Opposition Brief — O'Lone v. Estate of Shabazz

EDITOR'S NOTE

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Suprome Court. U.S.

FILED

Fin l.

„ | REGETVED =} —

No. 85-1722 JUL 1- 1986

CFFICE OF T 7

— HE 0 |

1

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

EDWARD O'LONE, JAMES UCCI and

WILLIAM FAUVER,

Petitioners,

Vv.

ESTATE OF AHMAD UTHMAN SHABAZ2 and

SADR-UD-DIN NAFIS MATEEN,

Respondents.

ON PETITION FOR A WRIT OF CERTIORAR] FROM THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

James Katz

TOMAR, SELIGER, SIMONOFF,

ADOURIAN & O'BRIEN

41 South Haddon Avenue

Haddonfield, NJ 08033

(609) 429-1100

Attorneys for Respondents

QUESTIONS PRESENTED FOR REVIEW

1. Whether it is appropriate for this Court to review a

lower court's holding that the state must make a reasonable

effort to accommodate both the inmates’ protected constitutional

rights and the institution's legitimate concerns where a state

prison discontinued its prior practice of allowing minimum and

gang minimum security Muslim inmates the right to attend Jumu'ah

(an obligatory congregational Friday Sabbath service) and where

attendance at the service posed no security threat to the

institution, the service had occurred for five years without

incident, and maximum security inmates were still permitted to

attend the service.

2. Whether the Court of Appeals for the Third Circuit

erred when, in remanding this case to the district court, it held

that when a state prison discontinued its prior practice of

@llowing lesser security Muslim inmates the right to attend their

only weekly Sabbath worship service while maximum security

inmates were still permitted to attend the service, the state

must make a reasonable effort to accommodate the inmates’ First

Amendment right of free exercise of religion and the state's

legitimate penological interests.

TABLE OF CONTENTS

PAGE

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CONSTITUTIONAL AND STATUTORY PROVISIONS I WOLVyb d . ʒ 2

00. eee eee

REASONS WHY THE WRIT SHOULD BE UuICũbp) r . y 2

THE REQUIREMENT THAT THE STATE MAKE

A REASONABLE Error TO MUTUALLY

ACCOMMODATE THE CONSTITUTIONAL

RIGHTS OF INMATES TO FREELY

EXERCISE THEIR RELIGION AND THE

INSTITUTION'S PENOLOGICAL CONCERNS,

WHEN THE STATE DISCONTINUES ITS

PRIOR PRACTICE OF PERMITTING LESSER

SECURITY MUSLIM INMATES FROM

ATTENDING THE ONLY WEEKLY

CONGREGATIONAL SABBATH SERVICE

OF THEIR FAITH, COMPORTS WITE

THE VALUES UNDERLYING THE FIRST

eee eee eee eee ee ee eee eee eee e eee eee eee ee ea

THE THIRD CIRCUIT'S REQUIREMENT OF

A MOTUAL ACCOMMODATION BETWEEN THE

FUNDAMENTAL CONSTITUTIONAL RIGHTS

OF PRISONERS TO FREELY EXERCISE

THEIR RELIGION AND THE INSTITUTION'S

LEGITIMATE CONCERNS IS CONSISTENT

WITH THE DECISIONS OF THIS cook. 4156

THE THIRD CIRCUIT'S REQUIREMENT OF

MUTUAL ACCOMMODATION BETWEEN THE

CONSTITUTIONAL PROTECTED RIGHTS OF

PRISONERS AND THE INSTITUTION'S

LEGITIMATE CONCERNS IS NOT IN-

CONSISTENT WITH THE RECOGNIZED

WEED ron DEFERENCE TO THE JUDGMENT

OF EXPERIENCED PRISON OPTICIALS......ccceceeeceeeeee 25

. eLTTTTrrerrrrrrrTirrrrereeiiriiy

-jii-

TABLE OF AUTHORITIES CASES:

CASES: Page

Page Jones „ et Carolina Prisoners’ Labor Union, Ing: 433 U.S.

6 %%% %% %%% %%% % % %%% % % %%% %% %% „„ LEC 6 „ „ 6 „ „ „0. 27

Abdul Wali v. Coughlin, 754 F. 20 1015 (2d Cir. 1985).......27, 28 Kahane X. Carlson, 527 F. 2d 492 (2d Cir. 19759) 15

American Shipbuilding Co. Vv. NLRB, 380 U.S. 300 110656). . e 28 Lee Vv. Washington, 330 U. 8. 333 640600 6 6 6 6 06% 0010

Barnett Vv. Rogers, 410 F.2d 995 (D.C. Cir. 1966) 30 Marbury Vv. Madison, 1 Cranch 137 11603333 . 43

Barrett v. Commonwealth of Virginia, 669 F. 2d 498 (4th Cir. 1982)15 Native American Council of Tribes v. lem, 691 F.2d 382 (8th

SOOSSSCSESCESSC CSS ee ee eee ee ee eee eee eee

Board of Education Vv. Pico, 457 U. 8. 653 119622777 .. ũẽk ͥ—ꝛÜʃ elf

Pell v. Procunier, 417 U.S. 617 (197) 20, 21, 24, 27

Burgin v. Henderson, 536 F.2d 501 (24 Cir. 1976) 15

‘ “"Procunier v. Martinez, 416 U.S. 396 (157) . 20, 24, 27

Bell v. Wolfish, 441 U.S. 520 (1979/)/ . 2.15, 20, 23, 24

° * Rhodes Vv. Chapman, 452 U.S. 337 (1981)... —— ͤ 2 „ 0 0 0% % %, 19

Cantwell Vv. Connecticut, 310 U.S. 296 1190%%/%/ rr 79

Sherbert v. Verner, 374 U.S. 378 (1963) cccccccccccccccccscsccseend

Cochran Vv. Rowe, 438 F.Supp. 566 (N. d. 111. 1977 . 60

St. Claire v. coset 634 F. 2d 109 (3d Cir.), reh. denied, 643

Cooper Vv. Pate, 382 F. 20 518 (7th Cir. 1967). 6 00 19 * 3d Cir. 1980ùÜ.᷑i r . f

Cooper v. Pate, 378 U.S. 546 (19866))))) : 320, 32 Thomas v. Review Board of the Indiana Employment Security

Divis on, * * TTVTTTITITITITVI TTT 18

Cox Vv. Louisiana, 379 U.S. 536 11066). . 6 0 0% %%% %%% 0 27

Cruz Vv. Beto, 405 U. 8. 319 41972) .. 6 0 060 % 48, 20, 32

Tinker ». Des Moines School District, 393 U.S. 503 (198690. . 1527

United States ex. rel. Miller v. Twomey, 479 F.2d 701 (7th Cir.

Edwards v. South Carolina, 372 U.S. 229 (1963).eeeeeeeeeeeeeeeedl , cert. + 1140 (1974)...... — 2

Estelle v. Gamble, 429 U.S. 97 (196) 19 Walker v. Blackwell, 411 F.2d 23 (Sth Cir. 1969) ẽũ 15

Everson v. Board of Education, 330 U.S. 1 (1947) 13, 14 West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943)26, 25

Freedman v. Maryland, 3860 U.S. 2, (19863) 27 Wisconsin v. Yoder, 406 U.S. 205 (1972)...... cccccccccedd, 18, 26

Grayned v. City of Rockford, 408 U.S. 104197 2ꝶ0 21 Wolff v. McDonnell, 418 U.S. 539 (1976)....... ö 696595 964 19, 20

Baines v. Kerner, 404 U.S. 519 (1977²T2:, 19

Healy v. James, 408 U.S. 169 (1972) cscersseeecveeseeeenseeneeeedl

Hudson v. Palmer, U. 8. „ 62 TL. Ed. 2d 393 (July 3, 1984019

Johnson Vv. Avery, 393 U.S. 483 11066) 6 06 0 006% 10, 27

111 -iv-

Page

UNITED STATES CONSTITUTIONAL PROVISIONS:

STATUTES:

‘RULES:

First AMENGMENC... eee eee e i eeeeeeeeeeeseseseseses sPassim

Fourteenth IGE « 66:06 066666000000660660066066600060RR

28 6.8.6. Gee. .. . „„ „eee eee eee eee ee ee

42 U.S.C. ie 66006606 660060060086600600060606606ee00e

N. J. A. C. end. ede. . . . . „ 00 „%%.

28 E. 9. . neee eee eee e eee ee eee eee 00000000

28 C. F. R. | | TT eee ee eee eee eee eee eee eee eee

BOOKS, TREATISES and MISCELLANEOUS AUTHORITIES:

ABA Joint Committee on the Legal Status of Prisoners,

The Legal Status of Prisoners (Tent. Draft 1977),

reprinte n HM. L. REV. 377 (1977). 28

Barnes & Teeter, New Horizons in Criminology (3d Ed.

.... e TTT TTT TTL TT TTT TU TTT TTT TTT TTT Tee

Batson, Sociobiol and the Role of Religion in

Promotin

125

32

COOCSHEOEEHSEOEOOOOSCEOSOESESECSOCCO RE

“vr

Page

Rothman, The Discovery of the Asylum (1971)..........31

Schwartz, The Bill of Rights: A Documentary History

CRT 666666660506080066056006006000000000660066606600688

Singer and Statsky, Rights of the Imprisoned: Cases

Materials and Directions

„ 6 %%% % % % % % %%% %%% 0 0 0 32

-vi-

2

No. 85-1722

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

EDWARD O'LONE, JAMES UCCI and

WILLIAM FAUVER,

Petitioners,

Vv.

ESTATE OF AHMAD UTHMAN SHABAZ2 and

SADR-UD-DIN NAFIS MATEEN,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI FROM THE

UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

RESPONDENTS’ BRIEF IN OPPOSITION

Respondents Sadr-Ud-Din Nafis Mateen and the Estate of Ahmad

Uthman Shabazz respectfully pray that the petition for a writ of

certiorari be denied.

OPINIONS BELOW

The opinion of the United States District Court for the Dis-

trict of Mew Jersey, Gated October 15, 1984, is reported at $95

. Supp. 928 10. *. . 1984) and appears in the Appendiz to peti-

_ thonere’ petition fete writ of certiorar: et JOA-S$SA. The opin-

tor of the Urites Btetes Court of Appes:s for the erte Circuit,

Sitting en Berc. Gated Joruaty 27, 31904. 10 seported : 782 . 20

4.6 le Cie. 210906) ant appears ir the Appertis tc petitioners”

Petiticr fer @ writ cf cCerticrers ot 14-04

;

2

1

JURISDICTION

The case was argued before the United States Court of Ap-

peals for the Third Circuit on June 21, 1985. The case was

reargued before the Court en banc on November 12, 1985 and was

decided on January 27, 1986. A petition for a writ of certiorari

was timely filed. Petitioners invoke this Court's jurisdiction

pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOKED

1. The First Amendment to the United States Constitution

provides in pertinent part:

Congress shall make no law respecting an estab-

lishment of religion, or prohibiting the free

exercise thereof...

2. The Fourteenth Amendment to the United States Constitution

provides in pertinent part:

Section 1. All persons born or naturalized

in the United States and subject to the juris-

dict ion thereof, are citizens of the United

States and of the State wherein they reside.

No state shall... deny to any person within its

jurisdiction the equal protection of the laws.

3. Title 42 U.S.C. §1983, provides as follows:

Every person who, under color of any stat-

ute, ordinance, regulation, custom, or usage,

of any State or Territory or the District of

Columbia, subjects, or causes to be subjected,

any citizen of the United States or other per-

son within the jurisdiction thereof to the de-

privation of any rights, privileges, or immuni-~

ties secured by the Constitution and laws,

shall be liable to the party injured in an ac-

tion at law, suit in equity, or other proper

proceeding for redress. For the purposes of

this section, any Act of Congress applicable

exclusively to the District of Columbia shall

be considered to be a statute of the District

of Columbia.

STATEMENT OF THE CASE

Sadr-Ud-Din Mateen and Ahmad Uthman Shabazz were two incarcer-

ated inmates at Leesburg State Prison, Leesburg, New Jersey. The

inmates contested the institution's decision of March, 1984, to

discontinue its practice of the previus five years, of permitting

minimum and gang minimum security inmates the right to attend

Jumu ah, an obligatory Muslim Sabbath service occurring each week

for about an hour on Fridays at approximately noont ine. Both

Shabazz and Mateen have been practicing members of the Islamic

faith for many years. Petitioners have conceded the sincerity of

the religious beliefs of both inmates (40A).

Leesburg State Prison (hereinafter referred to as “the main

facility”) is a medium security institution, located on approxi-

mately 1100 acres of land, which houses inmates who are classified

as maximum and gang minimum custody status (40A). Prisoners at

Leesburg are initially classified upon entering the facility as

being maximum, gang minimum, or minimum security risks. Prisoners

who are assigned maximum custodial status and thus are considered

the greatest security risks, are not eligiole for furloughs, work

release, or work detail in areas outside of the prison compound and

must be incarcerated within the prison complex. Gang minimum is an

intermediate custodial status between maximum and minimum. Inmates

initially classified as maximum may be promoted after a specified

period of time to gang minimum security status and are permitted to

work on certain outside work details.

1 Although both were inmates at the time suit was filed and at

the time this matter was initially heard by the court of appeals,

Mateen was paroled on July 17, 1985 and Shabazz died while im-

prisoned on January 15, 1986. Mateen and Shabazz sought both

injunctive and monetary relief. The institution has continued

its policy of denying lesser security Muslim inmates the right to

attend the only weekly Sabbath congregational service of their

faith.

Prisoners can also be assigned to minimum security status. In

addition to the main prison facility, the Leesburg prison adminis-

tration operates two minimum security units, the arm“ and the

Ancora unit, which are physically separate and geographically dis-

tinct from the main facility. Unlike the main institution, which

is surrounded by a 12 foot high fence topped with barbe4 wire, the

Farm is an open area, without a wall or a fence, and prisoners may

enter and exit from the Farm without passing through the receiving

gates for the main facility. Inmates classified as minirum securi-

ty are relocated to the Farm or Ancora units. Many minimum securi-

ty inmates are assigned to outside work details ane all are eligi-

ble to work outside of the institution either imal supervision.

Leesburg initiated the outside work detail program in April,

1983, pursuant to a new state corrections policy that stipulated

that inmates could not be transferred directly from maximum securi-

ty to minimum security custodial status, but instead must pass

through an intermediate, or gang minimum status.

Prior to March 7, 1984, all Muslim inmates at both the main

facility and the minimum units, even those who since April, 1983

had been assigned tc outside work details, were able to attend

Jumu'ah, the Muslim Sabbath worship service. Jumu'ah services are

held every Friday at Leesburg, with separate services conducted for

inmates housed in the main facility and on the Farm. The service

lasts approximately 45 minutes to an hour.

Jumu'ah, which literally means the day of gathering or day of

assembly is an obligatory prayer, required of each Muslim, which

must be performed in a congregation every Friday. The service

takes the place of Zuhr, the second Muslim prayer of the day, and

it may only be said during a limited number of hours on Friday.*

2 Jumu'ah must be held after the time that the sun has reached

its apex and until the time for the third Muslim prayer of the

Footnote Cont'd

-4-

Unlike other Muslim prayers which can be mace up individually,

Jumu ah is obligatory, cannot be made up and must be performed in

congregation (3A, 43A).

Jumu'ah is regarded as the most important weekly service in

the Muslim religion, and the obligation to attend the Jumu'ah vor-

ship service is commanded in the holy Qur'an, which is the central

book of the Muslim religion and sets forth its basic tenets and |

principles. It is undisputed that Jumu'ah is a central practice in

the Muslin faith (3A, 43A).

Mateen testified that to his knowledge, Jumu'ah services had

been conducted on a regular basis at Leesburg for at least the past

five years (43A). Prior to March 7, 1984, those gang minimum Mus-

lim prisoners who wished to attend Jumu'ah and who were housed at

the main facility and assigned to outside work details during the

week, were allowed to remain in the prison and work on an alternate

Getail on Fridays so that they could attend the service. Muslim

prisoners housed on the Farm (the minimum security unit), who were

assigned outside work details and wished to participate in the

Jumu'ah service, reported to their regular work assignment and were

permitted to return by themselves to the Farm to worship.

Until March of 1984, Mateen, like other gang minimum inmates

who were assigned an outside work detail during the week, was 26

signed an alternate work detail inside the institution on Friday,

so that he could attend the Jumu'ah service. On Fridays, Mr.

Mateen was reassigned to the wocd sawing detail, which cut wood in-

side the institution to a specified length and measurement. He

stated that there was always work available.

Footnote Cont'd From Previous Page

day, which is known as Asr. Although the time for Jumu'ah will

vary slightly depending upon the time of year, it must be recited

Guring specified hours, normally around noontime.

3 Any inmate inside the main facility, regardless of security

Classification, was eligible to attend the Jumu'ah service.

In March of 1984, without warning or explanation, petitioners

changed the alternate work detail from gang minimum to maximum, 30

that neither Shabazz nor Mateen were able to remain in the main fa-

cility on Fridays to attend the Jumu'ah service.

Petitioners offered no reason why suddenly, in March of 1984,

they discontinued the alternate work detail for Muslim inmates on

Fridays, other than the rational that this work was subsequently

assigned to maximum security inmates. Indeed, when asked about

this change, James Ucci, Chief Deputy at Leesburg stated:

The Court: Tell me why you, after March of 1984, this

notice, you were unable or it was not considered wise to

continue to permit plaintiffs such as these to stay in,

as you had permitted before that time, to stay inside the

prison on Friday and go to Jumu'ah? Tell me again,

what's the reason for that?

The Witness: Well, for one, they are assigned to a work

detail, which work is required.

The Court: Well, they were assigned to a work detail be-

fore and they were allowed to stay in on Friday.

The Witness: But that detail is ro longer in existence.

The Court: Why not?

The Witness: Because we put maximum inmates there and

we moved the gang minimum inmates outside the institu-

tion. That's a maximum detail. That detail is inside

the wall now, or fence.

The Court: Well, isn't that bootstrapping? You say,

well, we can't allow them to stay in after March of 1984

because they're not max and they're — we made them max

inside. Well, they can't come in because of what you did

after March of 1984.

. According to the work detail records that were supplied by

Leesburg, there are a total of 47 work details, 10 of wnich in-

volve work outside the main facility. Approximately 125 prison-

ers were ordinarily assigned each week to outside work details

ye age 1983-1984. These records also show that there are many

jobs inside the institution which could be used for alternate

work details on Friday so that lesser security Muslim inmates

could continue to attend Jumu'ah worship. Moreover, petitioner

Ucci admitted that if the Muslim inmates presently at the Farm

remained inside the institution on Friday in order to attend

Jumu'ah, there would be sufficient available manpower to staff

211 of the outside work details as well as to provide work as-

signments for Muslim inmates.

— — wee

—ä— u — —— —

Prior to March of 1984, there is no evidence of any problems

or inmate resentment because Muslim prisoners were permitted to

work on an alternate detail in order to attend Jumu'ah worship.

Nor is there any evidence that during the five previous years when

all Muslim inmates were permitted to attend Jumu'ah worship, this

religious practice posed any threats or security difficulties for

the institution. |

On March 7, 1984, Superintendent O'Lone and Ucci issued a new

policy directive which stated:

Due to the increase of the size of

the outside details at both Medium

and Minimum, once an inmate goes to

work in the morning, he will remain

on his detail throughout the ** He

will no longer be brought back into

the institution on a normal day unless

it is an emergency.

In the event of an emergency, your

Getail officer will contact his

immediate supervisor, who wll see to

it that you are brought in.

Because most gang minimum inmates at the main prison facility

and minimum inmates at the Parm are now being assigned outside work

and the institution, in March, 1984, discontinued the alternate

5 Despite the representation made in the prison's March 7,

1984 memo, the prison records show that at least in the main

prison facility, both the number of outside work details and the

number of prisoners assigned to these outside work details de-

clined immediately before and after the March 1984 policy change.

Thus, the evidence indicates that the peak period for outside

work details was November 1983 and the number of inmates involved

has declined substantially thereafter. Both petitioners Ucci and

O'Lone admitted that the size of the outside details had not in-

creased. More specifically, as of November 17, 1983, there were

156 inmates assigned to 11 outside details. Since that date, the

numbers indicate a constant decline, as by December 15, 1983,

there were 10 details and 141 inmates, on February 3, 1984, 137

risoners assigned to 10 details, and by March 2, 1984, five days

fore the change in policy, there vere = 124 inmates assigned

to 6 outside details. After the March 7 — icy changes, the num-

bers dropped even further. On March 9, there were 106 inmates

assigned to 8 details, on April 20, only 90 prisoners and 7 de-

tails, and by June 1, 1984, only 86 inmates assigned to outside

details, almost 50 percent fewer inmates than were assigned six

months previously. Thus, the state's own statistics contradict

their purported justification for the March 1984 policy change.

1 O° „„„%éöL. H q er me mee — ———

Friday inside work detail for Muslim inmates, and petitioners also

in March, 1984, adopted a new work policy which precluded any in-

mate on outside detail from returning to the institution for any

reason whatsoever, most gang minimum and minimum inmates are no

longer able to participate in the Jumu'ah worship service.

Ironically, inmates in maximum custody status, inmates who are

considered the greatest security risk and must be assigned an in-

side work detail, are still able to attend the Jumu'ah worship ser-

vice.

Although in their petition to this Court, petitioners stress

that the March 7, 1984 policy change was effectuated to reduce con-

gestion at the receiving gate at the main facility (Petition at

4-5), no gang minimum prisoners from the main facility ever re-

turned for Jumu'ah because they were assigned to an alternate de-

tail on Fridays inside the prison. Thus, not only is the March 7,

1984 policy overbroad in that it prevents prisoners who have legit-

imate constitutionally protected rights from returning, but any

traffic congestion problems which may have resulted from the pris-

on's prior policy relating to return from work details was wholly

unrelated to attendance at the Jumu'ah service

Prisoners who returned to the minimum security unit at the

Farm to attend Jumu‘ah worship walked into the minimum security

prison on their own, and they were not checked or strip searched.

Petitioners conceded that there were no traffic congestion problems

at the minimum security unit caused by inmates returning for

Jumu'ah or for any other reason. Any congestion problems which may

have existed at the main facility and prompted the March 7, 1984

policy change, were not caused by and were wholly unrelated to

conditions at the minimum security units.

6 Prison records indicate that between August, 1983 and April,

1984, population in the medium security unit declined from 754 to

691 inmates. The prison population of the entire Leesburg com-

plex has remained stable over that time.

In addition to the work details Operating during the week,

there are also outside work details which Operate six or seven days

each week, resulting in some gang minimum inmates working on

Saturdays and/or Sundays. Although prison guards are available to

supervise these weekend work details, petitioner O'Lone testified

that additional weekend work “would be met with extraordinary re-

sistance from the officers...who have a traditional expectation in

some regards of a Monday through Friday work week."

No inmates practicing other religions have been forced to

forego their weekly Sabbath services. If respondents had refused

to work on Fridays in order to attend Jumu'‘ah, they would have been

Gisciplined for such misconduct. In the past, there were no secu-

rity problems precipitated by inmates attending Jumu'ah worship.

Petitioners conceded that Muslim inmates constitute no greater dis-

cipline problem or security risk than any other inmates at the in-

stitution.

Pursuant to 42 U.S.C. §1983, inmates Shabazz and Mateen filed

® civil rights Complaint in the United States District Court for

the District of New Jersey. Shabazz and Mateen alleged that peti-

tioners, in changing their policies in March, 1984 to deprive Mus-

lim prisoners of their prior right of attending Jumu'ah, the Muslim

Friday Sabbath service, abridged their First Amendment right of the

free exercise of religion and violated the Fourteenth Amendment, by

denying them rights afforded adherents of religions with Saturday

or Sunday Sabbath services. Moreover, respondents contended that

petitioners made no effort to explore the readily available alter-

natives which would botn accommodate the inmates’ commands of con-

science and constitutional rights, while protecting the institu-

tion's legitimate concerns. Shabazz and Mateen sought both

preliminary and permanent injunctive relief as well as compensatory

and punitive damages.

Following a hearing, the district court found no constitution-

al violation (39A-55A). The district court conceded that petition-

ers changes in policies constitute the “most restrictive alterna-

tive” (53A), but the court opined that prison officials have no

obligation to affirmatively demonstrate that a restriction on the

free exercise rights of inmates “would in fact be detrimental to |

proper penological objectives...” (51A). According to the district

court, a prison regulation abridging an inmate's First Amendment

rights is still valid even if it is overbroad and "“catch(es) within

it some individ: als for whom the same goals could be achieved with

less trampling upon their rights” (52A).

Respondents filed a timely appeal to the United States Court

of Appeals for the Third Circuit. The case was argued before a

panel of that court on June 21, 1985. Prior to issuance of a deci-

sion, the court sua sponte on August 29, 1985, set down the matter

for rehearing en banc (56A).

The Court of Appeals, in a nine-to-two ruling, vacated the de-

cision of the trial court and remanded the matter for reconsid-

eration. The majority stressed that the district court evaluated

the inmates’ claims under the standards articulated in St. Claire

v. Cuyler, 634 F. 20 109 (3d Cir.), rehearing denied, 643 F.2d 103

(34 Cir. 1980). Under the St. Claire test, the state need only

"produce evidence that to permit the exercise of first amendment

rights would create a potential danger to institutional security.”

Id. at 114. Such evidence may consist of the expert testimony of

prison officials who profess to believe that such a potential dan-

ger exists, if the officials’ opinions are “held ‘sincerely’ and

{are) arguably correct." Id. (citation omitted). Once the state

has satisfied its burden under the St. Claire analysis, the court

must defer to the prison officials’ judgment unless the inmate

shows “by ‘substantial evidence... that the officials have

-10-

exaggerated their response’ to security considerations... or that

their beliefs are unreasonable.” Id. at 115 (citations omitted)

(5A-6A).

The Third Circuit, in its opinion, recognized the expertise of

prison administrators and the need for deference to the judgment of

experienced prison officials (6A-7A). The Court of Appeals also

emphasized this Court's admonition that inmates retain “those con-

stitutional rights that are not inconsistent with their status as

prisoners or with the legitimate penological goals of the correc-

tions system" (7A) (citations omitted). The court stressed that

there must be a mutual accommodation between the institution's ob-

jectives and the constitutionally protected rights of prisoners

(7A) (citations omitted).

In modifying the St. Claire test, the court below did not

reach the ultimate question of whether the challenged regulations

impermissibly impinged upon the inmates’ religious rights (9A).

Rather, the court explained that the St. Claire standard which did

not require any inquiry into the feasibility of accommodating pris-

oners' religious practices, provided inadequate protection for in-

mates constitutional rights to freely exercise their religion

(9A). The court held that where “reasonable methods of accommoda-

tion can be adopted without sacrificing either the state's interest

in security or the prisoners interest in freely exercising their

religious rights, the state's refusal to allow the observance of a

central religious practice cannot be justified and violates the

prisoners first amendment rights.” (10A) (footnote omitted).

In so holding, the Court of Appeals reiterated that it “must

afford deference to decisions by prison officials ... but... such

deference must be tempered by an effort to accommodate free exer-

cise values.” (Id.). The court conceded that the record in this

case reveals particularly strong interests both on the part of the

prisoners as well as the prison administrators. The challenged

regulation prohibits inmates from attending the only weekly Sabbath

service of their faith and there is no indication that participa-

tion in the service by lesser security prisoners, which was allowed

for five years previously, posed any security problems. The court

also recognized that the security problems identified by the state

cannot be disregarded and are worthy of serious consideration. A1

though the court stressed the difficulties inherent in an effort to

accommodate the sincere religious beliefs and practices of the in-

mates and the security problems of the institution, “federal courts

are not free to abdicate their responsibility to see that a proper

accommodation is achieved.” (11A-12A). The Court of Appeals for

the Third Circuit remanded the case for reconsideration in light of

its opinion.

-12-

REASONS WHY THE WRIT SHOULD BE DENIED

1. THE REQUIREMENT THAT THE STATE MAKE A

REASONABLE EFFORT TO MUTUALLY

ACCOMMODATE THE CONSTITUTIONAL RIGHTS

OF INMATES TO FREELY EXERCISE THEIR

RELIGION AND THE INSTITUTION'S PENOLOGICAL

CONCERNS, WHEN THE STATE DISCONTINUES

ITS PRIOR PRACTICE OF PERMITTING LESSER

SECURITY MUSLIM INMATES FROM ATTENDING

THE ONLY WEEKLY CONGREGATIONAL SABBATE

SERVICE OF THEIR FAITH, COMPORTS WITH

THE VALUES UNDERLYING THE FIRST AMENDMENT.

Petitioners contend that the Third Circuit's requirement of a

reasonable effort to mutually accommodate inmates’ First Amendment

rights to freely exercise their religion and an institution's le-

gitimate penological interests contravenes approaches taken by

other courts (Petition at 9-12) and contradicts decisions of this

Court (Petition at 12-17). Instead of mutual accommodation, peti-

tioners' approach would automatically eliminate any protection for

inmates to freely exercise their religion, whenever the inmates’

religious rights interfered with an institution's practices. Peti-

tioners advance this approach, even though the state in this case

is seeking to abridge a religious rite which has continued for five

years without incident, involves attendance by lesser security in-

mates at a congregational Sabbath worship service that is a central

tenet of the Muslim faith, and the prison continues to allow maxi-

mum security inmates the right to participate in the service.

Petitioners’ rigid posture arises out of a failure to fully

appreciate the unique and specially protected position that freedom

of religious observance occupies in our constitutional scheme. The

origins of the view that the right to free exercise of religion is

a fundamental right of the highest order may be traced to the birth

of this country itself, for many of those who settled this land

came tc America to escape religious persecution. See e.g., Everson

v. Board of Education, 330 U.S. 1, 8-9 (1947). The reoccurrence of

similar forms of persecution in early American life "shocked the

-l13-

+

freedom-loving colonials into a feeling of abhorrence” and led to

the “conviction that individual religious liberty could be achieved

best under a government stripped of all power to interfere with the

beliefs of a religious individual or group." Id. at 11.

Guided by the historic legacy of the founding of this nation,

the Framers of the Constitution adopted the Free Exercise Clause to

insulate religious practice from interference by the state.’

Throughout the years, this Court has recognized the fundamental im-

portance of the Free Exercise Clause, . which, by its terms

gives special protection to the exercise of religion." Thomas v.

Review Board of the Indiana Employment Security Division, 450 U.S.

707, 713 (1981).

As Chief Justice Burger recognized, this Court has consis-

tently emphasized “the central values underlying the Religion

Clauses in our constitutional scheme of government", Wisconsin v.

Yoder, 406 U.S. 205, 234 (1972), and the values underlying the Free

Exercise Clause “have been zealously protected, sometimes even at

the expense of other interests of admittedly high social impor-

tance.” Id. at 214. [IIa this highly sensitive constitutional

area, lolnly the gravest abuses, endangering paramount interests,

give occasion for permissible limitation.'" Sherbert ». Verner,

374 U.S. 398, 406 (196°) (citation omitted). “The state may justi-

fy an inroad on religious liberty by showing that it is the least

restrictive means of achieving some compelling state interest.”

Thomas v. Review Board of the Indiana Emplo

nt Security Division,

Supra, 450 U.S. at 718. Even “a state's interest in universal

7 The language of the Free Exercise Clause was apparently de-

rived from Maryland's 1649 Act concerning religion (commonly

known as the “Toleration Act"). See Schwartz, The Bill of

Rights: A Documentary History 90-54, 232, 1121 (1971). The Tol-

eration Act broadly protected an individual from being “any ways

troubled, molested or discountenanced for or in respect of his or

her religion nor in the free exercise thereof...”

education, however highly we make it, is not totally free from a

balancing process when it impinges on fundamental rights and inter-

ests, such as those specifically protected by the Free Exercise

Clause of the First Amendment..." Wisconsin v. Yoder, supra, 406

U.S. at 214.

The essence of all that has been said and

written on the subject is that only those in-

terests of the highest order and those not

otherwise served can overbalance legitimate

8 the free exercise of religion [Id.

at 215).

Although imprisonment necessarily places limits upon many of

the constitutional freedoms enjoyed by free citizens, see Jones

v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 125

(1977) (and cases cited therein), “convicted prisoners do not

forfeit all constitutional protections by reason of their convic-

tion and confinement in prison.” Bell v. Wolfish, 441 U.S. 520,

545 (1979) (and cases cited therein).° Indeed, this Court has

emphasized that “reasonable opportunities must be afforded to all

prisoners to exercise the religious freedom guaranteed by the

First and Fourteenth Amendments without fear of penalty." Cruz

v. Beto, 405 U.S. 319, 322 n.2 (1972) (per curiam).

8 Certainly, the First Amendment must be applied “in light of

the special characteristics of the... environment" in the partic-

ular case. Tinker v. bes wns ee Independent School District,

393 U.S. 503, the problems governing persons in-

side prisons are greater — difterent from those in governing

persons outside the walls. Jones v. North Carolina Prisoners’

Labor Union, Inc., supra. But the fundamental importance of the

values underlying the Free Exercise Clause of the First Amendment

are not altered simply because the First Amendment claimants are

incarcerated.

9 The right of prison inmates to free exercise of their reli-

gion has been recognized in many different contexts. See, e.g.,

Burgin v. Henderson, 536 F. 2d 501 (2d Cir. 1976) (prisoner's

11 1 to grow beard for religious purposes); Kahane v. Carlson,

527 F. 2d 491 (2d Cir. 1975) (prison must make allowance for

religiously-based dietary restrictions); cooper v. Pate, 382 F. 2d

518 (7th Cir. 1967) (prisoner's right to religious services);

Walker v. Blackwell, 411 F.2d 23 (5th Cir. 1969) (prisoners right

of access to religious literature); Barrett v. Commonwealth of

Virginia, 689 F. 20 498 (4th Cir. 1962) (legal recognition o

prisoner's religiously motivated name change).

-15-

Despite these basic principles and the fundamental impor-

tance of the Free Exercise Clause, petitioners, in rejecting the

appellate court's standard of mutual accommodation, demonstrate a

total disdain for the values underlying the Free Exercise Clause,

and a total disregard for the right of prisoners to retain some

Gegree of protection for their religious freedom. Petitioners

ignore the sincere and serious nature of respondents’ constitu-

tional claim, and seek to eliminate, in all but name only, judi-

cial review of prison conduct that interferes with the fundamen-

tal constitutional rights of incarcerated inmates.

Not only do petitioners ignore the fundamental constitution-

al rights being asserted, but in a thinly veiled attempt to dis-

tract this Court's attention from the central issues in this

case, petitioners conveniently overlook many of the factual

claims which distinguish this case from the litany of other cir-

cuit court decisions cited by petitioners (Petition at 9-12).

Unlike other prisoner rights cases,

1. This is not a matter in which inmates are

asking the state to implement a novel pro-

gram, enforce a previously unrecognized

right, or engage in conduct which poses po-

tential security problems for the institu-

tion. Rather, the inmates herein are seeking

to preserve a longstanding religious practice

which in the past has caused no substantial

problems for the institution and its continu-

ation in the present, poses neither a threat

to security nor to internal discipline. gf.

Board of Education v. Pico, 457 U.S. 853,

Stinction in First Amend-

ment —— between acquisition of and re-

moval of ks from school library).

10 The district court even recognized that the institution's

security claims were inapplicable to full minimum inmates, who

are housed on the Farm, an open area, without a wall or a fence

and physically separate from the main facility. As to the Farm,

the district court stressed:

{The security objective) does not

account for the prohibition on full

minimum prisoners’ returning to the Farm

dur ing the day since these prisoners

Footnote Cont'd

-16-

2. The religious practice at issue, attendance

at an obligatory congregational Sabbath wor-

ship service, poses no threat to prison secu-

rity or discipline.

3. The institution's policy effectively creates

a double standard under which Muslim prison-

ers are denied rights of religious worship

which are afforded adherents of religions

with Saturday or Sunday services.

4. Petitioners’ misplaced reliance on purported

security concerns is underscored by the irra-

tional effect of petitioners’ policy changes,

which result in maximum security inmates,

those inmates who represent the greatest se-

curity risk and thus are confined to the in-

stitution, being permitted to continue to at-

tend the Muslim Sabbath worship service, but

gang minimum and minimum inmates who are the

lesser security risks, being precluded from

continuing to participate in this service.

5. The restriction being imposed is not a rea-

sonable regulation of time, place or manner

where there are readily available alterna-

tives, but is an absolute prohibition on at-

tendance at a Sabbath worship service, the

practice of which must be observed during

certain limited hours, is obligatory, cannot

be made up, must be performed in congregation

= is the central service of the Muslim

aith.

6. Pursuant to petitioners’ enumerated inmate

Classification guidelines, the State of New

Jersey is effectively conditioning an in-

mate's right to obtain the greater privileges

consistent with receipt of a lower custodial

security classification, upon the requirement

Footnote Cont'd From Previous Page

do not have to pass through the gate to

enter the Farm unit. A second goal was

advanced in support of the March, 1984

policy. This goal was framed in teras

of rehabilitation. It was stated that,

in order for prisoners to be ready to

undertake careers in the free society,

they would have to learn to work a full,

productive day without taking time off

from their jobs to pursue personal

matters (emphasis in original) [46A).

Whatever the validity of the institution's goal of instilling in

inmates a strong work ethic at the expense of their religious

rights, we know of no case from the circuit courts which denies

inmates fundamental First Amendment rights in the face of such a

rationale.

-17-

254/444?“ wee

*

that an inmate forego commands of cong¢ience

and sincerely held religious beliefs.

In their haste to deprive prisoners of basic religious free-

dom, petitioners ignore the central facts of this case which ren-

der review by this Court at this time inappropriate. The United

States Constitution was drafted almost 200 years ago, based on an

act of faith that a just society that preserves certain basic

rights for all human ings is possible. It would indeed be

ironic that in the very year when we are approaching the bicen-

tennial celebration of the enactment of the United States Consti-

tution, we would accept petitioners’ narrow vision and eviscerate

those very values and rights that the Constitution was adopted to

protect and promote.

2. THE THIRD CIRCUIT'S REQUIREMENT OF

A MUTUAL ACCOMMODATION BETWEEN THE

FUNDAMENTAL CONSTITUTIONAL RIGHTS OF

PRISONERS TO FREELY EXERCISE THEIR

RELIGION AND THE INSTITUTION'S

LEGITIMATE CONCERNS IS CONSISTENT

WITH THE DECISIONS OF THIS COURT.

Petitioners contend that the Third Circuit's requirement of

a reasonable effort at effecting mutual accommodation between the

fundamental constitutional rights of prisoners to freely exercise

their religion and an institution's legitimate penological objec-

tives contravenes this Court's prior decisions. While quoting at

11 As Chief Justice Burger reiterated in Thomas v. Review Board

of the Indiana Employment Security Division, supra, 450 U.S. at

Where the state conditions receipt

of an important benefit upon conduct

proscribed by a religious faith, or

where it denies such a benefit

because of conduct mandated by

religious belief, thereby putting

substantial pressure on an adherent

to modify his behavior and to

violate his beiiefs, a burden upon

religion exists. While the

compulsion may be indirect, the

infringement upon free exercise

is nonetheless substantial.

-18-

length from this Court's opinions in the past decade involving

prisoner rights, petitioners cavalierly ignore the analysis cen-

tral to this Court's reasoning in those cases. Rather than con-

tradicting this Court's precedents, the Third Circuit's decision

comports with the approach taken by this Court.

Although “[l]awful imprisonment necessarily makes

unavailable many rights and privileges of the ordinary citizen,”

Wolff v. McDonnell, 418 U.S. 539, 555 (1976), it is now beyond

Gispute that there is “no iron curtain drawn between the Consti-

tution and the prisons of this country." Id. at 555-556. Rather,

it has been repeatedly recognized that prisoners are not beyond

the protection of the Constitution. For example, this Court has

held that invidious racial discrimination is as intolerable with-

in a prison as without, except as may be essential to “prison se-

curity and discipline.” Lee v. Washington, 390 U.S. 333 (1968)

(per curiam). Like others, prisoners retain the constitutional

right to petition the Government for redress of their grievances,

which includes a reasonable right cf access to the courts.

Johnson v. Avery, 393 U.S. 483 (1969). Prisoners may tot de de-

prived of life, liberty or property without due process of law,

see e.g., Wolff v. McDonnell, supra; Haines v. Kerner, 404 U.S.

519 (1972), and the Eighth Amendment ensures that they will not

be subject to “cruel and unusual punishment.” Estelle v. Gamble,

429 U.S. 97 (1976).2?

12 Indeed, there can be iittle doubt that courts of this coun-

try have a special obligation to protect the rights of prisoners.

See Rhodes v. Chapman, 452 U.S. 337, 358-361 (19861) (Brennan J.,

concurring in judgment). “Disenfranchised, scorned and feared,

often deservedly so, shut away from public view, prisoners are

surely a ‘discrete and insular minority.'" Hudson v. Palmer,

U. 8. „ 82 L. Ed. 20 393, 423 (July 3, 1984) (Stevens J.,

Concurring in part and dissenting in part). As Justice Stevens,

previously stressed while writing as a Circuit Judge on behalf of

the Seventh Circuit:

Footnote Cont'd

-19-

Furthermore, la] prisoner does not shed...basic First

Amendment rights at the prison gate." Procunier v. Martinez, 416

U.S. 396, 422 (1974) (Marshall J., concurring). Rather, they re-

tain those rights “not inconsistent with [their] status

as...prisoner([s) or with legitimate penological objectives of the

correction system." Pell v. Procunier, 417 U.S. 817, 822

(1974). Under this principle, “reasonable opportunities must be

afforded to all prisoners to exercise the religious freedom guar-

anteed by the First and Fourteenth Amendments without fear of

penalty." Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972) (per

Curiam); Cooper v. Pate, 378 U.S. 546 (1966).

It is certainly true that "(t]he fact of confinement as well

as the legitimate goals and policies of the penal institution

limits [inmates') retained constitutional rights.” Bell v.

Wolfish, supra, 441 U.S. at 546 (and citations therein).

Nonetheless, this Court has consistently held that “(t]here must

be a ‘mutual accommodation between institutional needs and objec-

tives and the drovis ons of the constitution that are of general

application. Id. at 546; Wolff v. McDonnell, supra, 418 U.S.

at 556.

Despite the fundamental rights being asserted herein, peti-

tioners contend that the inmates’ constitutional claims automat-

ically fail because of the prison's opposition. Certainly, some

Footnote Cont'd From Previous Page

[The view once held that an inmate is a mere

slave is now totally rejected. The re-

straints and the punishment which a criminal

conviction entails do not place the citizen

beyond the ethical tradition that accords re-

spect to the dignity and intrinsic worth of

every individual. ‘Liberty’ and ‘custody’

are not mutually exclusive concepts.

United States ex. rel. Miller v. Twomey, 479 F.2d 701, 712 (7th

enied, 414 U.S. 1140

rights are necessarily forfeited by incarceration and the

concomittant need for prison security. But the need for security

does not justify a court's abdication of its responsibility to

ensure that the limits imposed by the constitution are not ig-

nored in the name of security.

Nor may free exercise rights of inmates be sacrificed simply

because the state says they must be. Surely, application of the

Free Exercise Clause must take into account the exigencies of in-

carceration. But prisoners do not forfeit their constitutional

lente at the prison gates. Except as to those rights “inconsis-

, tent with (their) status as .. . prisoner(s) or with iegitimate

penological objectives of the correction system,” Pell v.

Procunier, supra, 417 at 822, the incarcerated as well as the

free are entitled to follow the dictates of their faith.

None of the cases relied upon by petitioners compel a con-

trary conclusion or undermine the Third Circuit's reasonable ac-

commodation test. In Pell v. Procunier, 417 U.S. 817 (1974),

this Court upheld a prohibition against face-to-face visits be-

tween prisoners and news reporters. In upholding the limitation

on inmates’ unfettered rights to communication, this Court

stressed that other available avenues of communications remained

open to the prisoners. Id. at 824-25. Accordingly, the regula-

tion was characterized as a reasonable “time, place or manner”

restriction, Id. at 826; see Grayned v. City of Rockford, 408

U.S. 104 (1972). The regulation was upheld because it met the

traditional “time, place or manner" test. It was content neutral

in that it applied equally to all prisoners and all reporters

and, most significantly, several alternative means of

communicating with the public, including with reporters, were

available to the inmates. Pell v. Procunier, supra, 417 U.S. at

824 625. Finally, the obvious magnitude of the security concerns

21

—

triggered by the entry of outsiders into the prison for

face-to-face communication with the inmates compelled this Court

to uphold the ban on prison interviews by the news media. Id.,

417 U.S. at 626.

Here, by contrast, the prohibition on Jumu'ah attendance is

not a time, place or manner regulation, but an absolute prohibi-

tion on participation in obligatory congregational Sabbath pray- |

er, which is a central tenet of the Muslim religion. Nor is the

regulation content neutral, as the elimination of the Friday al-

ternate work detail results in the denial of rights of worship to

Muslim inmates which are afforded adherents of religions with

Saturday or Sunday services. Finally, attendance at Jumu'ah,

which has posed no security problems in the past, and which is

continuing in the present for maximum security inmates, does not

pose the kind of potential security problem which was triggered

by the en y of outsiders to the prison in Pell.

Similarly, nothing in Jones v. North Carolina Prisoners’

Labor Union, Inc., supra, compels a contrary conclusion. There-

in, this Court upheld a ban against solicitation and meetings by

a prisoner's labor union. The Court explicitly stated “First

Amendment speech rights are barely implicated.” Id. at 130

(footnote omitted). Although that statement alone suffices to

distinguish Jones from this case, numerous other grounds exist.

The Court stressed that prohibitions on bulk mailings are reason-

able as other avenues of communication are available. Id. 433

U.S. at 131. Furthermore, this Court reasoned that First Amend-

ment associational rights which are most directly implicated by

the regulatory prohibitions in Jones, are rights which are nec-

essarily curtailed by the realities of confinement." Id., 433

U.S. at 132. Finally, a prisoner's union was viewed as presump-

tively dangerous. “The case of a prisoner's union, where the

-22-

focus is on the presentation of grievances to, and encouragement

of adversary relations with, institution officials surely would

rank high on anyone's list of potential trouble spots.” Id., 433

U.S. at 133.

In the case at bar, respondents’ free exercise rights are

Girectly implicated, there are no available alternatives, and at-

tendance at Jumu'ah cannot be considered presumptively dangerous,

particuarly when maximum security inmates, those who pose the

greatest danger for the institution, are still able to partici-

pate in the service. Finally, the right of free association,

which is not as firmly anchored in the text of the First Amend-

ment as the Free Exercise Clause, is one of the constitutional

rights most severely curtailed by confinement. In contrast, ob-

servance of a religious tenet is certainly not inconsistent with

the status of being a prisoner, and in fact may foster respect

and rehabilitation.

Nor does this Court's holding in Bell v. Wolfish, supra sup-

port the approach advocated by petitioners herein. There, a

group of pretrial detainees contended among other things, inter

alia, that a regulation prohibiting the receipt of hardback books

not mailed directly from publishers, bookclubs or books ores vio-

lated the First Amendment. The receipt of paperback books, maga-

zines, and other soft-covered materials from any source was per-

mitted. This Court upheld the prohibition, concluding that it

was a rational response to an obvious security problem. Id, 441

U.S. at 550. “It hardly needs to be emphasized hat hardback

books are especially serviceable for smuggling contraband into an

institution; money, drugs and weapons may be secreted in the

bindings.” Id. 441 at 551 (citation omitted). Furthermore, the

regulation was characterized merely as a “time, place or manner

restriction,” there were available alternate means of obtaining

-23-

——— ee

reading material, and since the claimants were pretrial de-

tainees, most of whom were released in sixty days, the prohibi-

tion resulted in only a limited deprivation. I16., 441 U.S. at

551-552.

The restriction being imposed by petitioners in this case is

not a reasonable regulation of time, place or manner where there

are readily available alternatives, but an absolute prohibition

on attendance at a congregational worship service, an activity

which is not presumptively dangerous nor in the past has it posed

any threat to institutional security.

In sum, nothing in the Third Circuit's opinion contravenes

this Court's holdings in Pell, Jones, and Wolfish. Rather, the

results in those cases are attributable to the weakness of the

rights asserted and the strength of the state's interests sup-

a3 Nothing therein detracts from the

porting the infringement.

mutual accommodation test set forth by the Third Circuit in the

case at bar. Indeed, such a test effectively balances both the

transcendent imperatives of the inmates’ First Amendment rights

to the free exercise of their religion and the state's legitimate

penological objectives.

13 Indeed, the results in those cases should be contrasted with

the holding in Procunier v. Martinez, supra, where this Court in

striking down a prison Censorship reguiation stated:

First, the regulation or practice in question

must further an important or substantial gov-

ernment interest, unrelated to the suppres-

sion of expression. Prison officials...

must show that a regulation. . . furthers

one or more of the substantial governmental

interests of security, order, and rehabilita-

tion. Second, the limitations of First

Amendment freedoms must be no greater than is

necessary or essential to the protection of

the particular governmental interest in-

volved. Thus, a restriction... that fur-

thers an important or substantial interest of

penal administration will nevertheless be

invalid if its sweep is unnecessarily broad.

1416 U.S. at 413-414).

3. THE THIRD CIRCUIT'S REQUIREMENT OF MUTUAL

ACCOMMODATION BETWEEN THE CONSTITUTIONALLY

PROTECTED RIGBTS OF PRISONERS AND THE

INSTITUTION'S LEGITIMATE CONCERNS IS NOT

INCONSISTENT WITH THE RECOGNIZED WEED FOR

DEFERENCE TO THE JUDGMENT OF EXPERIENCED

PRISON OPPICIALS.

At the core of petitioners’ objection to the decision of the

Third Circuit, is petitioners’ belief that federal courts must

give absolute deference to the judgment of experienced prison of-

ficials and that the lower court's opinion “ties the hands of the

state prison officials." Such a myopic view distorts the Third

Circuit's opinion, misapplies the rule of deference in constitu-

tional analysis, dangerously undermines the right of free exer-

cise of religion, and forecloses meaningful judicial review of

violations of fundamental constitutional rights.

As a threshold matter, contrary to petitioners’ claims, the

Third Circuit in its opinion repeatedly recognizes the importance

of judicial deference to the expert opinions of prison adminis-

trators. Thus, the Court stresses “the need for deference to ex-

perienced prison officials’ judgment” (citations omitted) (7A),

and the need for federal courts to “afford deference to decisions

by prison officials in areas concerning security. . ." (10A).

However, contrary to petitioners’ claim, judicial deference

to the professional judgment of prison administrators should not

be converted into judicial abdication of the constitutionally

mandated role of the federal courts. “The deference owed to an

expert tribunal cannot be allowed to slip ino judicial inertia. .

-" American Ship Building Co. v. „ 380 U.S. 300, 318 (1965).

The “very essence of judicial duty,” Marbury v. Madison, 1

Cranch 137, 178 (1803), is the implementation and protection of

the constitutional scheme. While the Third Circuit recognized

the expertise of prison administrators, the Circuit also recog-

nized that courts may not forego their constitutional mandate

-25-

simply because a case arises in a prison setting. As Justice

Jackson stated:

{[Wle act in these matters not by authority of

Our competence, but by force of our commis-

sions. We cannot, because of modest esti-

mates of our competence in. . . specialities

+ « « withhold the judgment that history au-

thenticates as the function of this Court

when liberty is infringed (West Virginia

Board of Education v. Barnette, 319 U.S. 624,

640 (1S43)T

As Chief Justice Marshall reiterated: “That this court dares not

usurp power is most true. That this court dares not shrink from

its duty is no less true." 2 Burr's Trial at 444.

Petitioners are effectively arguing that their interest in

security is so great that it can never tolerate any accommodation

to religious freedom.

Where fundamental claims of religious freedom

are at stake, however, we cannot accept such

a sweeping claim; despite its admitted valid-

ity in the generality of cases, we must

searchingly examine the interests that the

State seeks to promote by its requirement .

„ and the impediment to those objectives that

would flow from recognizing the claimed...

exception [Wisconsin v. Yoder, supra, 406

U.S. at 2211.

As Circuit Judge Irving Kaufmann has recently stressed,

where an inmate alleges the infringement of constitutional

rights, the judiciary has the duty to interfere in the internal

affairs of a prison.

In the great majority of cases, it would

be sheer folly for society to deny prison of-

ficials the discretion to act in accordance

with their professional judgment. At the

same tim:, it would be an abrogation of our

responsibility as judges to assume (or, more

precisely, to reassume) a ‘hands off pos-

ture, requiring categorical acquiescence in

such judgments. Where an inmate alleges that

precious constitutional rights are being

abridged, the judiciary has the power, and

indeed the duty, to intervene in the internal

affairs of a prison. Balancing the wisdom of

judicial deference against the need for

courts to involve themselves in preserving

precious liberties is a task of inordinate

difficulty. But face it we must if we are to

discharge our arduous and delicate duty as

-26-

rotectors and, def enders of the Constitution

(As 8 ——— 754 F. 2d 1015, 1018

"Courts cannot, of course, abdicate their constitutional respon-

sibility to delineate and protect fundamental liberties.” Pell

v. Procunier, supra, 417 U.S. at 827. Moreover, a policy of ju-

dicial restraint cannot encompass any failure to take cognizance

of valid constitutional claims... When a prison regulation or

practice offends a fundamental constitutional guarantee, federal

courts will discharge their duty to protect constitutional

rights. Procunier v. Martinez, supra, 416 U.S. at 405-406.

Accord, Johnson v. Avery, supra, 393 U.S. at 466.10

14 As Justice Marshall stressed in his dissent in

Jones ». North Carolina Prisoners’ Labor Union, supra,

-S. at , a ough the rea es of running a

penal institution are complex and difficult and correc-

tional officers certainly possess professional ex-

pertise, it is equally true that the realities of run-

ning a school or a city are also complex and difficult

and those charged with overseeing such

tasks~-principals, mayors, and law enforcement person-

nel also possess professional expertise. Yet, in those

cases, the wholesale abandonment of First Amendment

rights has not been justified merely because the judg-

ment of the relevant officials is rational. See e.g.,

Healy v. James, 408 U.S. 169 (1972);Tinker v. Des

Moines Schol District, 393 U.S. 503 (1969); Cox v.

Louisiana, J. 536 (1965); Edwards v. South

Carolina, 372 U.S. 229 (1963).

There are sound reasons why a court should not

blindly defer to the judgment of prison officials. Be-

cause the prison administrator's business is to main-

tain order, “there is the danger that he may well be

less responsive than a court--part of an independent

branch of ernment--to the constitutionally protected

interests in free expression.” Freedman v. Maryland,

380 U.S. $1, 57-58 (1965). Indeed, because a warden

will seldom be subject to public criticism because the

state has needlessly repressed First Amendment freedom,

prison officials “inevitably will err on the side of

too little freedom." Jones supra at 141-142 (Marshall

J. dissenting). That this has occurred in the past is

demonstrated by the report of the American Bar Associa-

tion's Joint Committee on the Legal Status of Prison-

ers:

All organizations including correctional or-

ganizations overreact to suggested changes,

Footnote Cont'd

-27-

The issue is not, as petitioners contend, one of absolute

Geference to the judgment of prison administrators. Rather, the

task is to determine the degree of deference to be accorded in a

given setting. Abdul Wali v. Coughlin, supra, 754 F.2d at 1033.

There are strong reasons why in the case sub judice, the lower

court properly held that “deference must be tempered by an effect

to accommodate free exercise values." (10A). First of all, the

rights being asserted are not ones of peripheral constitutional

concern or ones necessarily curtailed by the mere fact of con-

finement, but rather are rights at the core of the protection of

the Constitution, observance of which is not inconsistent with

the status of being a prisoners

Foot note Cont d Fron Previous Page

whether sweeping or merely incremental.

-++(MJany of the fears voiced by prison offi-

cials in the 1960s to the growing tide of

court determinations invalidating prison reg-

ulations have simply not come to pass; in-

Geed, ir several instances ... those groups

feared by the prisons in the 1960s have be-

come stabilizing influences in the 1970s.

ABA Joint Committee on the Legal Status of Prisoners, The Legal

Status of Prisoners, 9 Draft 1977), reprinted in If AM.

* . 7 * 41 (1977).

15 Indeed, the New Jersey State Corrections regulations require

that: 12111 inmates shall be afforded full and equal opportuni-

ty to practice their religion, or to refrain from involvement in

religion.” R. J. A. c. 10A:31-3.21(b)(7). Regulations of the Fed-

eral Bureau of Prisons mandate that a warden should endeavor to

permit inmates to observe important religious celebrations and

ordinarily allow an inmate to be relieved from institutional as-

signments and to make up missed work.

$548.14 Institution work assignment.

Except where necessary for maintaining se-

curity, safety, and good order in the insti-

tution, an inmate may not be given a work as-

signment which violates the specific

requirements of that inmate's religious

faith. The inmate must initiate the request

for a different work assignment.

$548.15 Scheduling to observe religious

Footnote Cont'd

-28-

Secondly, the restriction being imposed is not @ reasonable time,

place or manner regulation, where there are readily available al-

ternatives. Rather, petitioners seek to impose an absolute pro-

hibition on attendance at a congregational Sabbath worship ser-

vice, an observance which is obligatory, cannot be made-up and is

a central tenet in the Muslim faith. Finally, the religious rite

in question is not presumptively dangerous, has occurred in the

past without incident, and is currently being engaged in by maxi-

mum security inmates, prisoners who theoretically pose the

greatest security threat to the institution.

Purthermore, petitioners in their argument for judicial def-

erence, completely ignore the important values and rehabilitative

benefits which religion offers incarcerated inmates. The values

Footnote Cont'd From Previous Page

holidays, celebrations, and ac ivities.

(a) Consistent with maintaining security,

safety, and good order in the institution,

the Warden shall endeavor to facilitate the

observance of important religious holidays or

celebrations in accordance with specific re-

quirements of a faith group, such as fasting,

worship, diet, or work proscription. The in-

mate must initiate request for observance of

a@ religious holiday or celebration, and must

specify in this request the nature of the ob-

servance and the particular accommodation re-

quested. The Warden may request the institu-

tion chaplain to verify the specified

religious requirements with representatives

of the inmate's faith group and/or other ap-

propriate sources. Consistent with main-

taining security, safety, and good order in

the institution, the Warden is ordinarily to

allow an inmate to take non-consecutive vaca-

tion days, or to make up for missed work, or

to change work assignments in order to facil-

itate the inmate's observance of a religious

holiday or celebration.

(b) The Warden may relieve an inmate from

an institution program or assignment if a re-

ligious activity is also scheduled at that

time. (28 C. F. R. §§548.14, 548.15).

that underly the Free Exercise Clause and make it’one of the

“preferred” freedoms,” see e.g., West Virginia State Board of

Education v. Barnette, supra, 319 U.S. at 639; Cantwell v.

Connecticut, 310 U.S. 296, 303 (1940), are as vital to those in-

side the prison walls as they are to those outside. See, e.g.,

Comment, The Religious Rights of the Incarcerated, 125 UNIV. OF

PA. L. REV. 812, 852-854 (April 1977.16 wNonetheless, the lower

court virtually ignored the individual constitutional interests

of the inmates and the values underlying First Amendment guaran-

tees.

Fur thernore, both courts and commentators have recognized

that religious involvement serves important rehabilitative func-

tions. Thus, religious participation can significantly assist an

inmate in revaluating himself and preparing for a return to soci-

ety. See, e.g., H. Barnes & N. Teeters, NEW HORIZONS IN CRIMI-

NOLOGY 492-495 (3d ed. 1959). “In the lonely stifling prison en-

vironment, an inmate can sometimes find great strength and

self-respect in religious practice.” 125 UNIV. OF PA. L. REV.

Supra at 854 (and citations therein). Furthermore, the psycho-

logical literature indicates that religion plays a substantial

role in promoting prosocial behavior, see, e.g., C. Daniel

Batson, “Sociobiology and the Role of Religion in Promoting

16 Professor Giannella identified the fundamental

free exercise value as “respect for the inviolability

of conscience." Giannella, Religious Libert

Nonestablishment, and Doctrinal Tae nt, {part 1),

L. ° 7 ° ersonal aliena-

tion from one's Maker, frustration of one's ultimate

mission in life, and violation of the religious per-

son's integrity are all at stake when the right to wor-

ship is threatened.” Id. at 1427. An inmate's con-

science is no less inviolable than that of an

unconfined citizen, and a violation could well work an

even greater harm upon the inmate, whose means of spir-

itual recovery are limited by the prison environment.”

Comment, The Religious Rights of the Incarcerated, 125

UNIV. OF * . rf supra at 853-654.

-30-

Prosocial Behavior: An Alternative View,” 45 J. OF PERSONALITY

AND SOCIAL PSYCHOLOGY 1380 (1983), and that an individual who has

accepted religious doctrine is less likely to exhibit hostility

than a person not governed by the same religious mores. See,

Z K. Beintzelman and L. Fehr, Relationship Between Religious

Orthodoxy and Three Personality Variables, 38 PSYCH. REPORTS 756

(1976).

Indeed, the courts have recognized the important

rehabilitative role played by religion. Thus the Court of Ap-

peals for the District of Columbia stressed:

Treatment that degrades the inmate, invades

his privacy, and frustrates the ability to

choose pursuits through which he can manifest

himself and gain self-respect erodes the very

foundations upon which he can prepare for a

socially useful life. Religion in prison

subserves the rehabilitative function by

providing an area within which the inmate may

— his dignity and reassert his individ-

uality.

Barnett v. Rodgers, 410 F. 2d 995, 1002 (D.C. Cir. 1969) (foot-

notes omitted); Cochran at 566, 570 (N.D. Ill. 1977) ("This

Court has long shared the opinion that rehabilitation is incident

to a prisoner's free pursuit of his or her faith.").

In seeking review of the Third Circuit's decision, petition-

ers completely ignore these values. In so doing, petitioners

fail to properly evaluate the important constitutional interests

at stake as well as the benefits which would inure to the insti-

tution by permitting respondents to continue to practice their

religion without interference.

17 Ironically, although petitioners are seeking to

impede religious practice, American prisons originally

were isolated asylums in which offenders were to render

unto God the reverance and obedience that they had

wrongfully denied him by committing crimes. D.

Rothman, The Discovery of the Asylum, 85-86 (1971).

Pioneered by William 3 and the Quakers and imple-

mented in 1789 at the Walnut Street Gaol in

Footnote Cont'd

2 —— — — 2 2

—

Despite the underlying values and transcedent imperatives of

the Free Exercise Clause, petitioners would substitute judicial

abdication for judicial analysis. We know of no decision of this

Court which warrants such wholesale abandonment of the basic

principles of judicial reviev. 8

Foot note Cont'd From Previous Page

Philadelphia, this approach sought to provide the pris-

oner with a place

in which he could itate about his salva-

tion, become reacquainted with his God, and

do penance. Hence, the name of the institu-

tion - ‘penitentiary.' When such a

reassessment of self had occurred, the of-

fender could, theoretically, return to the

community, literally a ‘new nan. This reli-

gious foundation of the institution led to

conditions much like those endured by others

who sought God. Like seminarians, prisoners

were subjected to physical pain, sparse food,

and isolation from the community.

R. Singer 6 . Statsky, Rights of the Imprisoned: Cases

Materials and Directions 4 (1974). The eet On religion

which permea e Pennsylvania system of imprisonment became

the guiding influence in the European corrections community. Id.

at 4-5. See also Comment The Religious Rights of the

Incarcerated, 125 UNIV. OF + Supra at

16 Although not reached by the Third Circuit, respondents also

contend that petitioners violated the Fourteenth Amendment by

Genying Muslim inmates rights afforded adherents of religions

with Saturday or Sunday Sabbaths. The Fourteenth Amendment com-

mands that a prisoner be afforded “reasonable opportunity of

pursuing his faith comparable to the opportunity afforded fellow

ptisoners who adhere to conventional religious precepts..." Cruz

v. Beto, ra, 405 U.S. at 322 Accord, ef! v. Pate, supra

(petitioner stated cause of action where he alleges t he was

denied permission to purchase certain religious publications and

Genied privileges enjoyed by other inmates). “When one faith is

more heavily restricted than another, the courts must closely

scrutinize the reasonableness of any restrictions.” Native

American Council of Tribes v. Solem, 691 F. 2d 382, 384 (8th Cir.

citation om 1Cooper v. Pate, 382 F. 2d 518, 521-522

(7th Cir. 1967).

By not 22 provisions for Muslim inmates to worship on

their Sabbath, while nevertheless allowing adherents of religions

with Saturday or Sunday Sabbaths to worship, petitioners have de-

nied Muslim inmates “a reasonable opportunity of pursuing (their!

faith comparable to the opportunit[ies) afforded fellow prisoners

who adhere to conventional religious precepts. . ." Cruz v.

Beto, supra, 405 U.S. at 322, and thereby violated the guarantees

Footnote Cont'd

CONCLUSION

In enacting the Bill of Rights, the Framers of the

Constitution intended to ensure that certain principles would not

be sacrificed to political expediency: these principles are

enshrined as principles of fundamental law beyond the reach of

governmental officials and legislative majorities. See, West

Virginia Board of Education v. Barnette, 319 U.S. 624, 638

(1943). Freedom of Religion constitutes one of those preferred

freedoms. Id.

Moreover, courts have a special obligation to protect the

rights of prisoners. More than a decade ago, Justice Stevens

wrote on behalf of the Seventh Circuit:

[Tide view once held that an inmate is a mere

slave is now totally rejected. The

restraints and the punishment which a

criminal conviction entails do not place the

citizen beyond the ethical tradition that

accords respect to the dignity and intrinsic

worth of every individual. Liberty and

‘custody’ are not mutually exclusive

concepts.

United States ex. rel Miller v. Twomey, supra, 479 F.2d at 712

(footnote omitted). Petitioners in denying Muslim inmates the

right to continue to attend their Sabbath services, are seeking

to eviscerate Muslim inmates’ basic constitutional rights and

turn back the clock on an ethical tradition and constitutional

principle which we had thought was enshrined forever in our

jurisprudence.

Footnote Cont'd From Previous Page

By not making provisions for Muslim inmates to worship on

their Sabbath, while nevertheless allowing adherents of religions

with Saturday or Sunday Sabbaths to worship, petitioners have

Genied Muslim inmates "a reasonable opportunity of pursuing

[their] faith comparable to the — - ies} afforded fellow

prisoners who adhere to conventional religious precepts. . ."

Cruz v. Beto, S ie 405 U.S. at 322, and thereby violated the

guarantees affor respondents by *he Equal Protection Clause.

See, e.g., Cooper v. Pate, are Native American Council of

Tribes v. Solem, Supra. Principles of deference are no more

applicable In analyzing respondents’ Fourteenth Amendment claims

as they are in analyzing respondents’ First Amendment claims.

-33-

For all of the foregoing reasons, respondents pray that this

Court deny the petition for a writ of certiorari.

Respectfully submitted,

By:

„ SEZIGER, SIMONOFF, ADOURIAN

& O'BRIEN

41 8. Haddon Avenue

Haddonfield, New Jersey 08033

(609) 429-1100

Attorneys for Respondents

DATED: June 30, 1986