In July 2020, when COVID-19 was wreaking havoc in prisons all over the country, Musa Bey was locked up in an Arizona prison. In the main wing of the prison, a couple of people contracted COVID. Instead of separating them to a different wing, prison officials kept them where they could infect others. So, Bey and five others spoke with the staff and conveyed that they felt unsafe living in close confinement with prisoners who had tested positive for COVID. Bey told them that he preferred to be moved to a closed facility that had cells instead of dorms. But prison officials interpreted this communication as a sign of the prisoners rebelling and decided to move them to a different, higher security facility called the Browning Unit.
As they were preparing to transfer them, they lined them up against the wall. “Prison officials started making a lot of comments,” said Bey. “Like, you guys think you’re all this, you think you’re all that. I don’t know what we’ll do to all you in here. Ain’t no cameras here, they can’t see us.”
Then, when Bey least expected it, the guards chained him, grabbed some clippers and shaved his beard off. “I said to him, look I’m a Muslim, don’t shave my beard, and they proceeded to shave the beard off forcefully,” said Bey.
After this incident Bey filed a grievance, addressing what happened to him and what he wanted the prison to do about it. The prison denied his grievance, which led him to appeal but that was denied to. Then, a year later, Bey followed the path taken by many incarcerated Muslims before him — he filed a civil lawsuit.
“The Muslim community is most tenacious when it comes to bringing lawsuits,” said Bey, “The overall majority of lawsuits that I’ve heard of that has been brought and won has been specifically by the Muslim community. One of the reasons why I think this is the case is because we have the will to go against injustice and do our best to combat it.”
Obstacles to Litigation
There are challenges to filing a lawsuit when you’re in prison. For starters, gathering information for your case can be next to impossible.
“It was easy to bring it. It was difficult to understand how to seek it all the way through to the end,” said Bey. “When you are in that position, they make the claim that they can’t be sending this information to you because it’s a security issue. Every time I made a motion to get some type of discovery or camera footage, the response was that this is a security issue, so we could not divulge this information.”
Access to law libraries varies from prison to prison. Some prisons make it easier for incarcerated people to access law texts, others eliminate the law library entirely. Hakim Muhammad, an incarcerated Muslim who’s a member of Jailhouse Lawyers Speak, the largest prisoner-led organization fighting for incarcerated peoples’ human rights, mentioned that a previous prison he was in closed down their law library and instead used computers or tablets, which had limited search capabilities. “In today’s prisons we are hearing of traditional libraries being shut down in a lot of places,” Muhammad said. “It is my opinion that the presence of traditional law libraries is crucial for prisoners to conduct legal research.”
Incarcerated people filing lawsuits also face dangerous retaliation from prison officials. Muhammad said those who have filed lawsuits have subsequently faced threats, beatings, setups, transfers to other prisons, and other forms of harassment.
Prison lawyers also contend with obstacles put in place through federal legislation. In 1995, Congress passed the Prison Litigation Reform Act (PLRA), limiting the few rights that incarcerated people had to advocate against injustice. The act requires that before an incarcerated person files a lawsuit in court, they must exhaust all levels of the prison or jail’s grievance system. Experts find this proposition problematic due to the fact that prison officials, who may be involved in the abuse or discrimination, could be in charge of the jail or prison’s grievance system and could easily deny a prisoner’s request. The act also prevents incarcerated people from recovering compensation for mental or physical injuries, including if a person was sexually assaulted by prison staff. It also initiates a three-strikes rule that forbids incarcerated people to file a lawsuit at a federal court after three claims have been dismissed as frivolous. During the Senate debate on an early version of the PLRA, Sen. Robert Dole said, “This amendment will help put an end to the inmate litigation fun and games.”
But describing this litigation as “fun and games” ignores the abuse that incarcerated people go through in prison and the intense work they do to understand American law in order to advocate for their rights.
The Legacy of Muslim Self-Advocacy
Even with the PLRA, prison transfers and the threat of solitary confinement, incarcerated Muslims have remained particularly committed to advocating for their rights and ending injustice in the prisons. “These and other forms of retaliation should never discourage us from fighting for justice and defending the rights of those who are known to be voiceless within the prison system,” said Muhammad. “I have been transferred a few times for my work. Since being labeled as an organizer with the Jailhouse Lawyers Speak circles, I have found my custody level restricted as I’ve been labeled a security threat by prisons. Even with all that… I have refused to be broken and work continues.”
Incarcerated Muslims have a long history of shaping prison litigation that continues to affect the lives of incarcerated people today. Scholar Clair A. Cripe has described the impact of Muslim litigation as a “correctional law revolution and the beginning of an evolving concern of the courts in correctional matters.”
The story starts during World War II, when at the end of 1943, 200 Muslim men were arrested and served time in federal prison for draft violations. This was the seed that allowed Muslims to have a growing presence in prisons. Prison officials describe Muslims as “meek but potentially dangerous.” Right away these Muslims noticed the lack of religious accommodations that were given to Muslims in prison. They didn’t have access to the Quran, they couldn’t pray five times a day and they were regularly served pork.
In the 1950s, incarcerated Muslims began challenging prisons on their lack of religious accommodations. One of the first challengers was a very young Malcolm X, who was transferred from Charlestown State Prison to Norfolk Prison Colony in Massachusetts (now Massachusetts Correctional Institution-Norfolk) on March 31, 1948. He started a rigorous writing campaign to the prison commissioner documenting all aspects of racial and religious discrimination incidents. According to Garrett Felber’s book Those Who Know Don’t Say: The Nation of Islam, the Black Freedom Movement, and the Carceral State, this source would be used in years to come in the prison litigation movement. Felber notes that in one of the letters, Malcolm X writes to the commissioner:
Can the laws of this state deprive one from one’s God-given rights. Can it deprive one from the right to exercise in one’s speech, thoughts and practice. One’s conscientious views concerning one’s people, one’s God, and one’s conception of what constitutes a devil simply because one is an inmate in a penal institution and because one’s skin is Black. Can it deprive one from discussion, letters to one’s people, the history and religion of one’s people. Is there a monopoly on truth?
Malcolm and other Muslims also demanded that their prison cells face east, refused to eat pork and called for an end to the use of solitary confinement as a punishment for religious political beliefs. As the years went by without improvements in the treatment of incarcerated Muslims, Muslims continued to escalate their protest strategy by forming hunger strikes, sit-ins, and similar protest tactics modeled off the civil rights movement. In 1961, when 30 Muslims were put in solitary confinement at Attica prison in New York, other Muslims started flooding the confinement cell in protest and demanding the release of the 30. In 1963, 60 Muslims in San Quentin prison held a work strike. They had a list of demands that included religious recognition, arresting a prison official responsible for killing an incarcerated Muslim, setting up a meeting with the Marin County district attorney and receiving permission to petition the U.S. president. Even with this act of protest, the treatment of Muslims didn’t change — it only got worse. The warden arrested the 60 Muslims and threw them in solitary confinement.
“Eventually they had to change their organizing because so many were being punished and sent to isolation,” said Toussaint Losier, associate professor in the W.E.B. Du Bois Department of Afro-American Studies at the University of Massachusetts-Amherst. “They ultimately had to turn down this kind of protest activity that they had taken up before and rely on litigation by filling up court cases to try to get some outside assistance.”
This was a big move by incarcerated Muslims to use the courts to address religious discrimination, and it was challenging. People in prison were considered slaves of the state due to the 1871 Supreme Court ruling in Ruffin v. Commonwealth, a decision the court has still not overturned. The courts made it clear that they won’t be involved in decision-making within prisons and would have a hands-off approach.
However, this didn’t discourage Muslims. As early as the 1950s, incarcerated Muslims were writing lawsuits by hand and filing them to the courts. For example, in California, 814 habeas corpus petitions were filed by incarcerated Muslims in 1957. In the 1960s, Muslim organizing regarding court filings grew into a movement that spanned to prisons in New York, California, Illinois, Texas and Virginia.
There’s no one more instrumental in filing court cases and encouraging other Muslims to take action than the prolific jailhouse lawyer Martin Sostre. Sostre went to prison in 1952, spent half of his prison sentence in solitary confinement, joined the Nation of Islam and became a jailhouse lawyer at Attica prison. He started making writ, writing templates and instructing Muslims on filing lawsuits.
In his 1973 book, The New Prisoner, Sostre wrote, “State Attorney General was forced to set up a special bureau to handle the scores of Muslim complaints flooding the courts, and how the Muslim struggle evolved into the revolutionary struggle which led to the Attica Rebellion.”
Incarcerated Muslims would handwrite lawsuits and file them to the courts, leading the courts to be flooded with prisoner lawsuits. Between 1961 and 1978, 66 reported federal court decisions were made in cases filed by Muslims in prison. Five thousand habeas corpus petitions were submitted to the court in California in 1965 alone, according to scholar Garett Felber’s research. In San Quentin, incarcerated Muslims submitted 300 petitions a month. Arthur Johnson, who converted to Islam in prison during this time, remembers that “11 of us put in writs to the court asking for their right to religious freedom.”
This blew the minds of several judges. One judge told the Evening Star that he “has heard dozens of suits filed by Black Muslims in recent months and has at least 10 others pending.” And one court expressed suspicions of these lawsuits, saying, “These are not cases where uneducated, inexperienced and helpless plaintiffs are involved. The similarity of the complaints, prepared while the plaintiffs were not supposed to be in communication with each other taken together with the number of complaints directed to this court by these plaintiffs and others of the same sect, indicates that these applicants are part of a movement.”
“The reason why they were successful,” said Losier, “is because they took up their action collectively. They shared information amongst each other, like ‘Hey I tried to file my lawsuit this way and it didn’t work.’ The fact that they were able to learn from their failures that they each had would lay the foundation for their success.”
SpearIt, a law scholar at the University of Pittsburgh who has written a book about the role that Muslims had in shaping prison litigation, says that part of their success was their persistence despite the knowledge that the federal court won’t help them. “That persistence is why I study this stuff,” SpearIt told Truthout, “Because it’s so fascinating that we see that the law can change, we’re seeing this right now with Roe v. Wade. This got overturned, the whole country is upside down. It’s like they had a deeper understanding of the law that many out here do not.”
Which leads to another reason why incarcerated people were so successful in filing lawsuits to the court: The court’s ideology was shifting. During the ‘50s and ‘60s, the U.S. Supreme Court was becoming more progressive minded, ruling on cases like Brown v. Board of Education, which ended school segregation and segregation more broadly; Gideon v. Wainwright, that guaranteed criminal defendants the right to have an attorney represent them; and Miranda v. Arizona, which affirmed specific rights after an arrest. It also created the Miranda statement: You have the right to remain silent. Anything you say can and will be used against you in a court of law. This time in Supreme Court history is referred to as the Warren Court, named after Chief Justice Earl Warren, who was a liberal Republican. In his early days, Warren was a law-and-order justice. As California’s attorney general during World War II, he played a role in the internment of Japanese Americans. But after he was appointed chief justice in 1953, his views became more progressive.
This was happening at the exact same time as incarcerated Muslims were slowly moving their way to the Supreme Court. However, the more lawsuits that Muslims filed, the more prison officials tried to curb their efforts. In his book, Those Who Say Don’t Know and Those Who Know Don’t Say, Garrett A. Felber writes:
The writ writing struggles of Muslims at Attica revealed the ways that prisons did in fact attempt to interference with court access by limiting legal advice, intimidating writ writers and disrupting the legal process through solitary confinement. Just as grandfather clauses and poll taxes worked as state mechanisms to disenfranchise southern Black voters, rules governing legal access and jailhouse lawyering sought to curb the legal, literacy and courtroom access to Black inmates.
Prison officials would heavily surveil Muslims and continue to throw them in solitary confinement or transfer them to other prisons. In a hearing in the early 1960s, the New York State Commissioner of Corrections Paul McGinnis said, “All of my contact with this particular sect, my reading, my contact, is the fact it is an organization which preaches hate and subversive activity.” When that didn’t work, prison officials tried to eliminate their use of writing. In Attica, they made a rule that no incarcerated person can provide legal assistance. In Texas, legal materials were confiscated and in California they implemented rule D-2602, which says that writ or other legal material in a cell is prison lawyering.
Incarcerated Muslims Reach the Supreme Court
Despite all the efforts that prison officials made to curb incarcerated Muslims’ legal activities, in 1964 they finally had a court case that went all the way to the Supreme Court: Cooper v. Pate. Thomas X Cooper grew up in the West Englewood neighborhood of Chicago. On February 5, 1953, he was sentenced to prison and incarcerated in Statesville prison. He was Roman Catholic when he arrived in prison, but quickly started getting interested in Islam and eventually converted. When the warden at Statesville found out that Cooper was interested in Islam and was corresponding with Nation of Islam leader Elijah Muhammad, he created a policy restricting Muslim prisoners from practicing their religion. The prison also banned all Islamic religious services and visits from Islamic religious leaders. Cooper wasn’t pleased with this policy, so he wrote to the Illinois director of public safety in 1958 and1959 about the prison’s restriction on religious services and materials like the Quran. The warden offered Cooper a choice, either follow the rules or be locked up in solitary confinement. Cooper continued to speak out and the warden put him in solitary confinement. He was locked up there for eight years.
“Cooper had already been in long term isolation,” said Losier. “When the warden told them that you want to have your rights respected, you might as well go to the courts because I’m not going to do anything differently.”
That is exactly what Cooper did. On July 5, 1962, without any legal assistance, he filed a handwritten court case addressing the treatment that he faced as a Muslim.
Section 1983 under the 1871 Civil Rights Act — often called the KKK Act — was the third in a series of “Enforcement Acts” that were originally used to protect recently freed enslaved people from violence in the South by enabling federal courts to sue people who are acting under state authority, such as police officers, prison guards and public officials.
But in the 1960s, section 1983 was used for a different purpose in several state court cases involving Muslims in prison. For example, Sewell v. Pegelow and Fulwood v. Clemmer cited Section 1983 of the Civil Rights Act in their lawsuits. Cooper followed their lead. Five months after Cooper filed his lawsuit, the Seventh Circuit Court of Appeals dismissed the case, saying that there were:
“potentially serious dangers to the established prison society presented by Muslim beliefs and actions,” the Director of Correction’s suppressive approach to the problem was held not an abuse of discretion.
Therefore, the inherently dangerous nature of the Muslim “religion” both within and without the Illinois Penitentiary System is manifest.…
While no court has attempted, as far as we know, to define “religion” or to hold that the Black Muslim Movement is not “religious,” there is no question but that certain movements, for example, the Communist Movement, are so dangerous to society that much of the protection of the Fourteenth and First Amendments is denied.
Once the Seventh Circuit of Appeals dismissed the case, Cooper appealed to the U.S. Supreme Court. When it reached the Supreme Court in 1964, the former warden at Stateville prison and then-state commissioner wrote to the U.S. attorney general, saying, “It would be impossible for me to stress strongly the importance of Cooper’s case to the penitentiary system. There is absolutely no question but that the Black Muslims are dedicated to destroying discipline and authority in the prison system. Any concession is a step towards chaos.” But nonetheless, in 1964, with a more progressive Warren Court in the mix, the justices issued a one-paragraph decision supporting Cooper’s writ and legitimate claim, allowing him and other Muslims to obtain a Quran.
This was a huge achievement. The case not only finally cemented the religious rights of incarcerated Muslims, but also broke the dam and ended the courts’ hands-off approach to prisons.
“Cooper’s case took what had been a prison by prison, case by case question, and really made it a broader universal question in term of saying how much control that prison officials have to deny people their religious rights,” said Losier.
The Cooper decision energized the prison rights movement and inspired many people in prison to use the courts to advocate for their rights. Other religious groups in prison such as Jews, Wiccans, Mormons and Native Americans were so inspired by Muslims that they followed their lead and cited their court cases when filing their own lawsuits. “I don’t think that people are aware just how profoundly impactful” Muslims have been as a religious group in prison, SpearIt said, adding that they “have changed the course of prison law and culture.”
Turning Religious Freedom on Its Head
Religion continues to be a very contentious issue in the courts. Unlike the Warren Court which had expanded the religious rights of incarcerated people after the Cooper case, the current conservative Supreme Court has increasingly used the doctrine of religious freedom to restrict individual rights in cases such as Burwell v. Hobby Lobby, which allowed closely held corporations to deny employees health coverage for birth control due to their religious beliefs. Frank Ravitch, professor of law and Walter H. Stowers Chair in Law and Religion at Michigan State University College of Law, told Truthout, “We have a Supreme Court that’s overdoing it with religious freedom but we have a public that’s increasingly opposed to it. Reality is, the long-term damage of Hobby Lobby may not be seen for 10 years.” Of course, the Hobby Lobby case was also a precursor of the overturning of Roe v. Wade in 2022.
But the saga of religion and the courts goes way beyond our current moment. “In the 21st century, freedom of religion cases are like corporations who don’t want to pay for birth control. But in the 20th century, it was more these kinds of [cases like Cooper] about religious minorities,” said Joshua Dubler, an associate professor of religion at the University of Rochester. This chapter of religion and the courts was about Muslims who were motivated by their faith to change prison conditions, not only to win the right to practice their faith, but also to limit the use of solitary confinement, create better working conditions and demand better food options. “Martin Sostre used to say that these are the tools to fight against Satan. He would say this is how we fight in this era is to use our paper and pen,” said SpearIt.
But during this time, Islam was still not protected under the law. “We have to realize … that Islam wasn’t recognized as a religion in many prisons,” said SpearIt. “Even some courts were completely ignorant. There was one court case where the judge said that the prisoner is calling this thing a Quran. For our purposes we are going to call it the Muslim Bible.”
Even after Cooper, Muslims continued to advocate for their religious rights and the rights of others. Thomas Berg, James L. Oberstar Professor of Law and Public Policy at the University of St. Thomas School of Law explained, “Muslims are disproportionately overrepresented in prison and disproportionately overrepresented in religious exercise claims. So just the sheer number and composition of cases means that Muslims’ claims are shaping the course of litigation.” In 2000, the Religious Land Use and Institutionalized Persons Act (RLUIPA) was enacted by Congress. It was a law that incarcerated people could use to advocate for their religious claims. Afterward, incarcerated Muslims overwhelmingly used RLUIPA in their religious claims to the court.
One the of most important RLUIPA cases, Holt v. Hobbs, was decided as recently as 2015. Gregory Holt was an incarcerated Muslim serving time in an Arkansas prison. He wanted to grow a beard due to his faith, but the prison wouldn’t allow it, claiming that he could hide contraband in it. Holt filed a lawsuit using the RLUIPA clause, which went all the way to the Supreme Court. “The Supreme Court held that first, and most important, state officials have to give a really good reason for preventing someone from carrying out their religious practices even in prison,” Berg explains, “And prison officials don’t get a pass from the court just by saying this is a prison and trust us about security.” The court ultimately ruled that the prison needs to have a compelling interest as to why they are denying a right that burdens prisoners’ religious freedoms. “This is really important for all,” said Ravitch, “and benefited other Muslim plaintiffs as well as a lot of plaintiffs.”
Today, Muslims are more motivated than ever to protect their civil liberties and advocate for better conditions in prison. As Hakim Muhammad, member of Jailhouse Lawyers Speak said, “Abolitionist jailhouse lawyers require an understanding that the system will never eat itself. It will constantly look for ways to reform old patterns. Challenging prison itself with the aim to win is only to alleviate the suffering within a certain degree of confinement.”
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