The Constitutional Possibilities of Prison Vouchers

Abstract

Faith-based prisons, as currently constituted, mostly violate the Establishment Clause. They generally aren’t chosen by a process that is neutral as between religious and non-religious providers; they generally result in religious indoctrination; they might offer greater benefits to participants so as to qualify as “coercion”; and they might delegate governmental power to religious organizations.

In this Article, I propose a novel method of allocating prisoners: a system of “prison vouchers,” by which prisoners could choose which prison to go to, including, where available, a private, religious prison. Under such a system, faith-based prisons would be fully constitutional: if prisons are selected neutrally, without regard to religion, and if inmates can choose any available prison, the Establishment Clause problems disappear. Prisoners would have the “genuine and independent private choice” that would bring religious prisons within the protection of Zelman v. Simmons-Harris.

Prison vouchers would offer prisons greater leeway in other ways as well, entirely unrelated to religion. Under the unconstitutional conditions doctrine, prisons under a voucher system would have greater ability than prisons do today to “offer” at least some “constitutionally noncompliant packages” that would be attractive to inmates.