Five Percenters to remain segregated in S.C. prisons, federal court rules

Friday, April 23, 1999

A federal appeals court panel has decided that South Carolina prison officials can continue to keep members of a religious group in solitary confinement, allegedly because they are violent and don't like white people. The court said the Five Percenters could still pray and fast under heightened confinement.

The South Carolina Department of Corrections has kept as many as 70 African-American inmates in solitary confinement since 1995, after instituting a Security Threat Group policy. Four of those African-Americans sued the corrections department, arguing that they are members of the Five Percent Nation of Gods and Earths, or Five Percenters, and were being targeted solely because of their religious beliefs.

In 1997 a federal judge upheld most of the prison policy. The federal district court assumed the Five Percenters was a religious group, but concluded that the prison policy did not unduly infringe upon their free exercise of religion.

On April 21 a three-judge panel of the 4th U.S. Circuit Court of Appeals unanimously agreed with the district court and ruled in favor of the South Carolina Department of Corrections. “Because the SCDC's decision to designate the Five Percenters as [a security threat] is rationally related to the legitimate end of prison safety and security, it does not offend the Free Exercise Clause,” wrote Judge J. Harvie Wilkinson for the panel.

Attorneys for the Southern Center for Human Rights argued on behalf of the inmates that the policy substantially infringed on their religious liberties and that the state had no “compelling interest” in enforcing the policy. Typically when the government attempts to enforce a law that infringes upon fundamental rights, it must meet a high standard to do so – referred to as strict scrutiny or the compelling-interest test.

“The Free Exercise Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment prohibit government policies that target particular religions,” Robert E. Toone, an attorney for the Southern Center, argued before the 4th Circuit. “Because the SCDC's policy of categorical segregation does not apply to any other religious group, it is subject to, and fails, a strict level of scrutiny.”

The 4th Circuit, however, agreed with the district judge that although prisoners do not lose their fundamental right to practice religion, prison officials are given great discretion in maintaining security. In other words, the 4th Circuit said that the government did not have to meet a strict-scrutiny test when dealing with prisoners.

Citing the 1987 U.S. Supreme Court decision in Turner v. Safley, the 4th Circuit said that “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”

Despite arguments from the inmates' attorneys that the beliefs of the Five Percenters promoted “peace and personal strength” and influenced them “to behave peacefully in society,” the 4th Circuit agreed with the state's characterization of the Five Percenters as a group of rabidly anti-white thugs that could wreak havoc on the entire prison population.

The Five Percent Nation was founded in 1964 by Clarence 13X, who broke from the Nation of Islam, then led by Elijah Muhammad. Attorneys for the inmates said that Five Percenters still read the Koran and were “motivated by a concern for teaching people, encouraging them to discover spiritual enlightenment and manifest their gifts.”

The 4th Circuit concluded that the corrections department had plenty of information to justify its concern that the Five Percenters were a security threat. When the policy was implemented in 1995, Michael Moore, director of the state corrections department, had a federal intelligence summary referring to the Five Percenters as a “radical Islamic sect/criminal group” that “is often boldly racist in its views, prolific in its criminal activities, and operates behind a façade of cultural and religious rhetoric.”

Moreover, the 4th Circuit relied on evidence by the corrections director that the Five Percenters had engaged in several “serious acts of violence in the SCDC system,” and said Moore had presented proof that the inmates were a “racist and violent group” that posed a threat to prison security.

“In light of the information that Moore had before him, the decision to designate the Five Percenters as [a security threat] was eminently rational,” Wilkinson wrote.

Wilkinson also said that placing the Five Percenters in solitary confinement did not unduly impinge on their ability to practice their faith. “Even in high-security confinement the Five Percenters remain free to pray, fast, and study religious materials,” he wrote. “Although the inmates are unable to participate in group meetings, they are not deprived of all means of expression.”

Toone called the 4th Circuit ruling “shameful” and said an appeal to the U.S. Supreme Court would be sought.

“I certainly think no court would ever have treated Baptists or mainstream Christians in this way,” Toone said. “To suggest that the Five Percenters can still practice their faith under the South Carolina policy is like saying Romans never persecuted Christians, because Christians could still pray and fast in their jail cells.”

Toone reiterated an argument he made before the 4th Circuit that the First Amendment protects a wide array of religious beliefs, even those not understood or respected by Christians.