- The Washington Times - Monday, August 9, 2021

A federal appeals court has ruled that parole cannot be revoked for a Colorado felon who refused to participate in a rehabilitation program that has a religious component.

The three-judge panel of the 10th Circuit Court of Appeals in Denver ruled last week that Mark Janny, who said he is an atheist, can sue the government over the February 2015 revocation of his parole, which was done because he balked at attending “Steps to Success,” a “transitional, Christian-based program” at the Fort Collins Rescue Mission.

When Mr. Janny refused to attend the program and left the facility, he was returned to prison for 150 days, court records show.

The panel said the requirements imposed by Parole Officer John Gamez on Mr. Janny were a clear violation of the First Amendment’s protection of the freedom of religion.

A jury should hear Mr. Janny’s “claim that Officer Gamez burdened his right to free exercise by allegedly presenting him with the coercive choice of obeying the program’s religious rules or returning to jail,” Circuit Judge Carolyn B. McHugh, an Obama appointee, wrote for the majority. The judge also held that such a requirement “violates the Free Exercise Clause by coercing or compelling participation in religious activity against one’s expressly stated beliefs.”

Moreover, she wrote, “a reasonable parole officer would have known that putting a parolee to the choice of participating in religious programming or returning to jail on a parole violation violated the Establishment Clause,” thus denying qualified immunity to Officer Gamez.

Judge McHugh also found that Jim Carmack, the Fort Collins Rescue Mission director who notified Officer Gamez that Mr. Janny was in violation of the parole terms, acted as “an agent of the state” and could be sued by the plaintiff. Assistant mission director Tom Knostanty was determined by all three judges to not qualify as a “state agent.”

Mr. Janny is seeking an unspecified amount of damages, said Alex J. Luchenitser, associate vice president and associate legal director at Americans United, a religious freedom advocacy group based in the District. He said Mr. Janney is in prison on unrelated felony convictions for aggravated robbery and participation in a jailhouse riot.

The ruling, Mr. Luchenitser said in an interview, “protects the religious freedom of people under control of the prison system. We hope that the Department of Corrections officials in Colorado pay close attention to this decision, and make sure their procedures comply with this ruling.”

According to Daniel Mach, director of American Civil Liberties Union’s Program on Freedom of Religion and Belief, “throwing someone in jail for refusing to go to church just tramples our nation’s commitment to religious liberty and is flagrantly unconstitutional.” The ACLU joined Americans United in supporting Mr. Janny’s case at the appellate level.

Senior Judge Carlos F. Lucero, named to the federal bench by President Clinton and who took senior status in February, joined Judge McHugh in the majority opinion.

Judge Joel M. Carson III, appointed by President Trump in 2018, dissented on several key points. For example, he balked at the claim that Mr. Carmack, the mission director, was a “state actor” because he enforced program rules.

“Mr. Carmack lacked [the] authority to send Mr. Janny back to jail,” Judge Carson wrote. “Officer Gamez had an ‘informal arrangement whereby the Rescue Mission expressed a willingness to house certain parolees (because all parolees need an address upon being released on parole).’ Nothing about that informal arrangement modified existing policies or transferred authority to Mr. Carmack.”

At least one organization offering faith-based programs to prisoners agrees no one should be coerced into participating.

Heather Rice-Minus, senior vice president of advocacy and church mobilization for Prison Fellowship in Lansdowne, Virginia, said the group, which runs in-prison programs for offenders, does not believe inmates, or parolees, should be forced to participate.

“We believe Christ invites us, not forces us, into a relationship with Him,” Ms. Rice-Minus said. “It’s very important that we allow people to enter programs with free will. We allow people to apply regardless of their background, and people can leave at any time if they’re not comfortable with the teaching, we think it’s very important.”

She also said the Prison Fellowship programs conducted behind bars are privately funded and do not involve government funds.

• Mark A. Kellner can be reached at mkellner@washingtontimes.com.

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