Lawsuit May Force Change in Prison Ban on Beards

Ray Morrison believes that shaving his beard would betray the tenets of his Orthodox Jewish faith. At the state prison in Lancaster, where Morrison is serving a 10-year sentence for assault with a semiautomatic weapon, he is paying a price for that belief.

The state Department of Corrections does not allow prisoners to grow facial hair, and Morrison, 38, has been punished nine times for refusing to shave. Since his incarceration in 1997, he has lost phone and visitation privileges, been placed in solitary confinement and sacrificed “good-time” credits that would have reduced his sentence.

“I’ve said to Raymond, ‘Please, please shave the beard,’ ” said his mother, Donna Goldstein-Kekstadt. Yet her son has refused, she said, saying that he is committed to abide by the rules of the faith he adopted in prison.

California corrections officials imposed the ban on long hair or facial hair on male prisoners in 1997, the year an inmate shaved his beard and walked out, unrecognized, from a San Diego County prison. But in the coming weeks, a federal lawsuit filed by Muslim prisoners in Solano may force the state to allow inmates to grow beards, if it’s part of their religious custom.

Security Issue

The prospect frightens prison guards, who say the ability to tell who’s who can be a matter of life and death in a maximum-security lockup. But inmate advocates say the change would restore one of the many prisoner privileges lost since the tough-on-crime 1990s, when California corrections officials tightened rules on visitation, exercise, clothing and hairstyles.

“This would be an important step toward recognizing that people in prison do retain certain constitutional rights,” said attorney Steve Fama of the nonprofit Prison Law Office in San Rafael.

The challenge to the beard ban, which is under review by the 9th Circuit Court of Appeals, contends that it violates prisoners’ 1st Amendment right to exercise their religion. But because prison officials say long beards can hide weapons and drugs, the lawsuit calls for facial hair only a half-inch long or less, said Susan Christian, the attorney for the inmates.

Preliminary Injunction

The 300 Muslims at Solano state prison have been allowed to wear beards since February, when U.S. District Court Judge Lawrence K. Karlton granted a preliminary injunction. California has appealed the lower court’s decision. If the appeal is unsuccessful and the state does not take the case to the U.S. Supreme Court, the beard ban would have to be altered for all California prisons, the state attorney general’s office said.

That would not sit well with the California Department of Corrections. Spokesman Russ Heimerich said that even short beards allow inmates to radically alter their appearances, increasing their chances of escape.

“This is more than just a religious freedom issue,” Heimerich said. “It’s a safety and security issue, pure and simple.”

State officials are not worried about whiskers alone. They are also challenging the constitutionality of the federal law that Karlton relied on when he issued the Solano injunction.

That law, the Religious Land Use and Institutionalized Persons Act, creates a more stringent legal test for prison regulations that inhibit religious practices. Before its passage in 2000, prison officials had to prove that such regulations served a legitimate purpose. Now, they must prove that the rules are the “least restrictive” way to achieve security goals.

The California attorney general’s office argues that Congress overstepped its constitutional powers in passing the law. State attorneys have also argued that the law violates the 1st Amendment because it gives religious prisoners more rights than their non-religious counterparts.

In California, Deputy Atty. Gen. Tami Warwick said the law could eventually be used to alter many other prison regulations, costing untold millions and putting prisoners’ rights ahead of prison safety.

The state is facing a number of other lawsuits whose outcomes may hinge on the appeals court’s decision, she said.

Among them is a challenge to the long-hair ban, which has been criticized by Native Americans and Sikhs. Many Native Americans cut their hair only when in mourning, and Sikhs do not cut any body hair.

But Warwick is also worried that the new law could be invoked to protect the most unorthodox and personal concepts of “religious” observance, forcing wardens and guards to sort out esoteric theological issues that even scholars disagree on.

Indeed, the idea that men must wear beards is not shared by all Muslims, nor is it shared by all Jews. While the Muslims at Solano believe the half-inch beard is an acceptable compromise, Morrison refuses to cut his beard at all, Goldstein-Kekstadt said.

Although less-Orthodox Jews might compromise, experts acknowledge that some traditions justify Morrison’s position. But the interpretation of some extremist groups of what constitutes “religion” is proving more troublesome.

In Ohio, for example, some imprisoned white power groups say they are practitioners of Asatru, the pre-Christian religion of the Vikings, according to Todd Marti, an assistant solicitor in the Ohio attorney general’s office. As symbols of their faith, they often wear chains with symbols of the god Thor.

Conveniently, the chains also signify gang rank, Marti said.

Ohio, along with six other states, Puerto Rico and the Virgin Islands, mentioned these concerns in a friend-of-court brief filed earlier this year in support of California’s appeal.

“Under the old law, we had a rational basis for stopping these things,” Marti said. “Now we have to show that we have the least-restrictive regulation.”

Regulations Vary

Grooming regulations at state prison systems vary: Ohio prisoners, for example, are allowed to wear half-inch beards. In federal prisons, facial hair has been allowed since the 1970s. When federal inmates change their appearances, prison guards simply take new security photos of them.

Aaron Levinson, director of the Anti-Defamation League’s San Fernando Valley office, has asked California prison officials to switch to a similar system so inmates such as Morrison can grow beards.

The department has rejected the idea. Heimerich has said it would be too expensive and complicated.

Still, Levinson and Goldstein-Kekstadt say they are amazed that prisoners rounded up during the war in Afghanistan have more latitude than Morrison, a U.S. citizen.

Although some of the 600 detainees at Guantanamo Bay, Cuba, were initially forced to shave their beards, they have since been allowed to grow them out, according to Lt. Cmdr. Barbara Burfeind, a U.S. Navy spokeswoman.

“We’re bending over backward for the Al Qaeda prisoners,” Levinson said. “In California, our own citizens are being treated worse.”

Goldstein-Kekstadt is trying to have her son transferred to her home state of Illinois, where state prisoners can grow long beards, but are limited to non-contact visits and subjected to more intense searches.

Thus far, she has been unsuccessful.

While Morrison has been punished at Lancaster for refusing to shave, he has not been forced to remove his beard. In addition to those citations, he has been cited for violations, including fighting and possession of alcohol.

“He’s not a model inmate,” Lt. Ron Nipper said. “He’s got his beard. He can work that out with the courts.”