In honor of Passover, I shall blog on a recent First Circuit decision, Bader v. Wrenn, http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=11-1634P.01A
Seth Bader is in jail for life without parole for murdering his wife. He was transferred from jail in Concord, New Hampshire to Berlin. Here is how Judge Boudin sets out the facts:
"Before he was transferred to NCF-Berlin in December 2010, Bader–an Orthodox Jew–was confined for 12 years at NHSP-Concord and regularly participated in Jewish religious activities. He attended Sabbath services in the prison roughly twice a month, which included prayers, blessings, and the lighting of candles meant to be performed in a group setting. The regular group participating the Sabbath celebration included at least three inmates as well as an outside volunteer. New Hampshire prison regulations require group worship services to be led by the prison chaplain or an approved outside volunteer.
"At NHSP-Concord, Bader also regularly participated in the group celebration of Jewish holidays, including Passover, Purim, Yom Kippur, Rosh Hashanah and Chanukah. A local rabbi would attend many of these holiday celebrations each year to help ensure that they were properly celebrated and to assist with the rituals. Aside from these regular group celebrations, Bader also followed dietary restrictions and met individually with a rabbi who visited the prison on a regular basis. The rabbi helped Bader pray with the proper accouterments, and also provided counsel and assistance regarding personal and family matters.
"On November 26, 2010, Major John Fouts, who serves as the director of security at NHSP-Concord, directed a search of the workplace facilities at the prison where Bader was assigned. At Bader's workstation, officers found classical music CDs and a floppy disk that Major Fouts believed to be for personal use. Bader was "written up" for a disciplinary violation–later dismissed when it was determined that all of the alleged contraband was given to Bader by staff or was in his possession with their approval.
"Nevertheless, with the agreement of the warden, Bader was transferred to NCF-Berlin about a week after the incident. Major Fouts testified that Bader was not transferred because of this charge alone, but because Fouts' investigation uncovered "indications that [Bader] had undue influence in other areas of the prison." Fouts said he was concerned, for example, that Bader was accessing material from other parts of the workplace in an inappropriate way, was using the prison's educational facilities beyond what was required and was developing relationships with staff that Bader might exploit later."
In Berlin (irony?), Bader has no access to a Jewish community:
"At NCF-Berlin, Bader asked the prison chaplain about Jewish services and was told that none were currently offered, as none had been requested. The chaplain then made efforts, largely fruitless, to locate outside volunteers to lead such services. Prior to Bader's lawsuit, which he began several months after his transfer to NCF-Berlin, he had not met with a rabbi or any other volunteer; he had not celebrated any Sabbath services; and with no rabbinical visits, his ability to pray with the Tefillin was curtailed."
The legal question presented is whether this transfer violated the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc et. seq. The panel (Judge Boudin, and JudgesTourruella and Lipez) said no, because the problem came from outside, not the prison itself. Judge Boudin also alluded to floodgate problems that could result from a broad reading of the law:
"There are several million prisoners in the United States; many would likely prefer some other prison in the jurisdiction and many could plausibly claim that transfers would be more conducive to the practice of their religion. The prospect of litigation as to the comparative benefits and burdens of different prisons is immense."
Of course, just because something may be legal, doesn't make it right. Judge Boudin closed his opinion by stating:
"That Bader's transfer was legal under RLUIPA does not an that it is wise or charitable to keep Bader indefinitely in Berlin, New Hampshire. Time has now passed since the incident occurred that concerned Major Fouts; and Bader's sincerity about his plight has not been disputed by the state. New Hampshire would do well to consider whether Bader can now be safely transferred back to the Concord prison and assigned to other tasks."
Over this holiday weekend, perhaps we should all ponder the quality of mercy.