This begins a series about Pagans in Prison, and those who ‘minister’ to them. Religious volunteers report most Pagan prisoners find their Pagan path once they are incarcerated. The loss of freedom that prison represents is a strong motivator to find some meaning in life, and Pagan spirituality often offers the most relevant choice. Prisoners are invisible to us, unless they get publicity. I hope this series increases our awareness of this part of our community for, sooner or later, many will return to our general society, and look for spiritual support.
What is critical to understand within this topic, is the difference between loss of freedom, and loss of civil rights. Prisoners retain some civil rights even while in prison. Our Constitution’s First Amendment is about religious freedom, and within bounds, remains in force for those incarcerated. I had the opportunity to interview one of the foremost authorities regarding religious civil rights and prison, and Patrick McCollum also happens to be a Pagan. Read his qualifications at the end of this interview!
There are prisoners convicted of state and federal crimes, often mixed together in state institutions, does it matter?
The principles are exactly the same in the law. In federal prisons there are some additional provisions that grant additional rights, more than state prison systems, but what I’ll talk about is applicable to both systems.
What are a prisoners civil rights regarding religion in prison?
There was a law upheld by the Supreme Court (unanimous) in 2005, called the Religious Land Use and Institutionalized Persons Act, (RLUIPA) which laid out the basics of what religious accommodation prisoner of all faiths have right to. What the act says is that the state is required to accommodate each and every inmates religious need.
The only time, by law, that they can deny an inmate something is if what they ask for is a valid security issue. This must be verified as an issue first, and then upon determining that it is a security issue, they have to provide a substitute that represents the least restrictive means of accommodating their religious practice. Example; a State prison inmate in the USA who is a Sikh, who as their religious practice is required to carry a steel knife at all times. Well the prison obviously says that is a security issue. The way this was resolved in a tort case is that the Sikh was allowed to have a small cardboard knife with three small steel wires wrapped around it. The security needs of the institution were met, and the inmate was allowed to feel he was meeting his religious need. The states are now required to provide those type of accommodations. Any time they restrict something required for a religious purpose they have to show how that relates to something else.
In the Minnesota case the prisoner is asking for incense and oils to use. In the case of oils, prisons in Minnesota and across the country have allowed prisoners to have oils of all sorts. So why this person being denied this oil? The reason given was it could be used to mask odors. Well in this case that is not a reasonable argument under RLIUPA. If they really thought this was a security issue the state should offer to allow an alternate oil, like scent free sage oil, that is available. It really wasn’t about that though, they just didn’t want him to have the oil. Mainly because they could not understand the religious significance to him, and they just thought it was weird.
There is a big issue about the security aspects of combustible substances in prisons. For over a hundred years both state and federal prisons allowed inmates to smoke. They stopped it only after issues of health arose, and the issue of second-hand smoke effects on others came up. Generally speaking, those issues do not apply with incense. The institution should provide ways and places for incense to be used in religious services where is does not have those effects. It could used outside or in a ventilated room. If it is needed it to consecrate items, they can limit the amount available or the length of time it can be used. The limitations should solve the issue, in the least restrictive way without preventing totally its use. In the case of Pagans, prisons haven’t come to fully understand, since their main experience is with protestant religious practice, is the religious connection one can have with the use of incense, or a candle, or a chalice of water, or a bird feather, or a crystal. To them these are just some kind of junk. They don’t recognize that for some it could be as sacred as say, the Bible. In my tradition, to not be able burn incense, or use our particular sacred oil, that we use in our ceremony, I could not practice my religion.
Isn’t a prisoner’s religious rights about the definition of what is “essential” within their particular path?
That is not true, that is what existed under the old laws. That said inmates can have what is essential to their practice. Under the new laws, the case in which RLUIPA was created and affirmed, called the Cutter vs Wilkins case in 2005. The Supreme Court ruled that is doesn’t matter whether any religious practice can be verified, and required under any definition of any particular faith at all. All that is necessary for the state to be required to provide something is that the inmate has a sincerely held belief that whatever they are asking for is necessary for their religious practice. Courts look at what the larger spiritual community does for guidance in what is often a part of practice, and here incense and oil is clearly a common part of much Wiccan practice. The inmate does not need to show, nor does the state need to verify it is a valid practice for any particular faith. Simply if I, the inmate, sincerely believe this is what I need to practice my faith and communicate that, the state is required to make accommodation for it, in the least restrictive fashion.
Is it more a problem, if an inmate wants items available for their daily practice over say Pagan holidays or Moon celebrations?
There is more of a problem because it is harder to supervise. If inmates meet in a congregation setting, with a guard, chaplain, or volunteer, there is someone there to monitor they are doing what they are supposed to be doing. In their cell there is the question of what they are doing with what they have. Take oil for example, this should not be an issue. If it is not dangerous, say poisonous or look like blood, for example, it should not be an issue in an inmates personal possession. The prison is filled with oil products liquids that are scented, and contain oil, like after shave, or hand lotion. Liquids of all types, and some are flammable. So it is not a legitimate issue to prevent an inmate from having a tiny bottle of oil to consecrate themselves. Maybe not a glass quart jar of a flammable liquid, but a small amount to suit the purpose. Incense is a little different because there is the potential to be used, as in the Minnesota case, as a masking odor. To know how the law requires this be handled, first ask,
“Does the prison allow anyone to burn anything for any reason which makes smoke or scent within a cell?”. Second, they need to allow the least restrictive means to accommodate that need even if it is generally banned. If this is noted in an inmates record that incense burning is required, and say there is an emergency need, maybe a death in the family, for the inmate to worship, then the guard should be able to escort a prisoner to an area where it burning can be done for their ceremony. It is all about working together to find the least restrictive means to resolve the problem so an inmate to meet their spiritual practice requirements, and the institutions security requirements are maintained. Attitudes take a long time to change because prison officials are used to accommodating only one or two faiths. If an inmate was a Christian and felt the immediate need to work with a Bible, it would be no problem for them getting access one. It is only when the requ
est seems unusual that it becomes a problem for institutions.The prison does not have an obligation to acquire or buy specific religious items for prisoners or a faith. If the prison is providing access to religious items for other groups of inmates, then they have to provide access for all groups. Often times prisons have a cabinet or locker in which religious items for Christians is stored. It may contain candles, incense, statuary, chalices, all sorts of items. Often these items are actually purchased by the prison as they all have a ‘religious’ budget for basic religious things for inmates. If those from a Pagan faith, request say a Goddess statue or altar cloth, and the prison is providing items for the dominate faiths, then they must also provide items for Pagan worship. Generally, inmates are required to purchase or acquire their own items for religious purposes. They get their own books, oils, candles, and supplies. Many prisons approve specific Pagan catalog supply items for purchase, like all the oils on ‘page four’ of a product catalog,
so this does not need to be heavily and individually administered when the order request is entered. In this Stillwater, MN. case, where publications were denied or had pages removed because it had the image of a naked God or Goddess sculpture. Courts have ruled for some time that inmates may not have pornography or images of frontal nudity, unless the images are of a religious, scientific, or an artistic nature. This case falls under that exception. Federal courts have ruled that even the “The Witches Bible”, which includes a photo of Janet Farrar standing full on frontally nude at an altar was not pornography, and that this book was an allowed item for prisoners.
How do these issues keep reappearing then, is it just out of ignorance?
These issues arise out of two main causes, first ignorance and lack of education in the law. The second is religious prejudice. Many of the institutions have a dominate religious practice where most of the guards, workers, well everyone may belong to the same religion. They have been taught that our (Pagan) religion is evil. When they hear of a Pagan asking for an unusual item, they immediately assume the item is evil or bad, or for an evil purpose. They may feel they have responsibility and directive from their God to prevent the inmate from having those items. That is the religious aspect. People are becoming aware that Pagans are not bad, or doing horrible things, and there is nothing ‘wrong’ with these practices. They have no idea what are legitimate practices, so they have no idea where to ‘draw the line’. They don’t know if the inmate requirements are legitimate, and usually they don’t even try to find out. Inmates typically say, “I need incense”. And then may go on to say, “Oh, I need a twenty-foot Maypole and a stone circle, too”. Eventually they do need to draw a line as the requests move away from what is a ‘sincere’ requirement to practice. That is where they do have a valid option to deny requests by inmates. If requests are denied by officials, the only recourse for an inmate is to legal file suit, and prove the request is reasonable within the institution, and sincere for their practice. Inmates can document and submit what their religious path and practice entails and requires, but typically the reviewing official is a Christian. They just look at it and simply say. “No, that is not reasonable”, without any research or thought of accommodation. This process is really in flux now, and many institutions are seeking what they consider, ‘experts’ in these religions to advise them on these issues. I get calls every week from institutions all over the country. An inmate says, “I can’t use an ‘electric’ candle, I need a real one”. I may advise them about what I know to be reasonable in the general Pagan community. I also remind them that they can not rely on my thoughts or testimony to determine whether their request is honored. The law says even if the highest expert in the world on Paganism declares an item is not essential, it is the sincerity of the inmates religious need that is the determining factor legally, that is relevant.
Many Pagans say, I don’t need anything to practice, why do prisoners?
That is where Pagans have lack of education and also part of the problem. What is appropriate for one Pagan is not necessarily appropriate for another, and that is where Pagans make the same mistake. Elders often say things like, “He doesn’t really need that, because I don’t need anything! “. The reality is Christians don’t really need anything either. Maybe only a bible, but no clergy, ceremony, services, prayers, bible study, no anything. Protestants however have all these things. If Pagans can’t have the things that Pagans normally have to practice, they should also take all those things from everybody else. We live in America, where we have a Constitution underlying all our laws, that protects the smallest minority persons religion, and their right to meet their needs. When it comes to making the ‘rules’ you want to be sure the rules allow everyone to practice their faith, not just one small group or the dominate majority.
How can inmates, volunteer facilitator, and ministers actually negotiate practicing their religion when it is the individual guards, workers, administrators, and institutional regulators that actually have the control, and individually make these decisions?
This is where the importance of organizations on the outside, like Lady Liberty League and such come in. Other religions have the same type of rights organizations, advocates on the outside who watch out for their members rights. They are all aware an inmate has very little power. When an individual inmate is denied their rights, from an individual guard, on up to the top, the typical response is, “Right, now what are you going to do about it?”. An inmate can’t really do anything , except sue in court. If they sue, they spend years in court, and need a lot of money and attorneys. The state has its full power and resources to oppose the suit, and really the inmate has nothing, and he or she still is within the prison on the other side of the suit.
Every minister, chaplain, or volunteer should really be an advocate for inmates. Those people are the one who are closest to any issues and really know what is right or wrong. It is not all that easy to become qualified to work with inmates. You can be sure when they allow you in, they feel you are ‘qualified’ to do the work. They should then listen to them in assessing what is right or wrong in their treatment of any group of inmates. They should bring the issues to the attention of the prison officials, and the state. The state really needs to listen to their local clergy and look into it and see if there is something wrong with their practice.
Minnesota happens to be one of the very few states that does not participate in the national program, to learn about religious accommodation and civil rights law. It would be good for Minnesota to begin participate in the dialog within the larger correctional institutions about the requirement to accommodate inmates of minority religions needs, and do that education within their institutions. Wisconsin, is a little better, for the last seven years they have sent a representative to the National Correctional Chaplaincy Directors Association conference. They also have a representative within the American Correctional Chaplains Association. They come and learn the common requirements for many minority faiths, and the common things inmates of those faiths ask for. They learn about methods of accommodation. Some may still deny say, a wand as a Pagan tool. When asked why, they say, “It is a security issue”. We ask the details, and maybe it is ¼ inch in diameter, of wood, and ten inches long. Someone will ask, “Do you allow pencils, or are they a security risk, too?”. This is where prison officials learn from each other, and how to accommodate inmates in these matters.
Only in the last maybe ten years have correctional systems been being observed in these areas. Before that, Protestant faiths just plain got everything. Occasionally Jews, or maybe Catholics were allowed to practice, as long as they didn’t get in the way of Protestants. Muslims or Native Americans rarely got to practice, or any accommodation in any way until recently. There have now been enough lawsuits that corrections institutions have mainly realized they are not going to win. Because they have access to a lot of money, they have had a good fight but now in a time where worker rights are eliminated because of budget problems, state may become more reluctant to waste state money and resources defending lawsuits they know they will lose, just to keep Pagans from getting their religious tools. There will eventually be an accounting, and this is now a good area to waste the states money in trying to restrict religious civil rights.
Prisons are a microcosm of our world, it is just concentrated and intensified. There are all the squabbling over religious opportunities and who gets what, based on power just like on the outside. If we really want to have world peace and resolve major conflicts, we will need to solve these basic differences and learn to get along. Prison is a good place to start, as here ‘the rubber hits the road’ with inmates who have no freedom. Outside the walls you can practice in private, or move to different town, or avoid or fight about important religious issues, but an inmate can’t do that. We need to empower inmates more, and as a society need to say these issues are important to us, if we are going to try to solve how to get along on a national and international level.
Patrick McCollum has been the Statewide Chaplain for the California Department of Corrections and Rehabilitation for 13 years, in as many as 33 institutions and 2000 pagan inmates. He is member of the Executive Council of the American Correctional Chaplain Association. Director for the National Correctional Chaplaincy Directors Association, which specializes in training government officials in corrections about religious accommodation, for all faiths. The Chaplaincy Liaison for the American Academy of Religion. He wrote the Wiccan Chaplains’ Manual for the California Department of Corrections in 1999. He is a Wiccan/ Pagan advisor on religious accommodation and discrimination issues in prisons, for the US commission on civil rights. His comments were included in the final document and law changes. Advisor to 30 state correctional systems on issues of religious accommodation for Pagans, and all faiths.
Watch for further parts of this series to include several interviews with Pagan religious volunteers helping inmates, what Pagan practice is like in prison, letters from prisoners, and information about how you can help.