In this week’s Acton commentary, I reflect on the past year’s developments for InnerChange Freedom Initiative, a ministry of Prison Fellowship. In June a federal judge in Iowa ruled against IFI’s work at Iowa’s Newton facility. In his ruling (PDF here), the judge wrote that the responsibility for combating recidivism is “traditionally and exclusively reserved to the state.” This means that since reducing recidivism is a “state function,” anyone working to combat recidivism is by definition a “state actor.”

Panopticon blueprint by Jeremy Bentham, 1791

I contrast the judge’s perspective with that of IFI and other advocates of the importance of civil society, using the theories of utilitarian philosopher Jeremy Bentham to highlight their differences. Bentham too thought that reform was the task of the government. He argued for the construction of prisons along the model of his “panopticon,” literally meaning “all seeing,” where the extreme use of constant surveillance and individual sequestration would break down the anti-social behaviors of convicted criminals. It was a rather unintuitive program, to say the least, but an influential one nonetheless.

Bentham thought so little of religious practice in fact, that he thought communal worship would destroy his isolationist agenda. In other types of prison facilities prisoner solitude would necessarily be disturbed when prisoners were given “the benefits of attendance on Divine service.”

Under Bentham’s plan, however, prisoners “might receive these benefits, in every circumstance, without stirring from their cells. No thronging nor jostling in the way between the scene of work and the scene destined to devotion; no quarellings, nor confederatings, nor plottings to escape; nor yet any whips or fetters to prevent it.” The communal aspects of worship could thus be entirely dispensed with while placating the necessities of religious adherence.

All of these events effecting IFI’s work occurred in a year that saw a sharp increase in violent crime. For more on the broader picture of the year’s legal developments for faith-based work, see this year’s “The State of the Law 2006: Legal Developments Affecting Government Partnerships with Faith-Based Organizations” from the Roundtable on Religion and Social Welfare Policy. The report includes a section devoted to IFI’s case.

And as a recent article in the NYT magazine observes, there is a growing political coalition on the topic of prison reform. Chris Suellentrop writes with regard to a specific piece of legislation that almost passed in the last congressional session, but may be brought up again in the future, “If the Second Chance Act fails to pass, it will not be because the two parties cannot agree on the importance of rehabilitation programs in prisons. But it may be because they disagree on the role religious organizations should play in rehabilitation.” (HT: Mirror of Justice)

Read the entire commentary here.


  • http://www.davidopderbeck.com/throughaglass.html dopderbeck

    Hi Jordan. Thanks for the comment on my site about the IFI case and the pointer to this article.

    I’m not sure I agree that the Iowa judge was taking a utilitarian stance. But even if he was, it seems to me that IFI did the same. In fact, it seemed to me that many of IFI’s arguments were basically consequentialist, which is one of the things that bothers me about IFI’s position in this case.

    Much of IFI’s argument to the court, as well as its public relations concerning the case, seems to center on how effective its programs are at reducing recidivism. I’m inclined to believe IFI’s statistics — it wouldn’t surprise me one bit if a program that encourages Christian conversion reduces recidivism.

    But if the program reduces recidivism precisely because prisoners are coming to Christ — as IFI itself claims — it seems clearly to present an establishment clause problem if federal funds support the program, even under a very narrow reading of the establishment clause. Moreover, if the programs goal is fundamentally to introduce people to the life-changing Gospel of Christianity — a goal I find highly laudable — there is a spiritual and theological problem with tying that kind of core evangelistic activity to government money and therefore government regulation.

    What is IFI’s justification for this problematic mixture of government money and evangelism? It works! In utilitarian / consequentialist terms, we should tolerate the negative utility resulting from the entanglement of church and state in this area because it is outweighed by the positive utility of reduced recidivism.

    In short, IFI is playing the pragmatist as well, but is jiggering the utility calculation differently. I don’t think this is a wise or sustainable approach. It seems to me that we need to take a step back from the IFI case and ask some more fundamental questions about our expectations concerning what government (and government money) can do about something that is fundamentally a spiritual problem.

  • http://blog.acton.org/ Jordan

    David,

    Thanks for stopping by. I’m inclined to agree with you regarding the complications of government funding.

    But, even so, I think at least part of the judge’s ruling regarding the work of IFI would apply even if they weren’t receiving government funding. This is because the judge uses the function performed rather than the financial source of program funding as a criterion for defining who is and who is not a “state actor.” That’s my biggest complaint.

  • http://www.davidopderbeck.com/throughaglass.html dopderbeck

    This is because the judge uses the function performed rather than the financial source of program funding as a criterion for defining who is and who is not a “state actor.”

    I agree this would be a problem, but where are you seeing this in the opinion?

  • http://blog.acton.org/ Jordan

    In the opinion rendered (PDF now linked above), see p. 3, n. 3, “Additionally, the rehabilitative treatment provided by InnerChange is a function traditionally and exclusively reserved to the state, thereby qualifying InnerChange’s rehabilitation treatment as a state action under the public function
    doctrine.”

    It continues, “Here, the InnerChange employees—in addition to teaching in the treatment program—also provide counseling
    and security services within the confines of the Newton Facility, creating a relationship, from the perspective of the inmates, in which the differences between private and state actions by InnerChange and Prison Fellowship are nonexistent.”

    It is clear that the assumption of the judge is that rehabilitation is a state function, and his concerns go beyond the particular acts and duties of IFI in this particular instance. Thus, for example, again on p. 100, n. 37, he writes of this case, “the state knowingly chose a religious organization to carry out a [i]state function[/i]—the rehabilitation of prisoners—through the organization’s transformational methodology.”

    See also George and Bradley’s characterization in [url=http://www.weeklystandard.com/Content/Public/Articles/000/000/012/413rnmlb.asp]the Weekly Standard[/url]: “The court declared that reducing recidivism was a ‘state function’ and, apparently, that anyone who contributed to its discharge was a ‘state actor.’ From there the court proceeded readily to its conclusion, for it is indeed the law under the First Amendment that states may not prefer one religion to another. IFI, a Christian ministry, clearly does.”

  • http://www.davidopderbeck.com/throughaglass.html dopderbeck

    Ok, I see the concern with that language — but in the context of the whole opinion, I don’t think it’s as big a concern as the conservative media is making it out to be. The Judge seems obviously to be talking about recidivism programs supplied by the state, not about any private effort to reduce recidivism. It’s not clear to me that he would have reached the same conclusion about IFI absent the strong state funding link.

    OTOH, if this Judge’s view is as extreme as you’re suggesting, it seems to me highly unlikely that other courts would adopt that view, or that it would ever survive appeal anywhere.

  • David Fong

    After my criminology classes i conclude that recifivists need somethig akin to brainwashing, behavior modification, religious conversion etc.
    If any of thse are allowed and success results why not concentrate on these. Christian conversion says a man becomes new. This has happened to so many since Jesus declared this. This is logotherapy.

  • Obasi

    I agree and what of those who, for whatever reason, reject Christinity or Catholicism? A large number of prisoners gravitate toward Islam, Hebrew-Israelite, and Moorish Science…at least those of African decent.

    It’s impossible to validate redemption and renewal through the moral and value judgments of one faith. David Fong is correct in his call for some sort of extensive behavior modification approach, even for the thousands of wrongfully convicted after being exposed to the prison industrial complex.

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