Wednesday, June 01, 2011

McCollum v. California Department of Corrections (9th Cir. - June 1, 2011)

My initial reaction to this case was a negative one.  Not the opinion, but the case.  I'm not surprised that the California Department of Corrections pays for Catholic, Protestant, Jewish, Muslim, etc. chaplains but does not retain a specialized Wiccan chaplain.  Some religions are popular.  Some aren't.  It makes sense that a prison might retain a specialist in the popular areas (and have 'em serve the unpopular ones as well) but not the unpopular ones.  After all, you can have a religion of one, if you'd like.  But you can't expect your prison to necessarily cater to your individual religion by appointing a specialist.  It doesn't work like that.  So I'm not particularly sympathetic to the plaintiff here.

The Ninth Circuit gets rid of the case on procedural grounds, which is what it is.  My reaction was largely to the merits.  It's not that I'm not sympathetic to the problem of religious discrimination.  I am.  Truly.  But in a context like a prison, I think it makes more sense to do what California has done than to pay for a specialist in every religion.  That's unduly burdensome, and not required by either the Constitution or federal law.

I was, however, fascinated by the statistics the Ninth Circuit cites with respect to the religious preferences of inmates in California.  According to these statistics, in 2002, there were 20,901 Protestant inmates, 11,351 Catholics, 1,773 Muslims, 1,482 Native American, 306 Jews, and 4,155 "others".  Those numbers don't seem radically far off from the overall U.S. demographics.  More Native Americans (obviously) than in the U.S. generally, but that's presumably because of federalization of tribal offenses, and more Muslims (I rankly speculate) because of the overrepresentation of African-Americans both in that religion and in prision.

But the first thing that shocked me was this:  598 Wiccans.  Seriously?  More Wiccans than, for example, Jewish inmates?  Wow.  The former clearly seems to be a religion that attracts the "bad boys".

So that was my first surprise  But here was the second.  Look at the 2007 figures:  42,666 Protestant inmates, 28,884 Muslims, 23,160 Catholics, 8,296 Native American inmates, 3,296 Jews, 183 Wiccans, and 2,678 others.  First, what an explosion in sheer numbers, and in five short years.  Virtually every group more than doubles.  Second, look at the explosion of Muslim inmates.  Increases sixteen-fold in five years.  Maybe that's the result of conversions and/or post-9/11 incarcerations.  Regardless, it's pretty shocking.  Plus, what's the deal with the tenfold rise in Jewish prisoners?  Again, in simply five years.  Wow.  I can't even figure out what's going on there.

The only group that's on the decline is the Wiccans.  Which is either because they're getting their act together  or because it's a religion on the downslope.  Less cool in 2007 than in 2002, most likely.  Sorry about that.  Don't even get your own chaplain.

Interesting numbers and interesting constitutional challenges.