Judges v. Jailers

As Convict William Howard, 39, tells it, he asked the chaplain at Virginia State Prison back in 1962 if he and any of his fellow prisoners who were Black Muslims could hold their own religious services. Howard's request was bucked up to Prison Superintendent W. K. Cunningham Jr., who responded by demanding the names of the other Black Muslims. When Howard refused to give them, he was packed off to the maximum-security ward, where prisoners get only two meals a day, are not permitted to work or earn money, are deprived of radio, TV and movies, denied access to the library and educational classes, and allowed one bath a week.

Unsigned List. Understandably, Howard was anxious to get out of the maximum-security ward. After failing to get satisfaction in state courts, in March of last year, Howard filed a petition in the U.S. District Court, claiming that he was being denied freedom of religion. Cunningham and his assistant testified that they could no longer remember whether or not Howard had asked for religious services, but Judge John Butzner Jr. held that he must have "expressed his desire to hold Muslim religious services"--otherwise there would be no rational explanation for the superintendent's order. Even so, the court held that Howard had been placed in maximum security because he was the leader of a group that he refused to name, not because he wanted religious services.

Howard then took his case to the U.S. Court of Appeals, and last month in Richmond, Judge Simon Sobeloff was also puzzled by the superintendent's behavior. If getting the names of Howard's fellow Muslims was so vital, said Sobeloff, Cunningham could have asked all those who wanted services to sign a list. Because the prison records gave no indication of why Howard was confined, other than "for the good of the institution," the three-judge Appeals Court unanimously held that he was being arbitrarily punished "for making a reasonable attempt to exercise his religion." He was ordered back to the main prison for "as long as his conduct conforms to proper prison regulations."

Suitable Deluge. Sobeloff's decision apparently struck a nerve. Last week Virginia's Attorney General Robert Y. Button asked for a rehearing before the full bench on the ground that the case is "of major importance." The court, said Button, has "now substituted its judgment for that of experienced penal administrators." Button cited testimony by Cunningham, who is now director of the Division of Corrections, that "if a Catholic boy came to me, or a Protestant boy came to me, saying he represented a certain group of prisoners and refused to give me their names, he would be treated the same way." The court, Button argued, was inviting "a deluge of lawsuits involving the manner in which prisoners are treated and confined in prisons throughout this judicial circuit."

As for Prisoner Howard, who has still six months to serve on a ten-year sentence for armed robbery, he has withdrawn from the Black Muslim movement, and has been separated for four years from his unnamed fellow prisoners. Whether those prisoners were Muslims as he contends, or a group of his followers as the state now contends, Howard, at week's end, was still confined in the maximum-security ward.

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