The Tar Pit

Tuesday, November 01, 2005

Alito and prison Islamists (Five Percent Nation)

Reacting to President Bush's most recent Supreme Court nomination, the People for the American Way wasted no time getting into the mud of demagoguery:

Samuel Alito: Leading the Attack on Fundamental Legal Rights and Protections for All Americans

"This overview report is not limited only to cases in which People for the American Way disagrees with Judge Alito's reasoning; the inclusion of cases for informational purposes does not indicate that PFAW has taken a formal position on the issues at stake."

Nevertheless, in the very next sentence:

"As the following summaries of his opinions reveal, the judicial philosophy of Samuel Alito is far to the right."

PFAW goes on to opine:

"It is clear that Alito's confirmation would seriously jeopardize American's rights.

Oh really?

Transcribed from PFAW's pdf file, we read:

Discrimination Based on Religion:

Fraise v. Terhune, 283 F.3d 506 (3d. Cir. 2002)

Members of the Fiver Percent Nation (FPN) sued the New Jersey Department of Corrections for violations of their First and Fourteenth Amendment rights. The case concerned the prison system's policy of imposing rigid restrictions on prisoners found to be members of Security Threat Groups (STGs). The prison designated the FPN an STG and thus forbade its members from, among other things, possessing FPN literature, despite the fact that an expert at trial testified that "'to become a member..., all one need do is study the lessons and aspire to live a righteous life.'" 283 F.3d at 519. In addition, those designated as core members of the FPN were required under the STG to undergo a behavior modification program in "maximum custody." Id. at 511. In order to be released from maximum custody and returned to General Population, core members must "sing a 'Letter of Intention' expressing their intention 'to renounce formally and in spirit affiliation with all Security Threat Groups." Id. at 524, n3. The other organizations designated as STGs did not purport to be religious groups. Despite all of this, the district court found that the STG policy did not violate FPN members' free exercise rights under the First Amendment, nor their due process or equal protection rights under the Fourteenth Amendment.

On appeal, in an opinion by Alito, a divided three-judge panel of the Third Circuit upheld the district court's opinion. Judge Rendell wrote a strong dissent arguing that the court should have required far more evidence that the FPN was actually a violent group before allowing such harsh restrictions on religious exercise.

Alito's opinion in Fraise v. Terhune should be considered in light of the fact that Abdullah al-Muhajir (aka Jose Padilla, the alleged "dirty bomber," was apparently recruited into the circle of radical Islamism via contacts he made in prison. al-Mujahir is not alone; Levar Haley Washington was arrested recently for plotting terrorist attacks, after being recruited by Jamiyyat Ul Islam Is Saheeh in California State Prison, Sacramento. "There is a long history of terrorist organizations recruiting in prisons," says Rand terrorism expert Brian Jenkins. "The prisoners are susceptible, they are frightened, they are looking for protection and a set of beliefs to deal with life in prison."

The insistence which People for the American Way put forth in their "preliminary overview" of Judge Alito's opinions, that preventing quasi-religious Security Threat Groups in American prisons from spreading the threatening aspects of their ideologies amounts "Discrimination Based on Religion," is at odds with American interests in the War on Islamic Terror. The First Amendment was never intended as a Trojan Horse for criminal conspiracies Fifth Columnist plots.

By the way, the U.S. Supreme Court is scheduled to hear al-Mujahir's appeal of a Fourth Circuit Court of Appeals ruling that he could be held indefinitely without trial by federal authorities as an "enemy combatant" under provisions of the Patriot Act. Perhaps not incidentally, that Fourth Circuit opinion was written by Judge Michael Luttig (Padilla v. Hanft pdf file), who'd also been considered by President Bush as a potential replacement to fill Justice Sandra Day O'Connor's seat on the SCOTUS. Having written the opinion, Luttig would have had to recuse himself from the upcoming decision on al-Mujahir by the Supreme Court.

From Judge Alito's decision in Fraise v. Terhune:


We first address the plaintiffs' claim that the STG Policy violates their First Amendment right to the free exercise of their religion. All parties urge us to resolve this issue by applying the standards set out in Turner, and we take that approach.5

In Turner, the Supreme Court began by noting that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution." 482 U.S. at 84. The Court recognized, however, that inmates' constitutional rights must in some respects be limited in


5. It is not clear that Turner factors should be considered before determining whether a contested prison regulation would violate the constitutional right that the inmate invokes if the regulation were applied to persons not in prison. After all, incarceration almost always results in a narrowing, not a broadening, of constitutional protections.

Turner discussed five prior Supreme Court cases involving inmate constitutional claims, and in all of those cases the challenged prison regulation would have been plainly unconstitutional outside the prison context. See Procunier v. Martinez, 416 U.S. 396 (1974)(restrictions on the contents of incoming and outgoing prisoner mail); Pell v. Procunier, 417 U.S. 817 (1974)(restrictions on face-to-face media interviews with individual inmates); Jones v. North Carolina Prisoners' Union, Inc., 433 U.S. 119 (1977)(regulations prohibiting meetings, solicitations, and bulk mailings related to prison union); Bell v. Wolfish, 441 U.S. 520 (1979)(restrictions on inmates' receipt of hardcover books not mailed directly from publishers, book clubs, or book stores); Block v. Rutherford, 468 U.S. 576 (1984)(ban on contact visits). The same is true of Turner itself, which concerned restrictions on the right of inmates to correspond with other prisoners and to marry, as well as O'Lone v. Shabazz, supra, which involved restrictions on attendance at religious services.

The defendants have not argued, however, that we should first determine whether the regulations at issue here would violate the Free Exercise Clause if applied outside the prison context. See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993); Employment Div. Dept. of Human Res. of Oregon v. Smith, 494 U.S. 872 (1990). We therefore do not reach this issue.

We also note that the plaintiffs have not raised any argument under the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. S 2000cc-1, which may address some of the concerns expressed by the dissent, and we therefore do not discuss that statute.


order to accommodate the demands of prison administration and to serve valid penological objectives. See id. The Court also emphasized that the judiciary is "ill equipped to deal with the increasingly urgent problems of prison administration and reform" and should therefore give significant deference to judgments made by prison officials in establishing, interpreting, and applying prison regulations. See id. at 84-85. Accordingly, the Court held, prison regulations that curtail an inmate's constitutional rights need only be reasonably related to legitimate penological objectives. See Turner, 482 U.S. at 89. See also, e.g., Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir. 1999); Abu-Jamal v. Price, 154 F.3d 128, 132 (3d Cir. 1998); Cooper v. Tard, 855 F.2d 125, 128 (3d Cir. 1988). As noted, under the Turner framework, four factors must be considered in assessing the reasonableness of such regulations. Id. at 90-91. We will discuss each of these factors separately.


We agree with the District Court that the STG Policy is supported by Turner's first prong. A prison regulation fails this prong if it "promotes an interest that is illegitimate or not neutral, or . . . bears no `valid, rational connection' to the asserted interest." Waterman, 183 F.3d at 214 (quoting Turner, 482 U.S. at 89-90). Here, contrary to the suggestion of the dissent that the New Jersey scheme "targets members of one religion," Dissent at 27, the STG Policy is entirely neutral and does not in any way take religion into account. It is also beyond dispute that New Jersey has a legitimate penological interest in maintaining order and security within the prison system. See O'Lone , 482 U.S. at 350-51; Turner, 482 U.S. at 91-92. Recognizing this, the plaintiffs challenge the STG Policy by arguing that the Holvey Report does not provide a sufficient basis for concluding that prison violence can be attributed to the Five Percent Nation. See Appellants' Br. at 21-22. The plaintiffs maintain that there has been "no showing . . . that a greater proportion of Five Percenters are more violent than a group of Christians, Muslims, Jews or atheists" and that the Holvey Report found only that some Five


Percenters are violent. Id. at 24. Contending that the decision to classify the Five Percenters as an STG was based on a report full of "unfounded speculations," the plaintiffs argue that the STG Policy and the restrictions imposed on them are not rationally related to the legitimate objective of maintaining prison order and security. We disagree.

As discussed above, the Holvey Report recounts numerous instances of actual or planned violence involving Five Percenters in New Jersey correctional facilities from August 1990 through July 1997. See App. 341-43. Although the plaintiffs and the dissent contend that these incidents are insufficient to justify STG treatment, Turner instructs judges to exercise great caution before second- guessing the expert judgment of correctional officials on a question of this nature. See Turner, 482 U.S. at 84-85; DeHart v. Horn, 227 F.3d 47, 52 (3d Cir. 2000). The Turner Court wrote:

"[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.' " [Martinez v. Procunier, 416 U.S. 396, 405 (1974).] As the Martinez Court acknowledged, "the problems of prisons in America are complex and intractable. . . . Id., at 404-405. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have, as we indicated in Martinez, additional reason to accord deference to the appropriate prison authorities. See id., at 405.

To these observations, we would add that a measure of deference is especially appropriate when a regulation implicates prison security.

Viewing the summary judgment record in the manner dictated by Turner, we are satisfied that the defendants had


adequate grounds for concluding that inmates belonging to the Five Percent Nation present a serious security threat.

We note that other courts have reached the same conclusion. The Fourth Circuit has observed, the Five Percent Nation has a "history of violence" in the South Carolina prison system. See In re Long Term Admin. Segregation of Inmates Designated as Five Percenters , 174 F.3d 464, 466-69 (4th Cir. 1999) (hereinafter " Five Percenters")(describing violent incidents involving members of the group and referring to a federal intelligence summary that called the Five Percenters a "radical Islamic sect/criminal group" that "is often boldly racist in its views, prolific in its criminal activities, and operates behind a facade of cultural and religious rhetoric"). The United States District Court for the Western District of New York reached a similar conclusion concerning the New York system. See Self-Allah v. Annucci, No. 97-CV-607(H), 1999 WL 299310, at *9 (W.D.N.Y. Mar. 25, 1999)(referring to the "substantial history of violence associated with Five Percenter activities" and finding that the Department of Corrections "reasonably concluded that Five Percenters represent a STG within the [New York] prison system"). That court wrote:

[T]he Five Percenters act as an organized group within the prison system to receive new members, intimidate members of rival groups, and participate in criminal activity, including extortion, robbery, assaults and drug trafficking. Seemingly innocuous literature is used to send messages in code form. Five Percenter literature also assists in keeping the gang organized, in allowing members of the group to be identified, and in legitimizing the group and its violent activities.

Id. Several other courts -- including a state court in New Jersey -- have also referred to the close connection between the Five Percent Nation and violence or gang-related activity. See Allah v. Beyer, 1994 WL 549614, at *3 (D.N.J. Mar. 29, 1994); Box v. Petsock, 697 F. Supp. 821, 831 (M.D. Pa. 1987); Allah v. Department of Corr. , 742 A.2d 162, 165 (N.J. Super. Ct. App. Div. 1999); Buford v. Goord, 686 N.Y.S.2d 121, 122 (N.Y. App. Div. 1999) (referring to the Five Percent Nation as "an unauthorized organization that


engages in gang-related activity both inside and outside of the facility"). We agree with these courts and therefore hold that there is a rational connection between New Jersey's STG regulations and the legitimate and neutral objective of maintaining order and security within the prison system.6

So, Alito is writing that the limitations on some of the Five Percent Nation's activites serve "legitimate penological interests," given its violent and criminal History.

He did not make this determination, however, simply because the Five Percenters are an offshoot of Islam:


We now consider the plaintiffs' argument that the defendants violated their equal protection rights by treating them less favorably than members of other religious groups. See Appellants' Br. at 40. In making this argument, the plaintiffs point to the Sunni Muslims, and claim that this group, although similar to the Five Percent Nation, has been treated less harshly. According to the plaintiffs, the Sunni Muslims have several of the characteristics of an STG, such as a common history and purpose, an organizational structure, recognized leaders, customary salutations, and a considerable size. They also note that Holvey admitted during his deposition that some Sunni Muslims had shown "a propensity for violence . . . [o]n occasion" and that some illegal or prohibited acts "could be associated with Sunni Muslims." See Appellants' Br. at 35- 36. They also rely on Holvey's statement that the"big" difference between the Sunni Muslims and the Five Percent Nation is that the Sunnis practice a religion and the Five Percenters do not. See id. at 37.

In DeHart, our court, sitting en banc, held that when an inmate asserts an equal protection claim based on the allegedly disparate treatment of different religious groups, the governing standard is whether the disparate treatment is " `reasonably related to legitimate penological interests.' " 227 F.3d at 61 (citation omitted). That standard is met here. While relying on one portion of Holvey's deposition,


the plaintiffs do not mention another part of the deposition in which Holvey stated that the Sunni Muslims have a much lower propensity for violence than the Five Percenters. See App. 214. Moreover, while Holvey cited religion as a major difference between the two groups, Holvey did not state that religion played any role in the decision whether to designate either group as an STG. We note that the STG Policy makes no reference to religion, and we are not aware of any other evidence in the record that suggests that religion plays any role in STG designation decisions. In view of greater propensity for violence demonstrated by members of the Five Percent Nation, we hold that the group's designation as an STG does not violate equal protection.

Contrary to the claim of People for the American Way, preventing violent criminal behavior by a quasi-religious group is not an "Attack on Fundamental Legal Rights and Protections for All Americans."

Ronald K.L. Collins and David L. Hudson Jr., also of the First Amendment Center, conclude "Judge Alito fairly strong on free expression:"

It was significant in Alito's view that the STG policy did not ban Five Percenters access to all of the group's literature: "Even the study of the Five Percent Nation's teachings is not completely prohibited. [The evidence in the record reveals] that the group's 'teachings include texts such as the Bible [and] the Koran.' While the STG Policy forbids possession of distinctively Five Percent Nation literature, it is undisputed that the Policy allows inmates to possess, study, and discuss the Bible and the Koran. Accordingly, study of the Five Percent Nation's teachings is only partially restricted. ... Certainly nothing in the STG Policy restricts Five Percent Nation members from discussing or seeking to achieve self-knowledge, self-respect, responsible conduct, or righteous living."

Hat tip: New World Man

More from prison gang expert from Ron Holvey:

Currently, seven gangs have been classified as Security Threat Groups by the NJDOC: the Almighty Latin King and Queen Nation, Bloods, Crips, East Coast Aryan Brotherhood, Five Percent Nation, Neta and Prison Brotherhood of Bikers. A review of the sentences of gang members within the New Jersey Department of Corrections reveals that most gang inmates serve five years or less before returning to the community.  With such relatively short prison terms, it is imperative that the department shares the gang organization, rank structure, codes affiliation and membership of incarcerated gang members with outside law enforcement entities, including municipal and state, to safeguard the community upon release of these inmates.

Fighting Gangs in our Prisons, and in Our Neighborhoods
Article in October 2005, New Jersey Municipalities

George W. Knox of the National Gang Crime Research Center wrote:

The Five Percenters are the single largest gang or STG that emerges from the tabulation of multiple citations – it has 27 citations alone. There are two gang profiles that describe the Five Percenters (Corbiscello, 2004: 183-194; Dodd and Pearson, 2004: 195-204).


Some 44.4 percent of the prisons in America now report that Islamic inmates have a separate gang. The names of these Islamic gangs reported by the respondents showed that the Five Percenters are the single largest nationwide, followed closely by Nation of Islam and Fruits of Islam. Some gangs thought to be just ordinary street gangs are now posturing inside some prisons in some parts of the country as having an Islamic identity.

The Problem of Gangs and Security Threat Groups (STG's) in American Prisons Today:
Recent Research Findings From the 2004 Prison Gang Survey

More on the Five Percent Nation at Robert Walker's Gangs or Us.

seedyrum"musings has Samuel Alito's Opinions on First Amendment, compiled by David L. Hudson Jr. of the First Amendment Center.

Reactions to the hysteria of PFAW...

Froggy Ruminations: "I don't recall this kind of reaction from the lefties the DAY Harriet Miers was nominated."

Don Suber: Duh. It's a democracy. You wins the election, you picks the judges. 

Update: Great blog round-up from SCOTUSblog posted by Liz Aloi here.