Zargary v. New York (S.D.N.Y. 2009):
The Court finds that it is policy at Singer Correctional to photograph inmates without hats or head coverings during the admissions process. The photograph or photographs are placed on identification cards used by both the inmates and corrections officers…. The requirement that the photograph be taken without any head covering arises from the need for a picture of the inmate that does not readily change over time….On the evening of August 5, 1999, at approximately 11:20 p.m., Ms. Zargary arrived at Singer Correctional wearing a head scarf. During the admissions process, and pursuant to Singer Correctional’s policy, Officer Johnson attempted to photograph Ms. Zargary without her head scarf. Ms. Zargary refused to remove her head scarf for religious reasons….
Because the challenged regulation is penological and because plaintiff was an inmate when the regulation was applied to her, plaintiff’s challenge under the Free Exercise clause “is judged ‘under a reasonableness test less restrictive than that ordinarily applied’: a regulation that burdens a protected right passes constitutional muster ‘if it is reasonably related to legitimate penological interests.’” … [B]ecause the events at issue in this case preceded the enactment of RLUIPA, application of that statute’s standard would be incorrect as a matter of law….
Singer Correctional’s requirement that an inmate’s head be uncovered for less than 10 seconds so that she can be photographed has a rational connection to a legitimate governmental objective. Being able to accurately identify inmates is clearly essential to maintain security at correctional facilities. Without institutional memory of an inmate’s appearance, corrections officers who had never seen the inmate would be unable to identify her if she were new to the facility, a transferee, or an escapee. Requiring that the inmate’s head be uncovered in the photograph is certainly rationally related to this objective. If an inmate’s habit is to wear a hat or headdress, she could change her appearance, perhaps dramatically, in an instant by removing that hat or headdress. While there are certainly other ways for an inmate to change her facial appearance, this fact does not render Singer Correctional’s policy irrational or invalid….
For this reason, the Court concludes that the facts here are distinguishable from those in Benjamin v. Coughlin, 905 F.2d 571 (2d Cir.1990), which held that cutting an inmate’s hair for a photo ID violated the Free Exercise Clause. In Benjamin, the plaintiff was a member of the Rastafarian Movement, a religion that proscribes the cutting of a man’s hair. Because prison officials’ only problem with the plaintiff’s hair was that it covered his face, there was a simple alternative that accommodated the interests of all parties: pulling the inmate’s hair back in a pony tail to reveal his facial features. Here, there was no way to partially remove or “pull back” plaintiff’s headdress that would have accommodated both plaintiff and Singer Correctional’s interests….
Naturally, the case is of limited precedential value, given the intervening enactment of RLUIPA (the Religious Land Use and Institutionalized Persons Act), but I thought it was still interesting enough to pass along.
Crunchy Frog says:
Want religious freedom? Don’t commit crimes. Don’t get thrown in jail.
Yes, it’s that simple.
February 3, 2010, 8:16 pmOperationCounterstrike says:
I agree. Why should prisoners have freedom of religion? I can’t think of any good reason.
My understanding was the reason to permit it was religion made the inmates less violent. But today it’s very hard to make that argument–religion seems to be making people MORE violent.
February 3, 2010, 8:21 pmOperationCounterstrike says:
The whole prison system should be scrapped. We should go back to corporal punishment: floggings and, yes, amputations. These are ultimately LESS cruel than putting someone somewhere where you are NEVER alone, not for a second, not in the bathroom, shower, or bed, except when in solitary! And CHEAPER. We cannot afford to punish criminals any more, because “cruel and unusual” and the prison system have made it too expensive.
February 3, 2010, 8:23 pmGary Breseaux says:
Another case of legal jihad. Know thine enemy.
February 3, 2010, 8:25 pmChris Travers says:
I agree. Only problem is avoiding those three felonies a day…..[/sarcasm]
Actually, I think freedom of religion generally should be allowed in prisons because I don’t think that people surrender 100% of their personhood on being incarcerated. Furthermore, I think religion provides an opportunity for inmates, though not one which is necessarily always taken, to become better and wiser people.
I didn’t realize that Jihad was a Jewish thing….
February 3, 2010, 8:50 pmJohn Burgess says:
Knee? Meet Jerk.
February 4, 2010, 12:11 ampublic_defender says:
I know litigation can move slowly, but geez. Plus, if she’s still in prison, don’t they now just have to re-litigate the question under the RLUIPA to see if she still has to use this ID?
To Operation Counterstrike: Prisoners do have religious liberty. Less than the would have on the outside, but they do have it. Yes, some prisoners use religious claims to manipulate the system, but for others, religion can play a critical role in giving structure and a positive direction to their lives. It’s in all of our interests for prisoners to learn to internalize a positive moral code.
February 4, 2010, 6:23 amA. Criminal says:
…Rastafarian Movement, a religion that proscribes the cutting of a man’s hair.
Is there a list of officially respected establishments of religion? Is there a list of the practices of each religion indicating which practices are respected and which are not respected, or even prohibited? E.g. for Rastafarians, the gov’t apparently respects the hair-cutting prohibition but prohibits one of the their other well-known practices.
February 4, 2010, 1:23 pmChris Travers says:
This brings me to another interesting element of this case: The relationship between litigation in favor of Orthodox Jewish rights and those in favor of Muslims’ rights. In this case, everyone jumps on the fact that it is a head scarf and shouts “Muslim” even though the plaintiff was Jewish. Yet the push for allowing religious-friendly school lunches and other accommodations were made first, not by the Muslim community but by the Jewish community.
This brings me to my main point, which is that in a pluralistic society, the rights of one group will necessarily support the rights of another group. This makes defending minority rights, even those one might disagree with, to be important in defending all our rights.
February 4, 2010, 1:28 pmChris Travers says:
I wonder if O Centro has any bearing on the continuation of anti-Rastafarian restrictions by the federal government…..
February 4, 2010, 1:32 pmSwan Trumpet says:
The 5th Amendment is explicit on the point that as long as due process is given, persons can be deprived of life, liberty, and property. It is beyond bizarre that anyone can believe persons cannot legally be deprived of the right to practice their religion while incarcerated.
This is especially true in the case of rastafarian dreadlocks which are a hygiene problem, as well as a safety threat since they make it easy to hide contraband. Any head covering is an opportunity to hide objects. Scarves can be used as weapons to strangle.
February 4, 2010, 7:46 pmSE says:
Analysis of the Zargary case.
February 4, 2010, 7:57 pmChris Travers says:
Certainly some restrictions would be legal. I doubt some of the more traditionalist Asatruar would be allowed to sacrifice sheep in prison…..
But I don’t think a categorical ban would work (how do you prevent a Quaker from practising his religion?), and I don’t think a ban on practising certain religions (and promoting either others or atheism) would work either because I think that would rightly run into establishment clause issues.
February 4, 2010, 9:17 pmBama 1L says:
Even if RLUIPA applied, wouldn’t the prison policy survive strict scrutiny? The prison sure seems to have a compelling interest in being able to identify inmates with photographs of their faces. I cannot think of a less restrictive means than the procedure in use.
I like how Mayer Brown represented the city pro bono.
February 4, 2010, 9:30 pmreadery says:
Part of the complaint was that Mrs. Zargary was not permitted to phone a rabbi for a consultation on what to do on grounds that the prison could reasonably limit such consultations to either regular business hours or emergencies.
Why did the prison have to process her admission overnight so that she would be photographed at 3:30 a.m.? Why couldn’t they do it during “regular business hours”? Or were these “regular business hours”?
If admitting her at 3:30 a.m. was caused by an emergency, then there was in fact an emergency. On the other hand, if it was in the regular course of business, then 3:30 a.m. was in fact a regular business hour.
February 4, 2010, 10:10 pmRicardo says:
Swan Trumpet, the obvious rejoinder to your argument is that the First Amendment states “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It does not say — to borrow the phrasing of the 13th Amendment as an example — “…prohibiting the free exercise thereof unless as a punishment for crime whereof the party shall have been duly convicted.”
Your argument is similar to saying that you could fine someone $10 million for, say, drunk driving while completely ignoring the language of the 8th Amendment which prohibits excessive fines. People who are convicted may lose the rights to life, liberty and property but they retain the rights provided for elsewhere in the Constitution.
February 4, 2010, 10:46 pmSwan Trumpet says:
I’m not suggesting that anyone be prohibited from privately praying or engaging in religious rituals that aren’t special privileges, safety factors, or disruptive. I do think that it’s unreasonable to expect prisons to be run safely and cost-effectively while accommodating a variety of religious practices. For example, If Jews are entitled to Kosher meals, then Catholics must be entitled to no meat on Friday meals and Muslims can demand halal meals. And what do we do about Ramadan? Pay kitchen staff overtime and disrupt prison routine to serve Muslim populations meals only after sunset?
The constitution is clear that a conviction after due process can deprive individuals of their liberties. Various court rulings attempting to accommodate a variety of religious demands have only muddied the waters, made prisons less safe and far more expensive to the taxpayers.
February 4, 2010, 11:00 pmChris Travers says:
There’s a subset of food that meets all those requirements. Of course, that subset is vegetarian.
OTOH, if the Muslims dont want to eat during the day, do you propose force-feeding them? That doesn’t seem to be a cost-winner either. I would think a reasonable policy would be “we won’t prepare any more food, but will refrigerate your meal.” I doubt that would cost too much more and would avoid the inevitable hunger strikes.
If there aren’t too many such meals, maybe the prison chaplain could help out?
February 5, 2010, 11:46 amPintler says:
What’s your opinion on infringing on the 2nd amendment right of prisoners? After all, the 2nd amendment does not say ‘except while incarcerated’.
February 6, 2010, 9:29 am