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Sherry F. Colb

A Prisoner Seeks Vegan Food in Prison: Why Refusing Him is Both Illegal and Foolish


Wednesday, March 31, 2010

In February 2007, Paul Cortez was convicted of the murder of his girlfriend, Catherine Woods.  From the beginning, Cortez has denied any involvement in his girlfriend's death, but the question of his guilt or innocence is not the subject of this column. 

Approximately two years ago, Cortez decided to become a vegan.  Disturbed by the ubiquitous aggression and cruelty in prison, Cortez became unwilling to participate in the violence involved in producing the food that most people (including prison inmates) daily consume:  the flesh and bodily secretions of slaughtered sentient beings.

The prison where Cortez resides, however, has refused to accommodate his diet and has instead offered him so-called "vegetarian" options (including fish as well as dairy and eggs, products of what are perhaps the cruelest practices in animal agriculture). 

This column is about the various ways in which the prison's refusal to provide vegan food to Cortez and other vegan prisoners represents an enormous legal and policy mistake.

The Law Requires the Accommodation of Prisoners' Religious Beliefs

In running a prison like the maximum-security correctional facility where Cortez resides, state officials must act in compliance with the federal Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), which protects residents of institutions, like prisons, that receive federal financial assistance (or that place substantial burdens on religious practice, which burdens affect -- or the elimination of which burdens would affect -- interstate commerce).  Under RLUIPA, the State is required to avoid imposing substantial burdens on the religious exercise of the residents of these institutions. 

Prohibited burdens include those that result from generally-applicable, nondiscriminatory policies (like offering an exclusively animal-based menu).  In the words of the statute, "[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution."

Covered institutions must accordingly make exceptions to generally-applicable policies in order to accommodate religious practice.  The obligation to make accommodations, moreover, applies across the board unless the government can prove that it meets two conditions:  first, the State would have to be pursuing a compelling interest with the offending policy; and, second, failing to accommodate the prisoner with an exemption to the policy would have to be the least restrictive means available for serving the compelling interest.  Those familiar with constitutional law will recognize this two-part test as "strict scrutiny."

If practicing veganism "counts" as religious exercise, then Paul Cortez and the other vegan inmates are entitled to the provision of food that does not contain animal products (including dairy, eggs, and fish).  There is no compelling governmental interest that can be served only by feeding all prisoners animal flesh and products.

A Buddhist Group's Practice of Veganism Falls Under the Protection of RLUIPA

The only real question, then, for RLUIPA purposes, is whether the practice of veganism qualifies as religious exercise.  It is certainly one way of practicing the Eastern religions (including Buddhism, Hinduism, and Jainism), and Cortez has joined the "Buddhist Services Group," which has asked the prison for a vegan diet.  All three of these Eastern religions are based on ahimsa, or nonviolence, which includes among protected subjects nonhuman animals.  Yet none of the three religions currently compels veganism.

Importantly, however, RLUIPA specifically provides that "religious exercise includes any exercise of religion, whether or not compelled, or central to a system of religious belief."  As noted above, Cortez is a member of a Buddhist group that is expressly requesting vegan food as a Buddhist group.  Cortez's entitlement to a plant-based diet under RLUIPA is therefore plain, and the prison should accommodate him, in compliance with federal law.

Would Veganism, Unconnected to a Religious Group, Also Fall Under RLUIPA?

Whether veganism would qualify as a religion in the absence of any connection to a mainstream religious group is a more challenging question.  In a useful encapsulation of the meaning of "religion" for these purposes, the U.S. Court of Appeals for the Seventh Circuit has said that "when a person sincerely holds beliefs dealing with issues of ‘ultimate concern' that for her occupy a ‘place parallel to that filled by ... God in traditionally religious persons,' those beliefs represent her religion." A person's religion, in other words, "need not be based on ... a mainstream faith."

For many ethical vegans, this description is likely to apply quite well.  The ethical vegan is characterized by her embrace of the obligation that people avoid unnecessarily inflicting suffering and death on their fellow beings.  Every time she sits down for a meal or gets dressed, a vegan is reminded by her choices of food and clothing of her commitment to nonviolence.  (For someone who avoids animal-based foods solely for health reasons, the characterization ordinarily will not apply.)

For purposes of entitlement to legal accommodation, what a person believes regarding the supernatural is less important than what he feels morally required to do as a consequence of sincerely-held religious beliefs.  In Jewish law, for example, it is widely understood that someone who obeys all of the commandments of the Torah but lacks belief in God can still be in compliance with Judaism.  Therefore, an atheist prisoner who nonetheless felt required as a Jew to eat only Kosher food would have a right, under RLUIPA, to the prison's provision of such food.

Similarly, a vegan who rejects violence toward sentient beings -- and therefore refuses to eat the products of animal torture and killing -- must be accommodated under RLUIPA even if his nonviolent commitments do not posit the existence of a supernatural being who has issued a commandment regarding violent conduct (for example, "Thou Shalt Not Kill").  Given that animal products are ubiquitous in supermarkets, restaurants, social and business contexts, the person who chooses to exclude such products from her life (and thereby to confront, explicitly or tacitly, the moral choices of most people around her) will generally consider that choice to be central to her identity and to the core moral framework that governs her life.  The decision, in other words, is about ultimate issues of right and wrong and of living in a manner consistent with what is right, despite the surrounding culture's acceptance and embrace of what is wrong.  For conventionally religious people, God occupies that central space.

Common Sense, Too, Requires the Accommodation of Ethical Veganism

Beyond the mandates of federal law, it is difficult to imagine a more foolhardy and ill-conceived correctional decision than a State's refusal to accommodate incarcerated convicts in their quest to embrace a life of nonviolence.  A number of prisons have embarked on programs that allow prisoners to train shelter dogs who would otherwise have been killed.  These programs have, based on anecdotal reports, reduced infractions within prisons and have created a better atmosphere for staff and prisoners alike.  The programs also resulted in the survival (and subsequent adoption) of dogs who would otherwise have died.

Though providing shelter dogs for inmates to nurture and train may not be practical at a maximum-security prison (given such a prison's necessarily limited access to the outdoors and to other recreational opportunities), the same is not true for a vegan diet.  Some of the simplest, cheapest, and most nutritious foods are vegan.  A prisoner could eat rice and beans; peanut-butter-and-jelly sandwiches; cereals with soymilk (or almond milk or rice milk, etc.); soups and stews such as lentil, split pea, minestrone, mushroom barley, and chili; fruit including apples, oranges, peaches, grapes, pineapples (whether fresh or canned); dried fruit like raisins and dates; and vegetables like lettuce, tomatoes, cucumbers, peppers, squash, potatoes, and seeds and nuts (including sunflower and pumpkin seeds, walnuts, and almonds).  One need not even buy the more or less processed vegan foods (including tofu, seitan, vegan cream cheese, and vegan butter spreads for bread), but they exist as well.

More importantly, for the ethical vegan, every meal renews a commitment to eschewing violence and killing, an important principle for everyone but especially for people serving time in prison.  As Cortez has said in describing his veganism, the confinement and suffering of being incarcerated has led him to identify with the innocent nonhuman animals who are kept in cages, mutilated, unable to satisfy their most basic needs, and ultimately slaughtered while still young.  Though Cortez acknowledges that prison is not as relentlessly violent as animal farms are, his experience has sensitized him to others' suffering and has done the same for some of his fellow prisoners as well.

To appreciate what veganism means to Paul Cortez and others serving time in prison, imagine that a group of prisoners convicted of murder and living in a maximum-security prison petitioned to spend a small amount of time each day meditating on nonviolence.  Assume that the meditation did not qualify as a religious exercise but consisted of the prisoners imagining a world of peace and harmony for 10 minutes while breathing deeply in a lotus position.  Is there any interest in denying prisoners the ability to immerse themselves daily in the contemplation of peace?  Simply as a matter of rehabilitation (an objective of the "correctional" system on which most of us long ago gave up), access to this practice would represent a promising opportunity for both prisoners and society.

And What if Cortez is Innocent?

Up until now, I have not discussed Cortez's claim of innocence.  The reason is that I do not know enough about the trial evidence leading to his conviction to draw my own conclusions about guilt, although there are some disturbing reports that give one pause in this regard.  I have here argued for the prison accommodating his (and other prisoners') requests for a vegan diet on the assumption that the people serving time for murder are guilty as charged.  Guilt would not militate against accommodation, as both federal law (RLUIPA) and common sense dictate that the prisoners' commitment to nonviolence is something to be encouraged and supported, regardless of whether their underlying sentences are themselves just.

A reasonable possibility that Cortez might actually be innocent, however, would count strongly in favor of facilitating his commitment to nonviolence.  In prison, inmates regularly witness and experience violence, whether by fellow inmates or by guards.  As Philip Zimbardo discovered in his famous 1971 Experiment at Stanford, even pacifist college students who are assigned to play the roles of guards for other students quickly become sadistic and violent toward their charges.  This violence is both traumatic and infectious.  Living in such conditions, one is unlikely to exit unscathed.

If one is actually innocent of murder, the prison experience is likely to be that much more traumatic and embittering.  Having done nothing wrong, one is not only unjustly punished with the deprivation of liberty but is also treated with callous indifference, at best, and violent sadism, at worst, in an environment often likened to the Hobbesian war of all against all.  The danger, in that world, is that a prisoner will come to feel like a complete victim and to believe that the only worthwhile currency is that of violence and power.  When and if he is released, he may act on that belief.

To the extent that the prison accommodates Cortez's desire to be vegan, however, he is able to exercise some control over his daily life and to commit himself to peace and compassion, even as his surroundings are saturated with violence.  He stands a chance of surviving the soul-crushing experience of prison emotionally intact.  And he might find the accommodation to be evidence that some people are capable of kindness, even when the object of that kindness is a prisoner, presumed guilty of murder.  It is precisely the sort of kindness that Cortez is prepared to extend to the innocent and powerless nonhuman animals who are killed by the billions to satisfy human gluttony.

Why the Exception Cortez Seeks Is One Truly Worth Making

Making exceptions to bureaucratic rules is always a tricky business, of course, particularly in a prison setting.  Just to make trouble, prisoners -- with time on their hands and a growing bank of hostility -- could significantly hamper prison administration with large numbers of requests.  There is no shortage of lawsuits in which prisoners make endless special requests in the name of the Constitution.  In one example, an inmate group asserted that the State had violated the Eighth Amendment prohibition against cruel and unusual punishment by failing to provide free tobacco to indigent prisoners.  One cannot expect a prison to run smoothly if it must accommodate every request for a departure from prison policy.

But Paul Cortez's plea -- and that of his fellow inmates -- is not just another example of rule-avoidance by prisoners.  For one thing, if Cortez is seeking to practice his religion, as he can persuasively argue that he is, then federal law guarantees his right to do that under these circumstances.  His sincere commitment is evident in his willingness to buy vegan food at the prison commissary, while other, omnivorous, prisoners eat their meals free of charge.  Refusing to provide him and other vegan inmates with vegan food alternatives substantially interferes with his practice of nonviolence and serves no compelling governmental interest. 

And if instead, he and some of his fellow inmates are simply seeking to live without violence, but their efforts do not qualify as religious exercise, then the prison should nonetheless applaud what the prisoners are trying to do and understand their efforts as both rehabilitative (from a correctional perspective) and as increasingly resonant with the decisions of free people on the outside, who are also able to recognize the infliction of suffering and death on nonhuman animals for the injustice that it is.

If the prison wants to simplify matters and avoid having four different kinds of meals served to inmates, then it can replace the ill-named "vegetarian" option with a vegan option.  There is nothing in the vegan diet that will offend someone who finds the prison's "vegetarian" food ethically acceptable.  Everything that is vegan, in other words, is necessarily also "vegetarian." 

Alternatively, I would suggest that prisons serve only vegan food to prisoners.  Vegan food can be nutritious, satisfying, and delicious and will therefore meet the needs of prisoners without implicating them in violence beyond that which they have already perpetrated.  As schools around the country reconsider the often dramatically unhealthy effects of the classic meat-and-dairy lunch programs, in the midst of the country's obesity and heart disease crises, prisons could get ahead of the curve by going vegan - in the interests of the inmates, in the interest of society, and in the interest of protecting sentient nonhumans from the suffering and slaughter inflicted by our consumption habits.

Sherry F. Colb, a FindLaw columnist, is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her book, When Sex Counts: Making Babies and Making Law, is available on Amazon.

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