In what was widely decried (or in many cases, hailed) as a defeat for President Bush’s faith-based initiative, a federal judge in Iowa ruled earlier this month that the state’s contract with InnerChange Freedom Initiative, a ministry of Chuck Colson’s Prison Fellowship, violated the First Amendment. Describing the program as “pervasively sectarian,” Judge Robert W. Pratt found that “[f]or all practical purposes, the state has literally established an Evangelical Christian congregation within the walls of one of its penal institutions, giving the leaders of that congregation, i.e., InnerChange employees, authority to control the spiritual, emotional, and physical lives of hundreds of Iowa inmates.”

Despite my general support for the faith-based initiative, and for religious efforts to put the penitence back in penitentiaries, I’m inclined for the most part to agree with Judge Pratt. In this particular case, where the state and Prison Fellowship self-consciously tested the outer bounds of current church-state jurisprudence, they went too far.

Here are some of the facts Judge Pratt found during the 14-day trial he conducted:

• While Iowa prison officials were primarily interested in a low-cost program that promised to reduce recidivism among inmates, they “gerrymandered” the Request for Proposals that led to the contract with InnerChange, which was the sole bidder.

   

• The nature of the InnerChange program is such that it is impossible to clearly distinguish and separate its religious and secular elements. There is one clearly secular class—“Computer Training.” Other classes that have secular analogues in therapeutic rehabilitative programs, like “Anger Management,” are taught from an essentially Christian point of view.

   

• While the InnerChange staff attempted to distinguish between their secular and religious work, and bill the state accordingly, their efforts fell short. Where so much of the program is devoted to inculcating a Christian worldview, it is difficult, if not impossible, to precisely delineate what portion of a staffer’s time, or what fraction of a piece of equipment’s value is devoted to secular, as opposed to religious, purposes.

   

• In addition to formal coursework, the program imposes numerous religious requirements, including attendance at regular Friday night revival meetings and at Sunday morning worship services.

   

• There is no comparable secular or religious program elsewhere in the Iowa prison system. Inmates who want a long-term comprehensive rehabilitation program have no other choices.

   

• The living conditions and privileges afforded InnerChange participants are sufficiently superior to those afforded the general prison population as to be incentives to join the program. In effect, inmates are rewarded for their participation in a religious program.

   

All of these factors make Iowa’s relationship with the InnerChange Freedom Initiative constitutionally problematical. The benefit provided the state is arguably secular: an array of programs, offered at a relatively low cost, that reduce the likelihood of inmate recidivism and increase the likelihood that prison time will have the intended result of turning inmates into the proverbial productive members of society. But the means are “pervasively sectarian,” offered in ways that suggest that the state is subsidizing and promoting religion, indeed a particular brand of religion.

If the state accommodated and supported a wide range of comparable programs representing various religious and secular approaches, my establishment concerns would be satisfied. (Some might continue to object to any taxpayer support for any religion under any circumstances, but this sort of “no-aid separationism” is an extreme position encouraging hostility to religion, rather than neutrality.) Unfortunately however, Iowa doesn’t offer inmates such a range of choices, having early on developed what seems to be an exclusive relationship with InnerChange. As I noted above, this doesn’t mean that state prison officials set out to establish Prison Fellowship’s brand of evangelical Christianity, but it’s also pretty clear that they can’t afford to provide or contract for the array of programs necessary to make InnerChange simply one constitutional option among many.

In other words, the InnerChange program’s “pervasive sectarianism” wouldn’t be a constitutional problem if inmates had a range of choices—secular and religious—roughly comparable to those that Cleveland parents had in the school voucher program upheld by the Supreme Court in Zelman v. Simmons-Harris. The state would then not be understood to favor one particular rehabilitative option over another; it would not be understood to be effectively “establishing” a church within prison walls.

Of course, Prison Fellowship has announced that it will appeal the decision, but I’m not convinced that the outcome in this particular case is likely to be different in any other courtroom. This is surely significant in the long run for many of the InnerChange prison units in other states (currently Texas, Minnesota, Kansas, Tennessee, Arkansas, and Missouri), for other religious pre-release programs in other states, and for the Bush administration’s effort to bring such programs into the federal prison system. At the very least, and even before any further decisions are handed down, additional lawsuits will be filed. Indeed, perhaps anticipating this very outcome, the Freedom From Religion Foundation has filed a suit challenging the Federal Bureau of Prisons’ faith-based “Life Connections Program,” currently piloted at five federal prisons and, until recently, scheduled for expansion.

This is unfortunate, since there is some evidence to suggest that such programs are effective in reducing recidivism. A study of Texas inmates who participated in the InnerChange program in its early days suggests that its graduates were roughly half as likely as comparable non-participants to be arrested within two years of leaving prison. The warden of the Iowa prison, Terry Mapes, offered this testimony at trial:

If such programs work, improving the atmosphere in the prisons where they’re established and facilitating the restoration of prisoners to productive roles in society, why shouldn’t we find a constitutional way to offer them? One approach, which I suggested above, is to offer a multiplicity of them, representing a variety of different faith traditions as well as secular approaches. If inmates are offered genuine choices, if the standards for admission into them are religiously neutral, and if there are no special privileges that could serve as incentives to join one program rather than another, many of the features Judge Pratt found objectionable would fall away.

But as the Iowa case indicates, this is easier said than done. In the first place, there doesn’t seem to be a plethora of faith-based and secular groups willing to provide intensive transformational and therapeutic services to inmates. In all the years Iowa issued Requests for Proposals, it attracted two bidders—Prison Fellowship and Emerald Correctional Management. Of course, advocates of this approach could argue that opening the field to more bidders will attract providers into the market. Given time—and money—organizations and corporations will emerge to meet the demand; Prison Fellowship will have the kind of competition that is healthy and prisoners will have the kinds of choices that are constitutionally sound.

Money, unfortunately, seems to be in short supply. Iowa seems to have been stretched to pay roughly $300,000 a year to Prison Fellowship. Financing an array of programs might be prohibitively expensive, while dividing the budget for rehabilitation programs into smaller portions might not attract many or any bidders.

Another possibility is to use philanthropic or private financing to pay for such programs, as is the case in the Arkansas InnerChange program. Where state funds are not paying for religious programming, establishment concerns would diminish. Still, prison officials would have to be scrupulous about finding religiously neutral criteria on the basis of which to admit groups into their facilities, about not appearing to compel inmates to enter into such programs, and about not offering them incentives to participate.

Finally, pursuing the analogy with educational vouchers to its logical conclusion, it’s possible to imagine a system of “correctional vouchers” in a largely or partially privatized correctional system. Different companies and organizations could win government approval and even contracts to house and rehabilitate prisoners, with convicts being offered a limited range of choices (which would, of course, include the kind of faith-drenched transformational model pioneered by InnerChange). A federal appeals court has upheld such an approach regarding drug treatment programs for probationers and parolees. Even if the InnerChange program and others like it prove to be so successful as to dominate the marketplace for rehabilitative services, this wouldn’t amount to a constitutional problem. “Quality,” as Judge Richard Posner wrote in his appeals court opinion, “cannot be coercion.”

I wouldn’t dissuade the folks at Prison Fellowship from appealing this decision, but I would encourage them to explore, as they have in Arkansas, other options. And while Barry Lynn of Americans United for the Separation of Church and State might sound triumphant now, speaking about the wide sweep of this decision (not just with respect to prison programs but also with respect to “faith-based programs...in many kinds of institutions”), I don’t think he’ll have the last word.