Amicus Curiae Brief — Lester J. Smith, Petitioner v. Timothy C. Ward, Commissioner, Georgia Department of Corrections

No. 21-1405

IN THE

LESTER J. SMITH,

Petitioner,

v.

TIMOTHY WARD, COMMISSIONER OF GEORGIA DEPARTMENT OF CORRECTIONS, IN IN HIS OFFICIAL CAPACITY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

BRIEF OF AMICI CURIAE FORMER PRISON

OFFICIALS IN SUPPORT OF PETITIONER

Jon Endean

COVINGTON & BURLING LLP

620 Eighth Avenue

New York, NY 10018

Kevin King

Counsel of Record

Elizabeth Ertle

COVINGTON & BURLING LLP

850 Tenth Street N.W.

Washington, DC 20001

(202) 662-6000

kking@cov.com

Counsel for Amici Curiae

JUNE 6, 2022

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES....................................... ii

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION AND SUMMARY OF

ARGUMENT .......................................................4

ARGUMENT ...............................................................5

I.

Other Prison Systems Have Lengthy

Histories of Safely Permitting Untrimmed

Beards. .................................................................5

II.

RLUIPA Requires Consideration of

External Evidence and Practices to Ensure

That the Government’s Policy Incorporates

the Least Restrictive Means Available...............9

A. The Exacting Inquiry Imposed by

RLUIPA Is Not Satisfied by

Complete Deference to Testimony of

Prison Officials. ..........................................11

B. Georgia Has Not Offered “Persuasive

Reasons” Why It Is Uniquely Unable

to Allow Beards Permitted by Other

Jurisdictions. ..............................................15

CONCLUSION ..........................................................20

ii

TABLE OF AUTHORITIES

Page(s)

Cases

FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .............................................. 14

Holt v. Hobbs,

574 U.S. 352 (2015) ....... 4, 6, 7, 9-13, 15, 16, 18, 19

Procunier v. Martinez,

416 U.S. 396 (1974) .............................................. 10

Ramirez v. Collier,

142 S. Ct. 1264 (2022) ........................ 10, 12, 13, 19

Smith v. Comm’r, Ala. Dep’t of Corr.,

844 F. App’x 286 (11th Cir. 2021)........................ 13

Smith v. Dozier,

No. 5:12-CV-26 (WLS), 2019 WL

3719400 (M.D. Ga. Aug. 7, 2019)......... 7, 16, 18, 19

Smith v. Owens,

13 F.4th 1319 (11th Cir. 2021) ........ 6, 7, 12, 15, 18

Spratt v. R.I. Dep’t of Corr.,

482 F.3d 33 (1st Cir. 2007) .................................. 13

Turner v. Safley,

482 U.S. 78 (1987) ................................................ 10

iii

Ware v. Louisiana Dep’t of Corr.,

866 F.3d 263 (5th Cir. 2017) .......................... 12, 17

Statutes

Cal. Code Regs. tit. 15, § 3019 .................................... 8

Ill. Admin. Code tit. 20, § 502.110 .............................. 9

N.Y. Comp. Codes R. & Regs. tit. 7,

§ 270.2..................................................................... 8

Ohio Admin. Code 5120-9-25 ...................................... 8

Religious Land Use and

Institutionalized Persons Act, 42

U.S.C. § 2000cc..................... 5, 9, 11, 12, 15, 18, 19

Other Authorities

American Correctional Association,

Standards for Adult Correctional

Institutions (4th ed. 2003) ..................................... 6

American Bar Association,

Standards for Criminal Justice:

Treatment of Prisoners (3d ed. 2011)..................... 6

Dawinder S. Sidhu, Religious Freedom

and Inmate Grooming Standards, 66

U. Miami L. Rev. 923 (2012).......................... 6, 7, 8

iv

Dr. Reginald A. Wilkinson, Correctional

Best Practices: What Does It Mean

In Times of Perpetual Transition? 4,

Keynote Speech Before the Fifth Annual Conference, International

Corrections and Prisons Association,

Miami, Florida (Oct. 27, 2003) ............................ 19

Federal Prisons, Texas Public Policy

Foundation (Feb. 2022) ........................................ 17

Indiana Dept. of Correction, Manual of

Policies and Procedures § 02-01104.X ....................................................................... 8

Lonnie Lemons, Developing Effective

Policies and Procedures 10, The Criterion (2010). ........................................................ 19

State Grooming Standards (Rev. Ulli

Klemm, Adm’r, Religion & Volunteer

Services, Bureau of Inmate Services,

Pa. Dep’t of Corr., ed.) (Dec. 17,

2009) ....................................................................... 7

States Report Prison Understaffing,

Prison Legal News (Apr. 1, 2020) ........................ 17

Va. Dept. of Corrections, Operating Procedure 864.1 (2019) ................................................ 8

INTEREST OF AMICI CURIAE1

Amici curiae are former prison officials who have

personal experience with the unique challenges of balancing religious liberties and security considerations

in the penal setting. As individuals who have worked

on the front lines of prison administration, amici recognize that there are cases where certain religionaccommodating policies cannot be adopted without

compromising an institution’s commitment to safety.

But in the view of amici, this case does not present

such a mutually incompatible choice between inmates’

religious exercise and institutional safety. Instead,

the policy that the Georgia Department of Corrections

(“Georgia”) has refused to adopt in this case has been

implemented in the majority of jurisdictions across

the country.

Steve J. Martin is a career corrections professional

with nearly 50 years of experience in confinement operations. He began his career as a correctional officer

for the Texas Department of Criminal Justice and, after earning his juris doctor degree, eventually became

General Counsel and Executive Assistant to the Director of the Texas Department of Criminal Justice.

He is currently the Federal Court Monitor for the New

York City Department of Corrections related to a remedial decree involving staff use of excessive force

1 All parties were given timely notice of and consented to the fil-

ing of this brief. Pursuant to Rule 37.6, amici affirm that no

counsel for a party authored this brief in whole or in part, and no

person or entity other than the amici or their counsel made a

monetary contribution intended to fund the preparation of this

brief.

2

and detainee violence. He has extensive experience

over twenty years of service with the civil rights divisions of both the U.S. Department of Justice and

Department of Homeland Security related to jails,

prisons, and immigration facilities.

Dick Morgan is a veteran officer and administrator

for the Washington State Department of Corrections.

He served as Secretary of the Department (March

2016-January 2017), Director of Prisons (2008-2010),

and Assistant Deputy Secretary of Prisons (20062008). He also served as Superintendent of three different prisons. He also was appointed to Washington

State’s Indeterminate Sentencing Review Board (Parole Board) and elected to the Walla Walla City

Council, and he has served on the Board of the Washington State Coalition to Abolish the Death Penalty

since 2012.

Dan Pacholke has a long tenure as an officer for

the Washington State Department of Corrections.

Among other positions, he has served as Secretary of

the Department of Corrections (October 2015–March

2016), Deputy Secretary (April 2014–October 2015),

Director of Prisons (July 2011–April 2014), and Deputy Director of Prisons (July 2008–July 2011). He also

served as the Superintendent of a number of individual correction centers.

Dora Schriro is a former Director of two state correctional systems, the Missouri Department of

Corrections and the Arizona Department of Corrections; the Commissioner of two city jail systems, the

St. Louis City Division of Corrections and the New

3

York City Department of Correction; and the Warden

of a St. Louis City jail. Dr. Schriro also served as a

Senior Advisor to DHS Secretary Janet Napolitano on

Detention and Removal and was the founding Director of the ICE Office of Detention Policy and Planning.

Phil Stanley is a corrections administrator who

has served both the New Hampshire Department of

Corrections and the Washington State Department of

Corrections. In New Hampshire, he was Commissioner of Corrections (May 2000-November 2003). In

Washington, his roles have included Director of a regional justice center (2007-2012), Probation Officer

(2004-2017), Regional Administrator (1997-2000), and

Superintendent (1992-1997).

4

INTRODUCTION AND SUMMARY OF

ARGUMENT

This Court’s decision in Holt v. Hobbs, 574 U.S.

352 (2015), vindicated the right of prison inmates to

grow beards as instructed by the tenets of their sincerely held religious beliefs. Nonetheless, in the wake

of Holt, some prison institutions have continued to

curtail the ability of inmates to follow the grooming

dictates of their faiths. The Eleventh Circuit’s decision in this case reflects that problematic trend: It

upholds Georgia’s outlier policy, thus depriving Mr.

Smith of the right to practice his religion as he would

be allowed to in the vast majority of jurisdictions nationwide.

The Eleventh Circuit’s rule simultaneously places

too much weight on what prison officials say, and too

little weight on what prison institutions actually do.

For decades, prisons throughout the country have

safely permitted their inmates to grow beards – most

without any restriction regarding beard length. The

successful implementation of these policies creates a

presumption that Georgia has failed to institute the

least restrictive means to accomplishing its safety

goals, as mandated by federal law. Georgia has not

overcome that presumption here. Specifically, Georgia has failed to provide a permissible explanation for

why its prison system is so different from other institutions that it cannot accommodate the religious

rights of the inmates in its care. Indeed, as the District Court found, Georgia’s Department of

5

Corrections is not meaningfully different in either administration or prison population compared to other

prison systems throughout the country.

Instead of scrutinizing whether Georgia truly differs from other jurisdictions, the Eleventh Circuit

deferred to Respondent’s claim that Georgia would be

burdened by a policy permitting inmates to grow

beards more than one-half inch long. Although amici

agree with the Eleventh Circuit that prison officials’

expertise should be afforded weight when considering

the feasibility of certain prison policies, no level of deference warrants a court abdicating its responsibility

to consider whether there is a less restrictive means

for an institution to accomplish its goal. Particularly

given that prisons in dozens of other jurisdictions

have implemented safe ways to avoid substantially

burdening inmates’ religious rights, the Eleventh Circuit’s deference to Respondent’s professed (but

unsubstantiated) concerns was impermissible under

the Religious Land Use and Institutionalized Persons

Act (RLUIPA), 42 U.S.C. § 2000cc.

ARGUMENT

I.

OTHER

PRISON

SYSTEMS

HAVE

LENGTHY HISTORIES OF SAFELY PERMITTING UNTRIMMED BEARDS.

Prison policies permitting inmates to grow beards

are neither novel nor uncommon. As both the District

Court and Eleventh Circuit acknowledged, 37 states,

the District of Columbia, and the federal Bureau of

6

Prisons all “allow inmates, either by their standard

policy or through an exemption, to grow a beard without any length restrictions.” Smith v. Owens, 13 F.4th

1319, 1332 (11th Cir. 2021) (cleaned up). These policies are not recent developments. Even before this

Court’s decision in Holt, 39 states, the District of Columbia, and the Bureau of Prisons all permitted

beards without restrictions as to length.

See

Dawinder S. Sidhu, Religious Freedom and Inmate

Grooming Standards, 66 U. Miami L. Rev. 923, 96472 (2012).

That broad consensus reflects institutions’ ability

to implement these policies in a way that does not

compromise institutional security. Long-standing experience with policies permitting “religiously

motivated grooming choices” has revealed a “low level

of security risk… when [the practice is] reasonably

regulated.” American Bar Association, Standards for

Criminal Justice: Treatment of Prisoners 216 (3d ed.

2011); see also id. at 209; American Correctional Association, Standards for Adult Correctional

Institutions 77 (4th ed. 2003). Amici have familiarity

with policies permitting beards among inmates, and

none of us has observed significant security concerns

related to these policies when implemented in a reasonable manner.

Although the vast majority of inmates in the

Unites States are permitted to grow beards, the policies that govern that issue are not “monolithic.”

Sidhu, 66 U. Miami L. Rev. at 955. Instead, prisons

7

throughout the country maintain institutional security through varying implementation strategies:

“some [policies] expressly note, without qualification,

that inmates may grow their hair in accordance with

their personal preferences; some expressly entitle inmates to grow their hair in accordance with their

religious beliefs; and others do not have appearance

restrictions but mention the prison interests, such as

security and hygiene, that facilities nonetheless reserve in the event of a breach.” Id.

To ensure safety, many prisons implement specific

policies governing inmate conduct with respect to

beard growth. As noted by the District Court in this

case, the federal Bureau of Prisons and several state

prison systems use a “a self-search method where inmates are required to vigorously frisk, twist, and

move their own beards.” Smith v. Dozier, No. 5:12CV-26 (WLS), 2019 WL 3719400, at *2 (M.D. Ga. Aug.

7, 2019); see also Smith v. Owens, 13 F.4th 1319, 1336

(11th Cir. 2021) (Martin, J., dissenting). Some jurisdictions also provide for revocation of inmates’

privilege to maintain their desired hair or beard

length if they fail “to promptly follow staff directions

with regard to a search of their hair or beard.” Sidhu,

66 U. Miami L. Rev. at 950 n.161 (citing State Grooming Standards 10 (Rev. Ulli Klemm, Adm’r, Religion

& Volunteer Services, Bureau of Inmate Services, Pa.

Dep’t of Corr., ed.) (Dec. 17, 2009)). Holt recognized

this approach, noting that “an institution might be entitled to withdraw an accommodation if the claimant

abuses the exemption in a manner that undermines

the prison’s compelling interests.” 574 U.S. at 369.

8

Similarly, a variety of policies exist to ensure that

institutions are able to easily identify inmates, regardless of whether they grow facial hair. Many

prisons require updated photographs from inmates

whenever their appearance is substantially altered,

including when an inmate’s facial hair changes.2

Some prisons that require updated photos based on

changes in appearances also charge inmates a nominal fee if their changed appearance requires the

administration to maintain multiple photographs.3

2 See, e.g., Indiana Dept. of Correction, Manual of Policies and

Procedures § 02-01-104.X, https://www.in.gov/idoc/files/02-01104-Offender-Grooming-5-1-2019-.pdf (“When a significant

change occurs in an offender's appearance, a new identification

picture shall be made.”); N.Y. Comp. Codes R. & Regs. tit. 7, §

270.2(B)(11)(v) (Rule 100.31) (“An inmate shall pay the cost of a

replacement ID card whenever the inmate's appearance is

changed as a result of a beard, mustache, or change in hair

length or color.”); Ohio Admin. Code 5120-9-25(G) (“A new photo

shall be taken whenever in the judgment of the managing officer

or designee any significant change in physical appearance has

taken place. Rephotographing shall be at the inmate's expense if

the change in appearance is occasioned by grooming changes.”);

Va. Dept. of Corrections, Operating Procedure 864.1, § III.F.1

(2019), available at https://vadoc.virginia.gov/files/operatingprocedures/800/vadoc-op-864-1.pdf (“To ensure a current likeness, identification photographs for inclusion in permanent

records and on offender identification cards will be updated

whenever an offender's appearance changes.”).

See Sidhu, 66 U. Miami L. Rev. at 950 n.161 (citing State

Grooming Standards 1 (Rev. Ulli Klemm, Administrator, Religion & Volunteer Services, Bureau of Inmate Services, Pa. Dep’t

of Corr., ed.) (Dec. 17, 2009) (“If a prisoner drastically changes

3

9

Other institutions specifically require that all inmates

who have beards also provide clean-shaven photographs to the prison administration.4 The bottom line

is that there are multiple methods of addressing the

consequences that flow from allowing inmates to

maintain beards, and in amici’s experience, those

methods are effective in practice.

II.

RLUIPA Requires Consideration of External Evidence and Practices to Ensure

That the Government’s Policy Incorporates the Least Restrictive Means

Available.

In Holt, this Court found it significant that, although the Arkansas Department of Corrections

argued that it could not safely permit inmates to grow

his or her appearance, e.g., changing hair length or color, shaving, or growing a beard or mustache, the individual shall be rephotographed for purposes of identification.”); Cal. Code Regs.

tit. 15, § 3019 (“An inmate may also be charged for replacement

of [an identity] card if a physical change in the inmate’s appearance is a matter of his or her own choice and the change occurs

within six months of the issue of a new or replacement card.”);

Ill. Admin. Code tit. 20, § 502.110(b) (“If the growth, elimination,

or color change of hair, mustache, sideburns, or beard significantly changes the individual’s appearance, a new identification

photograph shall be taken.”).

4 See, e.g., Va. Dept. of Corrections, Operating Procedure 864.1

§ III.F.3 (2019) (“Whenever available, separate identification

photos should be maintained in VACORIS showing the offender

as received into the DOC, actual or simulated cleanshaven/short-hair, and current appearance.”).

10

beards, “so many prisons” from other jurisdictions allowed that practice. 574 U.S. at 369. Based on that

observation, this Court adopted a new rule: when a

prison’s restriction substantially burdens religious exercise but is not applied by other institutions, the

prison with the restriction “must, at a minimum, offer

persuasive reasons why it believes that it must take a

different course.” Id.

The test recited in Holt reflected long-established

precedent holding that the practices of other prisons

are relevant to determining whether an individual institution’s policies are lawful. See Procunier v.

Martinez, 416 U.S. 396, 414 n.14 (1974) (“While not

necessarily controlling, the policies followed at other

well-run institutions would be relevant to a determination of the need for a particular type of

restriction.”); Turner v. Safley, 482 U.S. 78, 97–98

(1987) (finding that federal Bureau of Prisons’ general

practice of permitting inmates’ marriages suggested

that there were alternatives to state prison’s refusal

to allow inmates to marry). Importantly, under this

test, it is insufficient for an institution to show that it

would experience a relatively different outcome compared to other facilities if it were to adopt alternative

policies; an institution must also show why it would

experience those different results. Holt, 574 U.S. at

866; see also Ramirez v. Collier, 142 S. Ct. 1264, 1279

(2022) (“Respondents do not explain why. Nor do they

explore any relevant differences between Texas’s execution chamber or process and those of other

jurisdictions.”).

11

A. The Exacting Inquiry Imposed by RLUIPA

Is Not Satisfied by Complete Deference to

Testimony of Prison Officials.

Amici agree with Georgia that the security of prisons constitutes a compelling governmental interest.

And amici further agree, based on their own firsthand experience, that testimony from prison officials

can assist courts in determining whether challenged

policies are compatible with the security concerns inherent in prison operation. After all, “[p]rison officials

are experts in running prisons and evaluating the

likely effects of altering prison rules, and courts

should respect that expertise.” Holt, 574 U.S. at 364.

However, no amount of expertise “can justify the

abdication of the responsibility, conferred by Congress, to apply RLUIPA’s rigorous standard.” Id.

Deference to prison officials at a particular institution

cannot, on its own, defeat the presumption that a

widespread practice of other institutions can be safely

employed. In other words, a prison cannot carry its

burden under RLUIPA merely by invoking the expertise of its officials, and a court cannot rubber stamp

prison policies merely by deferring to such expertise.

Indeed, one of Holt’s central tenets is that RLUIPA

“demands much more” than deference to prison officials’ “mere say-so that they could not accommodate

petitioner’s request.” 574 U.S. at 369. To establish

that a challenged policy is the least restrictive means

of achieving a compelling governmental interest,

Georgia bears the burden of reconciling its policies

with more permissive beard policies employed by most

12

other prison systems. Id. at 357–58; see also Ware v.

Louisiana Dep't of Corr., 866 F.3d 263, 274 (5th Cir.

2017) (“Because Ware offered evidence that the vast

majority of jurisdictions have a more lenient policy

with regard to dreadlocks than DOC, Holt requires

that DOC offer persuasive reasons for the disparity”).

Holt’s prohibition on “mere say-so” rationales

means that courts may not defer to a prison official’s

claim about feasibility where the official did not even

consider whether they might have adopted the practices of other institutions. Instead, in order to show

that a prison policy is the least restrictive means,

Georgia was required to evaluate how it might have

implemented the procedures adopted by other prison

systems, and to conduct a reasoned analysis regarding

the fit between those procedures and the needs of

Georgia prisons. On this crucial point, the Eleventh

Circuit erred. Rather than following Holt’s directive,

the Eleventh Circuit accepted Georgia’s representation that it was uniquely unable to permit inmate

beards without “requir[ing Georgia] to detail other jurisdictions’ successes and failures with their grooming

policies.” Owens, 13 F.4th at 1332.

To the extent that there was any lack of clarity on

this issue before, Ramirez resolved the issue. There,

the Court concluded that Texas had done “nothing to

rebut … obvious alternatives, instead suggesting that

it is [the inmate’s] burden to identify any less restrictive means. That gets things backward. Once a

plaintiff has made out his initial case under RLUIPA,

it is the government that must show its policy is the

13

least restrictive means of furthering a compelling governmental interest.” 142 S. Ct. at 1264 (cleaned up).

Holt implicitly addressed the same point in faulting the prison system for failing to engage with the

alternative policies employed by other prison systems.

Specifically, the Court observed that “the Department

ha[d] failed to prove that it could not adopt the less

restrictive alternative of having the prisoner run a

comb through his beard.” Holt, 547 U.S. at 365. Indeed, “as petitioner has argued, the Department could

largely solve this problem by requiring that all inmates be photographed without beards when first

admitted to the facility and, if necessary, periodically

thereafter.” Id. at 366.

As a result, surprise or lack of notice cannot serve

as a basis to excuse Georgia from analyzing the workability of these policies and, if necessary, explaining

why circumstances in Georgia prisons require a different approach. See Spratt v. R.I. Dep’t of Corr., 482

F.3d 33, 41 n.11 (1st Cir. 2007) (“to meet the least restrictive means test, prison administrators generally

ought to explore at least some alternatives, and their

rejection should generally be accompanied by some

measure of explanation”); Smith v. Comm’r, Ala. Dep’t

of Corr., 844 F. App'x 286, 293 (11th Cir. 2021) (granting injunctive relief where the Alabama Department

of Corrections had “conceded that an alternative policy existed,” that the “alternative is the precise policy

the BOP has followed without any problems,” and that

“the ADOC provided no evidence that adopting this

14

alternative… would undermine its compelling interest in security”).

Amici acknowledge that determining the “least restrictive means” of accomplishing a state objective can

be challenging, particularly in the absence of an understanding of what has worked in similar situations.

Indeed, while amici sought to implement best practices in the prison systems they oversaw, those

practices have not always been identical and occasionally required updating in light of new evidence.

As a consequence of this principle, when other jurisdictions have demonstrated a less restrictive

means of accomplishing the same compelling governmental interest, the burden must be on the prison

official defendants to demonstrate why their circumstances are distinguishable. Thus, it is not enough for

the lower courts to have extended deference to testimony regarding security concerns with unshaven

beards—Georgia was required to prove, and the court

was required to consider, why policies permitting but

regulating unshaven beards are insufficient to accomplish Georgia’s safety objectives. Indeed, if the

requirement of reasoned decisionmaking governs under the Administrative Procedure Act’s flexible

framework, see FCC v. Fox Television Stations, Inc.,

556 U.S. 502, 520 (2009), then it surely applies when

applying the rigorous scrutiny mandated by RLUIPA.

The Eleventh Circuit did not require Georgia to engage in any analysis of this type. Accordingly, while

numerous jurisdictions—including those with which

15

amici have been affiliated—have demonstrated the

capacity of a prison system to achieve the same compelling governmental interests sought by Georgia, but

with less restrictive means, the success of those efforts

has been rendered inapposite by the Eleventh Circuit’s decision.

The net effect of the Eleventh Circuit’s decision is

to limit the protection afforded by RLUIPA, and to upset the careful balance struck by Congress and the

President in enacting that statute. Accordingly, the

breadth of the deference afforded to prison officials is

fundamentally inconsistent with this Court’s holding

in Holt, and risks “render[ing] [this] Court's command

in Holt meaningless.” Owens, 13 F.4th at 1339 (Martin, J., dissenting).

B. Georgia Has Not Offered “Persuasive Reasons” Why It Is Uniquely Unable to Allow

Beards Permitted by Other Jurisdictions.

The Eleventh Circuit acknowledged that, in light

of other jurisdictions’ policies governing inmates’

beards, Georgia was required to differentiate its circumstances from those of other prison systems. In

upholding Georgia’s beard restriction, the Eleventh

Circuit credited two of Georgia’s proffered explanations on that issue: (1) personnel challenges related

to low staffing and high turnover rates and (2) a relatively high number of inmates incarcerated for violent

offenses. Owens, 13 F.4th at 1330. However, the

Eleventh Circuit’s uncritical acceptance of these rationales amounted to little more than approval of

16

prison officials’ “mere say-so”—an approach this

Court rejected in Holt. 574 U.S. at 369. Both of Georgia’s rationales for “why it believes that it must take

a different course” from other jurisdictions are inconsistent with Holt’s emphasis on the import of other

prison systems’ practices, for several reasons. Id.

First, Georgia did not establish, and the courts below did not find, that Georgia faces more severe

understaffing challenges or prison populations than

other jurisdictions that permit inmates to grow

beards. The furthest the District Court went was to

say that the Georgia had “shown that its low staffing

and high turnover rates play a significant part in its

ability to monitor inmates and conduct searches.”

Dozier, 2019 WL 3719400, at *6. But the District

Court did not conclude that personnel challenges were

different compared to other institutions in a way that

rendered Georgia uniquely unable to accommodate inmates who have a sincere religious interest in

maintaining a beard.

To the contrary, the District Court expressed skepticism that either of Georgia’s rationales made it

different from other jurisdictions throughout the

country. Id. at *7 (discussing testimony that Georgia

is “in the middle [of the pack] for prison systems in the

United States” with respect to staffing and noting that

Georgia had failed to provide statistics on “violent inmates in other prison systems, gang membership in

other prison systems, or inmates serving a life sentence in other prison systems”). Here, the Eleventh

Circuit not only accepted Respondent’s “mere say-so,”

17

it went one step further by crediting prison officials’

claims even where the District Court did not.

Second, even if Georgia’s prisons are understaffed,

that would not be a constitutionally permissible rationale for substantially burdening the rights of

inmates housed in those facilities. Indeed, understaffing concerns for prisons are so widespread that, if

permitted to justify restrictive policies, they would become the exception that swallows the rule. All fifty

states have reported prison understaffing, and it is an

acknowledged “serious problem at the Bureau of Prisons.” Luis Trautman, Addressing Staffing Challenges

in Federal Prisons, Texas Public Policy Foundation

(Feb. 2022), available at https://www.texaspolicy.com/wp-content/uploads/2022/03/2022-02-ROCStaffingFederalPrisons-LarsTrautman.pdf (quoting

remarks by United States Attorney General Merrick

Garland); Brian Sonenstein, All 50 States Report

Prison Understaffing, Prison Legal News (Apr. 1,

2020),

available

at

https://www.prisonlegalnews.org/news/2020/apr/1/all-50-states-report-prisonunderstaffing/ (reporting that all fifty states had “reported prison staffing shortages since 2017”). Amici

are familiar with the challenges involved with adequately staffing prisons, and we are sensitive to the

security risks that inhere such difficulties. Nonetheless, personnel challenges, without something more,

cannot constitute a persuasive reason why an institution is different in a way that prevents it from

implementing policies commonly accepted in other jurisdictions. See Ware, 866 F.3d at 273 (rejecting

18

argument that the Louisiana Department of Corrections was unable to permit dreadlocks in part because

the Department “offered no evidence that it was

unique amongst other jurisdictions” with respect to

“budget and staffing cuts”).

Third, the Eleventh Circuit functionally excused

Georgia from considering how other prisons’ policies

could be implemented in a way that would enable it to

both permit inmates to exercise their religious liberties and ensure institutional safety. Instead, as

discussed above, the Eleventh Circuit concluded that

Holt “does not require [Georgia] to detail other jurisdictions’ successes and failures with their grooming

policies to satisfy a RLUIPA inquiry.” Owens, 13

F.4th at 1331. As the District Court observed, Respondent “has not even attempted to determine how

other states manage inmates with beards.” Dozier,

2019 WL 3719400, at *7. To the contrary, the District

Court’s findings establish that, notwithstanding

Georgia’s staffing situation and prison population, it

is “manageable” for Georgia to safely implement a policy allowing inmates to grow beards of up to three

inches. Id. at *6. As for contraband concerns, the District Court credited expert testimony that the prison

could have employed a self-search method used in

other prisons. The Eleventh Circuit did not offer a

valid reason to disturb that finding, wholly declining

to consider whether such an approach might prove effective in Georgia. Similarly, with respect to prisoner

identification concerns, the District Court acknowledged that other jurisdictions follow a practice of

19

keeping photographs of inmates both with and without facial hair—and in fact, Georgia has a policy of

maintaining updated photos whenever an inmate’s

appearance appreciably changes. Id. at *7.

*

*

*

The Eleventh Circuit’s reasoning artificially divorces consideration of institutional challenges from

already-developed institutional solutions. Indeed, the

Eleventh Circuit’s rationale excuses—and even endorses—institutional decisions not to review the

practices and procedures of other jurisdictions. That

approach defies RLUIPA’s narrow tailoring requirement as well as best practices in prison

administration.

In the experience of amici, Georgia’s head-inthe-sand approach is the opposite of good prison management. Georgia—and other similarly situated

jurisdictions— can “avoid” the need to “reinven[t] the

wheel” with respect to inmate-beard policies by “identify[ing] … established programs whose effectiveness

has been documented and may be used to guide the

creation of a best practice.”5 Holt and Ramirez correctly call for a similar, comparative approach. The

5 Dr. Reginald A. Wilkinson, Correctional Best Practices: What

Does It Mean In Times of Perpetual Transition? 4, Keynote

Speech Before the Fifth Annual Conference, International Corrections and Prisons Association, Miami, Florida (Oct. 27, 2003);

20

Eleventh Circuit’s decision undermines those precedents by allowing superficial, speculative grounds to

stand in for hard evidence and reasoned analysis. The

net result is a hollow regime in which prison administrators may substantially burden inmates’ religiousexercise rights even when other jurisdictions have

identified simple, workable ways of accommodating

those rights.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for a writ of certiorari.

see also Lonnie Lemons, Developing Effective Policies and Procedures

10,

The

Criterion

(2010),

available

at

http://www.mycama.org/uploads/7/7/6/3/7763402/the_criterion____august_20101.pdf.

21

Respectfully submitted,

Jon Endean

COVINGTON & BURLING LLP

620 Eighth Avenue

New York, NY 10018

JUNE 6, 2022

Kevin King

Counsel of Record

Elizabeth Ertle

COVINGTON & BURLING LLP

850 Tenth Street N.W.,

Washington, DC 20001

(202) 662-6000

kking@cov.com

Counsel for Amicus Curiae