1st Circuit upholds clean-shaven policy for inmates

Monday, July 18, 2011

A New Hampshire prison policy requiring inmates to be clean-shaven does not violate the religious liberty of a former prison inmate who claimed the policy substantially burdened the practice of his faith as an Orthodox Jew.

The state Department of Corrections contended that the policy furthered various interests, including security, safety and hygiene. The policy did allow inmates to request a waiver for medical or religious reasons:

“Shaving waivers: Inmates declaring membership in recognized faith groups, and demonstrating a sincerely held religious belief in which the growing of facial hair is of religious significance may request a shaving waiver. If approved, the shaving waiver allows an inmate to maintain a ¼-inch neatly trimmed beard.”

Inmate Albert Kuperman sued in federal court, contending that a ¼-inch waiver was not enough for him to practice his faith as an Orthodox Jew, as adherents of his religion wear full beards. He sued under both the First Amendment free-exercise clause and the federal statute known as the Religious Land Use and Institutionalized Persons Act (RLUIPA).

A federal district court granted summary judgment to prison officials in August 2010. Kuperman then appealed to the 1st U.S. Circuit Court of Appeals. A three-judge panel unanimously ruled in favor of prison officials in its July 14 opinion in Kuperman v. Wrenn.

The appeals court applied the test from the U.S. Supreme Court’s decision in Turner v. Safley (1987),  in which the high court declared that prison regulations are constitutional if they are “reasonably related to legitimate penological objectives.” The Supreme Court then articulated four factors, called the “Turner factors” by many lower courts, for courts to use in evaluating constitutional challenges to prison policies:

  • Whether there is a valid, rational connection between the regulation and the legitimate government interest put forward to justify it.
  • Whether alternative means to exercise the right exist.
  • The impact that accommodating the right will have on prison resources.
  • The absence of alternatives to the prison regulation.

New Hampshire prison officials argued that the policy against beards furthered safety, security and hygiene interests. The officials stressed the security benefits, saying that clean-shaven appearances help guards identify inmates more quickly, make it harder for inmates to hide weapons or contraband, and prevent an inmate from quickly changing his appearance if he escapes.

The 1st Circuit panel accepted the security arguments. “Based on Prison Officials’ explanation of the rationale for the shaving regulation, we conclude that they met their burden of demonstrating that it is reasonably related to the legitimate penological interest of maintaining prison security,” the panel wrote.

Kuperman argued that forcing him to shave his beard prevented him from following a central tenet of his religious faith. But the appeals court viewed that second Turner factor differently, saying it required only that the inmate still have other means to expressing his faith as an Orthodox Jew.

“Kuperman has introduced nothing indicating that, other than the shaving regulation, the prison interfered with the free exercise of his religious beliefs,” the panel wrote. “Accordingly, we find the record sufficient to demonstrate that Kuperman had available to him alternative means to exercise his right to free expression of his religion.”

With respect to the third Turner factor — the effect that the religious accommodation would have on prison staff — the panel easily found in favor of prison officials. The panel credited official testimony that allowing some inmates to grow beards and forbidding others would make identification of inmates more difficult and lead to greater resentment among some inmates.

As to the final Turner factor, involving less-restrictive alternatives, the panel also found in favor of prison officials. Kuperman had offered two such alternatives: that prison officials could let inmates with beards  search their own beards in the presence of officers, and that prisons could digitally alter photographs to show what inmates would look like without beards. The panel rejected these alternatives without much discussion.

“Having found that all four of the Turner factors weigh in favor of Prison Officials, we hold that Prison Officials are entitled to summary judgment on Kuperman’s First Amendment claim,” the panel concluded.

The appeals court then addressed Kuperman’s claim under RLUIPA. Prisoners have greater free-exercise of religion rights under RLUIPA than under the First Amendment’s free-exercise clause because RLUIPA requires prison officials to show a compelling government interest advanced in the least restrictive way possible when a prison regulation substantially burdens an inmate’s religious rights.

Prison officials conceded for purposes of summary judgment that the clean-shaven policy imposed a substantial burden on Kuperman’s religious beliefs. This meant that prison officials had to convince the court that they had a compelling government interest in the policy, and that it was the least restrictive way to advance its security interests. They succeeded.

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