Help for RLUIPA Sufferers

1. Help for RLUIPA Sufferers 2008 STRIMA Conference

2. Jeffrey Bratkiewicz -Woods, Fuller, Shultz & Smith, PC. -Specialize in governmental liability and civil rights defense, with a focus on inmate litigation. -Reactive: 1. Investigation; and 2. Litigation. -Proactive: 1. Training; and 2. Consultation and policy evaluation/revision.

3. Overview • What is RLUIPA? • Why should I care? • “RLUIPA in action- Sisney v. Reisch, et al., (D.S.D.) • How to avoid getting sued. • Pointers for defending RLUIPA claims and/or avoiding liability.

4. WHAT IS RLUIPA? RLUIPA is an acronym for the “Religious Land Use and Institutionalized Persons Act.” RLUIPA is a federal statute, and was enacted in 2000. The purpose of the Act was to ostensibly protect religious exercise. There are two parts to RLUIPA, which are separate and distinct:

5. Part 1- Land Use

6. Part 2- Institutionalized Persons, a/k/a the Inmate Provisions

7. Focus on Inmate Provisions SO……WHAT IS RLUIPA? • Federal Statute. • Applies to all governmental entities that receive “federal funding.”- THIS INCLUDES ALL STATES AND MOST LOCAL GOVERNMENTS. • Applies to inmate religious exercise (and others who are institutionalized). • Provides more protection than the First Amendment. • Defines religious exercise very broadly, and prohibits reference to mainstream standards. • Shifts burden of proof from inmate to correctional staff. • Money damages and declaratory/injunctive relief available, private cause of action and enforceable by USDOJ.

8. First Amendment versus RLUIPA First Amendment Standard Prison policies are upheld if “reasonably related to legitimate penological interests.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987). Factors to consider are: 1. Underlying interest (safety, order, security); 2. Alternatives available to inmate; 3. Impact of accommodating the request; and 4. Whether there are “easy alternatives” to policy or decision. Also…an inmate must show that the restriction substantially burdens a religious practice that is “fundamental” to his or her religion. Legitimacy of religious practices and beliefs are typically not questioned, nor should they be, but whether a requested accommodation is “genuine” is fair game.

9. RLUIPA is remarkably different RLUIPA Standard Inmate must still show a “substantial burden.” If he or she makes that showing, however, it becomes the GOVERNMENT’S burden to show the policy or decision: 1. Is in furtherance of a compelling governmental interest; and 2. Is the least restrictive means of furthering that compelling governmental interest. Also, under RLUIPA, “religious exercise” is defined to include “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

10. RLUIPA’S IMPACT(“Why you should care about RLUIPA”) • Prison officials must justify policies and actions. Review is less deferential under RLUIPA. • Religious exercise defined to include activities that are not religious. • Qualified immunity may be lost. • The unique context of inmate litigation can mean that settlement is not a viable option for fear of opening the floodgates or encouraging the “successful” inmate to file more lawsuits. • Although RLUIPA has been around for 8 years, there are relatively few published decisions, and lots of unresolved constitutional issues. Hard to predict result in the face of a lawsuit because every inmate and prison are different. • RLUIPA held valid under the Establishment Clause. Majority of Circuit Court have upheld RLUIPA under Commerce and Spending Clause. • No clear standards for States and prisons to follow. Costly cases to defend an emotional stakes can run high. • Inmate religious claims become more difficult, time consuming, and costly to defend, exhausting valuable State resources.

11. Charles Sisney • Murderer serving life at the SDSP. • Became Jewish after entering prison. He also studies Kabalah. • Has made repeated, ever changing, and often conflicting demands for special property, food, and privileges related to his religion(s), including, but not limited to: • Kosher candy (for Christmas); • A bowl of “living water;” • A ram’s horn; • Jelly donuts; • Civet gland oil; • Challah. • Filed civil lawsuit in federal court in 2003 asserting claims under the First Amendment and RLUIPA.

12. SISNEY- It started with a Sukkah…. • The dispute started when Sisney was denied a “Sukkah”- a three-sided booth that Orthodox Jews eat meals in during the Jewish Holiday of Sukkoth. • Officials denied the request initially for reasons of safety, order, and security. • The booth consisted of 3-foot long metal poles, could conceal inmate activity from guards, and was not suitable for outdoor use, which is what the inmate requested. • Also, the booth was too small to fit more than one person at a time and was contraband under prison policy.

13. District Court… • Three summary judgment challenges. • Granted summary judgment, except for retaliation claims and First Amendment/RLUIPA claims for: • Sukkah; • Tape player to listen to Hebrew language tapes; • Extra weekly meeting times.

14. Appealed to Eighth Circuit • Appealed to Eighth Circuit Court of Appeals because of the importance of the legal and constitutional issues and the impact of the lawsuit on prison policies and regulations. • Substantial commitment to defending the case. Approximately 2,581 attorney hours defending the lawsuit. Staff and defendant time likely exceeds 1,000 hours. • On appeal, we challenge RLUIPA as unconstitutional and also argued Sisney’s claims fail on merits.* • Awaiting scheduling of oral argument. • Decision likely to be handed down in 2009.

15. How to Avoid Getting Sued You can’t!

16. Other inmate demands… -Inmate demands for religious property can range from the ordinary…to the extraordinary, and the treatment of the claims by federal courts are sometimes inconsistent: Examples: • Wine and Steak (denied by the Court as a sham request); • Native American sweat lodge and supplies (some prisons deny, others permit, courts have decided this both ways); • Plastic sword, rocks for a ritual alter (Court upheld denial of request); • Grooming policy (Court upheld enforcement of policy); • Kosher diet (One Court have affirmed damages against officials for denying kosher diet; another Court affirmed the denial of a kosher diet for budgetary reasons); • Religious name (Court upheld prison’s denial of inmate request to be referred to by his religious name only)

17. Pointers for Defending RLUIPA Claims and Mitigating Liability 1. The State can refuse federal prison funding. RLUIPA only applies to recipients of federal prison funding. 2. Change the policy or practice.* RLUIPA has a safe-harbor provision that allows a State to avoid liability. 3. Know and rely upon the PLRA. 4. Other considerations… A. Proactive; and B. Reactive.

18. Good News THE PLRA APPLIES TO RLUIPA! • Congress enacted the Prison Litigation Reform Act in 1996 in an effort to curb the growing amount of abusive and frivolous inmate lawsuits. • The PLRA accomplished this through: 1. Mandatory screening of inmate pro se lawsuits; 2. Limiting the scope of available relief; 3. Requiring payment of filing fees; and 4. “Three strikes” provision.

19. Safe Harbor • According to 42 U.S.C. § 2000cc-3(e) of RLUIPA, a “government may avoid the preemptive force of any provision of this chapter by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise or by any other means that eliminates the substantial burden.” 42 U.S.C. § 2000cc-3(e).

20. Safe Harbor-First Amendment • Congress, federal courts, and legal commentators have all treated 42 U.S.C. § 2000cc-3(e) as creating a safe harbor provision whereby governments can take remedial action to avoid liability under RLUIPA. • BUT…this does not eliminate liability under the First Amendment, though it would render claims for prospective or declaratory relief moot.

21. Other Considerations…(in no particular order) Proactive steps: 1. Prison policies. -Religion; -Property; -Discipline; -Diet; -Administrative remedy procedure. 2. Training and education for staff in all of the above.

22. Other Considerations…(in no particular order) Reactive steps and additional considerations: 1 According to Supreme Court, States need not supply inmates with devotional accessories, even under RLUIPA. 2. Internal prison records should show safety, security and/or administrative reasons supporting denial of a request. 3. Be sure to raise all constitutional defenses. 4. Be sure to raise all defenses under PLRA. 5. Settlement/Safe Harbor Provision might be an option, but tread carefully. 6. RLUIPA does not require States to do the impossible, nor must correctional officials abandon common sense.

23. THANK YOU FOR YOUR TIME, SERVICE, AND YOUR DEDICATION. JEFFREY L. BRATKIEWICZ WOODS, FULLER, SHULTZ & SMITH P.C.Questions and/or Feedback:jeff.bratkiewicz@woodsfuller.com

24. Inmate Litigation:A Discouraging Word Kathy Gastreich Washington State Department of Corrections

25. Inmate Litigation:A Discouraging Word Home on the Range A rancher riding along the range (you know, where the deer and the antelope play) jumps off his horse and runs up to a buffalo. He tells the buffalo, “You are the most miserable excuse for a buffalo I have ever seen. Just look at you, you have bloodshot eyes, your hair is all matted, and you stink!” The rancher mounts up and rides off leaving the buffalo in wonderment. The buffalo looks around at the others in his herd and says, ”I do believe I just heard a discouraging word.”

26. Inmate Litigation:A Discouraging Word Types of Inmate Litigation • Property – Lost or Damaged • Public Disclosure • Medical Malpractice • Conditions of Confinement • Injury: Sports, Work, Slip & Fall • Failure to Protect: Sexual Predator, Aggression • Prison Rape Elimination Act (PREA)/Custodial Sexual Misconduct • Held Beyond Release Date

27. Inmate Litigation:A Discouraging Word Public Disclosure/Freedom of Information • In Washington the Public Disclosure Act allows for “free and open, examination of public records in the public interest, even though such examinations may cause inconvenience or embarrassment.” • “Public Records” is any writing containing information prepared or retained by an agency regardless of physical form.

28. Inmate Litigation:A Discouraging Word Public Disclosure/Freedom of Information • Abuse/Manipulation • Number of Request • Type and Amount of Information Requested • Employee Vulnerability • Financial Impact • Staff hours in collection and redaction • Penalties for Errors/Misinterpretations • Cases • $500,000 – WA Supreme Court Case • All records related to medical staff sanctioned for misconduct, performance evaluations, and draft disciplinary letters. • $100,000 - in several cases brought by one inmate • Due to errors in redactions and failures to provide documents

29. Inmate Litigation:A Discouraging Word Public Disclosure Stats January-December 2007 Number of Requests 6,736 Staff Hours 17,115 Pages Made Available 474,056 Pages Paid For 132,509

30. Inmate Litigation:A Discouraging Word Mitigating Risks • Read requests carefully and thoroughly • Respond within timeframes • Provide appropriate, lawful responses • Communicate with requestor • Address errors immediately – don’t ignore them!

31. Inmate Litigation:A Discouraging Word The Impact of Class Action Lawsuits • Inmate Personal Property: • Shipping Costs and Destruction of Property • Discrimination based on Disability: • Eligibility for Programs • Sexual Abuse: • Custodial Sexual Misconduct • Sexual Abuse/Assault

32. Inmate Litigation:A Discouraging Word Negligent Supervision • Washington State has paid millions of dollars to plaintiffs who were victimized by offenders on community supervision (Parole/probation) • Under Washington law the State is liable just as though it were a private corporation. • Washington courts have established that “parole officers have a duty to protect others from reasonably foreseeable dangers engendered by parolees dangerous propensities.”

33. Thank you for your time and attention. • Contact Information: Kathy Gastreich Risk Management Director Washington State Department of Corrections 360-725-8587