The opinion of the court was delivered by: WEINSTEIN
WEINSTEIN, District Judge.
The defendant, an ordained orthodox rabbi sentenced to imprisonment by this court, seeks food meeting orthodox Jewish dietary requirements (kosher food). The government contends that this court has no power to consider his claim. For the reasons stated below the court holds that it has the power and obligation to require the government to permit this defendant to obtain such food while he is incarcerated.
I. HISTORY OF LITIGATION; INTRODUCTION
In 1971 the defendant pleaded guilty to attempting to make a bomb. There was no proof that his activities had directly led to any physical damage but there was reason to believe that his rhetoric and encouragement had led others to engage in violence and that these activities by others may have led to death and to destruction of property.
In view of the factual ambiguity, the defendant's good background as a teacher, father and husband, his lack of any substantial criminal record, the fact that he appeared to be motivated by consideration of the welfare of others rather than self, and the recommendations of authorities that probation be utilized in such circumstances, the court sentenced the defendant to five years probation. A.B.A. Project on Standards for Criminal Justice, Standards Relating to Sentencing Procedures, Standard 2.3(c), Commentary at pp. 72-73 (Approved Draft 1968); A.L.I. Model Penal Code § 7.01. As one of the conditions of acceptance of a guilty plea and probation, the defendant's associates were compelled to turn over to the police stores of secreted explosives.
At the time of sentencing the defendant was warned not to become involved with guns or explosives. He was told: "In this country, at this time, it is not permissible to substitute the bomb for the book as the symbol of Jewish manhood." Shortly thereafter he was found in the company of people with rifles who were urging others to obtain arms. He was then informed in more detail that he was to have nothing to do, directly or indirectly, with weapons. It was made explicit and clear that this prohibition applied throughout the world and, more particularly, in the State of Israel. The defendant then left with his family to settle in Israel.
Following the murder of members of the Israeli Olympic Team in Germany and attacks on Jewish settlements by Palestinian guerillas, the defendant again engaged in prohibited activities. The evidence shows that he attempted to smuggle weapons out of Israel into this country and that he engaged in Israel in an attempt to induce others to bomb foreign embassies here and elsewhere. Just as his activities had been aborted in this country by vigilant police work at the national and local levels, so the Israeli police discovered his plans in time. He was held in prison in Israel, convicted and released.
Thereupon, he returned to this country where he was prosecuted for violation of probation. After a full hearing he admitted his guilt. Extensive pleas for mercy were made on the ground that the defendant was motivated by a desire to help others in the Soviet Union and elsewhere. This court rejected those pleas. It noted that, "were it to fail to punish . . ., the probation system could not effectively continue. . . . [No] system of justice in a democracy can exist if violence is not condemned, no matter who the victim, no matter what the motive and no matter who the actor."
Since his term of probation had approximately one year to run, defendant was sentenced to one year in prison. 18 U.S.C. § 3653. With no objection by the government, the court ordered:
"He is to be placed in an institution, and in a setting so that he can obtain . . . kosher foods and [comply with] other religious requirements that he may reasonably have."
Before service of sentence begins, it is the normal practice of the court, whenever possible, to allow a defendant to arrange his affairs or to celebrate imminent holidays, such as Christmas, with his family. In this case, since the defendant's family resided in Israel, it was not possible for him to be with it during Passover, which was about to begin. Accordingly, with the concurrence of the government, he was remanded to the Federal Community Treatment Center in New York City during Passover, with instructions that he be permitted to buy his own food in local establishments and to participate in required religious services. As the Passover period came to a close and the defendant was about to be transferred to a prison, the defendant informed the court that the government planned to deny him kosher food. The government conceded that, under its long-standing practice, this was its intention.
Pending decision of defendant's motion that such food be provided, the defendant was ordered kept at the Community Treatment Center. He was to be permitted to purchase kosher food at his own expense in a local restaurant and to engage in required communal prayers in a nearby synagogue. At other times he was to be kept at the Center under normal conditions of incarceration as fixed by the correction authorities.
The government contests the court's jurisdiction to consider whether the defendant is entitled to kosher food. It also argues that the court should not decide the issue because it would be burdensome to meet the religious dietary needs of its diverse prison population.
A person does not lose his basic humanity and constitutional rights because he has been convicted or is serving a term in prison. In this respect we differ fundamentally from some governments which consider its citizens' rights forfeited upon incarceration and engage in abuses of prisoners that amount to a form of slavery. Our courts have made it clear that, to the extent consonant with effective administration of correctional institutions, the First Amendment rights of prisoners cannot be ignored:
"[A] policy of judicial restraint [concerning prison administration] cannot encompass any failure to take cognizance of valid constitutional claims whether arising in a federal or state institution. When a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional rights."
Procunier v. Martinez, 416 U.S. 396, 405-406, 94 S. Ct. 1800, 1807-08, 40 L. Ed. 2d 224 (1974). See also Cruz v. Beto, 405 U.S. 319, 321, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972) ("Federal courts sit not to supervise prisons but to enforce the constitutional rights of all 'persons,' including prisoners."); Wilson v. Beame, 380 F. Supp. 1232, 1242 (E.D.N.Y.1974) ("the Constitution requires the broadest tolerance of religiously based activity and requires public officials to take care to avoid inhibiting any thoughts and deeds reasonably characterized as religious.").
II. TESTIMONY AND AUTHORITIES ON IMPORTANCE OF KOSHER FOOD
At the hearing, the main witness was Rabbi Moishe D. Tendler, an ordained Orthodox Rabbi, a senior member of the State Advisory Board on Kashruth to the New York State Department of Agriculture and Markets, a member of the Advisory Board on Kashruth of the Rabbinic Council of America, and a Professor teaching both Talmudic law and biology at Yeshiva University. Rabbi Tendler testified that dietary laws (kashruth) are central to the religious observances of orthodox Judaism and that an orthodox Jew must be "in extremis" before violating these laws:
"If all [an orthodox Jew] had was non-kosher food to eat, he would have to wait until his physiological state -- his vital signs would be so determined by competent medical authorities that he is in danger of dying -- then and only then could he partake of food [according to Biblical and Rabbinic law].
"Up until forfeiture of life, man must forfeit everything he has, company of his wife and children, his entire wealth, to enter into the realm of the most poverty-stricken rather than transgress the Kashruth laws.
"He is to allow himself to be subjected to torture, to physical torture, to mutilation rather than consume [non-kosher] food.
"I hope that impresses the Court with the fact that we are not dealing with a frivolous notion. It is not a question of a special dietary requirement of white wine with fish or red wine with beef. We are talking about a critical need of the Jew to relate with his God in a series of instructions that have been our mark of distinction from the days that we left Egypt so many thousands of years ago.
"At no time is he exempted, from the day he is born . . . until the day he dies . . . he is governed by Jewish law."
His testimony was confirmed by three other rabbis at the hearing and by a letter, admitted without objection, from Rabbi Moshe Feinstein, a renowned expert on Talmudic law. This evidence was not contested by the government.
A number of rabbis testified that they had personal knowledge of the defendant's religious practices. They knew him to be a meticulous observer of all the tenets of Biblical and Rabbinic law, including kashruth. The government did not dispute this testimony.
Rabbi Henry Siegman, Vice-President of the Synagogue Council of America, testified that his organization, which has assisted the Federal Bureau of Prisons for the past fifteen years in providing Jewish chaplains, regularly requested that the Bureau provide kosher food to Jewish prisoners, but had been unsuccessful. He, and other witnesses testified, without contradiction, that kosher food could be provided, using modern technology, with no inconvenience to a large institution serving meals to a predominantly non-observant population. They gave detailed descriptions of how this could be accomplished using the regular kitchen equipment of the institution with no appreciable administrative difficulties.
Louis Gengler, Warden of the Federal Detention Headquarters at West Street, testified that one prisoner in his institution had received frozen kosher meals as an "experiment" through arrangements made and paid for by the government; no difficulty was encountered. He agreed that these dinners could be stored and prepared with minimal inconvenience. He further stated that another defendant, while incarcerated at West Street, had been assigned to the prison's Food Service unit and provided, out of regular prison supplies and through his commissary account, with supplemental foods meeting kosher requirements, including hard-boiled eggs, some cheeses, tinned-fish and fruits. The Warden also testified that the prison provides Jewish inmates with a kosher meal on Passover and other Jewish holidays. He admitted that a recent attempt by several rabbis to provide the prison with frozen kosher dinners for observant incarcerated Jews, without expense to the government, was refused in accordance with a policy not to provide kosher food regularly or to accept it from others.
With the consent of counsel, the court took judicial notice of the papers filed and testimony given in a case that has been pending in the Southern District of New York, United States v. Huss, 394 F. Supp. 752 (S.D.N.Y.1975). Although the factual background is distinguishable, that case also presents the issue of whether inmates are entitled to food that meets orthodox Jewish requirements and is comparable in nutritional content to the menu served to other federal prisoners. The government, in Huss, stated the practice of the Federal Bureau of Prisons in the following terms:
"[While] in exceptional cases Kosher food has been made available, it is the policy of the Bureau that such food is not to be made available to the inmates on a routine basis. It has been the Bureau's decision that administrative, financial, disciplinary, and security problems which would be created by the offering of such food so far outweigh the incidental burdens upon the practice of the inmates' various religions as to preclude attempting to accommodate the dietary needs of the diverse groups within the prison population."
It is the government's position that this posture is consistent with the official Bureau of Prisons policy requiring its personnel
"to extend to committed offenders the greatest amount of freedom of, and opportunity for pursuing, individual religious beliefs and practices as is consonant with the Bureau of Prisons mission -- the correction of the committed offender. This must be accomplished within the context of the requirement of maintaining security, safety, and orderly conditions in the institutions."
Bureau of Prisons Policy Statement 7300.43A (July 7, 1970).
Testimony in the Huss case by prison officials indicated that the average cost of kosher meals would be somewhat higher than that for an average prison meal. An attorney, however, estimated that only six to twelve inmates in the entire federal prison system would seek kosher food if it were available; this contention was not challenged.
It is possible to summarize this testimony as follows: (1) dietary laws are of critical theological importance to orthodox Judaism; (2) incarceration does not relieve an orthodox Jew of the obligation to obey these religious requirements; (3) defendant observes these practices strictly and would have to be in danger of death through fasting before he could partake of a nonkosher diet; (4) the Bureau of Prisons has refused to, and will refuse to, provide the defendant with food consistent with his orthodox Jewish religious beliefs; and (5) providing foods meeting orthodox Jewish requirements does not create significant administrative difficulties in prisons. This summary constitutes this court's findings of fact based upon evidence adduced at the hearing. Fed.R.Civ.P., Rule 52; Fed.R.Crim.P., Rule 23.
B. Judicially Noticed Literature
Particularly with regard to the importance of dietary requirements, judicially noticed literature supports these findings. See Fed.R.Ev., Rule 201.
The concept of "kashruth" (dietary observances) does not involve cleanliness or alimentary needs in any hygienic or nutritional sense. Rather, what is involved is the issue of godliness. Each person observing kashruth is treated as if he were in a direct relationship with God, observing what in other religions might be considered a priestly function at the table in the sequence of preparation and service of food and of prayers. With the final destruction of the Temple and the beginning of the Talmudic period in Babylonia and Palestine, a set of strict regulations developed surrounding the consumption of food analogous to those governing the Temple priests, but to be observed by each Jew in his daily life. See J. Neusner, Invitation to the Talmud 14-20 (1973). In a sense, therefore, each meal partaken by a person strictly ...