Consideration Violates Establishment Clause
by John E. Dannenberg
The United States District Court, E.D. Cal., ruled that requiring a California life prisoner to attend Narcotics Anonymous (NA) or Alcoholics Anonymous (AA) as a predicate for parole constituted a state establishment of religion prohibited by the First Amendment. Furthermore, the court enjoined the Board of Prison Terms (BPT) from ever imposing such a requirement in the future, and ordered all records of past references to the prisoner's failure to attend NA expunged from his prison records.
Charles Turner, serving a 15-life sentence for second degree murder since 1979, had been denied parole by the BPT eight times. Each time he was admonished to attend NA or AA prior to his next hearing. In 1997, BPT Commissioner Steven Baker (a former San Diego Police Detective, whose small son was murdered) drove his mandate home: Let me explain it to you so it's real simple. Do you want to get out of prison?. When Turner replied, Yes, Baker continued, Go to NA, learn those Twelve Steps, work those Twelve Steps. And this Board will not accept any excuses. Can I make it any simpler than that. ... [I]f you don't go to NA, I would never let you out of prison, ever. ... I can't make it any plainer, I really can't. NA is mandatory for you.
Although Turner, a Christian, had attended NA sporadically since his first parole denial, he was uncomfortable with the religious aspects of NA that required assertion of belief in a higher power and saying the Lord's Prayer among a group consisting of others (including atheists) who falsely so swore to get BPT credit for attendance. He sued under 42 U.S.C. § 1983 claiming the Board's actions amounted to establishment of religion prohibited by the First Amendment.
The court relied upon Lee v. Weisman, 505 U.S. 577 (1992) for the proposition that government may not coerce anyone ... to participate in religion or its exercise .... Applying this coercion test, the court followed the three-part test of Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996). First, as to the requirement of state action, the court found it clear that the BPT told Turner he had to participate in NA to parole. Second, he was told if he didn't participate, he would never parole. Third, the coercion was religious, because the NA reference to `God' necessarily implied a spiritual system of faith and worship. The Boards argument that `God' could refer to, say, just a doorknob, fell flat under the facts of the case. Accordingly, the court followed the Second Circuit (Warner v. Orange County Dep't Of Probation, 115 F. 3 d 1068 (1997)) and the Seventh Circuit (Kerr, supra) to hold that requiring participation in NA is an establishment of religion prohibited by the First Amendment.
The court rejected the Board's counter-argument that a recent establishment of secular alternatives to NA mooted Turner's complaint. Mere voluntary cessation of illegal conduct does not moot a case; if it did, courts would be compelled to leave defendants free to return to their old ways. Moreover, the existence of secular alternatives would not stop defendants from ... considering plaintiff's past failure to complete NA at future parole hearings.
Thereupon, the court ordered adoption of the Magistrate's Findings and Recommendations in full, specifying that BPT Chair[person) Perez, their superiors, agents, co-employees and successors to state office be enjoined from considering plaintiff's refusal to participate in NA at any point in time as a basis for denying plaintiff parole. The court further enjoined Youth and Adult Correctional Agency Secretary Roderick Q. Hickman and his successors, ... to expunge all references to plaintiff's failure to attend NA from any file maintained by the California Department of Corrections (CDC). Lastly, the court permitted plaintiff's counsel, Harry Arthur Oliver of Los Angeles, to apply for award of attorney fees and costs per 42 U.S.C. § 1988. See: Turner v. Hickman, 342 F.Supp.2d 887 (E.D. Cal. 2004).
Note: Any California lifer whose file contains unwanted references to BPT requirements to attend AA or NA should write the BPT and CDC to request expungement of their files prior to their next hearing. Of course, dealing with substance abuse remains a valid concern for parole, and those affected should seek secular treatment/counseling if they object to AA or NA.
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