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Federal Court: Provide a Secular Option, Or Else

Counselor Connection

Barry Hazle is an atheist who, as a condition of parole, was forced to participate in a residential drug treatment program that required him to acknowledge a “higher power.”  When he resisted, California state authorities pulled him out of the program, arrested him, revoked his parole, and sent him back to prison for an additional 100 days.

Hazle sued over the violation of his constitutional rights. In 2007, in the case of Inouye v. Kemna, the federal Ninth Circuit Court of Appeals had ruled that coercing a person to attend a religion-based addiction treatment program violates the First Amendment’s Establishment Clause. The Inouye court reviewed numerous prior cases nationwide examining the Twelve Step program of Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) and held that, without a doubt, these programs were religious in nature. This point, the Inouye court wrote, was “uncommonly well settled” (Inouye v. Kemna, 2007). So well settled, said the court, that no parole officer or other agent of the state concerned with addiction treatment had a credible excuse not to be aware of it. The constitution requires that individuals who object to the religious nature of Twelve Step programs must be offered a secular, non-religious treatment option. 

Nevertheless, despite the Inouye decision, neither the California prison authorities nor the private referral agency linked to the prison system seemed to be aware of the law as it applied to Hazle. The California Department of Corrections and Rehabilitation (CDCR) issued a memo about the issue in 2008, stating that parolees must be “referred to an alternative nonreligious program” (Hazle v. Crofoot, 2013). But Westcare, the referral agency that placed Hazle in a Twelve Step program over his objections, claimed to know nothing about it. Westcare’s spokesperson testified that he did not know what the term “alternative nonreligious programs” meant, that Westcare’s referral network included only Twelve Step programs, that he was not aware of any requirement to provide a non-religious treatment option, and that Westcare had not changed its business model in any way following the Inouye decision. 

When Hazle’s case came to trial in the lower-level federal district court, there was no dispute that Hazle’s constitutional rights had been violated by forcing him into a religion-based program. The law on this point is clear, and neither the CDCR nor Westcare had grounds to challenge it. The main contested issues were three. First, how much was this violation of Hazle’s constitutional rights worth, in dollar damages? Second, was Westcare as a private referral agency responsible for the constitutional violation? Third, what could be done to compel the CDCR and Westcare to modify their referral practices?  

On all of these issues, Hazle lost in the lower court. The judge ruled that Westcare was not responsible, and that Hazle could not get an injunction to force a change in practices. A jury then gave Hazle a zero damages verdict, ruling in effect that his constitutional rights were worthless. These rulings were the main issues in Hazle’s appeal to the Ninth Circuit, and form the core of its decision, issued on August 23 this year. 

As to monetary damages, the unanimous three-judge panel wrote that the jury erred. Constitutional rights are not worthless. The law mandates that persons whose civil rights have been violated must be awarded real monetary relief, and not merely nominal or symbolic awards like one dollar. In Hazle’s case, the 100 days he was forced to spend in prison after resisting the religious program constituted false imprisonment and caused emotional distress. The court ordered a new trial at which the jury would be instructed to award Hazle substantial monetary damages for each day that he was deprived of his liberty. 

As to Westcare, the appellate panel rejected Westcare’s claim that it was not liable. Westcare had an exclusive contract with the State in the Northern California region to create a network of treatment facilities for parolees with drug-related convictions, and to coordinate with the State in placing parolees in these programs. The State had no other referral agency available, and Westcare’s referral network consisted exclusively of Twelve Step programs. 

In a significant footnote, the court rejected Westcare’s argument that Westcare was in the clear because it did not place parolees in programs where they are required to “attend religious events or participate in religious activities” (Hazle v. Crofoot, 2013). The panel wrote that Westcare construed the word “religious” too narrowly, as meaning merely attending church or prayer services, but not including twelve-step programs. The appeals court sent the case back to the lower court with instructions not to exclude Westcare from liability, and to proceed accordingly. 

As to injunctive relief, the appellate panel also rejected the lower court’s decision that nothing need be done because the CDRC’s 2008 directive had already corrected the problem. On the contrary, Westcare’s total ignorance of the directive and Westcare’s failure to bring its business model into line with the law demonstrated that the pattern of constitutional violations continues to exist and requires remediation. The panel sent the case back to the lower court with instructions to fashion appropriate injunctive relief. 

The Hazle decision does not break new ground. Each of its points is squarely based on well-known prior law. What Hazle does is to put teeth into the prior law by requiring both monetary and injunctive relief in case of violations. The higher court clearly felt that its decision in Inouye was being ignored. CDRC had done nothing other than to issue a pro forma memorandum, and, if Westcare is to be believed, CDRC had not distributed it to relevant parties, much less monitored compliance. Everything in the prison system and in its allied treatment system proceeded as if the constitution did not exist. 

The retrial of Hazle’s case is still in the future. The value that a jury will set on a constitutional right remains to be seen. A substantial monetary award would send the message that constitutional rights are meaningful. The constitution was not written only for popular, mainstream people. Its guarantees apply equally to all, even people who fell into addiction and who don’t believe in God. As for Westcare, the lower court is under orders to hold it jointly responsible with the prison authorities for monetary damages. Finally, the court must craft an injunction, certain to be hotly debated, to prevent prison authorities and their allied referral agencies from continuing to abuse inmates’ constitutional rights.

The Hazle decision, like Inouye before it, does not prohibit or restrict treatment programs from using the Twelve Step program; Hazle did not sue the treatment program to which he was referred. What the court is saying is that other non-religious treatment options also need to be made available. Or else. 

 

I am grateful to attorney John Heller of the firm of Rogers Joseph O’Donnell of San Francisco, counsel for Hazle, for his perspective on the case. My email inquiries to counsel for the CDCR and Westcare went unanswered.   

 

References:  

Hazle v. Crofoot, No. 11-15354, (9th Cir. Aug. 23 2013). Retrieved from http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/23/11-15354.pdf

Inouye v. Kemna, 504 F.3d 705, 712, 716 (9th Cir. 2007). Retrieved from http://caselaw.findlaw.com/us-9th-circuit/1008140.html