Supreme Court Says Discrimination Is OK — If You’re a Muslim

At the end of March, the Supreme Court allowed the stay of Patrick Murphy’s execution on the basis that his Buddhist spiritual adviser was not permitted to be present during the execution — a right granted to prisoners of other faiths. Only a month before, the Supreme Court effectively denied the same rights to stay Domineque Ray, a Muslim on death row.

Justice Brett Kavanaugh, in his concurring opinion granting Murphy’s stay, wrote, “As this Court has repeatedly held, governmental discrimination against religion — in particular, discrimination against religious persons, religious organizations, and religious speech — violates the Constitution.” Hypocritically, Kavanaugh voted to vacate the Eleventh Circuit’s stay on Ray’s execution, in a nearly identical case, ostensibly rendering judgment on the case based on a procedural technicality rather than the substantive constitutional issue.

In fact, Justice Elena Kagan’s scathing defense in Ray’s case illustrates that the substantive constitutional issue in both cases was identical: “A Christian prisoner may have a minister of his own faith accompany him into the execution chamber to say his last rites. But if an inmate practices a different religion — whether Islam, Judaism, or any other — he may not die with a minister of his faith by his side. That treatment goes against the Establishment Clause’s core principle of denominational neutrality.”

Even in death, Muslim prisoners are treated differently than their counterparts of other faiths — as a distinct, disenfranchised class on the basis of their religious identity.

For example, three incarcerated Muslims filed a federal lawsuit in 2017 alleging that prison guards at the Sterling Correctional Facility in Colorado discharged pepper spray on them after they arrived at a multipurpose room to observe weekly prayer services.

Last year, Muslim prisoner Sherone Long filed a lawsuit in New Jersey alleging religious discrimination, stating, “In honesty, with my experience in this jail, the administration is biased towards Muslims … We can’t get prayer rugs, kufees or oils.”

Muslim prisoners in Alaska were forced to file a lawsuit in May 2018 to ensure they were provided enough calories in the month of Ramadan — a month when Muslims are religiously required to fast from both food and water during the daylight hours — to avoid starving.

Muslim prisoners are also singled out and treated more harshly as a direct result of their religious identity.

In April 2017, at the Big Sandy Penitentiary in Inez, Kentucky, Shain Duka and a group of other Muslim prisoners were placed in solitary confinement for months for what staff claimed was a “group demonstration.”

Prison dynamics often compel those incarcerated to maintain a group affiliation within the prison to ensure their own protection. It is commonplace to find a Muslim cohort within the prison population, and in this case, Duka claimed the Muslim group was singled out without evidence of wrongdoing. The charge was ultimately appealed and expunged in favor of the prisoners.

Though the expungement should have mandated Duka’s immediate re-entry to general population, he continued to be held in solitary confinement for an additional year. In November 2018, 19 months after Duka was wrongfully placed in solitary, he was transferred to the ADX federal prison in Florence, Colorado, despite three previous failed ADX referral attempts during that period.

ADX is a maximum-security prison known as the “Alcatraz of the Rockies.” A former warden referred to the prison as a “clean version of hell.” Prisoners are held in solitary confinement for 23 hours a day. Their entire cell, bed included, is made of concrete.

The unrelenting insistence of the Bureau of Prisons (BOP) to single Duka out for punishment is troubling, particularly in light of the fact that Duka’s unit manager, Hope Chance, explicitly requested a decrease in security status, from high to intermediate, months before he was wrongfully placed in solitary confinement. In fact, Chance stated that Duka had “maintained clear conduct since 2013.” In the five years Duka had been in custody at Big Sandy, he’d received only one incident report for allowing a fellow prisoner to use his phone to make a call.

With no substantive evidence provided to Duka, the warden at Big Sandy requested an ADX transfer, claiming that Duka had “established a leadership role in the Muslim population” and that he was a “supporter of the more radical side of Islam.” According to Duka, he was provided no evidence of this claim. When he submitted a Freedom of Information Act request seeking evidence, he received nearly 80 pages of heavily redacted information.

Tragically, while Duka was held in solitary confinement, where communications are heavily restricted, his family called the prison repeatedly so that he could speak to his dying father, according to Duka’s brother, Burim Duka. The requests were refused. After Duka’s father died, Burim explained, administration at the prison demanded a death certificate before allowing Duka to receive a phone call informing him of his father’s death.

Muslim prisoners increasingly find themselves targets of discrimination by the BOP, whether through false claims of prisoner radicalization or enhanced security monitoring and communication restrictions through the use of Communications Managements Units — separate prison units termed “Little Guantánamos” — designed to isolate and segregate Muslim prisoners. Muslims make up roughly 60 percent of the units’ population even though they only represent 6 percent of the general U.S. federal prison population.

Citing “national security,” the BOP has attempted to justify its excessive restrictions on the liberties of Muslim prisoners. These restrictions inhibit their ability to practice their religion, including having access to religious materials or being denied observance of the Sabbath. Yet statistics disprove the BOP’s “radicalization” theory.

There is no indication discrimination against incarcerated Muslims will change.

The only significant difference between Ray and Murphy is their religious identity, proving once again, that in practice, Muslims are not entitled to constitutional protection.