Institutional Logic and Legal Practice: Modes of Regulation of Religious Organizations in German Prisons

In addition to the different structures of each religious organization, one can also distinguish them based on the following categories: whether they are old, new, institutionalised, and/or established religious. These categories are related to the internal understanding of the religious organization and the offer that they present in prisons, the perceptions of officials of the prisons, and the legal framework. While old and new as temporal dimensions show how long the particular religious organization has been in the prison system, the dimensions of institutionalised and established indicate the quality of integration. Established religious organizations are those that have gained social recognition. Institutionalised religious organizations are those legitimated by the law and which are part of the prison structures. The following table shows how a number of religious organizations fit in these categories. Two more categories are presented in the table, to indicate which organizations are externally perceived as social or religious (Table 6.1).

The categorization of corporate religions in prisons shows that an old religious organization, such as the prison chaplaincy , may admittedly be institutionalised, while it does not need to be equally established. New religious organizations, such as Islamic organizations and the Evangelical organizations, may be established and show first signs of institutionalisation. It is also clear that not all religious organizations are perceived as exclusively religious. The prison chaplaincy and the nongovernmental and non-church-related associations for inmates and ex-offenders are recognized as both religious and social organizations. The Christian welfare organizations are recognized as socially oriented only. As I will describe in the section below, the perception of these organizations as religious or social does not necessarily depend on the external perception of these, but also on differentiation processes within religious traditions and the resulting forms of community that are thus created.

The categories described above can also be analysed as a ‘religious market’ (Stark and Finke 2000). The model of the religious market is presented here from the perspective of the provider. While the theoretical approach of the religious market can be criticised because of its assumption of rational action (Sen 1982), as the metaphor rather systematically represents the dynamics of religious organizations in prison, it is still useful within our analysis.

Offers on the religious market are generally divided into institutionalised and noninstitutionalised providers. These offer religious or social services that can be more or less well established. Prison chaplaincy and Christian welfare organizations like Diakonie and Caritas are institutionalised providers that still have a strong presence on this market. But the influence of other organizations steadily grows, especially nongovernmental and non-church-related associations for inmates and ex-offenders, for example, Evangelical organizations like the Christliches Missionswerk Josua, and Islamic organizations. On this market, we also find groups like Jehovah’s Witnesses that are neither established nor institutionalised. Overall, we notice two related tendencies: the dissolution of the monopoly of traditional Protestant and Catholic prison chaplaincy, and the establishment of new providers.

It is different when the chaplain in prison is on site more consistently. In such cases, chaplains assume many tasks that are normally associated with social and psychological services. And as the chaplains have a budget (church funding) and dispose of their time independently, they can better perform certain tasks compared to other prison staff members, including prison officers, psychologists, and social workers. These are often tasks in rehabilitation, for example, family reunification, transition management, organizing outgoings and events, and so on. In these cases, the religious self-understanding blurs with the social offer. If there are only a few inmates who take part in Sunday service and individual care, the prison chaplain often acts as a kind of social worker.³

As new providers, Islamic organizations are of particular interest. ‘Islam’, as a collective term for different Islamic traditions in Germany , is now the third largest religious community in Germany and grows continuously (Haug et al. 2009, p. 11). This trend is also noticeable in prisons: for example, one prison offers halal food and adopts religious rules for Ramadan. While in many institutions, individual religious practice does not seem to be a problem, some federal states are currently discussing the possibility of institutionalising Muslim chaplaincy as a continuous offer (Jahn 2014). In the context of my own research, the diversity of offers and the different ways to regulate them shows that prisons are able to adapt to specific modes. But these individual modes are also only interim solutions while there is still no general modus vivendi based on the law and administration principles. In three of the six prisons I examined, a religious representative of DİTİB comes into the prison at irregular intervals to offer Qur’an readings for Turkish inmates. In one prison, a volunteer Muslim and a social worker organize something like an Islamic social service, which provides social care and support for imprisoned Muslims regardless of their national origin. In two prisons, there is no special offer for Muslim inmates. In the cases studied in my own fieldwork, there was no institutionalised Islamic chaplaincy. However, the first comprehensive approaches to develop pastoral concepts for Muslim inmates have started: In 2008, Wiesbaden initiated the project MUSE in order to ensure an institutionalised Muslim chaplaincy on a local level (MUSE Wiesbaden 2014). In 2009, the state of Lower Saxony established a working group with the intention to establish pastoral care in state institutions, such as prisons and hospitals, together with Muslim organizations. In 2012, the Lower Saxony Ministry of Justice and some Islamic unions signed an agreement which included the concern of Muslim chaplaincy in prisons (Justizministerium Niedersachsen 2012). In 2013, similar contracts were signed in the federal states of Bremen and Hamburg (Stadtstaat Hamburg 2014). The examples cited, as well as other unknown local initiatives, are still in process. In some places, the cooperation between religious organizations and prisons works very well, as the case of the imam Husamuddin Meyer working in a prison in Wiesbaden shows (Schnell 2014). Other prisons face large difficulties to establish cooperation. Berlin, at the end of 2013, is one such example. The German Press Agency reported:

A dispute over Muslim prison chaplaincy arose between the federal state of Berlin and the Islamic unions. The Muslim representatives cancelled their participation in the Islamforum for Thursday. (German Press Agency 2014)

The dispute had begun because the Office for the Protection of the Constitution had expressed concerns about security problems regarding people in the working group.

Considering those organizations which are new providers that are becoming established, within the context of the institutional logic of German prisons , it becomes clear that the possibilities of rehabilitation help to get a religious organization included into the prison, and that, conversely, issues of order and security will keep a religious organization excluded from the prison. That is, if religious organizations are perceived as rehabilitation actors, they are integrated into the everyday life of imprisonment and the formal structures of the prison. When the presence of a religious organization is perceived as a potential risk towards order or safety, it is not considered as part of the prison, and accordingly, it is not integrated into the prison. To clarify this trend, the following section will describe the institutional logic of prisons in general, and will illustrate some of the practical understandings of religion.

The institutional logic is determined dogmatically by the Prison Act; more specifically, by the prison acts of each federal state, as Germany is a federal republic.⁵ These acts consist of specific administrative regulations for penal institutions and German Basic Law, the overall legal text. The logic is defined in the first title of the act, named ‘principles’. Section 2 defines the ‘objectives of the execution’:

By serving his prison sentence the prisoner shall be enabled in future to lead a life in social responsibility without committing criminal offences (objective of treatment). The execution of the prison sentence shall also serve to protect the general public from further criminal offences.⁶

Based on this key understanding of imprisonment, rehabilitation , and security, Section 3 of the Prison Act describes the practical implementation of these:

(1) Life in penal institutions should be approximated as far as possible to general living conditions.

(2) Any detrimental effects of imprisonment shall be counteracted.

(3) Imprisonment shall be so designed as to help the prisoner to reintegrate himself into civil life at liberty.

While the first and third point comprise the tension between liberty and imprisonment, normal life and imprisoned life, the second point refers to consequences of imprisonment which have to be counteracted . While Secion 3 is relevant for criminology, my focus is more on Section 4 of the Prison Act:

The prisoner shall be subject to such restrictions of his liberty as are laid down in this Act. Unless the Act provides for a special regulation, only such restrictions may be imposed on him as are indispensable to maintain security or to avert a serious disturbance of order in the penal institution.⁷

The italicised words are key terms of the institutional logic, especially with regards to a specific understanding of processes of regulation and practical implementation. But the Prison Act and its actual implementation in prisons does not fully match up. As the head of one correction house described, not all ‘general living conditions’ are possible:

In normal life, outside the prison, it is quite difficult anyway, but in here it is also restricted by the house rules. I cannot allow all different religions at different times of their calls to prayer from the cell […]. I cannot. I will not be able to set up here that we have a Hindu temple next to a mosque next to a synagogue, and so on…. But in private area, if there is still a private area, the inmates must be allowed to live their religion, to the extent that the house rules allow.

The head of the prison uses an emphatic explanation to describe the (im)possibility of negotiating religious diversity in prison in an equal way, while also referring to the problems of managing them outside, in society. In fact, many conflicts about ‘religion’ are present in the German public sphere . The public debates on mosques are one prominent example (Schmitt 2012). Another example is the dispute regarding the status of Jehovah’s Witnesses as a corporation under public law, which shows that the state has to clarify the question of what constitutes a religious community (Besier and Besier 2001). Currently, there is a debate on ‘Islam’ within the German public sphere (Torpey and Joppke 2013, pp. 48–84) . In prison, these questions arise as well, but there they have to be considered alongside the institutional logic presented above, and the specific conditions in prisons. These prison conditions lead to the deprivation of liberty, the deprivation of goods and services, the deprivation of heterosexual relationships, the deprivation of autonomy, and the deprivation of security, as Gresham M. Sykes writes in ‘The Society of the Captives’ (Sykes 2003, pp. 63–83). Moreover, the prison as a ‘total institution’ has different possibilities and limitations to deal with (religious) diversity, because the institution is inhabited by people who act according to general rules, but also according to understandings shaped by individuals or groups. According to Erving Goffman’s definition of ‘total institutions’: