2780 (S. Ct. 2014))48 Id. 49 Id. at 86550 Id. at 864-66

Since its been enacted, RLUIPA, has been used in many cases by prisoners, to challenge

prison policies they believed infringed upon the free exercise of their religion. Although many

regulations and policies have been challenged, for the purposes of this note, policies specifically

pertaining to Chaplains and inmate led services will be analyzed. According to the Department

of Justice and the Bureau of Prisons specifically relating to all religious services provided in

prisons, prisoners are allowed to recite prayers in their language, however services and sermons

must be given in the English language.51 The Warden may also, periodically, review religious

practices to determine whether they remain within the scope of what is best for the correctional

facility.52And in regard to the supervision of inmates, religious programs led by inmates must

require constant staff supervison.53

In addition to regulations pertaining to religious services, Chaplains ministering to

inmates within the prison system, must also meet certain requirements. In order to become a

Chaplain an individual must be younger than 37 and a citizen of the United States.54In addition to

citizenship requirements, they must have earned a bachelors degree and have two years of full

time pastoral experience in a ministry setting.55 They must also provide three references, sign a

candidate certification and authorization form certifying that they will minister to inamates of

other faiths and recive an endorsement from a national religious organization.56 Aspiring

Chaplains must also go through extensive security screenings that include a review of their

51 28 C.F.R. §548.10 (WestLawNext through Dec. 10, 2015) (Federal Bureau of Prisons statement on Religious beliefs and Practices)52 supra, note 5053 supra, note 5054 U.S. Dept. of Justice. Office of the Inspector General: Review of the Bureau of Prisons’ Selection of Muslim Services Providers, OIG.gov, https://oig.justice.gov/special/0404/ (last visited December 20, 2015)55 supra, note 5356 supra, note 53 (this is difficult because there is no national Islamic Organization like there would be for the Catholic Church.)

criminal history, drug test and investigations by the U.S investigative services.57 Although

Chaplainis are required to provide documents of their religious role in their religious

communities, the Bureau of Prisons does not look into candidates past sermons or performances

and they do not question Chaplains on their beliefs.

In recent years there have been various cases that have entered the court system by

inmates, challenging some of the regulations pertaining to Chaplains and religions within the

prison system. In Jihad v. Fabian, the petitioner claimed that the prison officials failure to

provide a Muslim Chaplain was a violation of RLUIPA.58 He claimed that this failure let to

inadequate Islamic servides and it was a violation of this first Amendment right.59 The Court held

that the lack of a Muslim chaplain did not rise to the level of substantial burden on Muslim

prisoners ability to practice his religion.60 The court also held that refusal to allow Muslims to

pray outside their cells, was the least restrictive means to achieve a compelling Governmental

interest.61 Although this case does not have binding effect, it reveals the litigation challenging

these policies.

II SECONDARY SOURCES

During the past decade, there has been a growing fear of terrorism within society. This

fear coupled with a fear of homegrown terror has led many to believe that Radicalized Islam, or

“prison Islam” is prevelant in the prison system and should be supervised carefully.62 Reported as

57 supra, note 5358 Jihad, 680 f. Supp.2d at 102159 Id.60 Id. at 102661 Id.62 Facts and Fictions about Islam in Prison: Assessing Prisoner Radicalization in Post 9/11 America, Institute For Social Policy and Understanding (Jan. 2013) http://www.ispu.org/pdfs/ISPU_Report_Prison_SpearIt_WEB.pdf

the fasted growing religion behind bars, approximately eighty percent of those seeking a faith in

Prison convert to Islam.63 Prison is an environment in which hoplessness thrives and many

inmates hit rock bottom with no one to turn to. 64 The deprivation of liberty, goods, services,

sexual realtionshiips and security inspire many hopeless inmates to search for the meaning of a

croorectional environment, which is why many decide to convert. However conversion is quite

distinguishable from radicalization because converts who have started a serious quest for peace

are less susceptible to violent ideologies.65 Many social scientists believe that there is no

relationhip between prisoner conversions to Islam and terrorism because there is little evidence

that prisons are, “factories for terrorism,” and among those that do hold radical views the

overwhelming majority never become involved in religious based violence or terrorism.66 They

also dispute this ideal that conversion and terrorism are related because Muslim Prisoners are at

the heart of prisoner rights movements and are using the legal system to make a difference

instead of violence.67

In a report by the Inspector General it was stated that Muslims, because they lack

supervision, had sufficient opportunities to minister extremist views to prisoners.68 In order to

prevent this situation from occurring, policies such as requiring extensive background and drug

tests for aspiring chaplains, were immediately put into place to prevent religious service

providers from advocating violence.69 Prison officials have appointed chaplains, volunteer and

63 supra, note 6264 supra, note 6265 Spearit, Religion as Rehabilitation? Relections on Islam in the Correctional Setting, 34 Whittier Law Review 29, 3866 supra67 supra68 John W. Popeo, Combating Radical Islam Within The Legal Dictates of the Free Exercise Clause, 32 New Eng. J. on Crim. And Civ. Confinesment 135, 14169 supra, note 68 at 148-9

contractors, believing that it will reduce the spread of prison Islam. 70 However the challenge

facing officials, is that Islam is unlike other religions because it has several multifarious, but

legitimate sects.71 They must also deal with the disproportionate increase in the number of

prisoners of non-Christian faiths, coupled with the rapid change of prison regulations.72 With so

many established religions in society today, prison officials must deal with religious diversity on

a broader spectrum.73

As a result of the new policies put in place, after 9/11 there was a scarcity of Muslim

Chaplains in prsison and many of the services were being led by inmates.74 This lack of Muslim

Chaplains, has severely harmed the system, because it has put a gap in leadership and many

believe that this had added to the spread of prison islam, because inmates are the ones spreading

violent ideologies.75 Many believe that these circumstances lead to radical agendas, because

prisoner imams live with the inmates twenty four hours a day, compared to a weekly or monthy

visit from outside imams.76 With more inmates leading religious services and these services not

being supervised, as they should be, there has been space for more extreme versions of Islam. 77

Lack of Chaplaincy and inmate led services coupled with this tradition that inmates hold deep

animus from their experiences with the criminal justice system, provides a conclusion that prison

Islam could be spread easily within the prison system.78

70 supra, note 68 at 14071 Popeo, supra, note 68 at 14772 supra73 supra74 Facts and Fictions about Islam in Prison: Assessing Prisoner Radicalization in Post 9/11 America, Institute For Social Policy and Understanding (Jan. 2013) http://www.ispu.org/pdfs/ISPU_Report_Prison_SpearIt_WEB.pdf75 Popeo, supra, note 68 at 13876 SpearIt, Muslim Radicalization in Prison: Responding with Sound Penal Policy Or The Sound of The Alarm? 49 Gonz. L. Rev. 37, 60 (2013-201477 supra, note 7678 supra, note 76

Although there have been reports of inmates, such as Richard Reid79, who were know to

be radicalized in prison, it has been established through invesitgations and interviews with

friends and family that these inmates adopted their extremist views well after they were released

from prison.80 Reasearch has shown that the number of cases in which a recent inmate was

involved in a terrorist attack is extremely small. 81The Islamic religion has been known to

provide prisoners peace and normativity while incarceratied82 Islam has helped many inmates

lead more productive lifestyles, especially for those trying to escape the gang lifestyle because it

provides them an opportunity to “take a right instead of a wrong” and drop their baggage of hate

and malice.83 As a strictly disciplined religion, Islam teaches inmates abstinence from drugs,

alcohol and cigarettes cigarettes.84 It provides stablility and structure in an inmates life through

communal prayer and Quranic recitation.85 Inmates are able to change their self image and

maintain a positive identity that help them look past “being a criminal.”86

III Analysis

Many Prison regulations have been enacted in order to prevent the spread of homegrown

terror in the form of “prison Islam” within the Prison System.87 Policies that have required an

79 Popeo, supra, note 68 at 138 (Reid was convicted of attempting to blow up an American Airines flight using explosives in his shoe)80 supra, note 7281 SpearIt, supra, note 7682 supra, note 7283 supra, note 7284 supra85 supra86 supra87 Popeo, supra note at 148

increase in supervision over inmate led religious services and extensive requirements for

Chaplains, are some of the few regulations, recently adopted by the Bureau of Prisons.88

However with the increasing number of religions within society today, including the many facets

of Islam, coupled with the rapid change in prison policies and practices an issue arisies which

questions the constitutionality of these policies in regard to the First Amenmdnet and RLUIPA.

Although there has been some litigation regarding some of the policies enacted by facilities, they

have yet risen to the level to file for a writ of certerorari, or have yet to enter the court system.

Lack of a religious Chaplain, specifically Muslim Chaplains, is an issue that has appeared

in some litigation, but has not become binding law as of yet.89 As stated within this note, in

regard to Jihad v. Fabian, the court held that the lack of a Muslim Chaplain did not rise to the

level of substantial burden on Muslim Prisoners ability to practice his religion.90 It could be

strongly argued that no access to a religious chaplain, in any religion, could be a substantial

burden on an individuals free exercise, because religious leaders are the center point in

congressional services. Prisoners, especially are burdened by this lack of religious leadership

because they are confined to one facility and have little control over the matter, so as a result,

they are often left without a chaplain to lead their religious services. Unfortunatly this lack of

religious leaders is not a result of a prohibition by prison officials, but a snowball effect that was

created after the regulations regarding the appointment of chaplains was enacted.91

Increased regulations in the appointment of Chaplains and the requirements they must

abide by, can easily be traced to this lack of Chaplains in the Prison system today and the issue

88 U.S. Dept. of Justice. Office of the Inspector General: Review of the Bureau of Prisons’ Selection of Muslim Services Providers, OIG.gov, https://oig.justice.gov/special/0404/ (last visited December 20, 2015)89 Jihad v. Fabian, 680 f.Supp.2d 1021 (D. Minn. 2010) 90 Id. at 102691 supra, note 88

becomes whether or not these regulations violate a Prisoners free exercise of their religion under

RLUIPA. Extensive back ground checks, drug tests and educational requirments, are just some

of the many conditions, aspiring chaplains must meet in order to work in the Prison system.92

These regulations were created in order to prevent radicalized ideologies from entering the

prison system and influencing the population of inmates. As held in Cutter v. Wilkinson, the

courts, in applying RLUIPA, must give due deference to the experience and expertise of jail

administrators.93 Prison enviroments are of a particular expertise, because of the amount

discipline needed to maintain a stable and safe environment for all those who enter them. Prison

officiasl are in the best position to decide what is best for the facility, therefore, there is a strong

belief that, in regards to regulations of aspiring Chaplains, the Court would give due deference to

Officials and uphold the policies.94

In regard to the lack of Chaplains within the prison system, the Court will most likely

find no substantial burden placed on prisoners, as a result, because facilities are not prohibiting

Chaplains from entering the prisons, there is just a lack in general. Although it could be argued

that this lack is the result of prison policies regulating chaplains, the Court in aaplying RLUIPA

in prison settings will most likely strike down the argument because due deference will be given

to prison officials and facilities have not prohibited Chaplains or congregational services from

being held.95

As a result of the shortage of religious leaders in prison facilities, many Prisons have

allowed for religious services to be led by inmates, but with constant supervision.96 It could be 92 supra, note 8893 Cutter v. Wilkinson, 125 U.S. 2113 (S. Ct. 2005)94 Id.95 Id.96 .S. Dept. of Justice. Office of the Inspector General: Review of the Bureau of Prisons’ Selection of Muslim Services Providers, OIG.gov, https://oig.justice.gov/special/0404/ (last visited December 20,

strongly argued that this requirement for constant supervision, could substantially burden a

prisoners free exercise of his religion under RLUIPA and as held in Holt v. Hobbs.97 If a case

were to be brought through the court system, it could be strongly concluded that the plaintiffs

argument would be struck down for a number of reasons. The Court would most likely not be

able to identifiy a substantial burden because the congregational services were not prohibited

within the facility and prisoners still had access to them.98 Even if there was an identified

substantial burden, the Court would still uphold the policy because safety and prevention of

raicalized ideologies is a compelling governmental interest and in order to achieve that interest,

constant supervision of inmate led religious services is the least restrictive means.99 Like in Holt

v. Hobbs, in which the Court struck down the policy because it was not the least restrictive

means to achieving a governmental interest, the Court would most likely uphold the policy in

this kind of case, because safety and stability are compelling interests within prison facilitites

and they employed the least restrictive means in order to achieve that interest.100

Prison facilities are, often, unstable enviroments in which anger, and hoplessness run

rampant throughout the population of inmates. After the attacks that took place on 9/11, fear of

terrorism coupled with the statements made by Warith Deen Umar, led the Government on a

quest to prevent the spread of prison Islam and homegrown terror. Susceptible to radical

influences, prisoners, angered with the system and plagued with a feeling of hopelessness, often,

gravitate towrd group or ideals that make them feel empowered and confident. Many

2015)97 Hobbs, 135 U.S. at 86198 42 U.S.C.A §2000cc-1 (West. Supp. 2015), see also, Hobbs, 135 U.S. at 861 (The Plaintiff has the burden of showing that a substantial burden was placed on their free exercise.)99 42 U.S.C.A §2000cc-1 (West. Supp. 2015), see also, Hobbs, 135 U.S. at 861 (The Government must show a compelling Governmental interest and that they used the least restrictive means to achieve that Governmental interest)100 Hobbs, 135 U.S at 864

Government Officials including the Inspector General, have made statements reagarding this

matter and have emphasized the urgency of creating policies that would prevent the spread of

radical ideologies.101 However, radical Islam within the Prison system, may not be as prevelant as

the Govenrment believes it is.

The cases of Richard Reid and Jose Padilla , are just two of the handful of cases which

fuel the Governments argument that terrorism is being created in our prison systems.102 However,

through these cases, it is very difficult to prove that these prisoners were actually radicalized in

prison. Many reports, specifically from the friends and family of these individuals, have

surfaced stating that the inmates adopted their radical views long after they were released from

prison.103 It is not to say, however, that radicalization does not occur. There are a few cases, such

as the case of Warith Deen Umar, in which radical ideologies had infiltrated the prison

population, but there are only few, indicating that prison Islam may not be as common as

believed.104

Terrorism, unfotunatly, is a subject that is a leading concern in society today. With

terrorist groups such as Isis on the rise and attacks occurring more frequently, like the recent

attacks that occurred in France, many are beginning to blame Islam for the violence that has

occurred. As a result of these events, Muslims across the country have been discriminated

101 John W. Popeo, Combating Radical Islam in Prisons Within the Legal Dictates of the Free Exercise Clause, 32 New Eng. J. on Crim. And Civ. Confinement 135 (2006)102 supra, note 101 (Reid was convicted of attempting to blow up an American Airlines plane using explosives in his shoe and Padilla was arrested for his attempted detonation of a dirty bomb)103 supra, note 101104 Jason Villemez, 9/11 to now: Ways we have changed, PBS(September 14, 2011 at 4:55 PM EST) http://www.pbs.org/newshour/rundown/911-to-now-ways-we-have-changed/)

against because of their beliefs, especially Muslim inmates within the Prison facility. Although

many have misinterpreted Islam as being a violent religion, it has actually left positive affects on

many, especially prisoners.105

Islam, by character, is a disciplined religion, which requires members to follow strict

guidelines, special diets and abstinence from alcohol and drugs.106 Prisoners benefit from Islam,

because it helps them maintain the structure they so desperately need. Unfortunatly, those who

have entered the prison system, wil most likely filter through it many times within their lives,

because they lack the discipline needed to function in society. Islam provides inmates a chance to

lead a successful life not only inside but outside of the prison system. Through prayer and

structure, prisoners are able to maintain positive internal attachments.107 They are able to

maintain an identity and stray away from the belief that all they are are criminals. This is

extremely important for inmates, especially when they are released from the facility, becase if

they are able to maintain a more positive self image, they will be more likely to succeed outside

of the prison walls.

Plagued by this hysteria that is homegrown terror, many, including the Government

refuse to look past the actions led by those who have perverted the Koran, to see that Islam is a

positive ideology. Promoting positivity, stability and discipline, Islam is a religion that

emphasizes structure and has proven to be beneficial to many, especially those within the prison

systm who lack the skill deemed necessary to lead successful lives outside of the prison walls.

IV Conclusion

105 Facts and Fictions about Islam in Prison: Assessing Prisoner Radicalization in Post 9/11 America, Institute For Social Policy and Understanding (Jan. 2013) http://www.ispu.org/pdfs/ISPU_Report_Prison_SpearIt_WEB.pdf106 supra107 supra, note 105