July 27, 2013

What if a black widow spider were to nest in a prisoner's dreadlocks?

That happened once. There might also be a fungus hidden in the hair-covered scalp. Weapons might be stowed in the hair, and guards searching for them by hand are afraid of getting cut by razor blades. Moreover, if a long-haired prisoner were to escape, he'd have a ready means of disguise: cut off that hair. These and other reasons were the "compelling interests" that worked for the government in the 11th Circuit Court of Appeals, which rejected a claim for a religious exemption to the no-long-hair policy in prison.

The suit wasn't based on the Constitution's Free Exercise Clause, which doesn't require religious exemptions as long as the government applies the same rule equally. It was based on the Religious Land Use and Institutionalized Persons Act, a federal statute that provides for exemptions. Here's the main U.S. Supreme Court opinion, Cutter v. Wilkinson, rejecting an Establishment Clause challenge to RLUIPA but nudging lower courts to remember "that prison security is a compelling state interest, and that deference is due to institutional officials’ expertise in this area."

The plaintiffs in the 11th Circuit case, Knight v. Thompson, were followers of a Native American religion. Back in 2009, when I used the prison haircut problem for an exam in my Religion and the Constitution course, I presented 5 prisoners, with different situations, intended to highlight the problem of giving special treatment based on religious (as opposed to secular) needs. (Hot links added.)
Prisoner #1 is a musician serving a 2-year sentence who hopes to return to work playing in bands where long hair is traditional.

Prisoner #2 is a young man who believes that his wife loves his long hair. He is hoping that when he is released from prison after serving 3 long years she’ll still want him.

Prisoner #3 was arrested at an anti-war protest called “hair peace” at which he, along with others, chanted “grow your hair for peace.” When a passerby approached him with scissors, a scuffle ensued, and he was arrested for assault. He is serving a 1-year sentence.

Prisoner #4, serving a 5-year sentence, has been a Sikh all his life. For centuries, Sikhs have believed that to cut one’s hair is to reject the love for God and respect for God’s creation that hair symbolizes.

Prisoner #5, also serving a 5-year sentence, decided on his own — before entering prison — to embark on a “spiritual journey” that would be manifested by growing his hair and never cutting it. He isn’t a member of any group, but he was inspired by learning about the Rastafarian movement, which, as he quotes from his readings, is “not a highly organized religion,” but  “a movement and an ideology.” Rastafarians wear their hair in a distinctive uncut way, showing “patience… a journey of the mind, soul and spirituality.”
I asked:
Can the new forcible haircut policy be applied across the board to all 5 prisoners (and any other prisoner that refuses to consent) or will at least one exemption be required? If any exemptions are required, explain which prisoners are entitled to an exemption. If the state wants to make an exception for one or more of the prisoners, will it have to make an exception for more than one? For all of them?
It was very interesting to me to see how students would respond to the 5 different needs for long hair. If I remember correctly, most students found the Sikh's interest so strong that they began there. But then what happens? Do you include all? Just the Rastafarian-inspired man?  None of the others? And does thinking about that make you want to exclude the Sikh too? If your answer is yes, then you may be an 11th Circuit judge.