The Raj Singh Collection
Analysis and Discussion
Author: Raj Kumar Singh
Copyright © 1997 by Raj Kumar Singh
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
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
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
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
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
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
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,
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:
B. Regarding Escape:
-Facilitates Escapee Recapture
-Discourages Escape Attempts
-Lessens the Risk of False Release
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
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
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
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
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
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
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
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
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.
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
Board of Educ. of Kiryas Joel v. Grumet, 114 S.Ct. 2481
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.
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.
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
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
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
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).
The Raj Singh Collection