The Department of Youth Authority (Department) received three written comments during the 45-day written comment period: one from the Prison Law Office (PLO); one from the Lake County Probation Office, and one from John Lafferty. The Department received one written comment from the PLO during the 15-day Notice of Modified Text which was exactly the same as the first comment received from the PLO. Upon receiving the second comment, Department staff counsel consulted with the PLO via fax and an agreement was reached on language to modify the content of the section disputed. A second 15-day Notice of Modified Text with the agreed-upon revision was mailed to the PLO. No further comments were received from the PLO.
The comments/concerns of the PLO are addressed as follows:
The PLO had two issues. The first issue expressed was that the standard in the proposed regulations was more restrictive than the standard required by federal law. The PLO is concerned that the proposed regulations remove the statutory mandate established in the Religious Land Use and Institutionalized Persons Act of 2002 (RLUIPA) 42 U.S.C. §§ 2000cc, et seq., requiring that prison officials demonstrate a compelling governmental interest before placing a substantial burden on the exercise of religious freedom. The second concern was that the proposed regulation did not require that the least restrictive means be used to further the government's compelling interest. Section 4750.1 allows the ward's preferred religious option when not inconsistent with the safety and security of the facility. The Department chose to modify and add language to meet the PLO concern The modified language of Section 4750.1(b) reads: "The Department shall not place a substantial restriction on a ward's exercise of religion unless the exercise is inconsistent with a compelling governmental interest (including safety and/or security interests) or promotes violence or illegal acts." In response to the second concern, the department chose to make an additional revision to section 4750.1(b) to read: "The Department shall document what alternatives were considered and allow the least restrictive means that does not violate the above standard." This language addresses the PLO concerns and meets federal and state standards.
The comment received from Steven R. Buchholz, of the Lake County Probation Office is addressed as follows:
Mr. Buchholz expressed concern that allowing wards to wear religious articles such as a cross, medallion, or medicine bag, at all times underneath the ward's garment and to carry other artifacts to and from religious services and programs, is contradictory to the department's safety and security standard. He considers this contradictory because he believes that the objects can be used for self-mutilation, as a weapon, or for destruction of property. These issues are legitimate concerns. At the present time, if an article is misused to inflict harm on oneself, others, or property, it will then be considered a safety and security issue and will be removed. To address this issue the department is currently in the process of developing regulations that will be completed in the near future which will detail what materials are acceptable to be used in the construction of the articles, artifacts, and any necessary accessories.
Comments received from John Lafferty addressed mostly grammar, spelling, sentence structure, and capitalization, which we have corrected; however, he did have four suggestions for substantive change, and we address those as follows:
There have been no other changes in the laws related to the proposed action or to the effect of the proposed regulations from the laws and effects described in the Informative Digest/Policy Statement Overview contained in the Notice of Proposed Regulatory Action.
In response to the comments received, the department modified the text as follows:
§ 4750. Definitions.
Subsection (a) was deleted here because it is not a definition, and moved to § 4750.1 as the new subsection (a). All subsequent subsections in section 4750 are renumbered.
In subsection (a), formerly subsection (b), the words for the various religions were changed from adjectives to nouns and rearranged in the sentence: "Catholicism, Protestantism, Islamism, Judaism, . . ."
In subsection (b), formerly subsection (c), "i.e." was changed to "e.g.", and the word "also" was deleted from the second sentence.
In subsection (c), formerly subsection (d), the word "Bible" was capitalized.
In subsection (d), formerly subsection (e), the word "epiphany" was made plural, and a comma placed after the word "baptisms."
In subsection (e), formerly subsection (f), the language "are authorized to provide leadership to the designated faith group" was removed and replaced with "can provide services and/or programs to their designated faith group."
§ 4750.1. Religious Services to Wards.
Subsection (a) of §§ 4750 and 4750.1 basically said the same thing. Subsection (a) was deleted and replaced with subsection (a) from section 4750 with some minor revisions to sentence structure and grammar to incorporate everything that was stated in each subsection. All subsequent subsections in section 4750.1 are renumbered.
New subsection (b) is added to clarify that the Department shall not place a substantial restriction on a ward's exercise of religion unless the exercise is inconsistent with a compelling governmental interest (including safety and/or security interests) or promotes violence or illegal acts and that the Department shall document what alternatives were considered and allow the least restrictive means that does not violate the above standard.
Subsection (d)(2), formerly (c)(2), is revised to move the word "only" to the end of the sentence.
In subsection (d)(2)(D), formerly (c)(2)(D), the language, "Staff, with a manager's approval, determine that the ward or group of wards presents a safety and/or security risk to a religious service" was removed and replaced with "Ward or group of wards presents a safety and/or security risk to a religious service, as determined and documented by staff."
Subsection (i), formerly (h), is revised to change the "c" in "Constitutional" to lower case.
Subsection (j)(15), formerly (i)(15), is revised to change the word "incinerary" to "incendiary".
The Department has also chosen to reorder subsections within Section 4750.1(i) (formerly subsection 4750.1(h)). Subsections (A-D) of Section 4750.1(i)(6) have been moved and are now contained under Section 4750.1(i)(5) because (A-D) pertain to diets, the subject of Subsection 4750.1(i)(5).
§ 4751. Chaplain/Ward Communication.
Subsection (a) has been revised to be more grammatically correct as follows:
A comma is removed and a period is added after the word "divulge". The words "except if the" were removed and the next sentence now starts with "If a".