Author:

Mr. Raj Kumar Singh
1371 - 17th Ave
Grafton, Wisconsin 53024-2024

It is currently the case that a substantial number of prison and jail administrators choose to impose restrictive hair regulations upon the male prisoners in their charge. This writing is intended to be used as a practice manual by male prisoners who wish to generate a legal attack against restrictive hair regulations to which they find themselves subject. It will also be of value to the professional attorney who wishes to assist a prisoner plaintiff in male prisoner hair law litigation.

It is in no way claimed that the information contained herein comprehensively addresses the myriad concerns involved in any instance of prisoners' civil rights litigation. This manual can be reasonably thought of as simply a resource that will help the litigant to initially focus his ideas as he begins crafting an effective legal strategy.

The promulgation of this manual constitutes an exercise in freedom of expression. It does not, in any way, constitute the proffering of legal advice. There is no such thing as a simple lawsuit, and there is a difference of critical import between having the right to represent oneself in legal proceedings and having the expertise to do so competently. The reader of this document should assume that direct representation of the party to a suit by an attorney at law, licensed as such in the state in which the suit is brought, will be necessary to his success.

If the prospective litigant is to have any hope of generating a viable attack on the practice of enforcing restrictive hair regulations on male prisoners, he must understand the reasons that motivate a prison administrator to write such rules. From the more cynical perspective, there are two classes of justifications for prison hair regulations: the real reasons, and the reasons that will more likely be offered in a court of law. The real reasons are grounded in the following two rules:

RULE #1: A man's reasons for refraining from hair-cutting practices all relate to his assertion, intended consciously or subconsciously, that he is not the servant of other men. RULE #2: When people in authority demand that a man cut his hair or shave his face, their purpose in doing so is to require the clipped man to openly demonstrate his obedience and subservience to them through emasculation.

These two rules are absolute; there are no exceptions. If a person is to be in a position to intelligently sort through the issues presented in a male-prisoner hair regulation case, then that person must necessarily acquire and develop an appreciation of the two rules listed above.

AS TO RULE #1: Prison administrators, in male hair regulation litigation, never substantially acknowledge the fact that a man's uncut hair and beard are important symbols of his assertion of his fundamental autonomy among men. To the contrary, it is claimed by others that the prisoner's hair and beard are meaningless and that prisoners' concerns in this area have been presumed to be de minimis, or of no significant consequence.

It is suggested by many that male prisoners shouldn't care about requirements to shave and/or to submit to haircuts because (1) hair removal isn't painful, (2) hair removal isn't permanent, (3) most men cut their hair short and shave, (4) many of the prisoners who complain of a prison's restrictive hair regulations have themselves voluntarily had their hair cut and/or have shaved in the past, and (5) in those institutions where hair cutting is not physically forced, but in which abstention from hair removal may be punished, the impact is even more acceptable because it is up to the prisoner to make the ultimate decision as to whether or not to submit.

But consider the above attempts at denigrating male prisoner complaints against required hair cutting, point by point, with the following: (1) sexual rape can't be justified on the basis of the fact that no physical pain is inflicted, (2) perpetrating sexual rape would never be adjudged as acceptable just because the effects are not demonstrably permanent, (3) the fact that most adults have sex would never be considered as a justification for forced sex, (4) a rape victim's sexual history doesn't justify sexual battery, (5) a sexual encounter that is "merely" coercive could hardly be defended as such against a charge of rape.

REGARDING RULE #2: Indeed, forcing or coercing a man into removing his hair is not unlike the perpetration of rape. Rape is viewed by many respected commentators to be less an act of sexual expression than an act of aggressive domination meant to oppress and objectify the victim. Similarly, though the administrators of our nation's criminal detention facilities attempt to justify required haircutting on more mundane grounds, the forced or coercive elimination of a man's hair ultimately has as its primary purpose the domination, oppression, and physical objectification of the prisoner.

As we conclude our discussion of the essential moral equality of sexual rape and the required, involuntary haircutting/shaving of male prisoners, please note the following two points: (1) Battery defined as rape doesn't involve the removal of a body part, whereas required haircutting does, and therefore (2) whereas a rape victim may at least be able to move about in society with no physical evidence of the battery, the shorn male must demonstrate his forced submission with every interpersonal presentation of his personhood, i.e. his face.

In conclusion to this point, a man's objections to being forced or coerced into shaving or submitting to haircuts are of grave importance to the man involved. There is neither a logically nor a morally valid basis for summarily dismissing those objections as generally unimportant.

To the readers who do not recognize the absolute import of a man's freedom to present his hair as he chooses: I ask you to consider the prospect of attempting to force men, chosen at random, to totally abstain from haircutting for a continuous period of five years. Alternatively, consider the notion of men, chosen at random, being forced to keep their entire head shaved continuously for a similarly extensive time period. If male hair length were truly of de minimis concern, then so also would be the above two alternatives. But because, in truth, precious few men would freely submit to either of the above two options, let us dispense with the lie that the length of a man's hair is insignificant.

(For a more extensive discussion of The Significance of Male Hair, It's Presence, and Removal, please refer to the paper by that title prepared by this author in 1997. That paper comprises a multi-disciplinary review of the scholarly literature on the subject.)

The above arguments notwithstanding, most prison administrators claim that there are numerous, valid justifications for restrictive hair regulations for male prisoners. Over the years, these officials have successfully used these various reasons to successfully beat back attempts by prisoners to have these regulations struck down in court. Following is a presentation of the various justifications used, written from the perspective of the prison administrator. Next after the immediately following section comes a section that addresses rebuttal arguments from the perspective of the prisoner-plaintiff.

HYGIENE / SANITATION / PERSONAL SAFETY

As to issues involving the hygiene or health of inmates, we note that skilled, medical personnel can undoubtedly identify any health problems present through the administration of frequent, routine, hands-on medical examinations. However, it is considered desirable to keep physical contact between inmates and staff to a minimum inasmuch as a relatively high percentage of prison inmates are generally hostile to any assertion of authority and, perhaps understandably, resent having authority figures make physical contact with them. Additionally, there is a valid desire among prison administrators to minimize the costs of the health maintenance of the prison population. This goal of cost reduction can be realized, in part, to the extent that (1) routine medical examinations can be minimized and (2) to the extent that negative health conditions can be identified at their earliest stage and (3) their spread from inmate to inmate can be prevented. Short hair and shaved faces facilitate these three sub-goals in that it is made easier for non-medical prison staff members to identify possible negative health conditions of prisoners with less pervasive physical contact between inmates and medical personnel. Thus, safety of staff and prisoners, health of prisoners, and medical cost reduction is all accomplished through short hair and shaving requirements.

Infection: The possibility of skin infection increases when numerous persons are housed in close proximity of one another as in a prison or jail. In addition to threatening the health and well-being of the individual, infections pose a risk to others in that many pathologic skin conditions are contagious. The identification of skin infections is made increasingly difficult as the quantity of hair increases. Conversely, non-medical prison staff can more easily identify questions as to an inmate's possible skin disorder if that inmate is bare faced and with short hair.

Short cranial hair maintenance and facial shaving facilitates the early detection of skin infections in inmates and thus contributes to the maintenance of good hygiene in the individual and the prison population as a whole.

Lice: The possibility of louse infestation increases with the amount of hair on the human body. In addition to concerns about the discomfort or ill health experienced by the inmate carrying lice is the administration's necessary concern over the fact that personal louse infestation is highly contagious, particularly between people housed in close quarters. Short cranial hair maintenance and facial shaving reduces the possibility of louse infestation and thus contributes to the maintenance of good hygiene in the individual and the prison population as a whole.

Personal Cleanliness: Less hair means less to keep clean. Among non-prisoners, the norm in our society is to bathe on a daily basis, whereas in a typical criminal detention facility bathing episodes are most often limited to two per week. The reason that less bathing is allowed among inmates is that bathing is personnel-cost intensive. Bathing activities must be closely monitored by prison staff in order to reduce the opportunity for prisoner-to-prisoner battery. (Housing each prisoner in an individual cell with its own shower would increase prison construction costs dramatically and unacceptably.) Short cranial hair maintenance and shaving allows inmates to stay cleaner, longer which in turn allows the prison system to minimize the costs attendant to prisoner bathing while maintaining proper levels of prisoner cleanliness.

Clogged Drains: The human body sheds hair on a daily basis. Short strands of hair pass through plumbing more easily than do long strands, which have more of a tendency to cause clogs and backups. Short hair and shaving requirements for prison inmates reduce the plumbing maintenance costs necessary to maintain a proper level of plumbing related sanitation in a detention facility. Indirectly, then, short hair and shaved faces among prisoners contributes to prisoner sanitation in this regard.

Industrial safety: The longer a prisoner's hair or beard, the greater the chance that it may become caught in a cell door, or a unit of industrial machinery, and cause death or dismemberment. A suggestion that the prisoners be required to wear extra industrial safety gear fails on the grounds that it would not be acceptable as a full time requirement and, thus, would not protect against mishaps in the highly mechanized, physical environment of the typical detention complex. Further, in the prison workplace additional requirements make additional opportunities for prisoners to run afoul and for physical conflict to arise between inmates and staff. A requirement toward short hair and shaved faces contributes to the safety of prisoners and, indirectly, staff safety and security.

Food service: Food service work provides an important opportunity for prisoner rehabilitation. Further, by assigning food service tasks to prisoners, costs are reduced considerably from that which they would be if all food service work was contracted out or performed by civil service employees.

It is held without question within the food service profession that it is imperative that hair be kept out of food. It is believed that a shaved face has no hair to shed and cranial hair clipped short will, to a lesser degree, break off and shed into the object of a worker's task. Therefore, all other things being equal, short hair and a shaved face on a prisoner food service-worker will contribute to his ability to utilize this opportunity toward rehabilitation and to help defray the costs of his interment. A suggestion that the prisoner simply be required to wear a face guard and/or a hair net fails on the grounds that additional requirements make additional opportunities for prisoners to run afoul and for physical conflict to arise between inmates and staff. Thus, a requirement toward short hair and shaved faces on inmates contributes to inmate rehabilitation, food service sanitation and prison cost reduction.

IDENTIFICATION

It is commonly held by prison administrators that prisoner identification is facilitated by short hair and shaved faces. Short hair has virtually no tendency to obscure the face, and a shaved face presents the facial contours and characteristics much more clearly than does a bearded face.

Also, the more hair that one has, the more readily he can change his appearance. A prisoner starting with a full beard and long hair can pass through a variety of appearance presentations with minimal effort, thus confounding prison administration goals toward the efficient administration of prison functions. Requirements toward short hair and shaved faces, conversely, serve as a relative discouragement from any attempt toward within-facility subterfuge, or escape.

Prison requirements of short hair and shaved faces contribute to prison security in ways identified in the following outline:

A. Within-Confinement Identification:

-Naming Participants in Group Disturbances

-Routine Transactions May Require Positive Identification:

Rx Dispensation

Mail Delivery

Inter-Facility Transport

B. Regarding Escape:

-Facilitates Escapee Recapture

-Discourages Escape Attempts

-Lessens the Risk of False Release

SECURITY

Restrictive hair and beard regulations have been held to contribute significantly to the maintenance of prison security.

Gang Control is enhanced in that gang members often tend to use sharply trimmed designs in their hair or beards to passively present gang insignia. This practice can be prevented through focused hair regulations.

Long hair and/or beards offer yet another opportunity for the Secretion of Contraband. Contraband can take the form of weaponry, escape devices or drugs each of which pose a threat to prison security in their own way. Of course, frequent hands-on scalp searches can address this concern. But by regulating against long hair and facial hair, the prison administration can defeat the ease with which contraband can be hidden on a prisoner's head while minimizing the need for guard-to-prisoner contact. Lessening guard-to-prisoner contact corresponds to a reduction in the occurrence of physical aggression displayed by those prisoners who are hostile toward authority and resent any physical contact by prison staff. Thus, restrictive hair and beard regulations contribute to an enhancement of safety for both inmates and staff.

It is not-uncommonly believed by prison administrators that long hair on prisoners enhances their tendency to become objects of Homosexual desire. Restrictive hair and beard regulations may be seen as appropriate to the extent that (1) a given prison administration subscribes to this notion, and (2) they wish to minimize any tendency of prison inmates to engage in homosexual activity, consensual or non-consensual.

Long hair and/or beards Facilitate Combat inasmuch as they offer the attacker an additional bodily appendage onto which he can hold. Restrictive hair and beard regulations can indirectly contribute to inmate and staff safety and security by eliminating this advantage for a prospective attacker.

PRISONER DISCIPLINE AND ORDER

Under this very general heading, we will discuss two general sub-topics: religious exemptions from restrictive hair regulations, and the general impact of hair regulations on the prisoner as a social being. Our treatment of each topic will be highly abbreviated.

Some of the prison administrators who choose to enforce restrictive hair/beard regulations deem it appropriate to offer religious exemptions for those who desire same. The argument against such exemptions addresses their impact on the Morale of the prison population. Morale can suffer as a result of the Jealousy felt by prisoners who don't qualify for the exemption and resent the "special privileges" given to those who do. The practical manifestations of this jealousy involve "acting out" behaviors borne of anger. In addition to avoiding such prisoner morale problems, a policy against offering religious exemptions prevents the need to pass judgment as to who is simply "Copying" and so should not qualify and, in turn, the need to respond to the numerous complaints that result from decisions unfavorable to the applicant. Thus, Administrative Convenience is served by not offering exemptions, but rather by maintaining a standard grooming code applicable to all men.

Many prison administrators would posit that conforming to haircut and shaving practices similar to those adopted by the majority of American men will make a positive contribution to Prisoner Rehabilitation. Paradoxically, the extent to which the prisoner sees the regulations as arational and arbitrary, but yet complies with the regulations, is the extent to which he will begin to appreciate the concept of blind obedience to social and legal authority. By learning to do what he is told, when he is told to do it, without defiance or attempts at negotiation, the prisoner takes his first steps toward social reintegration.

At the onset, the following three points should be noted: (1) logical, cogent, rebuttal arguments can be, and have been, used against each of the justifications that have been offered by prison officials over the years to justify their prisons' hair regulations, and (2) generally speaking, they have failed. (3) It is a paradox of polemics that some of the most difficult arguments to rebut are those that are the most foolish on their face. These three facts established, consider the following:

Under the rubric of HYGIENE / SANITATION / PERSONAL SAFETY, five individual topics have been introduced by prison administrators in order to justify restrictive hair regulations for men. They involve concerns over (1) Lice, (2) Personal Cleanliness, (3) Clogged Drains, (4) Industrial Safety, and (5) Food Service. The first line of attack requires recognition of the fact that female prisoners, in no detention facility anywhere in the nation, are required to submit to restrictive hair regulations. If these issues were anything but pretextual in nature, then it would be seen as appropriate for female felons to submit to them, also.

The second line of attack involves the fact that over half of the nation's state prison systems, as well as that of the federal government, have abandoned the promulgation of substantive hair regulations for men. The administrators of those prisons will universally state, however, that they consider their facilities to be properly sanitary and their inmate population to be in a good state of health.

As to the gender rebuttal argument, it has been successfully replied in court that women, as a class, are cleaner than men and so the same hygiene and sanitation concerns are not present. As to the rebuttal argument concerning the federal government, it has been successfully held in court that a state prison system should not be compared to the federal system because federal prisoners are of a higher class of person and so, like women, do not present the same hygienic or sanitation challenges. Regarding state prisons that do not require men to be shorn, it has been successfully held by prison administrator defendants that the standards of the other prisons are lax, and that a more diligent prison system should not be forced to reduce itself to the level of the lowest common denominator.

The IDENTIFICATION concerns offered as justifications for short hair and shaved faces rest on the presumption that prison inmates are to be presumed guilty of prospective wrongdoing, and that the inmate community as a whole faces the responsibility for that guilt. As to within-facility concerns, it is assumed that prisoners will try to intercept each other's mail or prescription drugs, will get into fights, etc., and that requiring male prisoners to have freshly scraped faces and short haircuts will serve to address those concerns. More to the point, it is assumed that long-haired, bearded prisoners are more difficult to identify. The only rebuttal that can be offered to this patently absurd assumption is to demand that the defendant produce even one piece of scholarly research that attests to a greater degree of difficulty in the identification of hirsute men over the shorn. There is none.

As to the escape concerns, the best rebuttal may be that the fundamental reason-for-being of the prison administrator is to deny the prisoner any viable opportunity to escape. Indeed, escape from prison is statistically rare in our country. For the prison official to speak of shearing men's heads as an answer to prison escape is to suggest an indirect answer to a non-existent problem.

Under the heading of SECURITY is found four sub-areas of concern: (1) Gang Control, (2) Secretion of Contraband, (3) Homosexuality, (4) Combat Facilitation. The common factor in these four areas is that they all concern the perpetration of battery. Contraband secretion also involves illicit drug use. There is an important implication subtly proffered within these four attempts to justify male prisoner hair regulations; i.e., that it is the prisoner community as a whole that is responsible for its own security, and that that community is presumed guilty in advance of any wrong doing. Under this attitude one can easily, morally justify depriving each individual in the community of his rights. If the administrators were to forthrightly acknowledge their assigned responsibility, then they would be forced to take the action needed to, e.g., stop contraband drugs at the prison gate. In the case of battery, just as do law enforcement officials in any normal community, they would leave the law-abiding citizens unmolested and isolate those individuals who perpetrate the crime. In present practice, however, many prison administrators choose to offer up haircuts and shaved faces as solutions to battery and drug abuse.

Essentially, the above rebuttal argument says that the entire rationale for imposing restrictive hair regulations upon male convicts is immoral on its face in that the group is punished for the prospective wrongdoing of the individual. On a more practical level, though, each of the four justifications can be attacked logically as being obviously ineffectual. No one can sensibly believe that a requirement toward short hair and shaved faces truly impacts gang activity. As long as prisoners are allowed to wear clothing, short hair requirements can not provide a meaningful deterrent from the secretion of contraband. The notion of short hair making a significant difference in an inmate's chances of being raped is so ludicrous that it has provided one of the few instances in which courts have been unsolicitous of a prison administrator's rationale. It is interesting to note that the same prison administrators who claim to subscribe to the theory that long hair makes a man look like a feminine rape target, often refuse to allow the inmates to leave their facial hair intact. Avoiding combat facilitation would be more of a rationale for requiring short hair on females in a society where, like ours, grabbing a combatant's hair is only considered socially acceptable for female fighters. To suggest that inmates choose their fellow brawlers based on hair length, or to say that they can do significantly less damage to a short-haired opponent, is ludicrous.

The category of PRISONER DISCIPLINE AND ORDER provides a sort of catch-all category for those concerns that do not fall easily into the files listed earlier. Three of the issues listed above - morale, jealousy, and copying - relate to the situation in which a prison chooses to offer religious exemptions from its generally applicable restrictive hair regulations. As an additional common characteristic, they each cast the adult male prisoner into a social role akin to that of the ten year old child. The counter argument involves recognition of the convict as nothing worse than that which his conviction represents. In other words, a burglar or armed robber is presumed to have committed the acts suggested by those titles in the past, but he is otherwise presumed to operate, in the present, as a normal adult. Conversely, if we can not see clear to recognizing adult prisoners as valid, though incarcerated, human beings, then on what basis do we ever set convicts free to operate independently in the non-prison community?

Administrative convenience is only availing so long as we hold a man's desire to allow his hair to remain unmolested to be of no importance. As discussed elsewhere in this writing, that notion must be forcefully countered by the prisoner-litigant intent on winning his anti-hair regulation lawsuit.

As to prisoner rehabilitation, we need to consider exactly that to which we are changing the prisoner toward. When we force him to shave and cut his hair, we teach him that a man's body is disposable, that might makes right, and that submission to the strongest person in one's environment, the warden, e.g., is the end all, be all to socialization. When the prisoner sees his fellows denied the right to worship God with the respect for their hair that they believe God commands, then they learn that worshipping God comes second to worshipping the dictates of whatever person is able to elevate him or herself to a position of power. Thus, male prisoner hair regulations, logically and obviously invalid for the purposes that they are supposed to serve, reinforce for the prisoner some of the very notions that support much of the criminal conduct with which our society is burdened.

TURNER AND O'LONE

It is sensible to discuss, at this juncture, the impact upon male prisoner hair regulation litigation of two U.S. Supreme Court cases. Decided within eight days of one another in June of 1987, the first was Turner v. Safely, 482 U.S. 78 (1987), hereinafter referred to as Turner, and the second was O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), hereinafter referred to as O'Lone.

In Turner the court reaffrimed its holding in Procunier v. Martinez, 416 U.S. 396 (1987) that great deference is to be accorded the edicts of prison administrators as they operate and regulate the prison communities in their charge. The Court then went on to state that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner at 2262. The Court presented a four part test to be used in determining the reasonableness of a prison regulation of the sort under discussion:

1. If a prison regulation is to be found reasonable, there must be a valid, rational nexus between the regulation and the legitimate governmental interest put forward to justify it. A regulation can not be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational. Also, the governmental objective must be a legitimate and neutral one. If the regulation happens to effect First Amendment rights, then it must do so on a content neutral basis.

2. If there are alternative means of exercising the right at issue that remain open to prison inmates, that fact would lend support to a finding of reasonableness.

3. When the accommodation of an asserted constitutional right will have a significant effect on fellow inmates, prison staff, or on the allocation of prison resources generally, that fact should weigh toward deference to the prison administration's judgment on the matter.

4. The absence of ready alternatives to the challenged regulation is evidence of the reasonableness of that prison regulation. Contrarily, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but rather is an exaggerated response to prison concerns. Note that a "least restrictive alternative" test is not to be employed, and that the burden of production is on the prisoner-plaintiff to provide suggestions as to alternatives. If an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, the court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.

The significance of O'Lone to our discussion is found simply in the combination of the following two facts: (1) in the majority of cases on male prisoner hair regulations, the plaintiff has objected to same as a violation of his free exercise of religion rights, (2) O'Lone specifically indicated that it was appropriate to apply the Turner test, as well as the notion of giving great deference to prison administrators, to prisoner complaints that relate to the Free Exercise Clause.

In working toward the development of a viable legal strategy, the prisoner-plaintiff must become fully apprised of the manner in which the courts have applied the Turner four pronged test in similar situations. A case that is both discouraging, to the prisoner-plaintiff, and instructive is that of Iron Eyes v. Henry, 907 F.2d 810 (8th Cir. 1990). This case illustrates how a prison administration can be shown to have acted in a maximally abusive manner toward a prisoner, claim justifications for its restrictive hair regulation in bad faith, and still be exonerated by a U.S. appellate court through an extremely deferential application of the Turner test. Iron Eyes is a "must-read" for the prisoner hair regulation litigant.

Over the last three decades, numerous prisoners have taken their cases against restrictive hair regulations to courts of law, and they have done so under a variety of legal theories. Amendments to the U.S. Constitution that they have cited include the First, Fourth, Eighth, Ninth and Fourteenth.

The following discussion of these bases is intended to be only cursory in nature. Note that, in fact, when crafting a legal argument based on a civil right enunciated in the U.S. Constitution, a viable case can be made only after performing the research necessary to identify the cases that involve (1) an analogous fact pattern as well as (2) an application of the specific constitutional provision upon which the plaintiff hopes to capitalize. Such research must be performed on a case-by-case basis and must relate to the law of the circuit in which the offending prison sits, and so is beyond the scope of this writing.

As noted earlier, the vast majority of complaints regarding male prisoner hair regulation have been based on the fact that the regulations infringed upon a prisoner's rights under the religious Free Exercise Clause of the First Amendment. The First Amendment's Free Speech Clause has probably been cited second most often. State prisoners have brought complaints citing the Equal Protection Clause of the Fourteenth Amendment in which they have sought to make much of the fact that prison system restrictive hair regulations always differentiate based on gender, to the detriment of men. The Equal Protection Clause has also been invoked in those cases where exemptions have been allowed for some religionists but not for others, and in cases involving racial discrimination in hair regulation application.

A right to privacy or bodily integrity, akin to that raised in Roe v. Wade, 410 U.S. 113 (1973) seems rarely to have been addressed. Such a right, as discussed in Roe, could cite to the Fourth, Ninth, and/or Fourteenth Amendments, or to the Bill of Rights as a whole. Similarly, the Establishment Clause of the First Amendment seems to offer viable opportunities for challenge, but it has been severely under used. The Eighth Amendment's ban on cruel and unusual punishment has been invoked with no success, even in those cases in which men have been forcibly restrained and shorn.

Claims under the religious Free Exercise Clause of the First Amendment have been put down in numerous ways. A lack of sincerity has been imputed to the plaintiff based on his past, less-than-perfect adherence to his claimed religious practice. It has been determined that, contrary to the assertions of the petitioner, hair growth is not truly important within his religion. It has been determined that it is OK to restrict the prisoner from one area of religious expression, hair growth, e.g., because he still has other ways in which to make manifest his worship of God.

The First Amendment's Free Speech Clause has often been cited. In this sort of attack the prisoner poses his hair growth as a form of self-expression of which he can not be constitutionally deprived. The problem with this argument is that the courts have never forthrightly acknowledged the fundamental right of an adult male to present his face as he sees fit. Indeed, the only situation in which it has been largely found that government can not impose short hair on males is that of the student in public school. On the other hand, it has been found that men in the military, and those who would remain involved in civilian law enforcement, may be required to submit to restrictive hair regulations.

We discussed earlier the court's reaction to gender discrimination claims that have been brought by state prisoners citing the Equal Protection Clause. The courts have determined that gender discrimination is acceptable in the treatment of prisoners in that women are cleaner than men and are less prone to anti-social behavior. Equal Protection Clause cases, in which it has been charged that some religionists have received exemptions whereas others have not, have received more of an even handed reception. Claims involving racial discrimination in hair regulation application have also been fairly treated: the medical needs of African-American men suffering from shaving induced skin infections have been respected, but hair regulations that seem to result in shorter hair for African-Americans have been upheld on grounds of practical inter-racial differences in hair physiology.

A right to privacy or bodily integrity seems rarely to have been cited in male prisoner hair regulation cases. On those occasions where it has been addressed, the courts have dismissed the argument on the basis that a man's hair is an inconsequential portion of his presentation, more similar in nature to the clothing that he wears than to his ears or nose. We have, then, the incongruity of a jurisprudential system that (1) recognizes, in the name of privacy and personal autonomy over one's body, the right of an adult female to terminate the life of a first-term fetus for any reason or no reason at all, but (2) refuses, supposedly based on a fear of louse infestation, to allow a man the right to control his very identify through the preservation of that part of his body that we call hair.

The Establishment Clause of the First Amendment seems to offer viable opportunities for challenge by religionists, but it has been severely under used. Establishment Clause jurisprudence states, among other things, that the government must not do that which discourages the practice of one form of religion as compared to others. Clearly, the practice of the hair intensive religions, i.e., those of the American Indigenous Tribal Member (AITM), Rastafarian, Sikh, Orthodox Jew, Nazirite, and Sunni Muslim, are discouraged, as compared to that of the mainstream Christian, by restrictive hair regulations that allow for no exemptions based on religion. From the perspective of the non-believer, though, a system that allows exemptions based on religion discriminates unacceptably against him. see Torcaso v. Watkins, 367 U.S. 488 (1961). The solution to the prison administrator's Hobson's choice is simply found in getting out of the hair regulation business, altogether.

The Eighth Amendment's ban on cruel and unusual punishment has been invoked with no success, even in those cases in which men have been forcibly restrained and shorn. Perhaps this is understandable in a society in which even the imposition of capitol punishment is not considered to constitute cruel and unusual punishment for Eighth Amendment purposes.

CORRECTIONAL DEPARTMENTS SURVEY RESULTS

In mid-1997 this author conducted a survey of the departments of corrections of each of the 50 states. The survey was designed in such a way as to elicit information that would, among other things, assist in evaluating the contention, held by so many of our nation's prison administrators, that restrictive hair regulations for the male prisoner have constitutionally acceptable, rational bases. (see reprint of survey instrument found after close of Appendix A) Let us note at this point that proponents of restrictive hair regulations for male prisoners never cite to any empirical evidence that suggests that forcing men to cut their hair or shave generates cooperative behavior. Indeed, there is no such evidence. To repeat that which was stated earlier, when people in authority demand that a man cut his hair or shave his face, their purpose in doing so is to require the clipped man to openly demonstrate his obedience and subservience to them through emasculation.

The numbers reported hereinbelow represent, for the most part, totals for the calendar year 1996.

Twenty-six states responded in some constructive fashion to the survey. Eight of those states were analyzed as having long term, restrictive hair regulations. Three of the 26 states, including two that have no long term restrictive hair regulations, require intake shaves. One state, New York, has no long term restrictive regulations, but requires both an intake shave and haircut; it will not, however, severely enforce the regulation. Only New York had provisions for religious exemptions.

Many of the states that require short hair and/or shaved faces on men claim to do so on the basis of sanitation/hygiene concerns, and also on the basis of a need for ease of identification. Survey questions #13 and #14 were designed to address these issues. Most of the reporting states responded to these questions and every state that responded said that they felt that their needs in these areas were being satisfactorily met. The point here is found in the fact that the 18 states that do not have long term restrictive hair regulations were willing to state that their lack of regulation in this area caused them no negativity in the areas of prisoner identification and sanitation/hygiene. There is no conceivable reason for them to have misrepresented the truth inasmuch as they surely felt no compulsion to respond to my survey, other than that suggested by simple comity.

Relating also to the concern of identification is the rationale used by the restrictive-hair-regulation prison administrations that short hair and/or shaved faces on males is important as a deterrence to, and remedy for, prisoner escape. No prison system in the United States restricts hair growth on women, which seems to threaten the logic of this rationale. But prison administrators are willing to state, and the courts have been willing to accept, that the differentiation is sensible in that women prisoners, as a class, do not present a significant escape threat.

The survey responses put the lie to this attempted justification for emasculating imprisoned men in the name of escape deterrence and remedy. First, prison escape is simply a non-problem. Seventeen states supplied numbers that, as requested, were broken down by gender. These responses accounted for a total of 187,180 of the nation's post-conviction detainees, nearly 20%. A total of 406 escapes were reported, which represents a prevalence rate of only about two tenths of one percent (0.002169). A more valid figure is generated if we eliminate the "escapes" that the prison administrators themselves distinguished as "walk-aways" from minimum security facilities. In that case we have only 298 true escapes, which represent a prevalence rate of only about one and one-half tenths of one percent (0.001592).

Even incorporating the walk-away reports as bona fide escapes, which works to the detriment of my argument against restrictive hair regs, the reporting states that enforced restrictive hair regulations actually had higher escape ratios than did the states that did not have such regulations (.0038 to .0021, respectively). This effectively rebuts the assertion of any supposed escape deterrence or remedial effect of short hair and shaved face requirements forced upon male prisoners. The argument that some states need the regs because escapes would be more numerous without them is idiotic unless we suppose that different states have different species of felon.

As to the notion that women are allowed hair freedom because they are significantly less escape prone, the numbers tell a different story. First, in those reporting states that do not regulate hair, the female escape ratios were higher than the male escape ratios (.0048 to .0037, respectively). Overall, even factoring in the "walk-away" reports, which inflated the male numbers considerably, we still see a male escape ratio of .0022 which is not significantly higher than the female number of .0018. The only rational conclusion to be drawn is that there is no logical nexus between restrictive hair regulations and male prisoner escape. Further, considering the numbers discussed above, the fact that women are never required by the prison administrators to wear their hair short points up the fact that prison administrators require short hair and shaved faces on men only in order to emasculate them. If they really believed their own defenses, the administrators would require female prisoners to wear shaved heads inasmuch as (1) women pose an equal or greater escape risk and (2) a bare-scalped female would pose a significantly easier recapture target.

Recall that prison administrators commonly attempt to justify their restrictive hair regulations with the notion that a long haired male prisoner poses a significantly more attractive homosexual rape target. As an initial matter, we might note that when prison administrators proffer haircut and shave regulations as an answer to the occurrence of rape within their, supposedly, controlled facilities, they effectively admit to an abdication of their responsibility to house their charges safely. That said, when examining the survey figures some relevant and interesting facts become apparent. First, though no amount of rape is ever acceptable, we must characterize prison rape as a rare occurrence. Based on the survey numbers, the overall rape prevalence rate is about four tenths of one percent. Second, the fact that male only, restrictive prisoner hair regulations are not really enforced based on a desire to protect men from rape is proven by the combined facts that (1) no prison system attempts to significantly and similarly control the sexual presentation of its female inmates through haircut requirements, and yet (2) the yearly prevalence rate for female prisoner rape is 0.0102, compared to 0.0034 for men.

Another commonly offered justification for restrictive, male only, prisoner hair regulations is that male prisoners are, supposedly, significantly more violent than female prisoners. This concept is supposedly relevant insofar as short hair on men makes a significant dent in their ability and/or tendency to secrete weapons, and men will theoretically have more of a proclivity to fight if they face an opponent with long, grab-able hair. However, the prevalence of prisoner assault against a corrections officer is about the same for male and female prisoners, 3% and 2%, respectively. Interestingly, the rate for male prisoners in the hair-regulation states is one percentage point higher than that of the non-hair-regulation states. Thus we see, once again, that a commonly proffered rationale for short hair and shave requirements for male prisoners identifies no nexus between the regulations and the goal they are supposedly intended to satisfy. The pretextual nature of the offered justification is made obvious by the fact that female prisoners are left out of the haircut scheme. As noted above, we can hardly believe that different states house different classes of felonious men, so any argument suggesting that one state needs hair regs while others do not is facially ludicrous.

Perhaps the most powerful reason offered by prison administrators to courts of law to justify their male prisoner hair regulations is that they supposedly contribute to a reduction in the ability of the male prisoner to secrete contraband. The state of Texas' correctional system has some of the most austere short hair/shave requirements of any prison system in the country. Unsurprisingly, Texas does not require its female prisoners to maintain short haircuts. Yet it shows a contraband secretion prevalence among its female inmates of 38%, whereas the contraband rate among its shorn men is 23%. Obviously, the reasoning offered is a ruse. Female inmates are allowed the hair growth freedom that they, as human beings, deserve because sexist prison administrators see no reason to emasculate them. Administrators require short hair and shaved faces on men because they find a perverse satisfaction in symbolically reducing the male prisoners to the lower status to which they, the administrators, presume women possess as unwillful beings.

SURVEY RESULTS APPLICATION

Virtually all prisoner complaints of unacceptably restrictive hair regulations are based on constitutional, not statutory, considerations. Further, and as discussed earlier, the vast majority of complaints are based on an alleged violation of the prisoner's religious free exercise rights. By way of review, in the case of Turner v. Safely, 482 U.S. 78 (1987), hereinafter referred to as Turner, the Court reaffirmed its holding in Procunier v. Martinez, 416 U.S. 396 (1987) that great deference is to be accorded the edicts of prison administrators as they operate and regulate the prison communities in their charge. The Court went on to state that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner at 2262. The Court presented a four part test to be used in determining the reasonableness of a prison regulation of the sort under discussion. Lest there be any doubt, the court specifically stated in the case of O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987) that a prisoner's constitutional free exercise concerns were also to be analyzed under the Turner four part test. Turner, supra.

Most relevant to the current discussion is Part 1 of the Turner 4 part test. Id. Part 1 reads as follows: If a prison regulation is to be found reasonable, there must be a valid, rational nexus between the regulation and the legitimate governmental interest put forward to justify it. Id. A regulation can not be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational. Id. Also, the governmental objective must be a legitimate and neutral one. Id. If the regulation happens to effect First Amendment rights, then it must do so on a content neutral basis. Id.

In view of this analytical requirement of Turner, the application of the above dissected survey results should be clear: these results go a long way toward proving to an even handed court of law that male prisoner hair regulations are constitutionally invalid, even under the lowest level of rational basis scrutiny. see Turner, supra.

This writer has no doubt that a successful argument can be made against the constitutionality of restrictive male hair regulations enforced against criminal detainees. Used in conjunction with Unit 1: The Significance of Male Hair, It's Presence, and Removal and Unit 2: Male Prisoner Hair Law, Case Synopses, the information and concepts presented in this unit will prove to be of significant assistance in the crafting of such an argument. On a cautionary note, the litigant is adjured to be absolutely thorough in his presentation. Also, he must take nothing for granted but rather must "begin at the beginning" and prove every concept that underlies his argument.

It will serve to remember that the male judges that hear the case will, in all likelihood, have scraped faces and shorn heads. The female judges will undoubtedly presume short hair and bare faces to be the social norm for good males. Judges of either gender will most likely have been steeped in the culture of mainstream Christianity, in which short hair on men is valued. To get those judges to appreciate, in a manner that serves the plaintiff's purpose, the fact that the hirsute style that they value suggests subjugation to others and relates to a condition of oppression or even slavery, will be daunting. To impress upon them the importance of abstention from hair cutting as a form of God worship will require a full, frontal assault on their own belief structure. Only the most complete and well prepared offense will suffice. It should be prepared by a skilled, licensed litigator.

Inasmuch as the vast majority of complaints are brought on religious freedom grounds, a complete listing of each U.S. Supreme Court case that has addressed the Free Exercise Clause and the Establishment Clause has been presented in Appendix A.

APPENDIX A

THE ESTABLISHMENT CLAUSE CASES

Abington Sch. Dist. v. Schempp, 374 U.S. 203 (1963).

Aguilar v. Felton, 473 U.S. 402 (1985).

Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989).

Board of Educ. of Kiryas Joel v. Grumet, 114 S.Ct. 2481 (1994).

Board of Educ. v. Allen, 392 U.S. 236 (1968).

Board of Educ. v. Mergens, 496 U.S. 226 (1990).

Bowen v. Kendrick, 487 U.S. 589 (1988).

Bradfield v. Roberts, 175 U.S. 291 (1899).

Capital Square Review & Advisory Bd. v. Pinette, 115 S.Ct. 2440 (1995).

Committee for Pub. Educ. v. Nyquist, 413 U.S. 756 (1973).

Committee for Pub. Educ. and Religious Liberty v. Regan, 444 U.S. 646 (1980).

Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987).

Edwards v. Aguillard, 482 U.S. 578 (1987).

Engel v. Vitale, 370 U.S. 421 (1962).

Epperson v. Arkansas, 393 U.S. 97 (1968).

Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985).

Everson v. Board of Educ., 330 U.S. 1 (1946).

Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985).

Hernandez v. C.I.R., 490 U.S. 680 (1989).

Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378 (1990).

Jones v. Wolf, 443 U.S. 595 (1979).

Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 113 S.CT. 2141 (1993).

Larkin v. Grendel's Den, Inc., 459 U.S. 116 (1982).

Larson v. Valente, 456 U.S. 228 (1982).

Lee v. Weisman, 505 U.S. 577 (1992).

Lemon v. Kurtzman, 403 U.S. 602 (1971).

Lynch v. Donnelly, 465 U.S. 668 (1984).

Marsh v. Chambers, 463 U.S. 783 (1983).

McCollum v. Board of Educ., 333 U.S. 203 (1948).

McGowan v. Maryland, 366 U.S. 420 (1961).

Meek v. Pittenger, 421 U.S. 349 (1975).

Mueller v. Allen, 463 U.S. 388 (1983).

Quick Bear v. Leupp, 210 U.S. 50 (1908).

Roemer v. Maryland Pub. Works Bd., 426 U.S. 736 (1976).

Rosenberger v. University of Virginia, 115 S.Ct. 2510 (1995).

Stone v. Graham, 449 U.S. 39 (1980).

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989).

Tilton v. Richardson, 403 U.S. 672 (1971).

Wallace v. Jaffree, 472 U.S. 38 (1985).

Walz v. Tax Comm'n, 397 U.S. 664 (1970).

Widmar v. Vincent, 454 U.S. 263 (1981).

Witters v. Washington Dep't of Services for the Blind, 474 U.S. 481 (1986).

Wolman v. Walter, 433 U.S. 229 (1977).

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1 (1993).

Zorach v. Clauson, 343 U.S. 306 (1952).

THE FREE EXERCISE CASES

Bob Jones Univ. v. U.S., 461 U.S. 574 (1983).

Bowen v. Roy, 476 U.S. 693 (1986).

Brawnfeld v. Brown, 366 U.S. 599 (1961).

Cantwell v. Connecticut, 310 U.S. 296 (1940).

Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 113 S.Ct. 2217 (1993).

Employment Div. Oregon Dept. of Human Res. v. Smith, 494 U.S. 872 (1990). (Smith II).

Frazee v. Illinois Dept. of Employment Sec., 489 U.S. 829 (1989).

Gillette v. U.S., 401 U.S. 437 (1971).

Goldman v. Weinberger, 475 U.S. 503 (1986).

Hernandez v. Commissioner of IRS, 490 U.S. 680 (1989).

Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987).

Johnson v. Robison, 415 U.S. 361 (1974).

Lyng v. N.W. Indian Cemetery Prot. Assn., 485 U.S. 439 (1988).

Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940).

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).

Reynolds v. U.S., 98 U.S. 145 (1878).

Sherbert v. Verner, 374 U.S. 398 (1963).

Swanner v. Anchorage Equal Rights Comm'n, 115 S.Ct . 460 (1994).

Thomas v. Review Bd. of Indiana Empl. Security Div., 450 U.S. 707 (1981).

Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985).

Torasco v. Watkins, 367 U.S. 488 (1961).

U.S. v. Ballard, 322 U.S. 78 (1944).

U.S. v. Lee, 455 U.S. 252 (1982).

U.S. v. Seeger, 380 U.S. 163 (1965).

Welsh v. U.S., 398 U.S. 333 (1970).

West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).

Wisconsin v. Yoder, 406 U.S. 205 (1972).