Guardians as Gatekeepers and Other Issues of the Establishment Clause and Parole

By Daniel W. Sack

The United States is relatively unique compared to other countries in two particular areas: how religious its citizens profess to be and how many of its citizens are incarcerated. This Note examines how these two characteristics interact in the parole context with an emphasis on the role of the chaplaincy in such proceedings. Federal courts have wrestled — relatively inconclusively — with where to draw the line between permissible and coercive consideration of religious attributes in the parole setting. Giving religious factors too much weight could potentially pressure inmates into adopting insincere religious habits in the hopes of obtaining favorable treatment; conversely, too little weight could fail to recognize the secular attributes of religious participation that often lend themselves toward rehabilitation. This Note suggests that limited inquiry by parole boards into the structural- or community-based (as opposed to philosophical- or tenet-based) components of an inmate’s religion may be appropriate. So too may be the parole board’s acceptance of a letter of reference from a prison chaplain. Conversely, this Note argues that prison chaplains overstep their bounds and violate the Establishment Clause when they serve on parole boards by putting a coercive force on inmates to become religious or follow a certain religion. This Note ultimately strives to flesh out the complicated and varied ways in which inmates’ freedoms of and from religion intersect with their attempts to obtain freedom through parole.

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