Wiccan Prison Chaplain Case Before Ninth Circuit


(image courtesy Cherry Hill Seminary website)

The religious freedom of inmates has been a central theme in prison rights litigation. The California prison movement has been transformed in important ways through litigation on behalf of Black Muslim inmates; for background on this, check out Christopher Smith’s excellent paper or Eric Cummins’ wonderful book The Rise and Fall of the California Radical Prison Movement. Following these cases, and others, CDCR employs a “five-faith policy”, according to which it employs five paid prison chaplains in the following faiths: Protestant, Catholic, Jewish, Muslim and Native American. Now, a Wiccan clergyman, who has volunteered in California prisons for many years, is challenging this policy before the Ninth Circuit.

Patrick McCollum is a well-respected Wiccan authority, the author of Courting the Lady and a faculty member at Cherry Hill Seminary, a Neo-Pagan educational institution. He has testified before the U.S. Commission on Civil Rights on prisoners’ religious freedom. According to the information on the book flap, McCollum began his service as a statewide Wiccan chaplain in 1997, after advising the State in a dispute involving a Pagan inmate. He is a member of the American Correctional Chaplains Association.

McCollum’s case was defeated in the District Court, for a preliminary issue of standing. The District Court decided that McCollum lacked standing and could therefore not sue CDCR; the only people with standing to sue in such matters are current inmates, not people looking to be hired for the position. After all, said the court, at most McCollum could argue for CDCR to assess the limitation of chaplaincy positions to five, but even applying broader standards would not necessarily lead to including Wicca among the faith groups that merit a paid position, nor to hiring McCollum himself.

Interestingly, CDCR initially argued that, in assessing the need for prison chaplaincy positions, it applied a set of objective criteria: (1) liturgical needs, (2) the numbers of the group, (3) existing and alternative accommodation means, (4) security, (5) cost, and (6) other practical factors related to institutional operational needs. However, at a later stage CDCR stated that it never applied these criteria, though it intended to use it from now on.

The summary judgment decision has been appealed to the Ninth Circuit Court of Appeals. In a brief submitted to the court, Americans United for Separation of Church and State, the Anti-Defamation League, and other organizations, argue that the District Court’s decision was erroneous.

Some of the arguments for and against McCollum’s position are presented in this Opposing Views piece. Should there be standing in this case? Have McCollum’s rights been violated? On the merits, does the “five faiths” policy constitute religious discrimination? Curious to hear what our readers think.

Here are some words from McCollum, in an interview included in the documentary A Hero Denied, which focused on the rights of Wiccan soldiers.

Federal Raid on Undocumented Immigrants with Records

The L.A. Times reports:

Immigration agents arrested nearly 300 foreign nationals with criminal records during a three-day sweep in California, officials announced Friday.

. . .

Officials said 96 of the 286 arrests took place in Los Angeles County. Among those arrested in the county were a suspected gang member from El Salvador who had a 2004 robbery conviction and a Guatemalan man with a 1993 conviction for lewd acts with a child under 14.

“These are not people we want walking our streets,” Morton said.

The arrests were conducted as part of a controversial program designed to arrest and deport immigrants who have criminal records, who have ignored deportation orders or who were deported and illegally reentered the United States. About 400 officers and agents took part in the operation. The arrests included people from Mexico, Denmark, Taiwan and Tonga.

These news make a powerful juxtaposition to the “sanctuary city” policy, which has just become law in San Francisco.

Understanding the Punitive White Male

As the chronology of California correctional policies shows, many of the punitive measures in sentencing, corrections, and risk management, emerged from voter initiatives. Whether or not the public is punitive, or is being pushed in that direction by politicians and the media, and what can be done to change public opinion, are complex and delicate questions that we discussed in a previous post. Today, I’d like to turn to the findings of some recent work, pointing to the fact that some potential voters and jurors, namely, white males, are more punitive than others.

In a recent piece, Michael Costelloe, Ted Chiricos and Marc Gertz measure public punitivism as a factor of various worldviews, among them what they call “economic insecurity.” As it turns out, people tend to be more punitive, and their belief in rehabilitation and second chances declines, when they feel that their own economic situation will worsen over time. This effect is particularly salient among white males; Costelloe et al attribute this connection to a sentiment that welfare policies, and giving people a break, rewards the underserving and comes at one’s own expense, a sentiment which they find overrepresented among white males.

This weekend I received more confirmation for this finding, albeit in a different context. Mona Lynch and Craig Haney’s recent study, presented at the Conference for Empirical Legal Studies, used mock juries of 4 to 7 jurors, who were shown a video of a death penalty trial and asked to deliberate the case. The study was masterfully done, providing the jurors with two identical versions of the video – except for the races of the offender and the victim. The clothing and acting of the different witnesses was exactly the same; the only thing manipulated was race. As Lynch and Haney found, white male jurors were significantly more likely to sentence the black defendant to death. These findings had ripple effects. White males were overrepresented as elected forepersons, and they exhibited the power to sway the other jurors in a punitive direction. As the following chart depicts, juries with a higher concentration of white male jurors tend to differentiate more between white and black defendants when deliberating and deciding on the death penalty.

What is going on? Lynch and Haney explain the findings by arguing that white male jurors tend to exhibit less empathy toward black defendants. This echoes the argument by Costelloe et al, according to which economic anxiety and lack of empathy are related.

What are we to do, though? Exclude white males from voting on initiatives and serving on juries? Of course, not all white males lack empathy and are punitive. But the next time the propositions come around, or the next time we serve on a jury, we should ask ourselves how our demographics, experiences, and biases, impact our opinions about crime.

Movie Review: The Released


The Released, a Frontline production, examines how mentally ill inmates fare after their release from prison. Filmed in Ohio, the film follows up on five men who are being let out of prison and their trials and tribulations in homeless shelters, group homes, and state mental institutions.

These experiences are shadowed by the “Great Decarcerations” of the 1970s. Following the invention of Thorazine, and under a philosophy highlighting free choice and freedom, various U.S. states began closing down their mental institutions. Some readers may recall Ken Kesey’s One Flew Over a Cuckoo’s Nest as a cultural harbinger and representative of this ideology.
The problem was that no viable alternatives were created. Medication is a suitable alternative to prison only if one is sure to take one’s medication. And, in many such cases, the organization and cognitive presence required for consistently taking medication is lacking.
Several of the people interviewed in The Released manage shelters and group homes, and while they have plenty of good will and energy to help, their powers are limited if one of their residents decides to take off. These places are ill-equipped to supervise medication; the only place who does a decent job at it is the mental institution, and therein lies the paradox; once medicated, the inmate is functioning well, and therefore released, whereupon he ceases taking medication again, leading to a new incarceration or hospitalization.
According to the movie, a million inmates in the U.S. are mentally ill. Thinking about our local problems, one can only guess what the incarceration experience is like when surrounded with so much dysfunctionality. Is it possible that the Plata/Coleman descriptions of flawed mental health treatment are actually better than what the inmates are to expect on the outside?
An aspect portrayed, though not deeply explored, in the movie, is race. We see a white man — the only uplifting, redemptive story in the film — obtaining a placement at an excellent group home, Bridgeview Manor, with great facilities and conditions. All other residents are also white. At the end of the movie we see him doing well. The other people portrayed in the film — black inmates — are not so fortunate; the shuttle from shelters to jail and back, and some face further tragedies. The extent to which race and class play a part in placements, and as a result, in the hope of a regulated, supervised life, is disturbing. But more disturbing is our notion of what counts as “good”. There has to be a point of balance between unnecessary paternalism and laissez-faire abandonment of people to their fate. I fear we are not there yet.

You can watch the full movie right here on the PBS website.

Letters from Sanctuary City: More on the Federal-State Divide

Regular readers may recall our invitation to stay tuned for the San Francisco Board of Supervisors’ decision regarding the city’s “Sanctuary City” policy. The bill, initiated by Supervisor David Campos, consists of an amendment to the San Francisco Administrative Code, chapter 12H. The amended section now reads:

SEC. 12H.1. CITY AND COUNTY OF REFUGE.
It is hereby affirmed that the City and County of San Francisco is a City and County of Refuge.

SEC. 12H.2. USE OF CITY FUNDS PROHIBITED.
No department, agency, commission, officer or employee of the City and County of San Francisco shall use any City funds or resources to assist in the enforcement of federal immigration law or to gather or disseminate information regarding the immigration status of individuals in the City and County of San Francisco unless such assistance is required by federal or State statute, regulation or court decision. The prohibition set forth in this Chapter shall include, but shall not be limited to:

(a) Assisting or cooperating, in one’s official capacity, with any Immigration and Naturalization Service (INS) investigation, detention, or arrest procedures, public or clandestine, relating to alleged violations of the civil provisions of the federal immigration law.

(b) Assisting or cooperating, in one’s official capacity, with any investigation, surveillance or gathering of information conducted by foreign governments, except for cooperation related to an alleged violation of City and County, State or federal criminal laws.

(c) Requesting information about, or disseminating information regarding, the immigration status of any individual, or conditioning the provision of services or benefits by the City and County of San Francisco upon immigration status, except as required by federal or State statute or regulation, City and County public assistance criteria, or court decision.

(d) Including on any application, questionnaire or interview form used in relation to benefits, services or opportunities provided by the City and County of San Francisco any question regarding immigration status other than those required by federal or State statute, regulation or court decision. Any such questions existing or being used by the City and County at the time this Chapter is adopted shall be deleted within sixty days of the adoption of this Chapter.

The Board of Supervisors meeting agenda illuminates the intent behind the amendment:

Ordinance amending the San Francisco Administrative Code by amending Sections 12H.2, 12H.2-1, and 12H.3 to allow City law enforcement officers and employees to report information regarding the immigration status of a juvenile to any state or federal agency when the juvenile has been adjudicated to be a ward of the court on the ground of felony conduct, the court makes a finding of probable cause after the District Attorney directly files felony criminal charges against the minor, or the juvenile court determines that the minor is unfit to be tried in juvenile court and the superior court makes a finding of probable cause; and to update references to the federal agency responsible for enforcing federal immigration laws.

While this is an interesting development in itself (and in relation to how the entire issue of undocumented immigrants has played in the context of overburdening the criminal justice and correctional system), it becomes particularly interesting when contrasting it with the recent news re marijuana legalization: Why, only yesterday, in a different context, we saw the federal criminal justice apparatus prepared to step away from state affairs, unless state agents were violating their own laws.

The question is, will the feds be as forgiving of undocumented immigrant delinquents as they might be of medical marijuana. Seemingly, in both situations a local entity is creating policy, through legislation, which violates federal rules. However, one indication that these are two very different matters, criminalization-wise, is Mayor Newsom’s stance on the subject. The mayor’s spokesman, Nathan Ballard, is quoted in the Chron as saying that “the Campos bill isn’t worth the paper it’s written on — it’s unenforceable and he knows that”.

Today: “Sanctuary City” Discussion by S.F. Supes

Today, the Board of Supervisors is expected to discuss David Campos’ proposal to refrain from contacting the feds in cases of juvenile offenders who are also undocumented immigrants, unless these offenders have committed felony. And it seems most Supervisors are on board.

The proposal is not new; a similar version of “sanctuary policy” existed under the radar in San Francisco until it was exposed by the Chron in September 2008. At the time, following the exposé, the Mayor reversed the policy, and services reported such offenders to the feds for deportation.

The new policy would not, exactly, be a legal violation. As Rick Hills explains in this illuminating blog post, Congress cannot require states to enforce federal immigration law, especially when it violates state law. Circuit court decisions to the contrary are quite problematic in their legal reasoning (supposedly, the rationale is, as Rick puts it, that the feds are not “commanding” anyone to do anything: federal law simply stopped non-federal officials from interfering with other people’s decision voluntarily to cooperate with the feds).

This also brings up, yet again, the preoccupation with undocumented immigrants throughout the policy discussions of the crisis. The Supervisors’ decision would be at odds with every correctional saving plan we’ve seen in the last few months, all of which rely on massive deportation protocols, sometimes haphazardly conducted. The fate of CDCR layoffs has been attributed by CCPOA officials to the inability to deport 19,000 inmates. Some institutions have built-in hearing programs prior to deportation. As explained by Matthew Cate in this CDCR video from March, discharging prospective deportees is a money-saving strategy (10 million dollars annually).

The San Francisco policy would provide a contrast to this trend.

Progressive Lawyering Day 2009

Following up on this week’s posts on minors in California’s criminal justice system, this Saturday there will be a panel on the San Francisco police’s interrogation of immigrant youth, featuring Supervisor David Campos. The panel is part of Progressive Lawyering Day 2009, hosted by the San Francisco Bay Area Chapter of the National Lawyers Guild. The day also features a keynote lecture from civil rights attorney John Burris.

Here’s the full schedule for the event, 10a-6p Sat 10/3 at UC-Hastings, 198 McAllister St., SF:
10:00am Registration/Free Breakfast
10:30-12:00 2 Panels: Transgender Advocacy & SF Police Interrogation of Immigrant Youth feat. SF Supervisor David Campos
12:00-1:00 Free Lunch
1:00-2:30 2 Panels: Alien Tort Claims Act & Everything You Wanted to Know About Fellowships
3:00-4:30 Key Note Speaker John Burris (attorney for the family of Oscar Grant)
4:30-6:00 Reception with free food/drinks

Facebook invite here. Note that CLE credits are available for both afternoon panels.

More on Minors: Failing Report Cards for Juvenile Institutions

(Preston Juvenile Facility images courtesy Center of Juvenile and Criminal Justice, at http://www.cjcj.org).

As Jesse pointed out in a recent blog post, our general concerns about the California correctional crisis are warranted especially with regard to our treatment of minors. Much of the recent attention to the crisis concerned adult institutions exclusively; however, given the connection between age and crime, and the difficulties in rehabilitating adults, juvenile institutions have an enormous potential as centers of rehabilitation, and could provide a turning point away from criminal career.
What are our juvenile institutions like? A recent report by Books Not Bars paints a rather grim picture. The organization examined six California juvenile institutions to the Missouri Model and issued report cards for them. Sadly, all institutions miserably failed to prove adequate; the report finds conditions to be abysmal, and not conducive in the least to rehabilitation. Dated building standards, remoteness from family, chaotic and violent environments, and a paucity of rehabilitative programs, do not bode well for the future of juvenile corrections, or for a decline in adult criminal careers. Books Not Bars should be commended for bringing these invisible problems to light and raising awareness to this sad state of affairs.

A Solution in Search of a Problem? More Sex Offender Legislation Dies in Committee


CA Assemblyman Paul Cook‘s legislative proposal – the newest version of sex offender legislation – died in committee. The novelty? Forbidding registered sex offenders whose offense included a child under 16 to sell ice cream. As is often the case with this sort of bill, it is presented as prompted by a particular incident, reported on Cook’s website, where “the Megan’s Law database revealed that a local ice cream truck driver was a registered sex offender”.

Senator Mark Leno‘s questioning at the Standing Committee on Public Safety addressed the necessity of this new venture.

Current law says a registered sex offender whose offense involved a child under 16 cannot work “directly and in an unaccompanied setting with minor children on more than an incidental and occasional basis.”

“Where is the weakness in that statute that … you believe we’re going to have registered sex offenders selling ice cream to our children?” Leno asked Cook Monday during a committee hearing. “I don’t think there’s any problem with the current statute.”

But Cook said that leaves some ambiguity because an ice cream vendor isn’t working with children in the same way as a day care worker.

“Are you working with kids, or are you selling ice cream?” he said. “If you’re working with kids, then prevailing law applies. But if you’re selling ice cream, you’re selling ice cream to everybody.”

Cook said the issue is particularly important because children are attracted to ice cream trucks and tend to trust those who operate them.

Sen. Roderick Wright, D-Inglewood, who voted for the bill, said an ice cream vendor can build a relationship with a child that can later lead to exploitation or an attack.

. . .

Leno called Cook’s bill “a solution in search of a problem.”

In response to Leno’s question whether there were actual examples of sex offenders operating the trucks, Cook mentioned the case that allegedly inspired the bill, but Riverside County Sheriff’s officials denied having heard of the situation. Read more at The Sun.

It should probably be mentioned that a similar law was being considered in Iowa last year. Follow this one up to its probable doom at the CA legislation website.

Proposed GPS Monitoring of Domestic Violence Offenders

(GPS tracking device image courtesy Slate Magazine)

Violators of domestic violence protective orders are increasingly subjected to GPS monitoring in several States, as reported by the NY Times and by the Chronicle. Implementing such legislation in CA, as opposed to Illinois and Texas, is somewhat of a challenge. The Chron elaborates:

Without GPS, police have been lax to follow up on complaints that partners are ignoring protective orders, said Tara Shabazz, executive director of the California Partnership to End Domestic Violence.

However, Shabazz and her organization oppose California’s proposed GPS legislation because it would require the state to order GPS tracking for an offender without providing details on how to implement it.

. . .

In California, the cash-strapped government can’t pay for the program, said Alexis Moore, the president and founder of Survivors in Action, a California-based advocacy group. Similarly in Texas, no money was appropriated for GPS implementation.

Given our financial situation, relatively inexpensive alternatives to incarceration or confinement can and should be considered, which does not mean we should not examine such technologies with a critical eye. How is the GPS system managed and monitored? And, should we rely on it to the exclusion of community programs to treat abusive partners, of which we have several in CA?