"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.
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.
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
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
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
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
"[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."
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."
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.