By SpearIt, author of Muslim Prisoner Litigation: An Unsung American Tradition
“Prison jihad” is a real thing happening in American prisons across the country. While this idea might conjure up all sorts of stereotypical imagery — including bearded, turbaned, militant Muslims, radicalized and ready to wage jihad from the confines of prison— the real jihad is a different kind of struggle taking place in the court of law. Unlike the jihads of headline news, with their spectacular acts of violence that create what Mark Juergensmeyer described as a “theatre of terror,” this jihad is a slow, lumbering, process where patience is key and cases can take years to adjudicate.
Muslim Prisoner Litigation—An Unsung American Tradition, tells the story of this jihad. It is a historical, legacy-level account that rightfully diagnoses the impact Muslims have had within the prisoners’ rights movement and the development of prison law. It is a lesson largely lost on most Americans, as are the pains and sufferings Muslims endure in prison. Even less is known about how Islamic ideals influence and inspire court action.
A brief look at some key milestones illustrates the influence of incarcerated Muslims. For example, Cooper v. Pate (1964) was a watershed moment where a Muslim litigant complained about being placed in solitary confinement for identifying as Muslim. There he was deprived of the ability to congregate with other Muslims and was unable to receive religious literature. The U.S. Supreme Court, rather than continue the “hands off” policy it had maintained for the previous century, indicated for the first time ever that individuals in prison could indeed make out civil rights claim against prison officials. And so, the saga began.
In the decades that followed Cooper, the number of Muslims bringing forth lawsuits would multiply, some of which would become landmarks, including O’Lone v. Shabazz (1987), the prevailing standard for free exercise of religion claims in prison, and Holt v. Hobbs (2015), where the Court mandated prisons to allow individuals to keep a short beard. Even today, Muslims are by far the most litigious religious group in prison. Studies suggest that Muslims account for over twenty five percent of complaints and court cases, even though Muslims account for just one percent of the American population.
Religion influences this tradition of litigation through multiple channels. First, it plays a pivotal role when a case itself is centered on religious rights and the freedom to practice one’s faith. Additionally, religious influence is exerted through Islamic organizations, which strategically engage in litigation efforts. Further, individually incarcerated Muslims — including those who have become adept at navigating the legal system while behind bars (jailhouse lawyers)— offer invaluable assistance to others by writing petitions and creating templates to aid others in similar predicaments. Yet another noteworthy factor is the impact of religious converts. Whether one converts before or while serving time, religious conversion is often a unifying thread among litigants, which boosts collective litigation efforts. Of such influences, perhaps none is as important as religious ideology itself—the messages, teachings, and traditions of Islam. Religion provides a spiritual framework for using litigation to counter injustice.
In identifying the link between Islamic ideology and the Muslim will to litigate, my book makes an important contribution to existing knowledge about prison law and religion itself. I emphasize how we need to reimagine what religiosity and religious expression can look like.
Although scholars have noted the vast contribution of Muslims to prison litigation, there has been little discussion about the ideological motivations that lead them to litigation in the first place. Compelling evidence suggests that for some Muslims, engaging in litigation is taken as a religious duty. Grounded in principles of Islamic justice and equality, their understanding of faith obliges them to stand up to oppression for Muslims and non-Muslims alike.
Muslim Prisoner Litigation contributes a missing chapter to both the history of prison law and Islam in America. The findings push back against popular ideas about Muslims in prison, including the role-reversal that occurs in which prison staff, who are supposed to uphold the law, instead openly disregard existing rules and policies; in turn, the Muslim “criminal,” goes from law-breaker to law-maker by getting involved in litigation. In similar fashion, this phenomenon levels the notion that Muslims want to overthrow American law and install sharia law, for as decades of lawsuits have shown, Muslims have operated within existing legal structures and have helped contribute directly to American prison law.
These findings also temper portrayals of prisons as hotbeds of violent extremism. Although some have tried to posit prisons as “fertile soil” for violent jihad, history itself has debunked this idea. Instead, Muslims follow grievance procedures, file claims, and show up in court, thousands of individuals over decades, engaging in one of the most normative enterprises in a country that ranks among the most litigious in the world—quite the opposite of anything extreme.
My book is a story of how religion impacts law and society in positive ways. Unlike modern invocations of religion, which are deployed to undermine the legal rights others, Islam’s impact in prison has been contrary—religious conviction has led to the expansion of rights for more people in prison.