What price constitutional rights?

constitutionBarry Hazle served a year in prison for possession of methamphetamine.  He was released on parole on condition that he attend and complete a 90-day residential drug treatment program.  Hazle repeatedly told authorities that he is an atheist, and requested treatment in a non-religious program.  He was assigned, instead, to the Empire treatment program which used the religion-based 12-step program developed by Alcoholics Anonymous and Narcotics Anonymous.  He objected and asked for a transfer, but was denied.  Inside the program, he was described as “disruptive, though in a congenial way, to the staff as well as other students.”  For this, he was ruled in violation of his parole and was sent back to prison, where he served more than 100 days.

Hazle brought suit against his parole agent, the agent’s supervisor, the chief of the California Department of Corrections and Rehabilitations (CDCR) Board of Parole Hearings, and other state officials who participated in the decision to revoke his parole and send him back to prison.  He also sued a private entity named Westcare, which has an exclusive contract with the CDCR to place parolees in Westcare’s network of treatment programs. It was Westcare that assigned Hazle to the Empire program, over his repeated objections.  Hazle did not sue Empire.

The case came to trial in the Eastern District of California in two stages.  In the first stage, the district judge found as a matter of undisputed law that Hazle’s constitutional rights were violated by assigning him to a religion-based treatment program.  This ruling was compelled by the Ninth Circuit Court of Appeals 2007 decision in Inouye v. Kemna, 504 F.3d 705.  In the Inouye case, the court reviewed the precedents nationwide and held that it was clear beyond reasonable doubt that the 12-step program is religious in nature and that the constitution is violated when a person is forced to participate in it against their beliefs.

In the second stage of the trial, a jury was brought in on the sole issue of damages:  how much should Hazle be compensated for the violation of his constitutional rights?  The jury awarded Hazle zero damages, holding in effect that constitutional rights have no value, at least when applied to convicted drug users who are atheists.

This was the same result obtained by Ricky Inouye when his case went back to trial in Hawaii after his successful 2007 appeal. Inouye died before he could appeal that verdict.  Hazle, however, survives, and challenged the jury verdict in the Ninth Circuit Court of Appeals.

On August 23, a unanimous three-judge panel of the Ninth Circuit ruled that Hazle was entitled to compensatory damages for the additional prison time he served after resisting the Empire treatment program.  Likening the case to the traditional tort of false imprisonment, and relying on U.S. Supreme Court and other federal precedents, the panel ruled that, once liability is found, compensatory damages are mandatory.  It emphasized that compensatory damages means something more than nominal damages, such as one dollar.  It sent the case back to the trial court with instructions to award Hazle compensatory damages for each day that he spent in prison as a result of the state authorities’  violation of his constitutional rights.

The Hazle decision finally puts some teeth into the Inouye decision.  Inouye was as clear as could be that forcing people into 12-step programs against their conscience violates the Establishment clause of the First Amendment.  Prisoners must be given the option of a non-religious, secular treatment program.

Although this message, sent in 2007, was unmistakable, the court found that the correctional system largely ignored it.  The court noted that the CDCR did create a directive concerning “alternative nonreligious programs” but “there is undisputed evidence that the CDCR directive has not been implemented in any meaningful fashion, at least with respect to Westcare.”  Westcare, the middleman between the CDCR and treatment programs, claims it never saw the directive, that it does not know what the term “alternative nonreligious programs” means, and that it has not altered its business model in any way.  All of the treatment programs with which Westcare has contracts are 12-step.  Its director even made a public statement, in the court record, claiming that it knew of no requirement to contract with any non-religious treatment programs.  Hello?

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 combined with injunctive relief will send the message that constitutional rights are precious.  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.

Shame on the CDCR and on Westcare for their scofflaw behavior.  If an ordinary person ignored the law the way they have been doing, the system would come , down on them like a ton of bricks.  CDCR especially is supposed to set an example of law-abiding conduct.  Shame also on Attorney General Kamala Harris and her staff for defending CDCR’s inexcusable conduct in court.  Kudos to the law firms of Rogers Joseph O’Donnell and Chapman, Popik & White and to Carol Quackenbos for their successful representation of Barry Hazle.

The court’s full opinion is available online on the Ninth Circuit website.  My 2009 article on the Inouye decision, published in Counselor Magazine, is available here.  


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