Rewriting Leviticus
By Chaplain Gary Friedman OBM
In a uniquely American phenomenon of almost biblical proportions, our Nation’s jails and prisons are being overwhelmed by inmates who claim to be adherents of religions with demanding and problematic practices, frivolous lawsuits when accommodations are denied or do not meet expectations, and civil courts that drag out their litigation and make canonical decrees, while an economically depressed public is increasingly incensed over having to pay for the resultant costs, and frustrated corrections administrators are baffled by the folly of it all.
The “religion shopping” challenge may best be illustrated by a kosher diet craze that is rapidly escalating among inmates. Let’s examine how this craze developed and what might be done to counter it.
In the beginning (pun intended), it was easy to provide for the kosher dietary needs of relatively small numbers of religiously observant Jewish inmates. For example, archives of several Jewish organizations recorded the routine provision of kosher food to jails and prisons as far back as the 1850s. This practice continued well into the 20th century. In 1929, the world’s first penitentiary—Old Eastern in Philadelphia—constructed a synagogue for Jewish inmates that included an area dedicated to the preparation of kosher meals. Even at Alcatraz—the super-maximum prison of its time—kosher food for Jewish inmates was brought in by renowned Rabbi Chaplain Rudolph Isaac Coffee, who proudly recounted those treks in his memoirs from the 1930s. A Yiddishe Heim (i.e., “Jewish Home”) magazine article from 1974 related how a rabbi confined at the Federal Detention Facility in Manhattan was being taken out to kosher restaurants for his meals. Former Jewish offenders’ stories abound regarding the quality of kosher meals produced at various jails and prisons where they served stints in the 1980s and 1990s. No problem: Jews to the kosher food line, everybody else to the main food line. But that all changed with a 1999 Federal appellate court decision.
In Jackson v. Mann (Docket No. 97-2968—U.S. 2nd Circuit), the court ruled that an inmate’s “sincerely held belief” that he is a Jew constitutionally entitles him to a kosher diet. No matter that inmate plaintiff Nathaniel Jackson had previously stated that his faith was “None,” then “Muslim,” then “None” again before claiming to be Jewish, the justices rejected the New York Department of Correctional Services policy of having a Jewish chaplain determine eligibility for its kosher diet program “through a process of interview and review of documentation to substantiate the inmate’s Judaic background and intent to strictly observe Jewish dietary law.”
The court also established an extremely low threshold for sincerity by accepting that Jackson’s religiosity was genuine because he had (falsely) been declaring himself to be Jewish for some 7 to 10 years and that during that time he had been eating kosher food and reading the Torah. Beyond Jackson’s individual win, the wider effect of the case is that it set a legal precedent for correctional administrators having to treat all inmates as being of whatever faith they ascribed to.
The Jackson decision sent a shockwave across the country as jail and prison inmates began rampantly claiming belief in various faiths—sometimes multiple faiths simultaneously—to support mostly dishonest and often predatory agendas. That problem has now grown to include at least 20,000 inmates who are falsely claiming to be Jewish only to get kosher diets. At an additional minimum cost of $5 per head per day to provide kosher food, this adds up to some $40 million per year, a figure that is compelling corrections administrators to put the brakes on freely providing kosher diets.
Federal court records of the religious rights lawsuit of Sylvester James Mahone v. Pierce County, et al. [2011 WL 2360354 (W.D.Wash.)] furnish an exceptional look into what primarily drives the kosher diet fervor.
At one of his frequent bookings, Pierce County Jail inmate Mahone asked for a vegan diet to comply with his alleged Seventh Day Adventist beliefs. His professed sincerity went unquestioned and he was granted a vegetarian diet. But when Mahone wanted a kosher diet during a later incarceration, jail personnel acted very differently.
According to documents, Mahone was booked on April 22, 2010. On May 10, he complained to a corrections officer about a hair in his food. Later that day, Mahone submitted a “kite” stating that he was now “of the Jewish faith” and asking for “a Jewish (i.e., kosher) Diet.” Jail staff reacted by examining Mahone’s claim of being an “African-American adherent of Judaism” by having him complete information forms, bringing in a rabbi to interview him, and even checking his commissary purchases for non-kosher items. Based on their findings, they concluded that Mahone’s request was not sincere, and they denied him the kosher diet. The following day, Mahone placed a telephone call to his mother. A court emphasis-added transcript of the call follows:
Mahone: I want to file a lawsuit. They’re denying me a religious diet, and they can’t do that.
Female: What kind you wanted?
Mahone: A Jewish diet.
Female: Why?
Mahone: Because it’s, uh, part of my religion.
Female: Jewish?
Mahone: Well I really can’t talk over the phone because they record it.
Female: Oh. Yeah.
Mahone: But, uh, one, uh, the other good reason is that, uh it’s, it’s pure, fresh. It’s not spit in and all that stuff like jail food is and stuff too.
Female: It’s not what?
Mahone: It’s not spit in, in, in…
Female: How you know?
Mahone: …hair all over it and stuff like that. Because it comes from a, a place way out by the Jews and they make sure that their stuff is real…
Female: Kosher.
Mahone is hardly alone in his thinking about kosher food. In fact, every survey I have seen on this topic shows that at least 60 percent of consumers who specifically purchase kosher foods do so because they equate kosher with purity, wholesomeness, and safety. Like Mahone, they seek kosher food for non-religious reasons, something that is irrelevant in the free world but highly significant in correctional facilities, where inmate religious practices are accommodated only if requested for religious reasons.
From a Jewish perspective, the dietary laws—mostly outlined in the Torah’s Book of Leviticus—are not some kind of ancient health laws. No reasons are given for them, so they are simply accepted as godly commandments given to the Jewish people by Moses. As is the case with other such Torah-derived commandments, they are incumbent only upon those who are Jewish. In that regard, the traditional standard of Judaism is that a person must either be born Jewish or properly converted to be recognized as Jewish. No mainstream branch (i.e., denomination) of Judaism accepts that one can become Jewish by self-conversion. Unfortunately, this is in direct conflict with American civil law (e.g., the Jackson case), which trumps religious law in public (but not private) settings.
Although most corrections administrators are throwing up their hands in defeat at not being able to use Jewish standards to combat the kosher diet dilemma and blaming the Religious Land Use and Institutionalized Persons Act [RLUIPA] for it, the Jackson case actually predated RLUIPA, and subsequent RLUIPA-related court decisions actually provide multiple means for controlling inmate abuses of religious requirements. One particularly useful method of control is discussed in the Mahone case decision:
The issue here is whether it was appropriate for Defendant James to deny Mr. Mahone’s request for kosher meals based on a determination that his beliefs were not truly held. The issue here is very clearly set forth in Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005):
… Although RLUIPA bars inquiry into whether a particular belief or practice is “central” to a prisoner’s religion, see 42 U .S.C.2000cc–5(7)(A), the Act does not preclude inquiry into the sincerity of a prisoner’s professed religiosity. Cf. Gillette v. United States, 402 U.S. 437, 457, 91 S.Ct. 828, 28 L.Ed.2d 168 (1971) (“[T]ruth of a belief is not open to question; rather, the question is whether the objector’s beliefs are ‘truly held.’” (quoting United States v. Seeger, 380 U.S. 163, 185, 85 S.Ct. 850, 13 L.Ed.2d 733 [1965]).
Cutter, supra; See also, McElyea v. Babbitt, 833 F.2d 196, 198 (9th Cir. 1987) (It is “appropriate for prison authorities to deny a special diet if an inmate is not sincere in his religious beliefs.”)
Reading between the case citations, it becomes clear that the objective is simply to determine whether the inmate is telling the truth about having a “sincerely held belief.” That is exactly what Pierce County Jail Lt. Marla James and her people did in arriving at a decision to deny Mahone a kosher diet. Their documentation backed up the decision, and the court affirmed their actions by ruling in their favor. Although this may seem to be a relatively straightforward process, jail personnel still need to proceed cautiously when determining religious sincerity because there are several potential pitfalls. It also must be done within acceptable parameters. For example, knowledge about a faith does not legally equate to sincerity in the faith, so employing tests of knowledge could get staff and their agencies into legal hot water. It is therefore advisable to learn the methodology properly and perform it with legal guidance.
No matter how jail personnel decide to deal with inmate requests for religious accommodations, they need to do it in an even-handed, nondiscriminatory manner by applying the same process to all requests relating to all faiths. Unfortunately, Pierce County missed the mark on this one and luckily the court did not catch it. Valid financial factors aside, they should have put Mahone through the same process when he requested a vegan diet as when he requested the kosher diet.
As for utilizing community resources, Pierce County again falls short. The agency’s legal department will not defend volunteers who are sued by inmates. This is a serious consideration in asking clergy and others for uncompensated assistance because it could unethically place them in a position of legal jeopardy. For example, Mahone could have named the rabbi who interviewed him as a defendant in his lawsuit, and even though the rabbi would likely have been dismissed from the lawsuit (as not being a liable “State actor” for providing purely ecclesiastical advice), it would still have cost him considerable money in private attorney fees and caused him much aggravation.
Regarding the civil justice system’s involvement, it is disturbing that courts are even accepting Jackson- and Mahone-type lawsuits. There are many better uses for all the funds, effort, and time wasted on inmate litigation games—and, quite frankly, religious matters should be left to religious authorities.
On a more personal note, my major concern over the kosher diet phenomenon stems from seeing how it is negatively affecting inmates who are truly attempting to be religiously observant under challenging circumstances. In particular, I am appalled at how some jails have been making kosher diets as unattractive as possible to discourage inmates from partaking. That is not only patently unfair, but inhumane.
Now that I have given you information to mull over, I also have to provide a closing disclaimer to the effect that I am not an attorney and am not providing legal advice. What I have related in this article is derived from more than two decades of experience as a Jewish corrections chaplain who has been extensively involved in assorted religious and kosher diet litigation, mostly as an expert witness. I have also been a defendant in several inmate lawsuits, and I must thank those plaintiffs for having provided me with great learning experiences.
And now, if you will excuse me, I have to get back to reading my not-so-Old Testament.
Editor’s Note: Our thanks to Chaplain Friedman, who was instrumental in developing the content for this special issue of American Jails magazine.
Chaplain Gary Friedman OBM founded Jewish Prisoner Services International. He has assisted numerous corrections systems in developing their religious diet programs and was honored in 2005 as the correctional industry’s Chaplain of the Year.
