Inmate has religious-liberty right to Five Percenter material, judge rules

Tuesday, February 29, 2000

A federal judge has turned away an effort by New York prison officials to continue a policy of removing certain religious tracts from an inmate’s cell.

Earlier this month, U.S. District Judge Ronald L. Ellis sided with Patrick Graham, an inmate who is a member of the Five Percent Nation of Gods and Earths, in his federal claim against Sing Sing prison officials for confiscating religious literature from his cell.

Sing Sing officials had asked the judge to dismiss Graham’s lawsuit, arguing that Five Percent Nation of Gods and Earths is not a religion, but a violent gang that is a security threat to white inmates and prison officials. Graham and others are often referred to as Five Percenters, because they believe only 5% of the population knows and teaches the truth.

In 1996, prison officials entered Graham’s cell and removed Five Percenter pamphlets, newspapers, fliers and a digest. Graham filed institutional grievances to no avail. Prison officials continued to cite an inmate regulation that states, in part: “Symbols, flags, emblems, and any other items denoting groups or organizations (with the exception of approved religious articles), can and should, in most cases, be considered contraband” to be confiscated.

The Five Percent Nation was founded in 1964 by Clarence 13X and many members still read the Koran and Elijah Muhammad’s Message to the Black Man. Also, some members prefer to refer to the Nation as a cultural, not religious, group.

The New York Office of the Attorney General argued on behalf of Sing Sing officials that the policy toward the Five Percenters was justified because the group is not a religion and it posed legitimate safety concerns.

Ellis, however, said Graham’s First Amendment rights were subverted by the policy. The judge began his analysis by noting, “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.”

According to the U.S. Supreme Court’s 1987 decision in Turner v. Safley, a prison regulation that infringes on an inmate’s religious liberties is valid only if it is “reasonably related to penological interests.”

In Graham v. Cochran, Ellis wrote that New York prison officials had failed to prove that Graham and other Five Percenters were members of a violent gang. Ellis also said that prison officials failed to show that confiscation of the members’ literature was the least-intrusive option available.

Ellis said it was not the place of state officials to determine whether the Five Percenters were worthy of First Amendment protections.

“The First Amendment protects all religious beliefs, and it is with caution that courts should pass judgment on which beliefs should be accorded that protection,” Ellis wrote. “Defendants argue that Five Percent is not a religion because its followers do not believe in a divine being, do not worship or pray, have no organized hierarchy or structure, and do not believe that the books and lessons which they consult are divinely inspired. It is apparent to the Court that defendants consider these traditions to be the hallmarks of a true ‘religion,’ which exclusively command First Amendment protection. First Amendment protections, however, are not so narrowly circumscribed. The beliefs need not be traditional so long as they are sincere.”

Besides the existence of a sufficient claim to First Amendment protection, Ellis also concluded that the prison officials failed to demonstrate that a “total ban” on Five Percenter literature was constitutional. Ellis said that “viable alternatives,” such as a media review committee, might exist.

Barbara K. Hathaway, who argued the case on behalf of the New York Office of the Attorney General, did not return calls about the court’s ruling.