Group of S.C. inmates fights policy of segregation

Monday, April 19, 1999

Since 1995 as many as 70 African-American inmates have been kept in solitary confinement in South Carolina because the state corrections department considers them a threat to white people and the prison population in general. Four of the inmates, however, say they are members of a religious group that is being persecuted by the state and they are seeking help from a federal appeals court.

The inmates, represented by the Southern Center for Human Rights and the South Carolina American Civil Liberties Union, argue that they have been placed in solitary confinement solely because they belong to the Five Percent Nation of Gods and Earths – often called Five Percenters because they believe only 5 % of the population knows and teaches the truth.

Clarence 13X founded the Five Percent Nation in 1964 after he left the Nation of Islam, then headed by Elijah Muhammad. Clarence 13X wrote that he broke from the Nation of Islam in part because he believed young people “had been overlooked by the older Muslims.” According to the South Carolina inmates, many Five Percenters, however, still read the Koran and Elijah Muhammad's “Message to the Black Man.” Some members also reject organized religion, call their “nation” a culture, and believe that a scientist created white people and that only black men are gods.

Attorneys for the South Carolina Five Percenters argue that the group is indeed a religious body motivated by “a concern for teaching people, encouraging them to discover spiritual enlightenment and manifest their gifts,” and that it believes “each person has within himself the capacity to grow spiritually and move through the lessons of faith.” Moreover, the attorneys argue that the Five Percenter belief system “is a source of peace and personal strength for many of its members, influencing them to behave peacefully in society and improve their relationships with family members.”

The South Carolina Department of Corrections, as well as prison authorities in New York, New Jersey, Massachusetts, Ohio and the federal Bureau of Prisons, have a much different view of the Five Percenters. All those prisons classify the Five Percenters as a gang and a security threat. In 1995, Mike Moore, director of the South Carolina Department of Corrections, instituted a policy that required segregating Five Percenters and those thought to be in the group from the general prison population. The only way members of the Five Percenters could rejoin other prisoners was to renounce their affiliation. That policy also barred all Five Percenters literature.

In late 1997 a federal judge in South Carolina upheld, in Mickle v. Michael Moore, most of the prison policy. Although the court followed a magistrate's “assumption that the Five Percenters are a religion,” it ruled the policy of solitary confinement did not unduly hamper the group's religious liberties.

“It is apparent from the record that, while the restrictions will hinder the Plaintiffs' abilities to practice their religion somewhat, it will not foreclose all, or even most, of Plaintiffs' religious practices,” Judge Patrick Michael Duffy wrote.

Duffy said the corrections department had ample reason to justify placing the Five Percenters in solitary confinement. Specifically, Duffy said proof that members engaged in violent acts and “adhered to certain racially-biased philosophies” gave prison officials the reasonable belief that “prison security would be improved by segregating the Five Percenters from the rest of the prison population.”

Duffy, however, did conclude that an “outright ban on Five Percenters' literature is too restrictive.”

The South Carolina Five Percenters' case is now before the 4th U.S. Circuit Court of Appeals. The members want the appeals court to overturn Duffy's conclusion that the prison policy did not violate the group's religious rights. Attorneys for the group argued last month before the court that prison officials could not use the Five Percenters' religious beliefs as a justification for placing them in solitary confinement.

In their brief before the 4th Circuit, the Five Percenters' attorneys cited Shahid Allah, an expert on the Five Percent Nation, in support of their contention that the Five Percenters do not warrant being treated like thugs.

“It is my understanding that the South Carolina Department of Corrections considers the Five Percents to be no more than a gang,” Shahid Allah said. “This is most definitely not true. A gang is concerned with turf battles, harming non-gang members, and engaging in illegal activities such as selling drugs. This is precisely what Clarence 13X sought to combat when he took the message of the Five Percents to the streets. The Five Percent are concerned about spiritual development, community control, and education. Gangs are not concerned about this at all. The Five Percent are peacemakers. Gangs are concerned with causing havoc.”

Yusuf Nuruddin, a Seton Hall Professor who has studied the Five Percenters, recently told National Public Radio that prison officials' effort to pigeonhole the group as anti-white was also disingenuous.

“To characterize this group as black supremacists is a gross mischaracterization,” Nuruddin said. “But I think this kind of mischaracterization is responsible for the kinds of problems that you see emanating in the prisons.”

Robert E. Toone, one of the attorneys for the Southern Center for Human Rights and who is arguing on behalf the South Carolina inmates, said that the characterization of the group has been put forward by prison officials to justify their policy. According to Toone, the policy targets Five Percenters because of their religious beliefs and substantially infringes upon their right to practice those beliefs.

“The segregated isolation to which Five Percenters are subjected is extremely harsh,” Toone wrote in a brief filed with the appeals court. “Inmates must remain in their cells at least 23 hours per day, receiving only five hours of out-of-cell exercise per week. Segregated inmates may not participate in prison programs, including work, school, or even in-cell study programs.”

Moreover, the only way for Five Percenters to be released from segregation is to renounce their belief in the group. “Many inmates have remained in segregation since this policy went into effect over three years ago,” Toone said. “Faithful to their convictions, they refuse to renounce their religious beliefs to obtain release from segregation.”

The attorneys for the inmates argue that South Carolina prison officials cannot continue to enforce the segregation policy because it targets the Five Percenters for their religious beliefs and substantially infringes upon their ability to adhere to them.

Citing the 1986 U.S. Supreme Court decision in Dettmer v. Landon, Toone said that “it is well established that the First Amendment protects an extremely wide spectrum of religious beliefs, even those that are not 'acceptable, logical, consistent, or comprehensible to others.'”

The South Carolina Department of Corrections, however, has asked the 4th Circuit to let the district court decision stand. According to Moore and attorneys for the corrections department, the policy toward the Five Percent Nation does not subvert the First Amendment and was created for security reasons.

According to the corrections department, “the Five Percenters have been a very assertive group of inmates who try to undermine authority and try to establish control over other inmates.” In its brief before the 4th Circuit, the corrections department argues that since 1995, Five Percenters have engaged in violent acts in several state prisons.

The department cited a 1995 incident at Broad River Correctional Institute in which it claims a group of Five Percenters took a guard and two other employees hostage and stabbed, pummeled and doused with scalding water six other guards.

Citing the U.S. Supreme Court's 1987 decision in Turner v. Safley, the state argues that “the law is well-established that 'when a prison regulation impinges on an inmate's constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.'”

David C. Eckstrom, a Columbia, S.C., attorney and lead counsel for the corrections department claims the prison policy is justified. “The decision to designate them a security threat group was made to further the important governmental interest of institutional safety and security, and was unrelated to the suppression of expression,” Eckstrom states in a brief before the 4th Circuit.

Eckstrom cites a list of examples culled from prison “intelligence” that suggest the Five Percenters are “rebellious” and “resistant to authority.” Eckstrom wrote that the Five Percenters are “a fear-based group who roam as a wolfpack and their members engage in strong arming and assaults.”

If the Five Percenters were released from segregated confinement, there would be a potential for more violence within the prison system and inmates, staff and “the public would be less safe than they are now,” Eckstrom argued.