Senior Judge W. Louis Sands of the U.S. District Court for the Middle District of Georgia. (Photo: John Disney/ALM)

A federal judge in Macon ordered the Georgia Department of Corrections to amend its policies  to allow inmates to grow beards up to 3 inches long, if their religious beliefs forbid shaving.

Senior Judge W. Louis Sands of the U.S. District Court for the Middle District of Georgia wrote that the GDOC policy—which was already relaxed to allow half-inch beards to accommodate a 2015 U.S. Supreme Court ruling—was still in violation of federal law governing the religious rights of prisoners.

Following a bench trial in a long-running case brought by a convicted murderer and observant Muslim, Sands ruled said the policy breached the Religious Land Use and Institutionalized Persons Act of 2000, also known as RLUIPA.

His order directed GDOC to adopt a policy “allowing  inmates qualifying for a religious exemption to grow a beard up to 3 inches in length,” although he said the exemption could be revoked “based on the inmate’s behavior and compliance with the revised grooming policy.”

Sands also said the plaintiff’s lawyers were entitled to yet-to-be determined attorney fees.

DOC argued that allowing longer facial hair posed a safety and hygiene risk for inmates and staff, but Sands discounted those concerns.

Noting that male inmates’ hair can be up to 3 inches long and that there is no length limit for female inmates, Sands said there was no evidence showing that 3-inch beards would present any additional problem as far as hiding contraband or weapons.

Nor, he said, is there any more reason for concern that another inmate might grab a beard, rather than head hair, in an attack.

Further, Sands said, Georgia is “among a small minority of states that restricts beards to a half-inch or less, and does not allow any religious exemptions.

“Thirty-seven states, as well as the District of Columbia and the Federal Bureau of Prisons allow inmates, either by their standard policy or through an exemption, to grow a beard without any length restriction,” wrote Sands. “The BOP allows inmates to grow their head and beard hair to any length.”

As to concerns that beards could cause hygiene problems by hiding skin conditions or tumors, Sands noted that GDOC policies could be amended to require regular trimming and inspection.

“Furthermore, GDOC’s grooming policy already requires inmates to keep their facial hair ‘clean and neat,’” Sands wrote.

“It is simply hard to fathom how 3 inches of hair covering the entire head is permissible, but 3 inches of hair at the bottom of the face is unworkable,” he said.

The case began in 2012 when inmate Lester Smith, serving a life sentence for multiple offenses including murder, eluding police and possession of a firearm by a convicted felon, filed a pro se suit against then-GDOC Commissioner Brian Owens.

Smith’s handwritten complaint said he became a practicing Muslim while in prison and challenged the constitutionality of the rule and its legality under the RLUIPA.

Owens moved for summary judgment, which Sands granted.

Smith appealed and, while the appeal was pending, the U.S. Supreme Court decided Holt v. Hobbs, in which an Arkansas inmate challenged a state prison policy banning beards under RLUIPA.

A unanimous court held that the policy violated his religious beliefs and said he must be allowed to grow the half-inch beard he sought as a compromise.

GDOC then revised it policy to allow half-inch beards and sought to have the appeal dismissed, but the Eleventh Circuit declined to do so.

The appeals court appointed two Emory University School of Law professors to handle Smith’s appeal: Mark Goldfeder, a senior lecturer and fellow at the Center for the Study of Law and Religion, and Sarah Shalf, whose specialties include appellate and civil rights law.

The appeals court vacated and remanded Sands’ ruling in 2017, instructing him to “analyze Smith’s RLUIPA claim as it relates to the GDOC’s revised grooming policy in a manner consistent with Holt v. Hobbs.”

Smith’s team was joined by Max Thelen of The Summerville Firm last year.

Shalf said she was contacted by staff members in the chambers of Appeals Court Senior Judge Frank Hull, for whom she had clerked—and who was not on the panel hearing the case—to see if Shalf would be interested in taking the appointment.

“I was drawn in by the interesting RLUIPA question in our circuit post-Holt, and Max brought his excellent litigation skills to bear,” said Goldfeder in an email.

During a bench trial in November, GDOC and current Commissioner Gregory Dozier were represented by Senior Assistant Attorney General Tina Piper and AAG Rebecca Dobras.

Sands issued his ruling in favor of Smith on Aug. 7.

Spokespersons for both GDOT and state Attorney General Chris Carr declined to comment on the case.

Asked whether he foresaw an appeal, Goldfeder said it seems unlikely.

“I would be surprised if they do keep fighting,” he said. “They went from being real outliers in their approach to prison beards to somewhere in the middle of the road on this issue.”

The 3-inch length is “still on the more conservative side,” he said.