Unlike social services like job training and placement, day care or medical assistance, such drug and prison programs are not merely faith-based, they are faith-infused. It is not accidental that so many prison programs are called “Ministries.”
Redemption or Rehabilitation?
Charitable Choice and Criminal Justice
Sheila Suess Kennedy
Law and Public Policy
School of Public and Environmental Affairs
Indiana University–Purdue University Indianapolis
801 W. Michigan Street
Indianapolis, IN 46202-5152
In 1996, Congress passed the Personal Responsibility and Work Opportunity Reconciliation Act, reforming welfare “as we know it.”
Among the provisions of that bill was a “Charitable Choice” requirement that states contract with faith-based social service providers on the same basis as they contract with other nonprofits. The bill specified that “pervasively sectarian” organizations were not to be discriminated against; that such providers should be allowed to maintain hiring policies based upon their religious dictates; and that they could not be required to divest the premises where services were delivered of religious iconography. Subsequently, similar Charitable Choice provisions have been attached to Welfare-to-Work (1997), Community Services Block Grant (1998), and Substance Abuse and Mental Health Services Administration legislation (2000)[s1]
. The Community Solutions Act of 2001 (H.R. 7), which incorporates the Bush Administration’s efforts to further extend the approach, recently passed the House of Representatives[s2]
Although government partnerships with religious organizations and their affiliates has been a feature of the social service landscape for decades, Charitable Choice legislation and President Bush’s enthusiasm for expanding it have been attacked from Left and Right alike. Civil libertarians object to provisions that, for the first time, would allow employment discrimination with public funds, and worry that proselytizing of vulnerable populations will be an inevitable outcome. Religious Right activists demand assurances that funds will not flow to disfavored groups like the Nation of Islam or the Scientologists. (Robertson) African-American pastors in urban areas—arguably the main targets of the initiative—are concerned that “government shekels” will be accompanied by “government shackles,” that the costs and regulatory burdens involved in collaborations with government will divert resources from client services and will mute their prophetic voice. (Kennedy 2001)
While the administrative challenges are significant for all of the programmatic areas encompassed by the legislation, the evangelical nature of many faith-based criminal justice programs implicates constitutional issues in ways that other programs may not.
Those constitutional concerns are addressed in section VI, below.
Federal and state government units have provided services through nonprofit and religious organizations since the inception of government social welfare programs, although the media characterization of Charitable Choice and President Bush’s faith-based initiative as “new” or even “revolutionary” has tended to obscure that history (U.S. Senate Judiciary Committee 2001).
Confounding both historical and constitutional analyses of Charitable Choice and President Bush’s subsequent faith-based initiative is the fact that our public debate, and much existing First Amendment case law, assumes the interchangeability of “religious,” “sectarian,” and “faith-based” as descriptive terms. While the rhetoric used by Congressional supporters of Charitable Choice suggested a more specialized meaning, neither the legislation nor representatives of the White House Office of Faith-Based and Community Initiatives has defined what “faith based” means for purposes of Charitable Choice initiatives, or explained how these “faith based” organizations (FBOs) differ from the religious entities that have been partnering with government for decades. (U.S. Senate Judiciary Committee 2001; Chaves 2001). Given this history, it would have been helpful had Congress addressed several important questions: what does “faith-based” mean for purposes of these Charitable Choice initiatives? How do the FBOs targeted by Charitable Choice legislation differ from those with a long history of governmental contractual relationships? What are the barriers to their participation in service delivery, and to what extent are those barriers constitutionally mandatory? What is the availability and interest, and what are the capacities, of these organizations? Few of these questions, however, found their way into the Congressional debates about Charitable Choice (Kennedy 2001), and none were addressed by the legislation. The resulting ambiguities have created substantial public management issues, particularly where the services involve drug treatment and offender rehabilitation.
Charitable Choice legislation was explicitly predicated on the assumption that FBOs are more effective and efficient at providing assistance than the secular and religiously affiliated nonprofits that have been delivering the bulk of tax-supported social welfare programs on government’s behalf.
These claims have been made most frequently in the area of drug treatment, where Teen Challenge, for example, claims a success rate of 85%. (Teen Challenge, 2001; Goodstein 2001[s3]
) Such a success rate would indeed be impressive—even remarkable; however, independent researchers point out that the success rate calculation is based upon the number of clients completing the program. If the calculation is adjusted to include those who start the program but do not finish, the rate drops to 25%. (Goodstein 2001[s4]
) They also note that most of the cited studies rely upon self-reporting by program alumni, a problematic methodology. Furthermore, different drug programs define “success” differently, making meaningful comparisons very difficult. ( Tonry and Wilson 1990) In fact, there is no independent empirical data available either to support or rebut a presumption that religious drug treatment providers, prison ministries, or FBOs in general, are more effective than secular providers.
The almost total absence of data on comparative efficacy prompted a group of us to explore the question. In September 2000, with support from the Ford Foundation, our research team commenced work on a three-year evaluation of Charitable Choice implementation in three states—Indiana, Massachusetts, and North Carolina—chosen because they represent different political cultures and religious landscapes.
We are investigating and analyzing state governments’ methods of identifying and working with FBOs; assessing the comparative efficacy of faith-based and secular providers; reviewing the capacity of FBOs to bid for, and state governments to manage, purchase-of-service contracts; and addressing issues of public and constitutional accountability. During the first year of the project, as we have pursued our primary research objectives, we have identified many of the legal and practical issues confronting those who find themselves charged with translating Charitable Choice legislation into action. Nowhere are those issues more troubling than in criminal justice programs and corrections, so it is not surprising that in the states we are studying, efforts at implementation have been focused on less controversial service areas.
III. Defining a Level Playing Field
The primary purpose for Charitable Choice, according to its sponsors, was the need to
create a level playing field. Supporters of the legislation asserted that government
agencies had routinely discriminated against FBO’s, based upon an unnecessarily rigid
reading of the First Amendment’s Establishment Clause.( Legatus Regional Conference
October 11, 1997 by Senator Spencer Abraham ) However, at least one scholar—himself a supporter of greater FBO participation in service delivery—has found that religious organizations encounter fewer problems with their contracting agencies than do secular providers. (Monsma) The charge of discrimination appears to rest, at least in part, on the belief that holding FBOs to the same standards as secular organizations is discriminatory.
Supporters of Charitable Choice have repeatedly criticized contracting agencies’ insistence upon professional credentials and norms. In an article in Commentary, for example, Les Lenkowsky argued for “elimination of arbitrary rules that allow, for example, the use of professional therapy but not pastoral counseling.” (Lenkowsky 2001, 23) If an agency is putting together an RFP for counseling services, and requires that successful bidders employ licensed social workers, or certified drug counselors, has the state discriminated against FBOs offering unlicensed “pastoral counseling”? Lenkowsky clearly believes it has, although other religious spokespersons disagree. Addressing the House Committee on Government Reform’s Subcommittee on Criminal Justice, Drug Policy and Human Resources, Rev. Horace R. Smith, President & CEO of Group Ministries Baltimore, testified:
“In its present state, the proposed initiative seems to allow funds to be distributed to community and faith-based organizations basically because they meet the criteria that they are either community or faith based. The criteria for distribution of funds needs to go beyond that narrow stipulation. There should be some form of standardization these organizations are held to. There’s a danger that those we seek to service won’t receive the level of help they actually need because there presently is not any standard of care within the faith based community.”
Reverend Smith strongly endorsed certification requirements, saying “I am a strong advocate for accreditation.”
States are accountable for the quality of the services they provide, and have a legal obligation to evaluate the ability of bidders to provide services at an appropriate level. If the bidder offers “pastoral counseling,” in lieu of professional certification, how is the probable efficacy of that counseling—and thus the responsiveness of the bidder—to be assessed? If the state appears to relax or discard professional standards when the bidder is an FBO, secular nonprofits and current state contractors may justifiably object that an unconstitutional preference is being shown to religious organizations in violation of the Establishment Clause. In his recent testimony on Faith Based Solutions before the Senate Committee on the Judiciary, John L. Avery of the Association for Addiction Professionals focused upon precisely that issue.
“NAADAC’s concern is not with who provides care, but rather by what clinical standards that care is provided. We are committed to the application of science-based best practices, perhaps as most succinctly stated in the National Institute of Drug Abuse (NIDA) publication, ‘Principles of Drug Addiction Treatment, a Research-based Guide.’” (U.S. Senate Judiciary Committee 2001)
Avery emphasized that, for his organization, the “salient issue is the clinical competency of the treatment provider” and concern for consumer protection and public safety.
If FBOs believe insistence on evidence of “clinical competency” is discriminatory, and the NAADC believes that failure to require such evidence is malpractice, it is no wonder that many public administrators feel caught in an untenable situation.
The states we are studying have taken different approaches to the implementation of Charitable Choice and its requirement of a level playing field. Massachusetts, which totally revamped its procurement process in 1994 (two years prior to the original Charitable Choice legislation) considers its “field” already level, and treats religious providers as essentially fungible, both with other sectarian organizations and with secular providers. All are officially considered equal, and evaluated solely with respect to the responsiveness of their bid. If lack of prior experience or absence of credentialed personnel operates to disadvantage some bidders, that is considered unfortunate but irrelevant. Indiana and North Carolina have focused their outreach efforts on welfare reform demonstration projects; this approach has allowed them to sidestep the more difficult constitutional issues involved in drug treatment and prison contracts, by concentrating outreach in less problematic areas. Neither state has endorsed separate bid requirements to be used for sectarian and secular providers.
One “level playing field” issue that is common to both criminal justice and social service contracting in general is the potential for religious bias in the bid process. In testimony before the Judiciary Committee, constitutional law professor Douglas Laycock raised precisely that issue, noting that “choosing someone to deliver social services is more complex than picking the low bidder on a pencil contract. How do you keep thousands of government employees, federal state and local, from discriminating on religious grounds when they award grants and contracts?” (U.S. Senate Judiciary Committee 2001[s5]
). The validity of this concern is underscored by statements issued by Pat Robertson and others, warning the administration against contracts with the Nation of Islam or the Scientologists. Laycock endorsed a “reporting requirement” that would require “explanation” of any “obvious over-or-under representation” of religious providers. Whatever the merits of such a requirement, it would be yet another bureaucratic task requiring at least some level of resource allocation. Whether such a mechanism would minimize claims of bias is an open question; as Richard Foltin of the American Jewish Committee has noted,
“It seems almost inevitable that, whatever claims may be made that contracts will be allocated on the basis of merit, in any given community the religious groups most likely to receive funds will be those associated with ‘mainstream’ faiths. And, even if the contracts are allocated on a totally objective basis, there is likely to be sharp distrust and suspicion that this is not the case.” (AJC, )
IV. Contract Monitoring
Early experience in Indiana suggests that monitoring first-time FBOs requires considerably more resources, more “hands-on” help, than is needed with more experienced providers. This can be expected to diminish as such providers become more sophisticated about government’s expectations, but it has proved to be a burden on state agencies during start-up periods. (Ribley)
More troubling are the significant constitutional issues involved in monitoring. The Free Exercise Clause protects religious organizations against unwarranted intrusion, and what is “unwarranted” is subject to interpretation. Even if audit and accountability measures are perfectly appropriate constitutionally, elected officials have expressed concerns that, should state agencies find FBO compliance inadequate, charges of bias will be leveled and may well resonate politically. To the extent Charitable Choice focuses upon inner city churches, race will inevitably become a part of the political equation in such situations, a prospect that concerns even strong supporters of Charitable Choice and vigorous outreach efforts.
If government oversight is not to be viewed as racially or religiously discriminatory, great care will need to be exercised to eliminate unintended disparities in the monitoring process. Oversight methodology and criteria will need to be well-conceived and communicated to faith-based contractors before the fact and with clarity.
State agencies are constitutionally required to insure that government funds go only to support secular activities. Consistent with that requirement, the original Charitable Choice legislation prohibits use of tax dollars for proselytizing, and prohibits conditioning service delivery upon participation in religious activities. Public managers are responsible for compliance with those restrictions; however, states have limited managerial resources with which to monitor programmatic content for constitutional compliance. Middle managers hired to administer service contracts cannot be expected to recognize any but the most egregious First Amendment violations, and have limited time to devote to such issues. If a violation is alleged and proven, however, the state can be held liable. As the Welfare Information Network frames the issue on a section of its Website devoted to discussion of frequently asked questions,
“State or local jurisdictions should consider these terms [“faith based organization” and “proslytization”] when working on contracting arrangements that are covered by Section 104 of the federal welfare reform law, P.L. 104-193, also known as the "Charitable Choice" provisions. Contracting with funds under the Temporary Assistance to Needy Families Program is covered by Section 104. The law does not offer definitions of "religious organization" and "proselytization," and although some states may have defined these terms in case law related to schooling or other issues, they are not familiar to many contract officers.
Given the lack of precedents, states and local jurisdictions generally have avoided legally binding definitions in their contracts, especially as to what constitutes proselytization. Instead, dialogue and "gut instinct" are guiding the implementation of the ban on proselytization when contracting with federal funds. This approach could include: ensuring that organizations bidding on a contract know in advance about the prohibition on using the contract funds for proselytization; talking with the contracting organization about the state or local agency’s expectations, and the consequences of any problems reported with proselytization; and ensuring that participants are aware of the ban and what steps they can take if they feel uncomfortable receiving services from a religious provider. For example, Section 104 provides welfare recipients the right to seek alternative providers. Religious organizations have certain rights under Section 104 as well. (cite)
As Rev. Castanon of the United Methodist church warned in his testimony to the Senate Judiciary Committee on Faith Based Solutions,
“As long as government attempts to separate what is religious from secular in entities like churches, synagogues, mosques, etc. it risks becoming excessively entangled with religion, thus advancing it or hindering religion, both clear violations of the establishment clause.” (2001[s6]
Finally, there is the requirement that secular alternatives be provided for program participants who do not want a faith-based provider. Public managers will need to identify such alternatives and fund them. This should not present a problem in urban areas, but it can be a challenge in more rural states, or rural areas of states, where alternative providers may not be convenient, or even available, or in very homogeneous communities.
Good management practice dictates that state agencies evaluate the efficacy of all service providers, secular or religious. Such evaluation was problematic well before the passage of Charitable Choice; in all three of the states we are studying, the social welfare system is so radically decentralized and uncoordinated as to make sound evaluation of programs virtually impossible. This is obviously a problem that is more widespread than just three states; when the White House issued its report on barriers to FBO participation in government service provision (CITE), one of the issues highlighted was the lack of evaluation of program effectiveness. While it is unclear exactly how this situation operates to disadvantage FBOs, it is a significant impediment to effective service delivery. One reason for this dearth of information is that welfare populations are notoriously difficult to track: poor people (especially those with substance abuse issues) move frequently, often do not have telephones, and are frequently unresponsive to or intimidated by survey forms and other formal inquiries. The lack of credible data is one reason that welfare policies generally elicit such strong disagreements among scholars and policymakers.
Public managers must measure programmatic success—once defined—without intruding upon the constitutional prerogatives of the religious organization. This can be especially difficult when the FBO has chosen not to form a 501(c)(3) affiliate, because monitoring and evaluation of fiscal performance will require review of books and records, and program costs may not have been segregated from other financial information. Even if there is a separate entity, some inquiry into the finances of the religious organization may be necessary if, for example, a church or synagogue is providing substantial in-kind support to the program. Any analysis of the cost of providing services will include the value of volunteer time, use of church equipment and facilities, and similar accommodations. Valuing those accommodations may require more review than the FBO feels is constitutionally appropriate.
These are thorny issues, but their resolution is important, because good information is necessary if programs are to work.
VI. Rehabilitation vs. Redemption: The Constitutional Dimension
The foregoing discussion is applicable to social service contractors generally; however, when the programs being provided are faith-based drug treatment and prison counseling, there is an almost insurmountable constitutional barrier to direct government funding. The nature of the dilemma is illustrated by the testimony of numerous advocates of religious interventions: they are very clear that they believe the only way to help drug addicts or prisoners is through religious conversion. A recent quotation from Jack Cowley, national director of operations for The InnerChange Prison Fellowship Ministry is illustrative. According to Cowley, “We see crime as a result of sin and therefore we know that a relationship with Christ can heal people.” Unlike social services like job training and placement, day care or medical assistance, such drug and prison programs are not merely faith-based, they are faith-infused. It is not accidental that so many prison programs are called “Ministries.”
Programs like InnerChange, Teen Challenge or House of Hope are centered on religious belief; acceptance of Jesus, the importance of biblical precepts and morality, are
the program. [s7]
Prison Fellowship Ministries, one of the most prominent of the religious prison programs, describes itself as “Christ-based” and its vision as “That God’s kingdom will be manifested as the redemptive grace and peace of Jesus Christ are experienced by those impacted by crime.” The organization’s web page argues that crime is fundamentally a moral and spiritual problem that requires a moral and spiritual solution, and goes on to state that “Offenders do not simply need rehabilitation; they require regeneration of a sinful heart.” (CITE) Operation Starting Line, another faith-based prison program, urges participants to “make the decision for Christ.” (Christian Science Monitor, 2000)
In 1990, one of the few evaluations of Prison Fellowship programs was conducted by Loyola College in Maryland for Prison Fellowship Ministries. The Final Report on Year One Prison Fellowship Program concluded that religious commitment variables “are rarely studied in criminal justice research” and noted that “the methods used to measure religious commitment have not been the best ones to account most accurately for the complexity of religious commitment.” However, the study also emphasized that offenders who succeeded in such programs (i.e., had a lower rate of recidivism and committed less serious crimes than a control group) were those who had undergone “intensive Christian discipleship training.” (Gartner, O’Connor, Larson, Wright and Young, 1990)
Faith-based drug treatment programs are equally focused on spiritual transformation as a methodology. Sara E. Trollinger, testifying on behalf of House of Hope to the Subcommittee on Criminal Justice, Drug Policy and Human Resources, said “we know that you can’t just treat behaviors but that you must address the soul.”
Perhaps the best-known exemplar of faith-based drug treatment programs is Teen Challenge. Whatever the methodological inadequacies of the studies cited by the organization to demonstrate high rates of success (such a methodological discussion is beyond the purview of this article), those studies all confirm the centrality of its religious content. The following information from Teen Challenge’s website is illustrative.
A University of Tennessee Report states
“The main focus of Teen Challenge of Chattanooga, Inc. is that of being a spiritual growth center where biblical principles are taught. 80% of the respondents credited developing a personal relationship with Jesus Christ as a major influence in helping them to stay off drugs.”
Results of a survey attributed to the National Institute of Drug Abuse
are introduced as follows:
“The main premise of the study was to demonstrate that introduction of a religious component into the treatment of drug addicts is the one aspect which produces the large success rate.”
A review of a study by Dr. Aaron Bicknese, also posted on the Teen Challenge web page, contains the following:
“Responses to survey questions by Teen Challenge graduates confirm that a commitment to Jesus Christ provided them with the moral willpower needed to overcome a wide range of serious addictions…The study found that according to responses from graduates, the nature of the commitment to Jesus Christ was crucial; it was not enough to have a vague belief in a higher power, one must commit to the Christ of the Bible.”
Successful or not, tax funding for programs having religious transformation as their goal implicates core constitutional concerns. In 1946, Justice Hugo Black summarized the meaning of the First Amendment’s religion clauses in an eloquent paragraph that has been cited in numerous religious liberty cases:
“The Establishment Clause means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” (Everson v. Board of Education, 330 U.S. 1)
The mere fact that tax dollars are paid to a religious organization, of course, is not equivalent to funding religion. Government may constitutionally purchase services, including social services, from sectarian sources, or enter into other partnerships that involve the transfer of tax dollars to such entities so long as the funds do not support inherently religious activities. The relative lack of concern over government’s historic support for religious social services is at least partly because the secular nature of those services is so readily apparent. Hospitals and nursing homes are providing medical care; day care facilities are supervising children; job placement counselors have secular counterparts engaged in providing similar, if not identical, programs. While economists remind us that dollars are fungible, it is relatively simple to calculate the costs of nursing services or childcare, and to subsidize only that (secular program) cost.
In the parochial school context, where there has been much more debate and litigation, programs that have passed constitutional muster have been those involving an identifiably secular benefit available to all citizens—immunization, speech and hearing testing, transportation—where exclusion of children attending religious schools was deemed to burden the free exercise rights of parents opting for religious education. When public aid has been disallowed, the Court has pointed to the “pervasively sectarian” nature of the religious school, and the impossibility of ensuring that only secular program elements benefit from the expenditure of public funds. “Pervasively sectarian” organizations are defined by the courts as those in which the religious elements are so fundamentally interwoven into every aspect of programming that it would be impossible to separate them for purposes of ensuring that support goes only to the secular portions.
These drug and prison programs provided by faith groups have religious conversion as their primary purpose. Other programs encompassed by the Charitable Choice initiatives may create environments within which constitutional violations are more likely to occur, but the programs can be conducted in a constitutionally appropriate fashion; funding for programs like Teen Challenge and Prison Fellowship Ministries, however, is clearly funding for religion and—under decades of First Amendment jurisprudence—constitutionally prohibited.
In Agostini v. Felton [s8]
the Court (quoting from Witters v. Washington Department of Services for the Blind[s9]
) explained that in order to be constitutionally permissible, any public money earmarked for secular purposes that ultimately goes to pervasively religious institutions must do so “only as a result of the genuinely independent and private choices of individuals.” Many constitutional commentators have suggested that a voucher program for social services that allowed recipients to choose between religious and secular providers would pass constitutional muster. (Kennedy, 2001; Minow, 1999) If public dollars have been allocated for a secular purpose (nursing home care or drug treatment, for example) and if there is a “genuinely independent and private” choice of service provider, then there is no constitutionally persuasive reason to prevent an elderly person seeking nursing home care from spending her benefits in a nursing home run by her religious denomination, or to prevent a drug-dependent teen from choosing to enroll at Teen Challenge. As the Court struggles for neutrality in its application of the religion clauses, as it searches for a formulation that neither burdens nor benefits religious practice and belief, the exercise of intervening independent choice sufficient to insulate government from a charge of endorsement would seem to be the fairest way to achieve evenhandedness. Many constitutional scholars thus believe that a voucher program would be legally and practically preferable to direct contractual relationships between FBOs and government agencies. Such an approach could allow religiously infused drug treatment programs to participate; however, it would not solve the practical and constitutional dilemmas posed by prison ministries, nor would it moot the very real debate over accreditation requirements for government contractors.
None of the foregoing is intended to suggest that religious organizations are not doing wonderful things. If I have learned anything in the course of my research, it is that it is impossible to overstate the extent of the contribution being made to this nation by people and organizations of faith, and the lack of confirmatory social science research should not be cited to minimize the scope and value of their work . Acknowledgement of that reality does not, however, impel an endorsement of public funding, as many of those same religious organizations have cautioned.
The question is not: are these organizations doing good work? They are. Nor is it: should government partner with them? It does and it always has. The real questions are: When? How? With which ones? Under what circumstances and with what safeguards? Answering those questions adequately will require us to revisit some foundational issues that have gotten lost along the increasingly politicized way.
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Kennedy, Sheila S. 2001. Privatization and Prayer: The Case of Charitable Choice. (Currently under review.)
Lenkowsky, Leslie. 2001. Funding the Faithful: Why Bush is Right. Commentary 111 (6).
Minow, Martha. 1999. Choice or Commonality: Welfare and Schooling After the End of Welfare as We Knew it. Duke Law Journal 49: 493.
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Task Force on Sectarian Social Services and Public Funding. 1990. New York: The
American Jewish Committee.
Tonry, Michael, Wilson, James Q. 1990 Drugs and Crime Chicago: The University of Chicago Press: 429-432.
U.S. Senate Judiciary Committee. Faith Based Solutions: What are the Legal Issues? Hearing before the Judiciary Committee. 107th Cong., 1st sess., 6 June 2001.
An address delivered to the Legatus Regional Conference on
October 11, 1997 by Senator Spencer Abraham