Prison Religion

FAITH-BASED REFORM AND THE CONSTITUTION

Winnifr ed F aller s Sulliu an

PRINCETON UN IVER S ITY PRESS PRINCETON AND OXFORD I i i INTRODUCTION i

I i I After ten years of public policy i ITHAr Is rHE F,urH IN "faith-based"? promoting the greater integration of faith-based orgânizations into the ranks of government funded social service providers, the natu¡e and role t E of faith in this effort remains elusive. This book takes a close look at a recent trial concerning one such faith-based provider with a view to I understanding better what faith-based reform is about and why so many å Americans think it makes sense. I In December 2006, in Des Moines, Iowa, a U.S, District Court judge Í found unconstitutional a faith-based, in- rehabilitation program g operating in the Newton Facility of the Iowa Department of Corrections, å a pro$ram known as InnerChange Freedom Initiative (IFI).1 The lawsuit, brought by Americans United for Separation of Church and State (AU), $ had complained that the contrâct governing the rehabilitation program- t an agreement berween the State of Iowa and Prison Fellov/ship Ministries * (PFM)--constituted "a law respecting an establishment of religion," and violation ofthe FirstAmendment to the United States Consti- I was, thus, in states tl1e Fourteenth Amendment' Afte¡ $ tution as applied to the through ë the decision, pending appeals, IFI continued to oPerate in the Iowa prison Ê without state cash reimbursement-the state discontinued funding inJune ü ! 20O7-although it continued to receive in-kind aid. Approximately a year Ë. after the District Court's decision, the U.S. Court of Appeals for the Ë Eighth Circuit found Ministries at the lou/a prison to n be acting "under color of state lâw" in a program of conversion and dis- Ë crimination.2 The lo\rya DePartment of Corrections finally terminated its InnerChange on March 10' 2008. (IFI programs are cur- R contract with rently present in the of five other states: Arkansas, Kansas, Minne- 5 Texâs. Private faith-based prison programs managed ßr sota, Missouri, and by other religious groúps also exist in many states. Some states, including ñ, Florida, have initiated their own state-run, in-prison, faith-based pro- H grams. Because of variations in contracting arrangements' the effect of * the Iowa court's decision on these other programs remains unclear.) AII u, PFM is acknowledged to be one of the most significant recent court cases considering the application of the establishment clause of the F First Amendment to the U.S. Constitution to the new "faith-based" social & services. A legal and social climate substantially more hosPitable to gov- Ë ernment/religion partnership than in the recent past has made possible an increase in the number of government contracts with private, "faith- g:m &, ntroduction 3 2 . Iqt¡oduction ' excePtionalism' this one invites counter- based" social service providers, particularly those operating in prisons. As with all such claims to the United States is compared to what are re- Through a close reading of the background and events of the trial in ,4U examples. Conventionally secularized countries of Europe, including the United z. PFM, this book considers the ongoing reinteg¡ation and "naturalizing" nlrã.ã u. ,tt" -ote countries of the forme¡ British Commonwealth, but of religion in the United States and its intersection with evolving under- ftinedo- and the the U.S. ought to be compared depends on the purpose standings of the meaning of "disestablishment." By "naturalizing" I refer couítries to which Religious,ìocial' and political conditions are rapidly to a legal and social process by which religion and spirituality are increas- ài ih" .o*p"riron' in Europe and other ofthe world' Virtually every country ingly seen in the U.S. to be a natural, and largely benign-if varied- changing Parts teligious minorities and boasts of legal protection for aspect of the human condition, one that is to be accommodated ¡ather .ottt""i"r"-"ltipt" religious freedòm. Raìes of incarceration are also rising in many coun- than segregated by government. Notwithstanding the actual decision in l"rft"pt the comparison group should include countries such as the case, set in the larger context of religion in the United States, the trial iii.i. - iJi^, *ntË it pluralist democracyìhat shares a legal tradition with the testimony reveals a religious cultu¡e in which the sacred and the secular " Uniá St"tes attå has religious and political cultural formations that are can be seen to be sinuously and ambiguously intemvined and support for o"rill"l in interesting ways to the U'S.a It is also important to note that authority more thoroughly located in the individual rather than religious Lu-p.-purti.ol"rl! an expanded Europe-is a.rguably more religious in traditional institutions. tn""i.nå"Iy acktttwl"dgád' Nonetheless, I believe it is still useful to In the prison context, this religious culture, which is at once an estab- t"!u.ã *" unir"a states, ai a result of its unusual history and demogra- lishment and a disestablishment, is shaped by the convergence of two ohï as distinctive with respect to what are called church-state issues' in comparison to other ad- ways in which the United States is distinctive ' Ã-ong relevant Ame¡icãn distinctions are the absence of any history vanced industrial societies, differences that, arguably, have become more privileging a single religious of the cinprehensive legal and cultural -of decades. are unusual compared to the pronounced in recent Americans tradition; the r"ligious and ethnic diversity produced by-conquest, slaver¡ citizens of these other societies in the extent to which they profess attach- i--igt"do"] the pervasiveness of egalitarian and capitalist ideolo- ment to religion and in the high rate at which they incarcerâte their fel- gi"tt""J tft" å-p"íive style of American religíon; and the highly mobile lows. By most measures-including surveys concerning frequency of å"*t. the population.r As Grace Davie explains with respect to the prayer and regularity of worship, reports of church membership, and vaunted"f secularism of EuroPe, charitable giving to religious organizations, as well as ethnographic re- point to grasP is that Europeans, by and large, regard their search-the U.S. is a place where religion proudly and independently The crucial as^public ,itilitils rathet than as competing firms' ' '.' Most " flourishes. The U.S. is also a place where a higher percentage of the popu- fÀorches Eorop""nt låok at their churches with benign benevolence-they are lation is incarce¡ated than in any other country in the ráorld. Both ofthese to.iul institutions, which the great majority of the population distinctions have become mo¡e marked in the last thirty-five years.3 ,rr"fui ,i. tiL"ly ,o tt."d one time or another in their lives ' ' ' this âttitude An examination of the convergence and mutual dependence of these "t great oi . . rather than the absence of a market accounts for a two distinctions, as exemplified in the new faith-based prison programs, -i"¿, ' deal of the data'6 will be used in this book to display the peculiar relationship of religion does not and law in the United States, one that makes disestablishment virrually The oersistence of established religious institutions in EuroPe but impossible. Paradoxicall¡ perhaps, disestablished rèligion depends on rn."í,fr"ii".,i*,;onal religious aulhority in Europe has not declined' by a government for enforcement of moral no¡ms, In a populist dernocrac¡ i á."r decfiãe is less likeþ to have been accompanied -"*,rt",tte States' Instead' Davie these norms are defined by majoritarian religious prejudices. Whereas rir"-i" religion, as in the United ""*"pt""."rial religious institutions con- countervailing checks exist to the worst excesses of this partnership- ,"lf-"ppoittted guardians of traditional "*,t".. Davie's observation would including internal religious practices of prophecy and dissent, and en- ;il;;;;ö'.; Ú.Àuif of ,h. communitv'7 forcement of the provisions of the Bill of Rights-popular religion and be relevant in manY countries. --I-plütnd¡ influe¡ces have not been mu- popular justice can reinforce each other in ways, sometimes difficult to t"tiiious and Enlightenment The Puritans believed in reason' Rea- detect and almost impossible to eliminate, that can be traced throughout toräi.*"tutií" i" iÍ.te United Statãs' tradition emerging out ofseventeenth- U.S. history-from the Puritans to the so-called "values voters" of the r.""iËènt*i"-ry a theological philolophical inquir¡ has a strong legacy in the early twenty-fu st century. ä"ã-"tgrtr".üit-.""iíry 4 . Int¡oduction Irtroduction . 5

United States. Evangelicalism and immigration deeply changed the con_ to do good into creating something as strange as prisons and mental tours of this Ame¡ican Chrisrianity over the next two centuries, but con_ hospitals-a system that more than 150 years later can still prompt an fidence in the rationality and effectiveness of religion persisted. ieligious inmate to want to meet the mân who dreamed it all up, convinced that revival and law-and-order populism are not unique tò the Unired Siates, he must have been born on Mars?12 but the U.S. stands out in both respects. The tw6 are connected, histori_ Rothman cally and sociologicall¡ and the story of either one cannot be fu y told and other historians of the prison have found the answers to without implicating the other. these questions in a troub.ling mix of genuine benevolence, a disciplinary dark side to liberal governance, the growth of scientific knowledge about The human behavior, and a coming together of fear and self-interest, all of religion discussed in this book happens in a prison. prisons are a which are evident from the earliest projects of religiously post-Enlightenment invention. Before the ninereenth centur¡ as well as secu- larly motivated .13 in Europe, its colonies, and most of the rest of the world, for ordinary No¡val Morris and David Rothman, in their introductory essay to The criminal offenses, was usually corporal: whipping, brandinj public sham_ Oxford History of the Prison, discuss what they describe ,,the ing, exile, or hanging. Confinement had been used before-t'he nineteenth as basic dysfunction of the prison itself." Notwithstanding c€ntury mostly for pretrial detainment or, occasionall¡ for distraining thât has debtors,. p;isons, beconie the punishment of choice in many places, the authors write, but not usually for punishment. as we irro- th"-, *"r. "most students of the prison have increasingly invented in the late eighteenth century in England by Ch¡istians. come to the conclusion In the United that imprisonment should be used as the sanction of last resort, to. be States, prisons were promot;d in th; early Republic as a more imposed only when other measures of controlling the criminal have failed humane form of punishment, a more Christian alteinatiie to vr'hat was perceived or in situations in which those other measures are clearly inadequate.', to be the casual brutality of corporal punishment as prac_ ticed To be sure, they add, "the usual public response to such a proposition is in Europe.s Early protorypes of the enlighiened prison were the Au_ that it could be made only by someone who cared not at aú, certainly burn State Prison in New York and the Easteà penite-ntiary in pennsylva_ oi too little, for citizens' safery. . . . [T]he public has always overwhelmingly nia. Famous U.S. visitors such as Alexis de Tocquevillé and Gustave supported whatever rvere inflicted as a means of either re, Beaumont traveled to see these newly created American prisons where ducing or preventing an increase in .', However, they conclude, ,,re- solitude, work, silence, and religious instruction and exh'ortati,on were intended lead search into the use of imprisonment ovef time and in different countries to to penitence and reform.e They were often viewed as the place, par has failed to demonstrate any positive correlation berween increasing the excellence, for the formation of thË democ¡atic subjecr, also rate of imprisonment and reducing the rate of crime."1a a religious project.ro The subsequent history of piisons in 1ndg1sloot'_as Prisons do not work, Morris and Rothman conclude, yet the United States is often cha¡acte¡ized .*iribitirrg a.ycficäl p.ttern new ones are ", being built every day. In many depressed areâs in the United States they of alternating periods of corruption and overcrowdin! followed b'f weil_ meaning are seen simply as opportunities for private industry and job creation.li reforms. The history of U.S. prisons is also inlimately boúnd up with Law professor Melvin Guttermân states it starkly: the history of , particulaily in the southern states whcre a harsh post-emancipation system o{ leasing to private co;trac_ Toda¡ as at the beginning, the mosr serious social consequence of the tors vr'as common into the twentieth century.ll prison system is the disintegration of the human personality of those Priso¡s are a persistent trope in the imagining of modernity. Scholars committed to its confines. The prisoners suffe¡ from what may be called and writers have repeatedly turned to prisons ìn the hopes of findins clues a loss of autonomy as they are constantly "subjected to a vast body of to understanding the modern condition. This, David iìoth-un .u!g.rtr, rules . . . which are designed to control their behavior in minute detail.', is partly because prisons, although rbey now seem an enrirely naturïpai The deprivation of autonomy represents a serious threat to their self- of the landscape, when viewed in the context of the lonjer history of image as adults. . . . While âttempting to "re-irnpose the subservience ,,Why qunl{yen¡, âre a strange invention. invent a systeri'of incarcera_ of youth," the convicts are told to take their medicine like adults. As tion?" Rothman asks, and then continues: the normative form of punishment, imprisonment may not be much of an improvement over corporal punishment. Even public flogging did \X/hy substitute confinement in segregated spaces and invent a system not contribute to the degradation and disintegration of the human per- of bell-ringing punctuality and steadf laborflØhy channel the impulse sonality as much as conditions do in our prisons today.r6 Int¡oduction . 7 6 . Introduction

prison as låe answer to crime. No theory of justice' ând no theory of horü Gutterman ínsists that, "a , to be prepared for a life of freedom, best to prepare prisòners for return to sociery can justify the many lengthy must be trained in some sori ofsocial environment, which, as to his liberty sentences meted out by U,S. courts. Furthermore, given the meager re- t".po"tibility, has a fai¡ resemblance to the society he will re-enter'"17 to the rehabilitation of prisoners in the United States, "nJPunishment is usually understood to be a core function of the modern sources dedicated there is little hope for addressing the needs of those prisoners; 90 percent state; it is what distinguishes the modern state from premodern sociedes, and 50 percent from mental health *h"í" pot irh*"nt wãs a private prerogâtive for settling scores or ob- of them suffer from substance abuse number are nonliterate.2a Under these condi- t"inirrg'.o-p"rrr"tion.18 The power of the state might be understood to problems and a substantial prisoner tions, what can imprisonment hope to accomplish other than the tempo- be coicent¡aied in the prisoner's situation and in the shadow the rary removal of some of society's membe¡s and emotional satisfaction for casts across the landscape're But prisons are perhaps ironicall¡ places The those who fear them? where one cânnot get awãy from the state's relationship to religion'20 persistent issues with respect to prisons are a subset of a larger modern state is al-so perhaps at its most religious when it exerts total These set of questions about law in late modernity In the last century the claim control over its citizens and aÍempts to coercively remake them into new Iaw is a carrier ofthe best ofmodern liberalism has been substantially human beings. Religious and political authority and sovereignry in prison that judge/god, underrnined by nationalist abuses of legalism, by various schools of legal ar. homologiorrs wiih ea"h othet in s"veral ways: state/church, realism, as well as by postmodern critiques.2r David Luban, in his book crime/sin, p'risoner/penitent. Even when explicitly religious language is Legøl Modernism, quotes the legal philosopher Roberto Unger describing absent, túe sacred haunts the prison and all who work there'2l emerge "'a basic, common experience in modern society'" as that of having Indeed, both the Prison and religion, as distinct institutions, sense of being surrounded by injustice without knowing where jus- with the iodern staie. The gradual articulation of secular power distinct " 'the tice lies.'"26 Luban himself understands the modernist c¡isis in law as from church poweq the sepãration of national citizenship from religious models, forsaking the criti- ià.ntity, ih" contempãr"neoos discovery of "other" religions made created partly by an over-reliance on scientific cal need for nàÍralive.27 Richard Sherwin sees law undermined through oossibíe the""a invenrion ofi'religion" as we know it-as a universal and søl books have con- i"ttitu,ion within hurnan societies,¿ an articulation that is simul- its fusion with popula¡ culture.zs Countless articles and ã"r"t¡ sidered the legal conditions of early-twenty-first-century man âs those of ianeoos with the sacraliza¡ion of state power'2r Although all religion in a person who has undertaken the responsibilþ ofperpetual self-reflection modern states occurs within spaces determined by the rule of law, the and criticism in a situation of unstable foundations' Great hopes are modern state's comprehensive ãuthority over prisoners makes possible a global possibilities of the rule of law, â rule that continues particular intimacy in the way in which such spâces âre created' U'S' pinned on the to carry with it the dark figure of the prisoner, iorrrt, ho,r", in the last quafi;r of the twentieth century found in the Although not often noted by legal scholars, religion is a part of this ConstitutioÁ an obligation on the part ofthe state to affirmatively provide modern legal story, and not just in prisons. Some see religion as the cause religious opportuniti-es to prisoneis, but that obligation is understood to gover- of law's problems,2e whereas others see it as the solution.30 A growing be iriousÇiimited by judicial deference to the demands of prison intimately related. Rejecting an ideologi- ,r"n"", do-esti" ,"coti'ry attd national defense' Religion in prisons and number see law and religion as driven separatist v¡orldview, many historians are reexamining the prison religions are distinctive products of the modern state and its ongo- cally between law and religion. The legal in producing certain kinds of subjects' inteiesting and perduring connections ing interest in relationship ïot*ittttt"n¿i"g th"ão--on of the prison as the preferred s."rrl"r, ai Vitrcãnt Pecora and others have noted, emerges "cceptance of the religious In other words, the form of punishment in the modern llest, lingering questions ¡emain: to a constant imagining "other."31 critique of religion, necessarily preserves religion but at the ;'Why imptltonl" Does prison work? Under what circumstances should secular, in its time takes on some of the tasks of the religious' d"-o"r"tic sta-te restrict the freedom of one of its citizens or of same -oâ"rn Modernity has, among other effects, resulted in the continuing elabora- any" person under its control? The existence of the U'S' center and the secular. Until quite recentl¡ at'iuantanamo Bay is a daily reminder of the unsettled nature of this tion of two domains, the religious the relationship between the two has been understood to be primarily issoe. Sot the mlllions of Ameiicans who a¡e confined in state and federal in the formal bureaucratic division of labor between church prisons throughout the United States ¿re no less a matter of concern' A embodied That understanding is continuously challenged and under- lo-*otpl".J"-ong scholars of is that linle o¡ no data or and the state. by local forms of non-Christian religion, by antinomian theory oi human beiavior or society exists to suPport reliance on the mined, howeveq Int¡oduction . 9 8 . Int¡oduction privileging popular religion, and by romantic elaborations of the value of individual case, the of religion in an egalitarian context of radical diver- sity and deregulation in the religious field, one in religious subjectivity.s2 Over time, the secula¡ization of law has played a central which author- ity has shifted to theindividual, leads to discrimìnation and legal incoher- role in enabling both the separation and the ongoing cooperation betlveen ence. the parody church and state,r3 In correctional context, in what one might call a of theories of the modern self, prisoners pârticipating in the InnerChange Imprisonment is extremely seductive as a metaphor for life. It is as if the Freedom Initiative are asked to reinvent themselves as free moral subjects justice prison is not only where the state is most statelike and most church-like by using the tools of a populist and punitive theory of combined but perversely where the individual is most human. Ve use the narrative with various forms ofvernacular Christianit¡ all the while disadvantaged of the prison experience for our own purposes, turning it into an opþortu- by addiction, illiterac¡ racism, and childhood abuse. nity to ponder life in general-sometimes, in the process, effacing the Echoes of larger political issues about the nâture of the state and its squalid, inherently violent, and humiliating particularities of imprìson- ¡elation to the individual can be seen at every step in the evolving institu- ment itself. To be human in the United States today is to be free to rnake tion of the prison in the United States and the evolving cultural politics rational choices. We expect our free mode¡n selves to choose everything, of religion. The limits and constraints of secularization as a basis from including religion, How might one live as oneself in prison? It would be which to describe and theorize the ¡nodern are under active reconsidera- easy to see the recurrent eruption of the religious in the prison, indeed in tion today frorn various disciplinary and political perspectives. !7hile set law generall¡ as a symptom of this unfinished business. in the context of the interpretation of the religion clauses of the First I am acutely aware of my own privileged position in relation to the Amendment to the U.S, Constitution, particularly the establishment experiences of prisoners. I am not a specialist in the criminal justice sys- clause, this study is inspired by the current debate on secularization, par- tem, and I do not pretend to speak for all U.S. prisoners, or even for any ticularly by Talal Asad and his proposal to reconsider the secular and its of the individuals whose testimony is retold in this book, I take their varying relationships to the sacred, as a formation of the modern, and by public action of filing a lawsuit and their public testimony in that action José Casanova's widely read challenge to rethink the ongoing presence of as an intervention in a public debate âbout an issue that is of moment public religions in the modern world.3s today in the United States and elsewhere: how to think about the relation of religion and religious differences to ìaw in our pluralistic, egalitarian The public discussion of religion, law, and politics in the United Srates society in which religious authoriry has been formally disavowed as an today is highly polarized, with the language itself so stale from excessive explicit partner of the state. use as to discourage anyone who would seek a sane conversation. Stanley Massive incarceration and religious revitalization are converging today Fish, in his essay "How the Right Hijacked the Magic Words," described in prisons around the world, challenging us to think carefully about what this linguistic stalemate.36In his inimitable style, Fish explained how "the we mean by religion, religious freedom, and the separation of church Right" uses such words as equality, rights, and freedom to mean the very and state. This book concerns one religiously based-now commonly opposite of what "the Left" means by them. So, he points out, afÊrrnative known in the United States as "faith-based"-rehabilitation program action, it turns out, is a denial of, rather than a means to, the realization Cfuistians out be â rights as in an Iowa prison that a U.S. District Judge, in 2006, declared an uncon- of equality-and turn to minority with iust stitutional establishment of religion. I focus on the way that lawyers, wit- African Americans are. While explaining how this "sleight of hand," as nesses, and judges used various religious discourses in that trial, sug- he calls it, is performed rhetoricall¡ largely by focusing on the motiva- gesting that we need to rethink the validity of the theoretical structure tions and intentioris of particular individuals rather than on large-scâl€ underlying disestablishment. Although there are reasons to find the Iowa structures and effects, Fish mocks the Left for standing by with their arrangement inappropriate, it is not possible to locate those teasons in mouths open while the language is stolen from them. He concludes the isolation and separation of the "religious" for the purposes of public his essay-and the book in which it appears-with the words; "and law and policy. befoie we know it all the plovers will be gone and all the subconuactors This book forms a pair with my previous one, The lmpossibility of will be white,"37 A¡d, many liberals would add, the United States will be Religious Freed.om,ra where I considered the impossibility of isolating reli- a theocracy. gion for the purposes of protecting its free exercise. Here I examine the The culture wars, as played out in the U.S. legal-political context, hâve implications of that impossibility in relation to disestablishment. In each been described as a sm¡ggle over control of the language. Specificall¡ 10 . Introduction Int¡oduction . 11

who decides \¡/hat the words meân¡ ,A,lthough in the American political our words aid, worse, ozr politics, indeed our very definition of what it context this struggle is often seen as the result of a deliberate, carefully means to be human. planned, and subversive campaign by conservâtives, something larger and The only version of public political religion that rnany liberals can more complex is at work here. The "linguistic turn" in law is beyond the imagine is what is often derisively called theocracy-either of the premod- scope of this book; however, the need to pay âttention to the meaning of ern European Christian type or, now more commonl¡ that of the imag- words as a way to understand the cultu¡e is certainly evident in debates ined return of the Islamic caliphate. Libe¡als assume that the Religious over constitutional interpretations and the purported universalism of the Right secretly wants a religious state.al V/hat is universal is modern and language of international legal instruments. The need to attend to the is understood to be secular. Universalist anthropologies, cosmologies, and meanings of words has many explanations, but in the U.S. context, it is values are to be secularly derived and expressed. Religion is particular, a heightened by the extrâordinary biblicism of U.S. religious culture, some- vestige of the premodern. The particulâr is to be controlled and governed by the modern times derisively termed "bibliolatry."38 and universal, that is, by the rule of law. These prejudices among liberals Is what Fish regards as a hijacking of words by the Right simply a not only make it difficult for them to hear what religious cynical rhetorical trick to disarm and distract the Left so that conseffa- conservatives are saying; they make it extremely dif6cult for liberals to achieve their proclaimed goals. tives can reverse the course of history? Worse yet, is it a trick authorized Religious conservatives in and legitimized by religion? Is this effort, one the Right might prefer to the United States, for their part, are divided within themselves. Like most líberals, most of these conservatives believe descrìbe as an attempt to reposseis rather than hijack the words-part of strongly in the separation of church and state, and in voluntary religious a concerted effort to reject the Enlightenment and return us to a premod- affiliation. Protestants, by and large, are the group that rejected ern wo¡ld of divine authority and hierarch¡ a world without equality, state au- thority in religious matters, It tvâs mostly Protestants who rejected ritual rights, or freedom? Is the religion of conservatives, indeed, any religion, and other outward forms ofobservance in favo¡ of an interior and subjec- the antithesis of all that is most cherished about free, fiberal, and open tive religious experience. Many Protestanr conservatives today, however, societies, societies that are governed by the rule of law? That is a view also want to þanicipate in creating the values of a pluralistic society. In widely held in U.S. legal circles. sociological terms, they yvant to be both a chu¡ch and a sect.a2 Ame¡ican A sou¡ce of genuine arnazement (often accompanied by fear) to most religious conservatives do not want a theocracy; they do not desire rule liberals is that religious conservatives wish to participate in the common by priésts, for they believe in universal priesthood. They do want to rid political Particularly puzzling to the Left is that the so-called Reli- culture. the world of what they understand to be the pernicious human-centered goes lays claim to the universal, a realrn gious Right further and boldly pessimism of moral relativis¡n and secular humanism. They want to con- its place, and liberals regard as their own. Religion is supposed to know vert the world to an anthropology of values that âre transcendental and its place, at most, is as a minority parry. Most liberals in the United States eternal, and founded in biblical truth. To do that, they must Ênd ways to seem most comfortable with religion that is "sectarian," sociologically translate their religiously derived values into universal ones, and to use speaking, religion that stands apart from the larger culture.re As long as state authority to impose those values.on all.o3 entry and exit from sectarian religious communities are understood to be Fish would say that the problem is the libe¡als' failure to see the parricu- voluntar¡ then consenting adults \4'ishing to live in these religious socie- larism of their version of the universal. The Left should simply admit ties are to be tolerated, even occasionally admired and respected for their that their realm is not universal and simply be willing to defend it as discipline, whether they are Amish, Orthodox Jews, Buddhists, or mem- "better."q Pecora and others would argue that we have now come to a bers ofany number ofreligions. Liberals also seem to be comfortable with point at which it is clea¡ that both are right, and the practical political religious rhetoric and culture in the service of what they understand to be task of learning to reinvent the universal together becomes more urgent political liberation agendas such as the prophetic language that is conven- by the day. tionally understood to have propelled the civil rights movement.4o The problem the Left has with religion emerges when people who are per- In this book I explore the lack of understanding and communicarion ceived as religious or who use religious language are not content simply across the cultural divide in the United States by examining the notion of to live in thei¡ own worlds or provide freedom songs or cultural color, the legal and religious self implicit in faith-based social service programs. but instead want to challenge common politics and culture, to "hijack" The cu¡rent argument in the United States about the role of religion is 12 . Introduction Introduction . 13 between groups that have largely shared a modern legacy concerning the services has greatly expanded in the United States in recent years.ae Coin- nature of human beingsai and are ambivalent as to whethe¡ social-scien- ciding, to a certâin extent, with rhis privatization of government has been tific approaches are a viable basis fo¡ law, social polic¡ and practices that a concened effort, at the local, state, and federal levels, particularly since can reform individuals. Much has been written recently by philosophers the election of George W. Bush, to extend such contracts to v/hat are and social scientists about the "self"-about subjectivit¡ consciousness, called "faith-based" providers.ro "Charitable choice," as that efforr is and the social imaginary-in an effort to desc¡ibe what is peculiar to the often known, is based on an asserted right to equal opponunity for certain anthropolog¡ epistemolog¡ and sociology of the modern.a6 Several as- new religious providers as well as on the assertion that neither the govern- pects of the models of the self are implied in the lawsuit, models that ment nor the traditional, large, religiously affiliated providers, such as exemplify the convergences, and divergences, that I see between liberal Catholic Charities, are adequately delivering social services. Equal oppor- and conservative social imaginaries, and the selves they imply. S7hen we tunity is said to be necessary to "level the playing field," giving srnall- consider these questions in the context of faith-based social services for scale (that is congregational) and evangelical religious groups, allegedly prisoners, we cân see the practical consequences of losing faith in free- previously disc¡iminated against by the government, an opportuniry to rights, and reason. dom, equaliry compete for government funds on a par with large established 5501(cX3) I will describe PFM and IFI as evangelical, notwithstanding its con- religious social service providers. Lew Daly argues convincingly that the tested meaning today both in the scholarly community and among evan- most serious shortcoming of the new faith-based initiatives is that they gelicals themselves. "Evangelical" in its narrowest etymological sense are intended to, and, in fact, do, benefit religious groups rather than the can be used to modify any Christian activity that derives from the writ- poor.rl But it is also claimed by those who advocate on behalf of faith- ings of the Evangelists, that is, the writers of the four canonical gospels. based initiatives that local churches and para-church organizations that The word has been used throughout Christian history in many languages use "faith" in their service plans can do the work better because they treat and cultu¡al contexts, but I am most concerned here with describing and clients holistically. Faith is understood to be both more effective and more understanding certain aspects of the evangelical Christianity that has efficient for delivering certain social services.52 The need is great, they say; flou¡ished and evolved in the United States since the Ame¡ican Revolu- and there are armies of compassion just waiting to be tapped. tion. That mode¡n U.S. form of Christianiry is, of course, related to a After more than ten yeârs of experience with faith-based initiatives, Iarger, religious event that traces its roots to early modern Europe many questions ¡emain. When we speak about "f¿ith-based" groups, and has since spread around the globe, but it takes a particular form in whose faith and whose right to equal opportuniry is being invoked-the the United States, in pârt because of the legal structuring of religion in provider's or the client's? Is faith the motivation for the service or a U.S. life. I discuss Àmerican evangelical Christianiry at greatü length in component of the service? How do we evaluate these efforts? Änd to ^L^-+--') what extent is the expression "faith-based" not substantive but merely American evangelicals and their liberal critics share much of the rhetorical and strategic, just code words concealing partisan constituen- modern social imaginary as well as practices of self-discipline, born in cies and agendas? Religion scholars would argue that "faith" is not the \ù7hat the early modern period. the Right, and the Left, in the United defining characteristic of many religious traditions outside Protestant States want, for the most part, are disciplined and productive citizens. Christianity.s3 To translate religion as faith from this perspective is itself Both understând âuthority and the capacity to change to reside in the to discriminate against the religious prâctices ofthose other religious com- individual.aT Troubling evidence suggests, however, that self-disciplíne, munities. Although welfare has certainly been transformed in the last ten even self-discipline with God's help, cannot adequately cope with current to fifteen years, and religion itself adapts in protean \¡/ays to the ner¡¡ legal emerging and pressing issues on that individual: the pathos of the divided and social environment, currently there is little hard evidence that the self, globalization, and radical epistemological and normative pluralism, much-vaunted faith-based component of the new social services accom- r eligious an d se ct;Jar.a8 plishes the grand goals claimed for it.r4 Litde rigorously peer-reviewed quantii:ative datâ are available concerning the effectiveness of faith-based One ofthe most visible areas in which the politics of religion in the United social services, partly because there has not been enough time for long- States is being reinvented has resulted from the deliberate effort to involve term longirudinal studies. Specifically regarding prisoner rehabilitation, new religious groups in the delivery of social services. Government con- claims concerning the greater efficacy of faith-based programs are largely tracting with private agencies (both profit and nonprofit) to provide social anecdotal or self-promoting. It is also difficult to compare private and Introduction . 15 14 . Introduction have and activity by prisoners unless it appears to be clearly aimed at un- Dublic Drosrams in all areas of social services, as Private agencies dermining prison authorþ in who they admit to their Programs and when clients ãi."r..'a¡ãt.ri"" What is new in the last decade, however, is the effo¡t to design and can be expelled' implement extended and holistic residentiøl prison reform efforts based A comprehensive study of the effectiveness of faith-based interventions on explicitly religious cosmologies and anthropologies. Echoing the proi- in l.irn" comrnissioned by the Department of Justice in 2004' The ï". ects of early-nineteenth-century Christian prison reformers, these r"po.,, prepared by Caliber Associates, contains a description of Pro- nn"i grams require the prisoners' full iminersion in a Christian environment of ãi tú. ..tå,ionshþ between religiosþ and crime over the last half *¡i". penitence and ¡eform. This book will use the record in the trial, AU u, discussion of s-ociological research concerning the relationship PFM, to reflect on contemporary discourses about religion and the models "*rv " ,o delinquent behavior, and a list of exemplary faith-based ãir.iigíoti.y for the creation of selves that are used by philosophers, social scientists, field, including PFM and IFI'st Assercing that "reli- in this lawyers, and religious reformers. Should the projects of evangelical faith- "t*"ir",iont theoreìical construct" and emphasizing the *iJ" it u-"¿ based prison rehabi[tation programs be understood âs attempts to /e- " "nd "ompiex reseârch, the study reviewed various inter- i"nconclusive results of c;rent saualize, in a tradition¿l sense, society and the modern self? The version hellfire theor¡ social control theory social u"trüo" ,tt"o.i"., including ofthe self that these programs evince is firmly rooted in modern ¡efashion- theory, and concluded- that, in a general bond theory aná social learning ings of the selfthat were first imagined by Protestant reformers and liberal and that further research is *ay, "faith'áo"s work" for crime prevention political thinkers, both religious and secular, ín the seventeenth century. \¡r'ith organizations to address ieeãed along with Pârtnering faith-based But these refashionings continue, albeit in new and transformed ways, to crime prevention.56 partake ofthe dominant modern understanding of the sel.fthat undergirds been fewer than In tlie'end, though, bids for government contracts have projects of self-discipline worldwide in the twenty-first centur¡ both reli- religious organi- expected from faith-based organizations' Many smaller gious and secular, an understanding influenced as much by global capital- and zations lack the infrastructure necessary for government contrâcting, ism, deracination, and the mass media as by religion. increase some are simply not interested in the work' There has been no One more caveat. In the landscape of faith-based social services, it is is evi- in dedicated iou"tn-"n, funds for such purposes' although there important to distinguish between the types of social services provided. ã"n." thut ñigh"r percentage of available funds has gone to faith-based Although constitutional issues have been raised across the board-for ex- providers in" thã lasiseveral years.57 Meanwhile, while there is enormous ample, regarding discrimination in hiring-it is particularly those social variety among the stâtes, most states lack the resources to monitor con- services that are designed to effect personal transformation that most iåli J.-pfi"ã* t"s to efûcac¡ fiscal responsibility or constitutionality)'58 acutely focus attention on religious "technologies of the self'"60 Faith- prirr"t..rodi"t arà few and their results inconclusive' Some real gains do based soup kitchens, homeless shelters, and medical clinics, as well as ,.a- to .*irt, although the evidence is mostly anecdotal and ambitions child care, after school, and job training programs, while catering to vul- rehabilitation' --iremain high-nowheie more so than in the case ofprisoner nerable populations and arguably requiring a heightened attention to con- Jo ,roir"ui"* the recent proliferation of faith-based stitutional standards of care, are less directly concerned with personal prison rehabilitation"omprehensively programs in the United States; many religiously transfo¡mation in a comprehensive sense. Family counseling, substance- federal prisons're Instead, I focus on abuse prograrns,6l and prison rehabilitâtion, on the other hand, are explic- tr"ed oroiects exist in both state and '!7hat on..u"ng.li.ul Christian rehabilitation program implemented in one itly directed at the creation of new selves. new selves do Americans are these questions to be Iowa prisãn. An enormous variery of religion is everywhere in U'S' pris- \¡r'ant to create? How is that to be done? Where rule of law permit orrr, àligion facilitated by prison , various external organ- debated? And what does the U.S. Constitution and the groop" to the large conglomerates. of world when these selves are prisoners of the state? ¿ão*,"""d "tt"th"d *Gi."t tt"ai.i."s, *"ll as evéry form of small-scale and new reli- "s rehabilitation program at issue in the trial, InnerChange giois morr"m"nt. Prisoners themselves also initiate investigations into The failh-based (IFI), is a subsidiary of P¡ison Fellowship Minisrries ielieion ¡hroueh mail-order courses, reading projects' bodily practices' Freedom Initiative (PFM). previous PFM prison programs, IFI was designed to be a ,"nã*d of fariily religious traditions, explorations of ethnic and racial Unlike comprehensive pre-release program' preparing prisoners ove¡ the course identities, *eetirrgs *ith fellow prisoners, and negotiations with. prison of eighteen months for life on the outside. It is described in its own litera- authoritiás. For the -ost part, prison âuthorities welcome such interest Int¡oduction . 17 16 . Inúoducdon downward toward the concrete, intensiffies] ture and on its nøeb site as an eighteen-moúh' 2417, "Christ-centered," the competition over the meaning of the events being tried, judg- "Bible-based" course designed to reduce recidivism through personal and cultivate[s] the suspension of ment until all aspects of the transformation. As administered by IFI in Iowa, the program was tun by situation are explored."6e As an accomplished paid counselors and volunteers, and included an "aftercare" mentorshiP trial lawyer and philosopher of law, Burns is primarily interested justice io assist prisoners in returning to the world. The description here of IFI's in defending the of what happens in the courtroom. Iowa program is based on the trial transcript and findings of the district His performative reading makes another claim, however, a descriptive one. anthropologists court;as well âs on publicly available information from PFM and IFi. Self- Like of the law, Burns treats law as a social and cultural form descriptions of PFM and its in-prison Program, InnerChange Freedom that incorporates the assumptions underlying the cultu¡es Initiative, can be found at www.pfm'org and www.ifi.org.62 As of June 2' wider in which it is embedded. Along with Lawrence Rosen 2006, approximately $1.7 million (35-40 percent of the total cost of the and others,70 Burns insists on lhe particular as necessary to understanding program) in direct payments had been made to IFI for its program in and making real the general. Dominick LaCapra's account of the trial Iowa, the money largely coming from the Healthy Iowans Tobacco T¡ust of Gustave Flaubert's Madame Bouary for immorality adds to these the peculiar and the Inmate Telephone Rebate Fund.63 intertextuality that results when a cultural anifact is put on triâI. Nine Iowa prisoners and their families, supported by,A'mericans United Misreadings of the novel by both prosecutor and defense rein{orced of Church and State,6a brought the action challenging the the instability of the text itself and the difficulty of identifying the moral. for Separation ,'itself constitutionality of lowa's contract with PFM. It was tried before Judge "Secularization," LaCapra comments, furthered the tendency of desire Pratt6s ove¡ a three-week period in the fall of 2006' The plaintiffs were a for transcendence to merge unsettlingly with the possibility of represented during the trial by two staff lawyers for Americans United, transgression."Tl 'Weaver, Alex Luchenitser and Heather as well as by a Des Moines attor- Trial witnesses are not ethnographic informants in the usual sense. ne¡ Dean Stowers. The defendants, PFM and IFI, were represented by Their words are shaped ìn a special way by the legal context. The prison- the Richmond, Virginia, office of the national law Êrm Troutrnan, ers in this case were not there to represent thefu religious communities but Sanders, L.L.P. The lead trial attorney for the defendants was Anthony were selected through the logic of constitutional advocacy litigation. But Troy. The State of Iowa was represented at trial by Gordon Allen, Depury all texts and all speakers are shaped by their circumstances and speak to Ärtorney General, and Lorraine STallace, Assistant Attorney General. I multiple audiences out of multiple histories. Trial transcripts are texts that was an unpaid expert witness in this trial, and I will briefly describe my can be read using the tools ofæxrual analysis, informed by ân understand- testimon¡ My role is not the focus of this book' (My evidence is discussed ing of the peculiar demands of the law and of the moral realism of which in chapter 5.) Burns speaks. Words matter in the courtroom in a special way. That they Trials are complex events, and many different stories can be told about have such a purpose does not diminish their value as resources for cultural any one trial. An entire lite¡atu¡e has explored what happens in the court- understanding. This is true particularly of words about religion in the room. Particularly helpful to me in writing this book were Robe¡t P. United States, words that have historically been shaped by law. Barns's A Tlteory of tbe Trial andDominic LaCapra's " Madame Bouary" This book offers an ethnographic reading of the trial transcript and on Trial.66 Burns argues that, contrary to the received wisdom-that the other texts relevant to the civil lawsuit AtJ u PFM.I contend that by trial "is the institutional device for the actualization of the rule of law"- paying close attention to the language and arguments of the witnesses, judge, the trial is, in fact, a complex performance of practical morality that, at the and the lawyers, and to the circumstances surroundíng trials best, provides knowledge of the practical truth about a situâtion. In trials, that center on the twin religion clauses of the Fi¡st Amendment, we may Burns says, decisions âbout the truth of what happened are always con- better understand what counts as religion toda¡ and how it might be nected to judgments about what should be done about it. The collective fairþ regulated in a democratic pluralist society? Should religion be spe- performance of a trial, he observes, is to "think the concrete," to give cially protected----or specially restricred-by law, or should law treat equally those who call "consistent attention to the thing itself," and "to achieve a truth beyond themselves religious and those who do not? Does storytelling."6T ldeall¡ he says, the trial aims to achieve "moral realism"' law have a choice? in the sense explored by lris Murdoch.6s ,{lthough Burns concedes that Religion, as conveyed by the traditional word "church," particularly in the is rot every trial completely succeeds as an act of moral realism, his detailed way it related to the European state, is rapidly disappearing. reconstruction of what goes into the making of a trial "forcefs] the mind Religion in various forms appears to be a persistent aspect of human (and 18 . Introduction

CHAPTER 1 perhâps nonhuman) life, but it has taken different forms in different that lir..r'. N.* forms of reiigion require new forms of law' I believe Ir.iini""" is not a usefullerm foi U'S' law toda¡ because tht¡e is no politi- The God Pod f""*!t g.t.*Uy accepted referent that is relevant fo¡ defensible .J?"l.ååJi""v irti"( it iri"luable to use the word "religion" outside of I am f"g"lc""r"*". I" *ishing to use religion-neutral language in the law' ,ft", religiJr does not exist or that neutrality is achievable "ä.L"i¡"gin a comprehensive waY. T¡rs Iov¡ Dep,rnrMeNt or Conn¡ctroNs (DOC) was established in 1983. Its purpose was to centralize and modernize county correctional it The first chapter presents the lowa Program as the prisoners descrihed agencies and to begin to address overcrowding in prisons.r Iowa had had i't. ,..ond chapter looki at the purpose and theology of PFM' a history of penal progressivism, but, like most of the rest of the United of ;ñ".,i.ìri"r. ã;;tp;se and theologv within the longer historical.context States, it was dealing in the early eighties with what, in retrospect, r¡/as and ;;;;i";; Christianþ' Chapter 3 examines religious just the beginning of the trend toward massive incarceration. The total of their ,"loUr itt"oti"t"of";"ú"lical crime and punishment, and the ambiguities inmate count for Iowa on October 1, when the DOC was created, was narure of ;;rrJ;i;;.itp exemplifieå in IFI. chapter 4 considers the 2,650, housed in seven prisons. By 2006, at the time of the AU u PFM "s generall¡ and ,"iinion to¿"u in the United States and in contemporary life trial, the inmate count had tripled, reaching rnore than 8,500.2 Yet no this trial and .i""ol.ï lt*,lr"tt¿ers disestablishment in the U'S' in light of significant change had occurred in the overall population of the state in of the category i,l fft" discusses the trial in the light the intervening years. Iowa prisoners are now housed in nine prisons lo- "oncìusion of the"'o"io". secular' cated in mostly rural areas around the state. The Newton Co¡rectional Facility, a 750-bed, medium-security prison for men in which Inner- Change Freedom Initiative's Iowa program operated from 1999 to 2008, is located in the town of Newton, thirry-Êve miles east of Des Moines. The Newton facility was built in 1997 on the site of a former constructed in the early 1960s, Iowa's correctional expansion parallels national trends. Over the course of the last thirty-plus years, a huge increase in the state and populations across the United States has ¡esulted from years of "law and order" politics, Law and order politics led to the criminalization of an increased range of behaviors, including drug-related offenses, and a larger number of persons, including more juveniles, not to mention an increase in sentence length and the imposition of mandatory sentencing policies. .Although for many years little public attention was paid to the intractable social problems created by criminalizing and imprisoning such a comparatively large number ofpeople, today there is increasing political and academic notice of these issues. The political will to tackle them, however, remains distressingly weak. The State of lowa, in 2007, commissioned a professional assessment of its correctional facilities. The resulting report, State of Iowa Systernati¿ Study for the State Correctional Systezz, produced by the Durrant Group, a Des Moines-based engineering and planning firm, recommended sub- stantial changes to the Iowa DOC, particularly with respect to mental and medical health treatment.r The Durrant report revealed that 90 percent of 236 . Conclusion in my view, to see them as the fellows of the accident victims in Thailand Notes and the men and women of Cairo discussed in chapter 4. The Iowa prison- ers who brought the suit said that their initial attraction to IFI was the possibility of 6nding the resources to remake their lives. They wanted to learn how to be better persons. They wanted to learn about other religions as well as being afÉrmed in their own. They wanted the support of a community and mentors along the way. That does not seem too INTRoDUcrroN much to ask. Atneûgary United Separøtiott of Church and prison - -!. for State u Felloøship Mizrilries, Civil No . 4:03-cv-90074 (1J.5. Dist¡ict Cou¡t fo¡ the Southe¡n Dist¡icr of lowa). The Memorandum Opinion and O¡de¡ Following Trial, authored by Judge Robert V, Pratt of the U.S, Dist¡ict Cou¡t for the South-ern District of lowa, may be found at 432 F. Supp. 2d 832. 2. On appeal, the decision was affi¡med in part and reversed in part, 509 F. 3d 406 (t007); a Pedtion for Rehearing Eø Bøzc of Defendants-App;üants State of Iorra, Prison Fellowship Ministries and InnerChange Freedom Initiative was de- nied by the Eighth Circuit Court of Appeals onJanuãry.16, 200g. No perition for ce¡tio¡a¡i was filed in the U.S. Supreme Court. 3, _ _The convergence of these two aspects of Ame¡ican exceptionalism was 6rst brought to my attention by the Rw. Santiago piñón, whosle conce¡n with this conjunction arose out of his own ministry to I have lea¡ned much fro¡n his effon to u¡de¡stand the t¡oubling politics"*-off*d"r.. and theology underlying the often permanent disabilities facing ex-offende¡s in the U.S. in tieir r"tu¡r, ro the world. I-æw Daly, in,God ønd tbe Welføre State, suggests rhat even rnore srriking is the convergence of America's vaunted religiosiry with its failures in th. ãf pou- erty ".eas and equalþ The precíse signi.6cance of the convergence between social in_ equality and mass imprisonment is widely discussed among schola¡s ofthe sociol_ ogy of crime and punishment. See, for example, Katherine Beckett and B¡uce Westem, "Governing Social Marginalþ,, For the argument that Amelican penal exceptionalism can be explained by market capitalism, see David Downes, ,,The Møcho PenaI Economy: Mass Inca¡ce¡ation in the United States-A European Perspective, " nGa and, Møss Implison neht. 4. rwo diffe¡ent .Fo¡ approaches to U.S.flndia parallels in this respect, see peter van der Veer, Reügious Nationalism; and Marthã Nussbaum, The Cles'h W¡th¡n. 5. See, with respecr to the U.S., especiall¡ Sidney E. Mead, Tåe Lìuely Experi_ ment. See also Glace D^yie, Eurcpe: The Exceptional Cdse. 6- Davie, Europe: The Exceptional Case, p.44. 7. See G:ace Davie, R eLþion in Modert Europe; Silvio Ferrari,,,The New \X/ine and the Old Cask." 8. For a history of prisons in the U.S., see the classic rwo-volume study by - 'lhe David J. Rothman, Discouery of the Asylutn atd Conscience dnd. Conue_ øieøce; atd No¡val Mor¡is and David Rothman, The Oxfod History of the Prison,In Er'glar,d, afte¡ the Ame¡ican Revolution, prisons replaced transporting c¡iminals to the colonies, first by using ships ancho¡ed offshore as prisÀs and then through the const¡uction of penítentiaries on the U.S. model. 6ee Michael lgnatieff, A lust Measure of Pain. 238 . Notes to InÍoduction Notes to Int¡oducti on . 239

9. David J. Rothman, "Perfecting the Prison." 26, Robeno Unger, Laø iø Modern Socie4t: Tou)ard a Cliti¿ism of Social Tbe_ 10. See Lardas John Modern, "Ghosts of Sing Sing," for a fascinating accou¡r ory 175, quoted in DavidLubary Legdl Modemism. of the effo¡ts of antebellum spiritualist reformers at Sing Sing Prison. 27. His conce¡n with the effects of scientism on law is sha¡ed by the evangelical 11. Mo¡¡is and Rothman, The Oxford History of the Plíson, p. 157. Tony Ch¡istians who c¡eated the program with which this book is conce¡ned, and also Morrison's novel, Beloved,, is set the contexr of this history. ít by many within the Ame¡ican law and theology movement. 12. Rothman, The Dkcouery of the Asyløm, p. xxxi. 28. Richa¡d K. Sherwi n, When Law Goes iop. 13, For interpretive histo¡ies of nineteenth-century plisons and asylums in the 29. Jeremy Bentham, for example, understood idolatry as a principal obstacle U.S. and Europe, in addition to'Rothman, The Discouery of the Asyløm, and ..Bentham,s to legal rationalization. See Robe¡t A. yelle, Fictio"",,, pp. fSf_Zl. lgtatieff, A Measure of Pøin, see Michel Forcauk, Discipliøe and Punish, Just 30. See, for example, Harold Berman, Fdith and Order. See"hå ¡iáb.riCou.r, and Goldstein, Coøsole and Classify. ..- Jan "Nomos and Na¡¡ative"; and Ëlijah Anderson, ,,Going Straight." 14. Mor¡is and Rothman, The Oxford. History of the Prison, p. xií. - 37. Pecora, Secularization aftd Culttaral Criticisn, p, 20. 15. For a journalistic account ofthe effect of privatization on U.S. prisons, see .32, Ior a useful summary of these rhemes, see Gustavo Benevides, ,,Moder_ Joseph T. Hallinan, Going Up tbe River. nity.". O_n ,,The the secularization of law, see Nomi Stolzenberg, profanity of the 16. Melvin Gu¡terman, "Prison Objectives and Human Dignity," p.906. Law." On antinomianism and the law, see Costas DorJinas and Ronn'ie Wa¡- 17. Ibid,, p. 869. rington, "Antigone's Law" 18. Fo¡ discussions of the inte¡¡elationship of theories of constitutional democ- 33. See Joan DelFattore, The Fourth R; and John T. McGreev¡ CathoLicism racy and punishment, see Guyora Binder, "Democracy and Punishment"; and and Americax Freedorø. In the United States, for exarnple, disestabiished religion Marcus Dubber, "Towa¡d a Constitutional Law of Crime and Punishment." has repeatedly offered itselfas the repository of the moålconscience ofthe nation 19. Much of political philosoph¡ especially on the Left, originates in thoughts and as schoolmaste¡ to its child¡en. about the millions of nameless victims of twentieth-century totalitarian regimes 34. Sullivary The Impossibílity of Religious Freedom. This book used anothe¡ and about famous prisoners of¡he state, Antonio Gramsci, Franz Fanon, Malcolm ttial, Wamer u. Raton,64 F. ,Boca Supp.2d 127211,999), on a charge that the City X, Martin Luther KingJr,, Nelson Mandela-these a¡e men who have proclaimed of Boca Raton had violated rhe plaintiffs, rights ro the free exercisãof religion, ro freedom from within the "belly of the beast." Fo¡ a discussion of the ambiguity critique.the assumprions abour religion underlying laws supporring exeÃprions of the sac¡ed in ¡elation to law and the srate as read th¡ough The Trial by Frarz roI relglously motlvârecl action. Kafka, see the introduction to Austin Sarar, Lâ\¡¡¡ence Douglas, and Martha Mer- 35-, Asd, Fonflatiors of the Seculør; losê Casanova, prablic Religions ih the ríllUmphrey, Laut and the Sdcred.. Modem World. 20. A longer history of the p¡isoner of conscience, predating the modern principle, 36. Stanley Fish, Tå e'I¡ouble with pp.3\g_1,2.Fish has also w¡rnen state, might include, among a greât many, Socrates, St. Paul, and of Arc. Joan explicitly about the religion clauses in ways nor áissimilâÌ from the points made a history prison, For of the medieval see G, Geltner, The Medieual Prison: A in this book. See his "Mission Impossible Social History. 37. Fish, The 'Itouble with Púnciple, p. 312. 21, See discussion of the prison in literature in W B. Carnochan, Lite¡a- "The 38, a comparative perspective on the mind./body problem and the philoso- ture of Confineme[t," pp. 387406. . _For ,,Ot phy of language, see Dan Arnold, Sema¡tics and Sàmþeta.', 22. Much has been w¡itten about the modern origins of the linguistic conven- 39. The Ge¡man sociologist Ernst Troeltsch,ir.his Socùl Teaching ofthe Chris- tion of labeling certain aspects of human culcure See, for example, "religion." tian Churches, developed a rypology to distinguish diffe¡ent kindJ of Ch¡is¡ian Z. Smith, "Religion, Religions, Religious"; Hans Kippenberg, Drs- polities, ,.Chu¡ches,, Jonathar depending on their relationship to the larger sociery. he un_ couerixg Religìous History in the Modeln Age; Tomoko Masuzawa, The lnuen- de¡stood to be Christian polities that were larger ioextensive with the dom¡nant tion of World ReLigiozs; Talal Asad, Genealogies of Religion; anð, id,em, Fortna- *sect" culture, whereas-a was a minority religious group living in self-conscious tioøs of the Secular. "Religiott" is also a product of the process of legal tension with the larger society. These sociological types have been furthe¡ devel_ secula¡ization. See, for example, Winnif¡ed Falle¡s Sullivan and Robert A. Yelle, oped by Rodney Sta¡k and William Bainbrídge, it The Funre of Religion. T\e "Overview"; and Peter Goodrich, Oedþus Lex. terms are fuÍher complicâted today by the negative connotarion someti¡es asso_ 23. Rece¡t scholarly attention to political theology explores the significance of ciated with sects, cults, and various new religious movements. For the purposes the sac¡alization of the state. See, for example, the essays collected in Hent deV¡ies of.chu¡ch-and-state law, it is helpful to disringuish a continuum df sociairyies of and Layrence E. Sullivan, eds., P olitical 'Iheologies; ard, Maneo Taussig-Rubbo, religious organization even where, as in the U.S., all religious groops ar., "Outsourcirg Sac¡ifice: The Labo¡ of P¡ivate Milita¡y Contractors.' tionally speaking, equal with respect to the law (Encyclopedia of Religloø,"ór,stito- Znd 24. U.S. Department of Education, ¿it¿tøcy Bebiød Bars. ed., s.v. "cults"). 25. Henry Scílegel, Aøeicøn Legel Realisn and Empirical Socidl Scí- John 40. Other sto¡ies a¡e also told about the complex rnotives and politics of those ¿zce. See also Vi¡centPecora, SecuLarizd.tion end Culnrøl pp. Çriticism, 4647, actors. See, foÌ example, Luban's discussion of communita¡ianism without mvsri- 240 . Notes to Inûoduction Notes to I¡troduction . 241 cism in relation to the Montgomery school bus boycot lLegøl Modernism, pp. PFM, Judge Praa found that IFI employees were state actors, a finding that was 209-82). See also Glenda Gi.lmore, Defyiøg Dixie. affirmed on appeal. 41. And, of couÍse, some among religious conservatives do. See Michael 50. Section 104 of the 1996 Pe¡sonal Responsibility and Work Opportuniry Líetesch, Red,eeming Amerìcø. Reconciliation ,A.ct (PR.WORA) was the 6rst statute to introduce the notion of 42. See n. 38 inf¡a. For a market analysis of the church-sect dynamic in "Charitable Choice." However, as Kennedy and Bielefeld w¡ote il Faith-Based American religious histor¡ see Roger Finke and Rodley Stark, The Cbørching Partnerships, ít received a signiÊcant boost when, of America. on January 29, 2007, P¡esident Bush announced the crearion of the llhite 43, See Mary Anne Case, "Marriage Licenses," House Offrce of Faith-Based and Community Initiatives, and the establishment 44. See Fish, "Mission Impossible." of Faith-Based and Communiry Centers in five Cabinet agencies: Education, 45. The claìm that fundamentalism is a modern phenomenon was elabo¡ated Health and Human Services, Housing and Urban Development, and at length in Martin E. Marty and R, Scott Appl.eby,The Fundarnentdlistu Proiect. Jusrice Labo¡. The Faith-Bascd l¡itiative was dcsc¡ibed as an effo¡t to b¡oaden the 46, This is a vast topic with an abundant literature. I use these terms rather reforms effected by Charitable Choice legislation, The Administ¡ation vowed ro loosely in this book to connote what is largelyshared about the self-understanding help faith-based provide¡s ove¡come unnecessary barriers to their participation, of the natu¡e of contemporary Americans, individually and in te¡ms of thei¡ col- including governmert managers' ¡eluctance to cont¡act providers lective imagination, notwithstanding ¡eal differences. Particularly helpful to me with whose programming was infused with religious doctrine. in writing this book werc Asad, Fonnations of the Secul.ar;David Engel, "Global- ization and the Decline of Legal Consciousness"; Mary Poove¡ "The Liberal Dismissal of a taxpayer lawsuir challenging the constitutionality of the \lhite Civil Subject and the Social io Eighteenth Century Moral Philosophy" (I thaok House Office was afflrmed by the U.S. Supreme Court in Heiø u. Freedom From Cassie Adcock for calling my attention to this article); Eríc SantrLer, My Own Religioø Foundøtioø, Lnc., 1.27 S. Ct. 25 53 (2007). Priudte Germany; Charles Taylor, Mod.ern Socìal Imagiøaries ar,d Sources of 51.. Døly, God. and the \Yelfare Stote, p.43. the Self; Pecora, Secularizatioø dnd Cøburdl Criticism; arrd Slaloj Zitek, The 52. See Smith, Steven Rathgeb, John P Bartkowski, and Susan Grettenberger, Tìcklish Subject. Cornþerct¡ue Vietus on the Role and Effect of Faith in Social Serulces, for a discus- 47. In the words of Michael Eme¡son and Ch¡istian Smith: "The st¡uctu¡e of sion of differences between faith-based and secular social se¡vice providers. Find- American religion, and the values that both guide and grant influence to individu- ìngs included the general obse¡vation that there was more overlap becween the als, result in significânt limits to religious authority. This is true regardless of the two types than is usually acknowledged and that the claim that faith-based se¡- religion. . . . Pe¡sonal choices in the context of one's social network, not offrcial vices are more "holistic" than secula¡ is not well founded (p. 21). church teachings, are the primary shape¡s of beliefs and actions for the religious 53. See, for example, Donald S. LopezJr., "Belief." of the United States and marty other places" Emerson and Smith, Di.uided by 54. Fo¡ a discussion of these issues, see, for example, Robert Wuthnow, Sauing Faith, pp.166-67. America?¡ ar.d. Mark Chaves, "Religious Congregations and Welfare Refo¡m." 48. See Charles Taylor, "A Different Kind of Courage," for a discussion of the 55. Jeanette Hercik, Richard Lewis, and Bradley Myles, Deuelop?tehl of a death of cultures and the emergence of a new kind of human, Gøide to Resources on Faitb-based Organiza.tions in Criwhøl løstice. 49. ln the words of Sheila Suess Kennedy and Wolfgang Rielefreld, ìn Faith- 56, See also Kent R. Kerle¡ Todd L. Matthews, and Troy C. Blanchard, "Reli- Based P ørtnershiPs: giosity, Religious Participation, and Negative Prison Behaviors," which suggests some positive cor¡elation between religiosiry and lowe¡ levels of argumenta- Toda¡ discretion over the dây-to-day operation of public plograms routinely tiveness in prison, but which also states that with respect to faith-based in-prison ¡ests not with the responsible state or federal government agencies, but witi a programs, "the¡e has not been enough empirical resea¡ch on this issue to leach host of nongovernmental, sullogates or that provide "third-party" "proúes" any frrm conclusions" (445); and Daniel P. Mears, "Faith-based Re-entry Pro- programs under the aegis ofloans,loan gua¡anteesr grants, contracts, vouchets, grams." But see also Kennedy and Bielefelè,, Faith-Bdsed Partnerships, for a de- new mechanisms for taking public action. This exe¡cise of core gov- and othe¡ scliption of a Fo¡d Foundation study comparing faith-based job training pro- non- and quasi-governmental entities is perhaps the ernmental authority by grams in various states. most distinctive featu¡e of America's "new governance.' 57. Lisa M. Monteil and David J. Wright, "Getting a Piece of the Pie." A signiÊcant constitutionâl issue ¡aised by this matter is whethe¡ privatization 58. The Pew Cha¡itable T¡usts funds an excellent lJleb site, Roundtable on of government services narrows the scope of "state action" in such a way as to Religion and Social Welfa¡e Policy (hereafter, The Roundtable, hosted by the significantly lessen the reach of civil rights laws. Also t¡oubling is whether social Rockefelle¡ lnstitute of Government, State Universiry of New York, which moni- service providers are receiving adequate Êscal oversight and gove¡nment monitor- to¡s the legal vicissitudes of "faith-based" initiatives and produces an annual ¡e- ing to ensule that they adhere to professional standa¡ds. In his decision in AU u. port on the state of the law. www.religionandsocialpolicy.org 242 . Notes to Introduction Notes to Chapter 7 . 243

59. There are also an increasing numbe¡ of lawsuits challengirg the co$titu- 65. Judge Pratt is a Catholic who artended Creighton Law School, spent one tionality of these programs. The lead litiganls in these cases â¡e Ame¡icans United year as a lawyer for legal aid, and then practiced law for twenty-two years in Des and the Freedom From Religion Foundation. See, e.g., Freedom From Religioø Moines, before being appointed to the bench by President Clinton in 1997. P¡att published an article on sentencing in the Des Moines Register 1.999, ritled Founddtion u. Richardson (05-CY-1168,D. N.M. 2005 ) challenging a New Mex- n "Senseless Sentencing: A Federal Speaks Out." ico contract with a compan¡ Corrections Corporation of America Judge "Mddøtne (CCA). CCA cont¡acts with Chicago-based Institute in Basic Life Principles 66. Dominick LaCaprc., Bouary" oø Trial, See also Gregory Matoe- (www.iblp.org), an evangelical Ch¡istian biblical outreach ministry to provide sran, Lau., and tbq Language of Id.entiry: Dis¿ou¡se iø the Willidm Kenned.y Smith Røpe Trial. "exclusively faith-based segregation pods" for their prisons. News release' No- 67. Robert P. Burns, A Theory of the Ttial, pp. 4, 5,1"71. vember 8, 2005 (www.ffrf.org) (since dismissed on the grounds that the Supreme 68. Ibid., p. 184. Cou¡t's decision in H¿lø disallows the acrionJ; Freedotn Frotn Religion Fouøda' 69. Ibid., p. 132. David Luban, in Legal Modernism, argues that "t¡ials and tion u. Gonzdles (06-C-0244-S rù(/.D. llisc 2005) challenging the federal Bureau rhei¡ sto¡ies a¡e the embodiment of law's self-criticism" (p. 385). of P¡isons invitation for bids for single-faith prison programs. The Roundtable 70. Law¡ence Rosen, Anthropology of Clifford Geertz, "Law and Fact monito¡s lawsuits challenging prison rehabilitation programs on its Web site. lustlce; in Comparative Perspective." 60, The expression "technologies of the self" de¡ives from an essay of 71. LaCapra, "Mdddme Bouary" onTrial,p,70. thar name by Michel Foucault; reprinted in Luthe¡ H. Martin, Huck Gutman, Patrick H. Hutton, Te chøologìes ofthe Self, although the words have been glossed through use by many others. CHAPTER 1 programs have been found to be religious in natu¡e and there- 61. Twelve-step T¡¡r Gop Poo fo¡e unconstitutional if mandated in sentencing or correctional contexts. See, for example, Ket u, Farrey, 95 F. 3d 472 Watøer u. Otange Couøty,715 F' 1f996); 1. "The Fi¡st 20 Years," Inside lowa's DOC 1, no. 1 (October 2003). 3d 1068, reaftumed,173 F. 3d L20 (1997)' 2. See Report to the Boa¡d of Co¡rections by the Iowa Department of Co¡rec- 62. 432 F. Supp 2d. at 920. Among other proiects of PFM is Operation Stdting tions, Populatioa Growth, þly 2006. See also Report of the lowa Governo¡'s as follows: Line, described online Task Force on the Oveffepresentation of African-Americans in Prison (December Operation Starting Line (OSL) is a sweeping outreach that links the resources 2001). of Christian organizations, believers from local churches and other suPPorting 3. The Du¡¡ant Gro,rp, Sta.te of lotua Systematic Study for the State Qorrec- is available the organizations to evangelize and disciple prisoners, ¡heir families and the prison tional System, issued on April 13, 2007, on Iowa DOC Web site: hnp://www.doc.state.ia.us/ (accessed Aprìl 30, 2007J. communit¡ Since its Iaunch on Easter Sunday2000 the Operation Starting Line Gibbons and Nicholas de B. Katzenbach, co-cbai;rs, Confronting collaboration has grown to thilty-sevet organizations working together to 4. John J. Confixeuent provide resources and network with each othe¡ to satu¡ate ,America's prisons 12006). 5. DuEant Grotp, State of lotua Systemdti. Study the Stete Cotectional *ith th" tn".."g" of Ch¡is¡'s forgiveness and power' Since 2000, more than for Systern, p, xx. 717,000 inmates have participated in evangelistic events sponsored by Opera- 6. Americaks United u. Prisotu Fellowship M¡n¡stuies, Trial Transcript, pp. tion Starting Line. Through the evangelistic events of Operation Starting Line 1991,-92;hereaftet,page nurnbers to the Trial Transcript are cited parenthetically over 50,000 prisoners have eithe¡ made fi¡st time decisions to accept Christ or in the text. Objections by lawyers and coriversations between the judge and the made a ¡e-commitment to Ch¡ist. Over 100,000 prisoners have signed up for lawyers are omitted without ellipses. The appellation "God Pod" is not unique to discipleship Bible based correspondence studies. continuing Newton, Othe¡ faith-based prison units around the couttry are also known by (www.operationstartinglite.net), that name. See, e.g., David Miles, "Group Sues over P¡ison's'God Pod"'; and 63. 432 F. Supp 2d at 869, 887. The amount of 5L99,823.42, pâid to PFM Jane Lampharn, "A Captive Audience fo¡ Salvation." after the dist¡ict court orde¡ has since been cepaid to the state. See Anthony Tro¡ . 7, Tony Lamberti, the son of Don Lamberti, co-founde¡ of Casey General was a¡rested charge in lette¡ to JudBe Prâtt, 6led in the district court on April 24, 2008. Sto¡es and a well-known lowa businessman. on a drug 64, Ame¡icans United for Separation of Church and State was founded in 1947 1996. He c¡edits his religious conversion in prison as helping him to ¡ecove¡ and as Protestants and Other Ame¡icans United for Separation of Church and State reenter society. His brother, Jeff Lamberti, is president of the Iowa Senate, See in response to proposals pending in the U.S. Congress to extend government aid Angela Daunis and Angela Paneck, Re-ezter: The Social Cost of Incarcerdtiotl. to plivate religious schools. Its house orgaq Church (t State Møgazine, was vtttt- 8. Kautzky deposition, p. 19. lently anti-Catholic for many years. The organization has since ¡enounced irs anti- 9. Ibid., pp. 19-20. p. Catholicism; its name was changed, in 1972, to Americans United. 10. Ibid., 21.