United States District Court, District of Columbia
February 19, 2002
ISADORE GARTRELL, ET AL., PLAINTIFFS,
JOHN D. ASHCROFT, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Henry H. Kennedy, Jr., United States District Judge.
Plaintiffs represent a class of prisoners from the District of Columbia
whose avowed religious beliefs forbid them from cutting their hair or
shaving their beards. They are in the custody of the Federal Bureau of
Prisons ("BOP") and are housed in prison facilities run by the Virginia
Department of Corrections ("VDOC"). Plaintiffs allege that BOP's decision
to house them in VDOC prisons rather than in BOP prisons violates the
Religious Freedom Restoration Act ("RFRA")*fn1 and the Free Exercise
Clause of the First Amendment*fn2 because VDOC imposes a grooming policy
that requires prisoners to shave their beards and keep their hair short.
Plaintiffs seek declaratory and injunctive relief to prevent BOP from
subjecting them to the grooming policy.
This case is a continuation of litigation brought against the District
of Columbia in December, 1999, during which BOP intervened as a party
defendant. At that time, plaintiffs made two basic claims. "First, they
contended that VDOC lacked a compelling interest in the grooming policy
and that the policy was not the least restrictive means of achieving
whatever interests VDOC had. Alternatively, they argued that BOP and the
District had a less restrictive means of housing prisoners who believed
that the grooming policy required them to violate fundamental religious
tenets: transferring them to non-Virginia prison facilities without such
grooming policies."*fn3 This court resolved the case by entering a
judgment in favor of the defendants, holding that plaintiffs had failed
to exhaust their administrative remedies as required by the Prison
Litigation Reform Act. (PLRA).*fn4 This court also addressed and
rejected plaintiffs' claim that VDOC's grooming policy violated RFRA and
the First Amendment's Free Exercise clause.*fn5 On appeal, the D.C.
Circuit affirmed this
court's judgment, agreeing that plaintiffs had
failed to exhaust their administrative remedies, but vacated the portion
of this court's decision regarding the merits of plaintiffs' claims. The
D.C. Circuit observed, however, that this court had expressly
"`decline[d] to evaluate' the issue raised by the prisoners' alternative
claim: `whether defendants have compelling interests in keeping
plaintiffs incarcerated in Virginia Corrections facilities.'"*fn6 With
respect to this claim, the court said, "should the prisoners refile
after exhausting their administrative remedies, the district court will
need to consider whether BOP and the District can demonstrate that
alternative placement in non-Virginia prisons without grooming policies
After exhausting their administrative remedies, plaintiffs refiled the
instant action. Based on the evidence presented at the three-day trial of
this case, the court makes the following:
FINDINGS OF FACT
I. BOP'S DECISION TO HOUSE CLASS MEMBERS IN VDOC FACILITIES SUBSTANTIALLY
BURDENS THEIR RELIGIOUS BELIEFS AND PRACTICES
A. Plaintiffs Have Sincere Religious Beliefs That Conflict With the VDOC
1. The parties have stipulated that "each of the named plaintiffs has
sincerely held religious beliefs that prohibit them from shaving or
cutting their hair, and that conflict with VDOC's grooming policy."
Stipulations of Fact ¶ 3 (filed Oct. 27, 2001). See also Jackson,
89 F. Supp.2d at 65 (finding that "plainitffs have met their burden of
showing that [VDOC's] grooming policy substantially burdens their
exercise of religion.").
2. Carl Wolfe, one of the named plaintiffs in this action, is an
adherent of the Rastafarian faith. As a part of the practice of his
faith, Wolfe has taken the Vow of the Nazarite, based on Numbers 6 of the
Bible, that prohibits him from shaving his beard or cutting his hair. It
would be a violation of a fundamental tenet of the Rastafarian faith for
Wolfe to have his hair cut or his face shaved after he has taken this
vow. See Jackson, 89 F. Supp.2d at 65 (finding Wolfe's testimony
regarding his faith to be "heartfelt and sincere," and finding that he
grows his beard and dreadlocks "because of [his] religious beliefs").
3. Isadore Gartrell and Darnell Stanley, both named plaintiffs in this
action, are adherents of the Sunni Muslim sect of the Islamic religion.
Gartrell and Stanley hold sincere beliefs that shaving off their beards
violates a fundamental tenet of Islam. See id. (finding that previous
named plaintiff who was Sunni Muslim grew his beard "because of [his]
B. VDOC's Grooming Policy Imposes a Substantial Burden Upon Plaintiffs'
4. A fundamental tenet of the Sunni and other Muslim sects prohibits
male followers from shaving their faces. See Jackson, 48 F. Supp.2d at
65. Likewise, a fundamental tenet of Rastafarianism prohibits a person
from shaving his beard or cutting his hair after he has taken the Vow of
the Nazarite. See Jackson, 89 F. Supp.2d at 65.
5. In November 1999, VDOC adopted Inmate Grooming Standards Procedure
No. DOP 864 (the "grooming policy") requiring all inmates in VDOC
wear their hair short, in military-style fashion, and
prohibiting all inmates from wearing beards.
6. The grooming policy requires all BOP inmates housed in VDOC to
submit to grooming at regular intervals. The grooming policy also
requires all newly admitted BOP inmates from the District to submit to
grooming during the VDOC intake process.
7. An inmate who refuses to comply with the grooming policy is subject
to disciplinary reports, administrative segregation (confinement in a
cell for 23 hours a day), increases in security and custody level, loss
of prison employment, exclusion from programming, and loss of privileges
such as visitation, commissary, and telephone. Named plaintiff Wolfe, for
example, was held in administrative segregation at Sussex II because he
refused to comply with the grooming policy.
8. VDOC officials do not consider religious objections to be a valid
basis for noncompliance with the grooming policy. The VDOC lieutenant
overseeing Wolfe's intake at Sussex II told Wolfe that his Rastafarian
beliefs regarding shaving his beard and cutting his hair did not matter,
and that if he had an objection to the grooming policy, he would have to
"take that up in court."
9. The grooming policy allows VDOC correctional officers to use force
and restraints to shave newly admitted inmates during the intake process
if the inmates refuse to comply with the grooming policy. VDOC recently
began forcibly shaving inmates who do not voluntarily comply. Inmates who
refuse to comply on religious grounds are restrained, with one guard on
each side and three guards positioned near their legs, and shaved by a
VDOC official. After the VDOC officials complete the forced shaving, they
issue a disciplinary report against the objecting inmate and send him to
10. VDOC has repeatedly told Wolfe that if he returns to Sussex II, he
will be shaved by force. On one occasion, as he was being transported
from administrative segregation to meet with his counsel, a VDOC official
told Wolfe, "`Rasta boy I'm really going to cut that shit off your
hair." Wolfe testified as follows how such a forced shaving would affect
him: "If somebody should hold me down and cut my dre[a]ds and shave my
face, that's going to hurt me. That's like taking a part of my soul. This
is my faith. This is my . . . whole life . . . this is my religion. This
is something where I live by . . . And it will just kill me."
11. The court finds that subjecting class members to the VDOC grooming
policy imposes a substantial burden on the exercise of their religion. See
Jackson, 89 F. Supp.2d at 65.
C. BOP Houses its District of Columbia Inmates in Both VDOC and BOP
12. In 1997, Congress passed the Revitalization Act, which required the
District of Columbia Department of Corrections ("D.C. Corrections") to
close its Lorton facility by December 31, 2001. The Revitalization Act
also required that BOP assume custody of all sentenced felons coming out
of District of Columbia courts no later than December 31, 2001.
13. Pursuant to the Revitalization Act, in October 1999 BOP began to
take custody of some District inmates and began transferring them out of
D.C. Corrections facilities and into BOP facilities, VDOC facilities, and
other contract facilities around the country.
14. As a result of these custody transfers under the Revitalization
Act, some 6,800 District inmates, including the named plaintiffs, are now
in the custody of BOP. A majority of these inmates-approximately
3,600-are housed in BOP facilities located across the United States. One
thousand low security BOP inmates from the District are housed at Rivers
Correctional Center, a private contract facility in North Carolina, and
some 2,200 District inmates are housed in VDOC facilities.
15. BOP has intergovernmental agreements with the Commonwealth of
Virginia to house District inmates at two facilities in Virginia:
Greensville, located in Greensville, Virginia; and Sussex II, located in
Waverly, Virginia. Greensville houses medium security District inmates
and Sussex II houses high security District inmates.
16. BOP executed the agreement with VDOC to house inmates at
Greensville on October 1, 1999, and renewed that agreement effective
September 6, 2001.
17. BOP executed the agreement with VDOC to house inmates at Sussex II
on July 13, 2001. BOP's Sussex II contract replaced a similar contract
between the District of Columbia and VDOC that expired on that day.
D. BOP Does Not Consider Alternatives to Housing Plaintiffs in VDOC
18. Since the filing of the Jackson lawsuit in December 1999, BOP has
been aware that a number of District inmates at Greensville and Sussex II
have religious objections to the VDOC grooming policy.
19. BOP is also aware of the substantial burdens imposed on its inmates
who have religious objections to the grooming policy. For example, BOP is
aware that a number of District inmates at Sussex II are in
administrative segregation because they failed to comply with the
grooming policy due to religious objections.
20. BOP admits that denying an inmate access to religious practices
because he is in administrative segregation may undermine the inmate's
prospects of reintegration and rehabilitation. Nonetheless, BOP places
inmates with religious objections to the grooming policy in
administrative segregation in VDOC rather than transferring them to other
facilities where they would be able to fully practice their religion.
21. Sound correctional practice recognizes that inmates who are allowed
to practice the fundamental tenets of their religion present less of a
management problem than inmates who do not participate in religious
activities. Penological research also indicates that inmates who practice
the fundamental tenets of their religion have lower recidivism rates than
inmates who do not participate in religious activities.
22. Despite its knowledge that the VDOC grooming policy imposes a
substantial burden upon Muslim and Rastafarian inmates, BOP has refused
to consider any alternative to housing the class members in VDOC
II. BOP HAS LESS RESTRICTIVE ALTERNATIVES AVAILABLE FOR HOUSING CLASS
A. BOP's Non-VDOC Facilities Provide a Less Restrictive Alternative
23. BOP has approximately 100 institutions of its own in which it
houses inmates. BOP's District prisoners are already housed in almost all
of these facilities. In addition, BOP contracts with a number of private
facilities to house inmates.
24. BOP does not impose a grooming policy restricting hair or beard
length in its own institutions. See 28 C.F.R. § 551.2, 551.4.
Rather, an inmate may select "the hair style of personal choice, and
[BOP] expects personal cleanliness and dress in keeping with standards of
good grooming and the security, good order, and discipline of the
In addition, "an inmate may wear a mustache or beard or both." Id.
25. Across the BOP system, inmate population is in constant flux. Bed
space opens every day as thousands of inmates per week are released from
custody, or transferred from one institution to another within the same
security level or between security levels. In fact, there are more than
50,000 inmate movements in the BOP system each year.
26. BOP's own institutions, and those of its contractors that do not
impose a grooming policy that would burden plaintiffs' religious
practices, provide less restrictive alternative placements in which class
members could be housed.
B. BOP'S Contention That Its Non-VDOC Facilities Are Not Available to
House Class Members Is Contrary to the Evidence
At trial, BOP admitted that it has not considered whether there is a
less restrictive alternative to housing class members in VDOC
institutions. Nonetheless, BOP argued at trial that no less restrictive
alternative is available for two reasons: 1) because BOP's non-VDOC
facilities are overcrowded; and 2) because it would either be unlawful or
impracticable for BOP to determine whether an inmate has a bona fide
religious objection to the VDOC grooming policy. Each of these purported
justifications fails to establish that BOP has no less restrictive
alternative available to subjecting class members to a grooming policy
that substantially burdens their religion.
1. BOP'S contention that its non-VDOC facilities are unavailable
because they are overcrowded is unfounded
27. BOP currently has custody of approximately 156,000 prisoners.
Approximately 50,000 of these inmates are medium or high security. There
is a constant flow of prisoners into, out of, and within the system,
amounting to more than 50,000 inmate movements in the BOP system each
28. Every BOP-owned facility tracks its "pipeline in" and "pipeline
out," showing numbers of inmates scheduled to go to and leave from a
particular institution over a 30- or 45-day period. The number of inmates
at any given institution is changing constantly because some inmates are
departing while others are arriving. For example, there is a high
turn-over of BOP inmates in VDOC's Greensville facility.
29. Throughout the process of taking custody of District inmates
pursuant to the Revitalization Act, BOP has placed the majority of
District inmates in non-VDOC facilities. Out of the more than 7,000
District offenders BOP has designated over the past several years,
approximately 6,800 are still in BOP custody. About 1,000 of these
offenders are currently housed at VDOC's Greensville facility, and about
1,240 are housed at VDOC's Sussex II facility. Therefore, only about
2,240 out of BOP's 6,800 District inmates are housed in VDOC facilities.
Put another way, BOP has placed about two-thirds of its District inmates
in non-VDOC facilities.
30. BOP's District inmates can be housed in any BOP facility. BOP
currently houses District inmates in virtually every BOP facility,
including facilities as far away as California.
31. For overall capacity purposes, it is irrelevant which District
inmates are housed in VDOC facilities and which are housed in BOP
facilities. Because BOP already places the majority of District inmates
in non-VDOC facilities regardless of its alleged capacity problems, the
crowding at BOP facilities is not relevant to whether BOP has less
restrictive placements in non-VDOC facilities available for plaintiffs.
Indeed, BOP has admitted that it could transfer plaintiffs into its own
facilities on any given day. If it did so, it would promptly fill the
beds vacated by plaintiffs with other inmates, eliminating any impact of
the transfers on overall capacity.
32. Under the Sussex II contract, BOP contracts for 1,276 beds at
VDOC's Sussex II facility. Because 1,240 BOP inmates are currently housed
there, Sussex II is virtually full for BOP's purposes. Under the
Greensville contract, BOP contracts for 1,000 beds at VDOC's Greensville
facility. Greensville, like Sussex II, is virtually full for BOP's
33. BOP currently is taking and will continue to take into custody
somewhere between 70 and 120 District inmates each month. Because both
Sussex II and Greensville are virtually full for BOP's purposes, the
percentage of the overall D.C. inmate population that is housed in
non-VDOC facilities will continue to grow as new inmates come into the
34. If BOP inmates are transferred out of Sussex II or Greensville as a
result of the court's Order in this case, BOP could and would easily
replace those inmates from the population of newly sentenced D.C.
inmates. Therefore, there is no support for defendants' claim that
transfer of class members from VDOC facilities to BOP facilities is
infeasible from a capacity standpoint. To the contrary, transfer of
plaintiffs from VDOC facilities to BOP facilities based on their sincere
religious objections to VDOC's grooming policy will have no effect on
35. BOP plans to phase out its use of both Greensville and Sussex II by
the end of 2002. From a capacity standpoint, it makes no difference to
BOP which inmates are moved out of these facilities first.
36. Even if every bed vacated by a class member ordered out of VDOC
would not be filled by a new District prisoner, BOP has failed to
establish that there are too many class members to be accommodated in its
own facilities. In response to the preliminary injunction this court
issued in Jackson, BOP implemented a process to determine the number of
District inmates at VDOC's Greensville facility who had religious
objections to the grooming policy. BOP found that there were only a
handful of inmates with religious objections.
37. That only a small number of BOP inmates at Greensville have
religious objections to the grooming policy is confirmed by VDOC's
grievance reports from that facility, demonstrating that between November
1999 and October 2001, fifteen grievances were filed against the grooming
policy for religious reasons. Even assuming that entries which do not
specify a reason for the grievance were based on the inmate's religious
beliefs, no more than twenty-one of the grievances at Greensville
involved religious beliefs. In addition, BOP has admitted that this
number includes grievances filed by non-BOP inmates.
38. Likewise, when VDOC screened inmates at Sussex II in response to
the Jackson injunction, it identified only nineteen out of 1200 District
inmates who had sincerely held religious beliefs that conflicted with the
grooming policy. These inmates have already been transferred out of
Sussex II. Between March 2000 and October 2001 at Sussex II, eight
grievances were filed against the grooming policy which cited religious
or spiritual beliefs or practices. Even including grievance report
entries that do not specify the reason for the complaint, the total
number of grievances at Sussex II that involved religious beliefs during
this eighteen month period could not have exceeded twenty-eight.
2. BOP's contention that its non-VDOC facilities are unavailable
because it cannot determine whether inmates have bona fide
religious objections to the grooming policy is unfounded
a. BOP's Security Classification and Designation Manual requires
BOP to identify religious beliefs and practices of inmates
39. BOP designates inmates to institutions pursuant to the policies and
procedures set out in its Security Classification and Designation Manual
("Designation Manual"), which has been in effect since 1979. The
Designation Manual applies to BOP's decisions to send District inmates to
its contract facilities, including VDOC, and to BOP's decisions to
transfer inmates out of VDOC.
According to the Manual, BOP's placement and transfer procedures
provide for two levels of review. The first involves determining the
inmate's proper custody or security level. The second involves
designation to an appropriate facility and includes consideration of the
inmate's programmatic and other individualized needs. Expert witnesses
testified at trial that this two-tiered procedure is consistent with
sound custody classification and designation practice. Security and
safety concerns are properly addressed at the first stage, and religious
beliefs are properly considered under the second-stage, individualized
40. The plain language of the Designation Manual requires BOP officials
to assess each inmate's religious beliefs and practices and take those
beliefs into account when deciding whether that inmate should be placed
(i.e., designated) in a non-BOP facility. Specifically, the Designation
Manual requires: "When designating a non-federal facility for an
inmate, Designators shall consider the inmate's religious beliefs as one
of the factors in making a designation decision." Pls.' Ex. 1 at BOP
000064 (emphasis added). Such a policy clearly contemplates that BOP
should assess whether an inmate's sincerely held religious beliefs would
be burdened by a particular placement. Id. at BOP 00064 ("If necessary,
Designators may consult with Central Office chaplaincy staff in making
this designation decision.").
41. The plain language of the Designation Manual also requires BOP
officials to assess each inmate's religious beliefs and practices and
take those beliefs into account when making transfer (i.e.,
redesignation) decisions. Specifically, the Designation Manual states:
"Religious beliefs will be considered when designating a non-federal
facility for a federal inmate. Ordinarily, a facility that systematically
restricts the free exercise of religion will not be designated for that
inmate." Id. at BOP 000179 (emphasis added).
42. By its clear and unambiguous language, therefore, BOP's Designation
Manual contemplates that BOP is able to, and indeed "shall" and "will,"
determine the religious beliefs and practices of its inmates before its
designation and redesignation decisions are made. Id. BOP's witnesses
admitted that this policy is mandatory.
43. Nonetheless, BOP witnesses admitted at trial that BOP has not
ascertained inmates' religious beliefs and practices and has not taken
those beliefs into account when designating BOP inmates to, and
redesignating BOP inmates out of, VDOC facilities.
44. BOP admitted that if information on the religious affiliation of
inmates was available, BOP would be required to take that information
into account when making designation decisions.*fn8 For example, BOP
acknowledged that if a judge informed BOP that a newly-sentenced inmate
was a Muslim Imam, BOP would take that information into consideration
when making the inmate's designation decision. BOP also admitted that it
would be feasible to use religious belief and practice information when
it makes designation decisions.
45. Although there are numerous indicators of inmates' religious
affiliation available to BOP, BOP has not tried to ascertain the
religious affiliation of the District inmates it designates and
b. BOP's religious accommodation policy requires BOP to evaluate
whether an inmate has a bona fide religious belief
46. BOP's policies require BOP to determine whether inmates have bona
fide religious beliefs that require specific practices. For example, BOP
requires inmates who seek to participate in religion-based dietary
practices to make the request in writing and be subjected to an interview
by the prison chaplain. Based on the interview with the prison chaplain,
inmates may be denied certification and thus barred from participation in
religion-based food service, and must wait six months before applying
47. Under BOP's policy, an inmate may be removed from his
religion-based food service by an institution's Warden or Chaplain if he
shows indicia of not following the dietary practices of his religion.
After being removed from the religion-based food service program, an
inmate must participate in a screening interview with BOP personnel
before he may participate again in the program again.
c. Other prison systems identify inmates with bona fide religious
beliefs and practices and accommodate the inmates' religious
48. Evidence presented at trial established that it is routine practice
for prison systems to determine whether an inmate is a bona fide member
of a religious group. Expert witnesses testified that the purpose of
making these determinations is to ascertain whether an individual inmate
is entitled to accommodation based on his religious beliefs or
49. The testimony of adult corrections expert Dr. James Austin*fn9
established that the state correctional systems in Pennsylvania,
Washington, Oregon, and New Mexico have institutionalized processes to
determine whether an inmate has a bona fide religious belief or practice.
These states have created committees, comprised of representatives
from various divisions within the Department of Corrections, to make
determinations on an individual basis as to whether an inmate has a bona
fide religious belief or practice. These committees have successfully
handled inmates who seek to manipulate the system and
gain advantage by being identified as members of a religious group.
50. In addition, VDOC indicated during this litigation that it is able
to identify which inmates have bona fide religious objections to its
grooming policy. During the pendency of the injunction in Jackson, VDOC
informed BOP that it could implement a "methodology" at Greensville to
"identify [BOP inmates] with sincerely held religious beliefs." VDOC also
successfully implemented a system to determine which District inmates at
Sussex had religious objections to its grooming policy. BOP has admitted
that VDOC is fully capable of identifying which inmates have sincerely
held religious objections to the grooming policy.
51. As a result of the procedure it implemented to comply with the
Jackson injunction, VDOC identified 19 inmates out of 1,200 at Sussex
with bona fide religious objections to its grooming policy. Those inmates
at Sussex who were found to have bona fide religious objections to the
grooming policy were "moved to other facilities." No evidence was
presented at trial that these prisoner transfers out of Sussex caused
other prisoners to try to manipulate the system in order to receive a
transfer out of VDOC, or that these transfers caused other prison
d. Bop has successfully implemented screening procedures to
identify inmates with bona fide religious objections to the VDOC
52. During the pendency of the injunction in Jackson, BOP implemented a
successful screening process that identified District inmates with
religious objections to the VDOC grooming policy and prevented them from
being assigned to VDOC institutions. This process involved BOP personnel
interviewing District inmates at BOP holdover facilities about the
inmates' religious beliefs. Inmates identified by this process were
placed in non-VDOC facilities so that their religious beliefs and
practices would not be burdened by the VDOC grooming policy.
53. It took BOP only a few weeks to put this new screening process into
place. Although BOP argued at trial that a screening process would cause
major problems, including pretextual conversions of inmates subject to
potential transfer to VDOC, BOP's witnesses did not identify any
substantive problems that arose when such a process was actually
implemented during the Jackson injunction.*fn10 Under questioning from
BOP's own attorneys and the court, the only difficulties with the
screening procedure that BOP witnesses could identify were that it
involved "a little training" for staff and that it was not "fair." These
witnesses also testified, however, that the procedure took only a few
weeks to develop and implement, and that once the procedure was in
place, BOP had accomplished "what [it] had set out to do."
54. BOP continues to use holdover facilities, but it no longer uses its
holdover facilities to screen District inmates with religious objections
to VDOC's grooming policy. BOP admits that it stopped its screening for
religious beliefs only because the Jackson injunction was lifted. While
BOP was screening District prisoners and keeping those identified as
objections to VDOC's grooming policy at holdover
facilities, BOP was continuing to place other District inmates in its own
facilities. Nonetheless, BOP made no effort to find a place at its own
facilities for the inmates it identified as having religious objections.
55. After a new inmate is sentenced by the District of Columbia
courts, it takes six to eight weeks for the inmate to be transferred from
the custody of D.C. Corrections to BOP custody. The vast majority of
these inmates are housed in the District of Columbia while this six- to
eight-week custody transfer process takes place. Expert witnesses
testified at trial that BOP could perform screening interviews like the
ones previously performed at BOP holdover facilities while these inmates
are in the District awaiting their custody transfer from D.C. Corrections
56. BOP also successfully screened inmates already at VDOC during the
injunction in Jackson. As a result of this process, a handful of
Rastafarian and Muslim inmates were identified as having religious
objections to the grooming policy and were transferred out of Greensville
57. Despite BOP's claim that such a screening and transfer process
would lead to inmates making pretextual conversions in order to qualify
for transfer out of VDOC, BOP admitted that to its knowledge no such
conversions occurred when it did implement such a process.
e. Objective measures are available to BOP to identify inmates
with religious objections to the grooming policy
58. There are objective indicators readily available to BOP that would
assist it in identifying those of its inmates who have religious beliefs
and practices that conflict with the grooming policy. The contractual
agreement between VDOC and BOP grants BOP access to information related
to its inmates housed in VDOC, including the list of grievances filed by
inmates in Sussex II and Greensville. These lists, which were produced by
BOP as part of this litigation, summarize the basis of each inmate's
objection to the grooming policy, and therefore can be used to determine
which inmates may have religion-based objections. BOP also has available
to it the actual grievance forms, which contain more detailed information
regarding the basis of an inmate's objection to the grooming policy.
59. BOP is in the process of reviewing the files of its inmates in
Sussex II to determine whether they are serving their sentences in the
appropriate facility. As part of this process, BOP has discovered that
VDOC documents every inmate's participation in religious services and
requests for special meals based on religious beliefs. This information
would assist BOP in identifying which inmates are members of religious
faiths that have prohibitions on cutting hair short or shaving beards.
60. The religious affiliation of each BOP inmate is also available to
BOP through the information gathered by VDOC personnel at the time of
intake. All BOP inmates being housed in the VDOC system go through an
intake process. During that intake process, VDOC asks each inmate's
religious affiliation and records that information.
61. If an inmate refuses to comply with the grooming policy during the
intake process, he is given a disciplinary report and sent to
Thus, in addition to the documents
easily available to it, BOP can simply identify inmates in administrative
segregation for refusal to comply with the grooming policy and assess
whether that refusal is based on a religious objection to the grooming
62. Finally, for any inmate who has previously served time in any BOP
prison, BOP has that inmate's religious affiliation recorded in its
SENTRY*fn12 computer system. Likewise, any inmate who has
served time in any other corrections system, such as D.C. Corrections or
the Corrections Corporation of America, has had his religious affiliation
information recorded and put in his inmate file. There is nothing
preventing BOP from seeking this information from these other prison
systems that have incarcerated the inmates who are now in BOP's care.
f. BOP routinely determines whether an inmate qualifies for
placement in an alternative prison setting in other contexts
63. BOP regularly identifies which inmates qualify for alternative
prison placements in other contexts. For example, BOP runs a residential
drug treatment program (the "program") for its inmates. Because not every
BOP facility offers the program, if an inmate qualifies and his
institution does not provide the program, he will be transferred to an
institution that does offer the program. Under the terms of the program,
an inmate who is serving time for a nonviolent crime can obtain a
one-year sentence reduction if he successfully completes the program. In
order to determine whether an inmate has a substance abuse problem and
qualifies for the program, BOP uses a screening process in which it
reviews documents about the inmate; interviews family members, former
doctors, and members of the community about the inmate; and has a
psychologist interview the inmate. As part of this process, BOP
successfully separates those inmates who have a bona fide substance abuse
problem and who can benefit by transfer to a facility that provides
treatment for their problem from those inmates who do not have a bona
fide problem but seek to transfer so that they can reduce their
64. Likewise, BOP allows inmates to apply for transfer to a particular
BOP institution that offers a food service program so that they can learn
to become chefs. In order to determine whether an inmate has a bona fide
desire to become a chef, the food service program administrators review
an inmate's file and, if necessary, request that the community
corrections office for the area where the inmate is housed collect more
information on the inmate. If an inmate is approved for participation, he
is then transferred to the BOP institution that offers the program.
65. Trial testimony showed that BOP is willing to transfer inmates in
order for them to learn how to cook, but will not transfer inmates whose
fundamental religious beliefs and practices are burdened by VDOC's
Q: Now, if an inmate wants to be transferred because
of religious convictions that conflict with VDOC's
grooming policy, what's BOP's procedure for processing
A: I'm not aware of any procedure.
Q: So let me make sure I understand this. If Carl
Wolfe, sitting over here, wants to learn to cook,
there's a procedure in place for him to request a
transfer to a BOP facility.
But there's no procedure
for him to request a transfer based on the fact that
he has been in administrative segregation since he
arrived at Sussex II for the sole reason that his
religious beliefs prevent him from cutting his hair or
shaving his face?
Tr. at 43:6-18.
g. Prison systems around the country evaluate whether an inmate
has a sincere religious belief or practice
66. Numerous prison systems around the country are required to assess
the bona fides of inmates' religious beliefs as a routine component of
inmate requests for special property, special meals, or grooming policy
exemptions. See e.g., Morrison v. Garraghty, 239 F.3d 648
, 652 (4th Cir.
2001) (holding that plaintiff was entitled to sincerity determination in
review of his religious property request); DeHart v. Horn, 227 F.3d 47,
52 (3d Cir. 2000) (finding that prisons are protected from random
requests for special diets by the requirement that the request be "the
result of sincerely held religious beliefs"); Jackson v. Mann,
196 F.3d 316
, 317 (2d Cir. 1999) (stating that kosher meal eligibility in
the New York Department of Corrections is based on "a process of
interview and review of documentation to substantiate the inmate's Judaic
background and intent to strictly observe Jewish dietary law"); Mosier
v. Maynard, 937 F.2d 1521
, 1526-27 (10th Cir. 1991) (reviewing Oklahoma
prison's denial of grooming policy exemption where plaintiff challenged
adverse sincerity determination); McElyea v. Babbitt, 833 F.2d 196
198-99 (9th Cir. 1987) (remanding for assessment of sincerity of inmate's
request for kosher meals at Arizona state prison); Caldwell v. Caesar,
150 F. Supp.2d 50, 53 (D.D.C. 2001) (reviewing alleged denial of access
to special meals by D.C. Corrections); Beerheide v. Suthers,
82 F. Supp.2d 1190, 1198-99 (D.Colo. 2000) (reviewing denial by Colorado
Department of Corrections of kosher meal request). VDOC itself assesses
the bona fides of inmates' religious beliefs in the context of requests
for religioun-based exemptions to property restrictions, see Morrison,
239 F.3d at 652, as do the New York, Colorado, and D.C. Departments of
Corrections in the context of special meals requests, see Jackson, 196
F.3d at 317 (stating that eligibility for New York Department of
Correction's kosher diet program requires substantiation of inmate's
"intent to strictly observe Jewish dietary law"); Caldwell,
150 F. Supp.2d at 53 (stating that D.C. Corrections makes special meals
available only to those "authorized by the Chaplain to receive a special
diet"); Beerheide, 82 F. Supp.2d at 1198-99 (documenting the "effective
method by which sincerity of [a Colorado Department of Correction's]
inmate's religious beliefs may be tested").
h. BOP could implement a screening procedure to identify inmates
with bona fide religious objection to the VDOC grooming policy
67. BOP could implement a procedure to identify inmates with bona fide
religious objections to the VDOC grooming policy. While the injunction
was in effect in Jackson, BOP effectively implemented a system that
prevented inmates with religious objections from being sent to VDOC and
identified and removed inmates from VDOC who had religious beliefs that
would be violated by the grooming policy. Other state systems have also
implemented systems that work well in identifying inmates' religious
beliefs and practices.
68. Moreover, with regard to new inmates coming into the system, BOP
can have D.C. Corrections identify for it those inmates who have
religious objections to the grooming policy. Dr. Austin, who is
with the D.C. Corrections' Trustee to implement a new classification and
designation system for D.C. Corrections by the end of the year, indicated
at trial that "it would be no problem for the D.C. Department of
Corrections to provide information to the BOP on the religious preference
of each inmate who has been sentenced as a felon and is likely now to be
designated by the BOP . . ." Tr. at 148:3-12.
69. It is consistent with sound correctional practice for BOP to
implement a procedure to identify and accommodate inmates with religious
objections to the VDOC grooming policy because such a procedure would
assist in prison population management and reduce recidivism.
C. Plaintiffs Seek Relief That Would Be "Narrowly Drawn"
70. The relief that plaintiffs seek is an order requiring BOP to
consider class members' religious beliefs and practices and to house
class members in non-VDOC facilities, when such alternative placements
are available consistent with an inmate's security level. For the
following reasons, such relief would be narrowly drawn:
71. First, such an order would be consistent with BOP's own policies
regarding consideration and accommodation of inmates' religious beliefs
when making placement and transfer decisions involving non-BOP
72. Second, BOP takes individual factors into account on a regular
basis when deciding the appropriate housing for an inmate. For example,
BOP takes into account judicial recommendations, available programming
(e.g., the food service program), and substance abuse problems when
making designation and transfer decisions. BOP has failed to demonstrate
that the same could not be done for religion.
73. Third, BOP and VDOC successfully implemented screening procedures
during the pendency of the Jackson injunction that would provide the
relief that plaintiffs now seek. BOP has not presented evidence that
these screening procedures caused any management problems.
74. Fourth, BOP is already in the process of reviewing placement of
inmates at VDOC's Sussex II facility to make sure that those placements
are appropriate and that BOP inmates are not housed in the "wrong
environment." Consistent with its Designation Manual, BOP could take
religious beliefs into account as it makes these decisions.
75. Fifth, it is undisputed that state corrections departments
routinely and effectively assess the sincerity of individual inmates'
religious beliefs. In addition, prison systems that contract with other
states have done what plaintiffs seek here-remove groups of inmates when
the sister state holding them under contract infringes on the inmates'
CONCLUSIONS OF LAW
I. DEFENDANTS HAVE VIOLATED THE RELIGIOUS FREEDOM RESTORATION ACT*fn13
1. The Religious Freedom Restoration Act ("RFRA") applies to federal
officers and agencies like BOP. Henderson v. Kennedy, 265 F.3d 1072, 1073
(D.C. Cir. 2001).
2. BOP is bound by RFRA in discharging its obligations under the 1997
Revitalization Act. See 42 U.S.C. § 2000bb-3(b) ("Federal statutory
law adopted after November 16, 1993 is subject to [RFRA] unless
such law explicitly excludes such application by reference to [RFRA].").
3. Each BOP decision to place or keep a member of the plaintiff class
in a VDOC facility is subject to RFRA scrutiny because RFRA applies "to
all Federal . . . law, and the implementation of that law, whether
statutory or otherwise." 42 U.S.C. § 2000bb-3(a) (emphasis added).
4. Under RFRA, it is plaintiffs' burden to prove that a government
action substantially burdens their sincerely held religious beliefs.
42 U.S.C. § 2000bb-1(a).
5. Once a substantial burden is established, the government must
"demonstrate" that its action: "(1) is in furtherance of a compelling
governmental interest; and (2) is the least restrictive means of
furthering that compelling governmental interest." Id. §
2000bb-1(b)(1)-(2) (emphasis added).
6. RFRA makes clear that "the term `demonstrates' means meets the
burdens of going forward with the evidence and of persuasion." Id. §
7. Consistent with the statute, relevant case law confirms that the
burden of establishing compelling interest and least restrictive means
rests with the government under RFRA. Diaz v. Collins, 114 F.3d 69, 72
(5th Cir. 1997) (holding that the burden of proving the "compelling
interest test" is on the government); Jolly v. Coughlin, 76 F.3d 468, 477
(2d Cir. 1996) (same); Cheema v. Thompson, 67 F.3d 883, 885 (9th Cir.
1995) (holding that the government was wrong in asserting that it did not
have the burden to prove no less restrictive alternative was available).
Indeed, the D.C. Circuit has already noted that defendants bear the
burden of persuasion on this issue. Jackson v. District of Columbia, 254
F.3d at 271 (D.C. Cir. 2001) ("[T]he district court will need to consider
whether BOP . . . can demonstrate that alternative placement in
non-Virginia prisons without grooming policies is infeasible.").
A. Plaintiffs Have Proven That They Have Sincerely Held Religious Beliefs
That Are Substantially Burdened by VDOC's Grooming Policy.
8. A substantial burden on a sincerely held religious belief exists
where the government imposes punishment or "denies . . . a benefit
because of conduct mandated by religious belief, thereby putting
substantial pressure on an adherent to modify his behavior and to violate
his beliefs." Woods v. Evatt, 876 F. Supp. 756, 762 (D.S.C. 1995)
(quotations and citations omitted).
9. Defendants have stipulated that "[e]ach of the named plaintiffs has
sincerely held religious beliefs that prohibit them from shaving or
cutting their hair, and that conflict with VDOC's grooming policy."
Stipulations of Fact, at ¶ 3 (Oct. 27, 2001).
10. This court has held that plaintiff Wolfe has sincerely held
religious beliefs that prohibit him from cutting his hair and shaving his
face. Jackson, 89 F. Supp.2d at 65 (finding Wolfe's testimony to be
"heartfelt and sincere").
11. This court has held that subjecting plaintiffs to the grooming
policy substantially burdens their sincere religious beliefs. Id.,
89 F. Supp.2d at 65 (finding that the grooming policy "imposes at least a
substantial burden if not more").
12. The burden on plaintiffs' beliefs has increased since the court's
ruling in the Jackson case. At the time of the Jackson decision, VDOC's
policy gave the named plaintiffs a "choice" between cutting their hair and
shaving their beards or being placed in administrative segregation and
losing all privileges. Here, it is undisputed
that if plaintiffs are
returned to VDOC facilities, they will be forced to cut their hair and
shave their beards in addition to being sent to administrative
segregation for failure to voluntarily comply with the grooming policy.
B. Defendants Have Failed to Meet Their Burden of Proving That There Is
No Less Restrictive Alternative.
13. Because plaintiffs have demonstrated that the VDOC grooming policy
substantially burdens their sincerely held religious beliefs, the burden
shifts to defendants to prove that subjecting plaintiffs to the grooming
policy is the least restrictive means of achieving a compelling interest.
See 42 U.S.C. § 2000bb-1(b)(2); Diaz, 114 F.3d at 72; Jolly, 76 F.3d
at 477-78; Cheema, 67 F.3d at 885. BOP has failed to carry this burden.
14. As a less restrictive alternative, BOP could house plaintiffs in
any of the many institutions run by BOP or its non-VDOC contractors that
do not impose a substantial burden on plaintiffs' religious beliefs and
15. Defendants assert two arguments to justify their failure to house
plaintiffs in facilities that would not burden their religious beliefs and
practices: 1) BOP's prisons are overcrowded and thus it has nowhere to
house plaintiffs; and 2) BOP cannot identify class members because BOP
cannot assess the bona fides of an inmate's religious beliefs. Neither of
these arguments is persuasive.
16. Defendants have failed to demonstrate that BOP's interest in
managing overcrowding would be affected in any way by plaintiffs' request
that BOP take their sincere religious objections to the grooming policy
into account in making placement and transfer decisions. BOP's capacity
concerns are not implicated by individualized designations and
redesignations to non-VDOC facilities for class members, because BOP's
inmate population is already in constant flow around the country, the
number of individuals involved is relatively small, VDOC facilities are
virtually full, BOP already places two of every three District inmates in
a non-VDOC facility, BOP will easily refill spaces vacated at VDOC
facilities, and the overall number of individuals in the BOP system will
not be affected. Although BOP undoubtedly has an important interest in
managing overcrowding, that interest will not be harmed by the relief
plaintiffs seek and therefore cannot justify BOP's practice of burdening
plaintiffs' sincere religious beliefs.
17. Congress specifically warned that the judicial deference owed to
prison administrators under RFRA does not allow either the administrators
or the courts to rely on conclusory arguments. S. Rep. No. 103-111, at 10
(1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1899 ("[T]he state must do
more than simply offer conclusory statements that a limitation on
religious freedom is required for security, health or safety"); see also
Jolly, 76 F.3d at 479 (2nd Cir. 1996) (finding that prison regulations
are "not insulated from scrutiny merely because the defendants brandish
the concepts of public health and safety"). To prove that no less
restrictive alternative exists, defendants must show that the
alternatives proposed by plaintiffs will not protect BOP's interest in
prison security. They have failed to make this showing.
18. BOP also argues that no less restrictive alternative is available
because it is not permissible or proper for the government to inquire
into the sincerity of inmates' religious beliefs, and therefore BOP
cannot determine who would qualify for alternative placement. This
argument fails both as a matter of fact and as a matter of law.
19. The Supreme Court has made clear that governmental agencies not
only can assess bona fides when deciding whether to accommodate religious
beliefs, but often must do so in order to properly assess religious
accommodation claims. See United States v. Seeger, 380 U.S. 163, 184-85
(1965) ("Local [military draft] boards and courts in this sense are not
free to reject beliefs because they consider them `incomprehensible.'
Their task is to decide whether the beliefs professed by a registrant are
sincerely held and whether they are, in his own scheme of things,
religious. But we hasten to emphasize that while the `truth' of a belief
is not open to question, there remains the significant question whether
it is `truly held.' This is the threshold question of sincerity which
must be resolved in every case."); accord U.S. v. Ward, 989 F.2d 1015,
1018 (9th Cir. 1992); Hager v. Secretary of Air Force, 938 F.2d 1449,
1454 (1st Cir. 1991); Philbrook v. Ansonia Bd. of Educ., 757 F.2d 476,
482 (2d Cir. 1985) ("[A] sincerity analysis is necessary in order to
differentiat[e] between those beliefs that are held as a matter of
conscience and those that are animated by motives of deception and
fraud.") (internal quotation marks omitted); Patrick v. LeFevre,
745 F.2d 153, 157 (2d Cir. 1983); U.S. v. Joyce, 437 F.2d 740, 744 (7th
Cir. 1971); Lindenberg v. United States Dep't of Justice, 657 F. Supp. 154,
161-62 (D.D.C. 1987) (reviewing INS determination of inadequate
"religious commitment" for purposes of special visa certification).
20. Prison officials in other systems can and do assess the sincerity
of inmates' religious beliefs in order to administer prison programs and
policies ranging from requests for exceptions to grooming policies or
personal property rules to approval for special meals. See e.g.,
Morrison, 239 F.3d at 658 (4th Cir. 2001) (finding that plaintiff was
denied equal protection because defendants "never evaluated the sincerity
of [plaintiff's] beliefs" as they would have for other inmates' requests
for religious items); DeHart, 227 F.3d at 52 n. 3 (3d Cir. 2000) ("Prison
officials are, of course, entitled both to make a judgment about the
sincerity of an inmate's belief when he or she asks for different
treatment and to act in accordance with that judgment."); Mosier, 937
F.2d at 1523, 1526 (10th Cir. 1991) (holding, in the context of a request
for a grooming policy exemption, that "[w]ithout question, the prison may
determine whether plaintiff's beliefs are sincere, meaning whether they
are truly held and religious in nature"); McElyea, 833 F.2d at 199 (9th
Cir. 1987) (holding that "[i]t is appropriate for prison authorities to
deny a special diet if an inmate is not sincere in his religious
beliefs"); see also Makin v. Colo. Dep't of Corrections, 183 F.3d 1205,
1213 (10th Cir. 1999) (relying on Seeger, 380 U.S. at 184-85 (1965), for
validity of assessing sincerity of belief for special meals request);
Brock v. Carroll, 107 F.3d 241, 244 (4th Cir. 1997) (Wilkins, J.
concurring) (stating that request for exception to "contraband" rule
should be analyzed under Seeger standard); Jackson v. Mann, 196 F.3d at
320 (2d Cir. 1999) (reviewing "through the prism of sincerity"
defendants' motion to dismiss plaintiff's challenge to denial of kosher
21. Therefore, the court concludes that BOP officials not only are
permitted to assess bona fides but are required to do so where defendants'
actions impose a substantial burden on plaintiffs' sincere religious
beliefs regarding hair and beards.
22. Moreover, the government cannot meet its burden to prove least
restrictive means unless it has actually considered and rejected the
efficacy of less restrictive measures before adopting the challenged
practice. See e.g., United States v. Playboy
Entertainment Group, Inc.,
529 U.S. 803, 824 (2000) (finding, in the context of a First Amendment
challenge to speech restrictions, that "[a] court should not assume a
plausible, less restrictive alternative would be ineffective"); City of
Richmond v. J.A. Croson, 488 U.S. 469, 507 (1989) (finding city's
minority set-aside program was not narrowly tailored in part because the
city had not considered whether race-neutral measures would have
achieved the government's interest); Hunter ex rel. Brandt v. Regents of
Univ. of Calif., 190 F.3d 1061, 1078 (9th Cir. 1999) (finding that
government "neglected to undertake any consideration-let alone serious,
good faith consideration" of race-neutral alternatives) (internal
quotation marks and citation omitted). Thus, the government cannot meet
its burden by relying on post-hoc excuses for continuing to burden
individuals' religious beliefs. Jolly, 76 F.3d at 479 (finding that "post
hoc rationalizations will not suffice to meet [RFRA's] requirements")
(citations omitted). Here, BOP concedes that it never considered the less
restrictive alternative of assigning inmates with religious objections to
the VDOC grooming policy to BOP or other non-VDOC facilities, despite the
fact that BOP successfully implemented this alternative in response to
this Court's injunction in Jackson, an alternative which it discontinued
only because the injunction was lifted.
23. The court concludes that BOP has available to it a less restrictive
alternative to subjecting inmates with religious objections to the VDOC
grooming policy. That alternative consists of taking inmates' religious
beliefs into consideration as part of the designation or redesignation
process, as BOP's own Designation Manual requires.
24. As instructed by the D.C. Circuit, the court has considered whether
"alternative placement in non-Virginia prisons without grooming policies"
is feasible, and finds that it is. Jackson, 254 F.3d at 271. The court
therefore concludes that defendants have failed to meet their burden of
proving that less restrictive means are not available. See Cheema, 67 F.3d
at 885 (defendants' failure to offer evidence that a less restrictive
alternative was not available required entry of an injunction in favor of
plaintiffs asserting RFRA claim).
For the foregoing reasons, Judgment is entered in favor of plaintiffs
and defendants are permanently enjoined from violating plaintiffs rights
under RFRA. An appropriate order accompanies this memorandum.
O R D E R
Pursuant to Fed.R.Civ.P. 58 and for the reasons stated by the court in
its memorandum docketed this same day, it is this 19th day of February,
ORDERED and ADJUDGED that judgment is entered in favor of plaintiffs;
and it is further
ORDERED and ADJUDGED that the defendants (collectively "BOP"), before
designating any inmate to a Virginia Department of Corrections ("VDOC")
institution, shall consider each inmate's religious beliefs and practices
and, to the extent those beliefs and practices would be burdened by the
VDOC grooming policy, that factor shall militate against BOP designating
that inmate to a VDOC institution; and it is further
ORDERED and ADJUDGED that BOP shall immediately evaluate whether the
grooming policy of VDOC burdens the religious beliefs and practices of
each of its inmates housed in a VDOC institution. If a BOP inmate's
religious beliefs and practices
are found to be burdened by the VDOC
grooming policy, BOP shall promptly transfer that inmate out of VDOC; and
it is further
ORDERED and ADJUDGED that all disciplinary action imposed on any class
member as a result of the class member's refusal to comply with the VDOC
grooming policy shall be expunged from any BOP record of such action
immediately; and it is further
ORDERED and ADJUDGED that the court shall retain jurisdiction over
this matter to ensure that the terms of its injunction are obeyed and for
appropriate ancillary proceedings.