Amicus Curiae Brief — Johnson v. California

No. 03-636

IN [Tht

Supreme Court of the Cinited States

CFARRISON S. JOHNSON

Petitiones

V.

CALIFORNIA

Respondents

On Writ of Certiorari to

the United States Court of Appeals for the Ninth Circuit

BRIEF OF THE STATES OF UTAH, ALABAMA,

ALASKA, DELAWARE, IDAHO, NEVADA, NEW

HAMPSHIRE AND NORTH DAKOTA

AS AMICI CURIAE IN SUPPORT OF RESPONDENT

MARK L.. SHURTLEFI GENE C. SCHAERR*

L'TAH ATTORNEY GENERAI ROBERT KLINCK

236 State Capitol SIDLEY AUSTIN BROWN &

Salt Lake City, Ul 84114 Woop LLP

(801) 538-9600 1501 K Street. N.W

Washington, D.C. 20005

(202) 736-8000

(Counsel for Amici Curiae

\ugust 6. 2004 * Counsel of Record

| Additional Counsel Listed on Inside Cover]

WiLSON-EPES PRINTING CO., IN (202) 789-0096 WASHINGTON, D. C. 20001

QUESTION PRESENTED

Should this Court create an equal protection “exception” to

the deferential standard adopted in Turner v. Safley, 482 U.S.

78 (1987) for assessing constitutional claims by prison

inmates?

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED. .....000.ccccccscccscssccsccesccsessssvsceees i

TABLE OF AUTHIORITIES. .22.ccccccccssccccccccesscsccccssesscsees v

INTERESTS OF AMICI CURTAE 000.......ccccccccccceeeeeeeeeee |

SUMMARY OF ARGUMENT ....0000.0........cccccceeeseeeeeeees 3

OPTS Oe CO Oe ccenerenestinticmmaimniemnene 5

FE ciiatenaicnninicinniiiiliiatiiniilacannnigliiniiepaediainn 5

I. UNDER THE COURT'S’ PRECEDENTS,

TURNER'S REASONABLENESS STANDARD

APPLIES TO EQUAL PROTECTION CLAIMS

AS WELL AS OTHER CONSTITUTIONAL

eh FEE cxeesunssecnsnsresuteannarnmssenmnmmmmioummanssin 5

A. As This Court Has Repeatedly Emphasized,

Turner Provides A Unitary Standard of

Review For All Prison-Based Constitutional

ee Ent 6

B. This Court’s Precedents Provide No Basis For

An “Equal Protection Exception” To The

EES Sa 11

ll. APPLICATION OF THE TURNER STANDARD

TO EQUAL PROTECTION CLAIMS OF THE

SORT RAISED BY PETITIONER IS

SSP CRALL Y FID EOF CI ccceccecccceseccsvecccssssccsseocs 15

A. The Turner Standard Is Necessary To Ensure

That Prison Authorities Can Address The

Urgent Problem Of Race-Related Prison

es 16

(itt)

iV Vv

TABLE OF CONTENTS-continued TABLE OF AUTHORITIES

Page | CASES Page

B. The Turner Standard Is Sufficient To Prevent Adarand Constrs., Inc. v Pena, 515 US. 200

Invidious Discrimination. ...........-------sssseeeeee 2 LE: SE SE ELT EC 14

ee Atwater v. City of Lago Vista, 532 U.S. 318

A ee 26 IN aes Re SEIN aC 4

Black v. Lane, 824 F.2d 561 (7th Cir. 1987)......... 24

City of Cleburne, Tex. v. Cleburne Living Crr.,

ee 23

City of Newport, Ky. v. lacobucci, 479 U.S. 92

TIT ccinceseithidenacacnenrandnimmesaiiaitindeetetaiieetenitiaslesssiiiiatiniad 1]

City of Richmond v. J. A. Croson Co., 488 U.S.

TE eves a aN we ee 14

Dawson v. Delaware, 503 U.S. 159 (1992) .......... 16

Gratz v. Bollinger, 539 U.S. 244 (2003)............... 14

Grutter v. Bollinger, 539 U.S. 306 (2003)............ 14

Hudson v. Palmer, 468 U.S. 517 (1984)............... 9

Johnson v. California, 321 F.3d 791 (9th Cir.

2003), cert. granted, 124 S. Ct. 1505 (2004)..... passim

Jones v. North Carolina Prisoners’ Labor Union,

Se Re Be ei icntisetenditeiteninaitaitecaiiiiiann 9,24, 25 -

Lee v. Washington, 390 U.S. 333 (1968) ....... 3, 5, 12, 24

Lewis v. Casey, 518 U.S. 343 (1996)................ 11, 22, 23

McKune v. Lile, 536 U.S. 24 (2002) ..........cccccc0ees 1]

Metro Broad., Inc. v. FCC, 497 U.S. 547 (1990). 14

Morrison v. Garraghty, 239 F.3d 648 (4th Cir.

Tee ccencantttapsiipasidianeiiatiapitianeitaial natin eeeaiaiees 5, 25

O'Lone v. Estate of Shabazz,482 U.S. 342 (1987) 10

Overton v. Bazzetta, 539 U.S. 126 (2003)............. 6, 11

Pell v. Procunier, 417 U.S. 817 (1974)..............0+. 1, 22

Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir.

SIFU cesvoctncemnnetnanntitieanpnmitineiaiiimtitaimasinaiiciataidiiaiats 23

Procunier v. Martinez, 416 U.S. 396 (1974)......... 8, 22

Robinson v. Prunty, 249 F.3d 862 (9th Cir. 2001) 20

Schenck v. United States, 249 U.S. 47 (1919)....... 6

Shaw v. Murphy, 532 U.S. 223 (2001) ..........:c00000+ passim

Sockwell v. Phelps, 20 F.3d 187 (Sth Cir. 1994)... 24

2 ooeeEEe

vi

TABLE OF AUTHORITIES-continued

Page

State v. Kell, 61 P.3d 1019 (Utah 2002)................ 17, 18

Stefanow v. McFadden, 103 F.3d 1466 (9th Cir.

SIU ccnecesteteesssesemesemmnnntinninnpnetainianianinniiiie 16

Thornburgh v. Abbott, 490 U.S. 401 (1989) ......... passim

Turner v. Safley, 482 U.S. 78 (1987) .......cccccecceeeee passim

Valley Forge Christian Coll. v. Americans United

for Separation of Church & State, Inc., 454

CA, GO Cr ercnensnsnsasntsertstessntenenasentnnmaseantets 11

Washington v. Harper, 494 U.S. 210 (1990) ........ passim

Washingteary—tLee, 263 F. Supp. 327 (M.D. Ala.

1966), aff'd, 390 U.S. 333 (1968)... ccceceeeeees 2,12

White v. Morris, 832 F. Supp. 1129 (S.D. Ohio

FUIUTED cuniccenssnseneenunemmcennupanimiiinniniiaiesmntmaiatnitl 21

SCHOLARLY AUTHORITIES

Christopher D. Man & John P. Cronan,

Forecasting Sexual Abuse in Prison: The

Prison Subculture of Masculinity as a

Backdrop for “Deliberate Indifference,” 92 J.

Crim. L. & Criminology 127 (2001).................. 18

Jonathan A. Willens, Structure, Content and the

Exigencies of War: American Prison Law After

Twenty-Five Years 1962-1987, 37 Am. VU. L.

Se. GE CRISP cxccsncznssseccmensnssssanesmeneemimimountes 17,19

Scott N. Tachiki, Comment, /ndeterminate

Sentences In Supermax Prisons Based Upon

Alleged Gang Affiliations: A Reexamination Of

Procedural Protection And A Proposal For

Greater Procedural Requirements, 83 Cal. L.

ES rene <nenen 17

vii

TABLE OF AUTHORITIES-continued

Page

OTHER AUTHORITIES

John J. Dilulio, Jr., Governing Prisons: A

Comparative Study of Correctional

|, ___, EEC EET TTe 19

Martha Henderson et al., Race, Rights, And Order

In Prison: A National Survey Of Wardens On

The Racial Integration Of Prison Cells, 80 The

Prison Journal 295 (2000)............c:ccccceeceeeeeeeeeees 20

Human Rights Watch, United States, No Escape:

Male Rape in U.S. Prisons (2001), available at

http://www.hrw.org/reports/200 | /prison/report.

BRIE cccccascnnscterastpinioriniabessmenmassentsenesnnenneanantgusiens 18

John Irwin, The Felon (1970).........:ccccccccccseeceeeeeees 17

James B. Jacobs, New Perspectives on Prisons

and Imprisonment (1983).........c0cseceeeeeeeeeeeeees passim

Micha Maguire, Racism Il, in Inside: Prison

American Style 84 (Robert J. Minton, Jr. ed.,

FOU UD cccsecincngnesclntnipecsenaiiitimnaiisbiipieemenitiemniaaens 19

National Criminal Justice Reference Service,

Gang Resources, available at

http://www.ncjrs.org/gangs/summary.html (last

CS Ame: 6, Bite iiccccccrnsngnecsstnnstatccsiniaseansneaee 17

Frank Rundle, The Roots of Violence at Soledad,

in The Politics of Punishment: A Critical

Analysis of Prisons in America 163 (Erik Olin

CORE CCD enicnitcinnincccrescsctssicntapsintinnesabints 19

ee Le Se nee ee

INTERESTS OF AMICI CURIAE

Amici States strongly oppose the efforts by Petitioner and

his amici to create piecemeal exceptions to the rule of Turner

v. Safley, i.e., that “when a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.” 482

U.S. 78, 89 (1987). That rule is based upon this Court’s

correct conclusion that judgments about prison security “are

peculiarly within the province and professional expertise of -

corrections officials,” Pell v. Procunier, 417 U.S. 817, 827

(1974), and that federal courts should give those officials

wide deference “to deal with the increasingly urgent problems

of prison administration and reform.” Turner, 482 U.S. at 84.

Consistent with these principles, this Court has repeatedly

instructed that Turner establishes “a unitary, deferential

standard for reviewing prisoners’ constitutional claims.”

Shaw v. Murphy, 532 U.S. 223, 229 (2001). Thus, with the

possible exception of claims under the Eighth Amendment,

the Turner standard “applies to all circumstances in which the

needs of prison administration implicate constitutional

rights.” Washington v. Harper, 494 U.S. 210, 224 (1990)

(emphasis added). In light of these clear and consistent

instructions, amici States have repeatedly relied upon the

Turner reasonableness standard in _ formulating and

implementing prison policy.

Petitioner and his amici, however, now seek to limit

Turner. Today they seek an exception for claims arising

under the Equal Protection Clause of the Fourteenth

Amendment. But tomorrow they and their allies will

undoubtedly seek other such exceptions which will, in the

aggregate, swallow the Turner rule and ultimately destroy it.

Indeed, Petitioner has provided no limiting principle to his

assertion that rights based on equal protection warrant strict

security. He has merely cited this Court’s precedents holding

that racial classifications that occur outside prison are subject

2

to strict scrutiny. But Turner is premised on the unyielding

fact that the administration of a prison, unlike other public

institutions, is an “inordinately difficult undertaking.”

Turner, 482 U.S. at 85. To subject any prison-based

constitutional challenges to strict scrutiny would make that

undertaking nearly impossible.

Moreover, the same concerns that prompted this Court to

adopt the Turner standard in the context of First Amendment

and due process claims apply with equal force to prison-based

equal protection challenges. Racially segregated gangs remain

the reality in prisons throughout the country. And racially

motivated violence, including rape and murder, is one of the

most intractable problems of prison administration. It is no

exaggeration to say that, in this context, the discretion given

to prison administrators under the Turner standard could well

be necessary to protect the health and, indeed, the lives of

many prison inmates.

-

Amici States’ opposition to piecemeal exceptions to the

Turner standard is consistent with their steadfast conviction

that invidious discrimination is inimical to a free society and

should be eradicated. Thus, amici States continue to embrace

the central teaching of Washington v. Lee, 263 F. Supp. 327

(M.D. Aia. 1966), aff'd, 390 U.S. 333 (1968)—that a policy

of “complete and permanent” segregation of prisoners

violates the Equal Protection Clause. 263 F. Supp. at 331.

Moreover, amici States neither support nor condone any kind

of invidious discrimination in prisons or elsewhere. All that

amici ask is that their prison officials be given discretion to

consider race on a temporary basis when they reasonably

conclude that considerations of prison safety justify it.

ee rr een

3

SUMMARY OF ARGUMENT

I. In Turner v. Safley, this Court resolved any doubt as to

the standard of review that applies to the constitutional claims

of prison inmates: “[W]hen a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological interests.” 482

U.S. at 89. In Turner, the Court did not distinguish among

constitutional rights and gave no indication that equal

protection claims were exempted from the reasonableness

standard.

Moreover, the rationale underlying Turner—that _ the

uniquely volatile nature of the prison environment makes

deference to prison authorities necessary—clearly applies to

all constitutional claims, including equal protection claims.

And this Court’s subsequent decisions have solidified

Turner’s conclusion that a// constitutional claims by prison

inmates are subject to a reasonableness inquiry. See, e.g.,

Shaw v. Murphy, 532 U.S. 223, 229 (2001); Washington v.

Harper, 494 U.S. 210, 224 (1990). Accordingly, Turner and

its progeny make clear that when a prisoner challenges a

prison policy arguing that it violates his equal protection

rights, the federal courts are to review the policy only to

determine whether it is “reasonably related to legitimate

penological interests.” Turner, 482 U.S. at 89.

Contrary to Petitioner’s position, see Pet’r Br. at 24-27, this

Court has never held or suggested that prison-based racial

equal protection claims are subject to strict scrutiny.

Petitioner relies most heavily on Lee v. Washington, 390 U.S.

333 (1968) (per curiam), asserting that the Lee Court applied

strict scrutiny. But Lee neither expressly nor implicitly

applied strict scrutiny to prison-based equal protection claims.

Instead, the Court held only that “complete and permanent”

segregation of the entire Alabama prison system was

unconstitutional. /d.

4

Petitioner and his amici also rely heavily on the fact that,

outside the prison context, this Court has sometimes used the

unqualified language of color-blindness in dealing with

affirmative action claims. But nothing in these cases suggests

this Court intended to overruls sub silentio, the Court’s

holding in 7urner and its progeny that, in the uniquely

volatile prison context, the “reasonable relationship” test

applies to “a// circumstances in which the needs of prison

administration implicate constitutional rights.” Washington v.

Harper, 494 U.S. at 224 (emphasis added).

ll. Creating an equal-protection “exception” to Turner

would also be inappropriate as a matter of policy. Racially

motivated violence remains one of the most intractable

problems in American prisons. Indeed, even Petitioner and

his amici cannot dispute that prisons in many states are

dominated by prison gangs broken down along racial lines.

Nor can they dispute that racial violence is a very real

problem facing prison officials.

Accordingly, there can be no serious question that prison

administrators need the discretion they are given under

Turner to address directly the threat of racial violence.

Given the severity of this problem, it is especially important

that prison administrators not be confined by “inflexible strict

scrutiny analysis.” which “would seriously hamper their

ability to anticipate security problems and to adopt innovative

solutions to the intractable problems of prison

administration.” Turner, 482 U.S. at 89.

While the 7urner standard is necessary to give prison

administrators discretion to address the problem of racial

violence, it would not give prison administrators unchecked

authority to trample on the rights of prison inmates. Turner is

sufficiently rigorous to ensure that prison administrators are

not making racial classifications unrelated to legitimate

penological objectives. Indeed, courts applying Turner have

concluded that some prison policies are not, in fact,

sufficiently related to a legitimate penological interest to

i wee Ae

5

survive scrutiny. See, e.g., Morrison v. Garraghty, 239 F.3d

649 (4th Cir. 2001). The Turner standard would thus not

condone complete and permanent segregation of the races,

Lee, 390 U.S. at 333-34, nor would it allow for the

preferential treatment of any race, Johnson v. California, 321

F.3d 791, 799 n.7 (9th Cir. 2003), cert. granted, 124 S. Ct.

1505 (2004).

In short, there simply is no reason, in law or policy, to start

down the slippery slope of creating piecemeal “exceptions” to

the Turner standard.

STATEMENT OF FACTS

Amici adopt the statement of facts in Respondent’s brief.

ARGUMENT

I. UNDER THIS COURT’S PRECEDENTS,

TURNER’S REASONABLENESS STANDARD

APPLIES TO EQUAL PROTECTION CLAIMS AS

WELL AS OTHER CONSTITUTIONAL CLAIMS.

This Court has clearly and consistently held that “when a

prison regulation impinges on inmates’ constitutional rights,

the regulation is valid if it is reasonably related to legitimate

penological interests.” Turner v. Safley, 482 U.S. 78, 89

(1987). With equal clarity and consistency, as shown below,

this Court has rejected every effort and declined every

opportunity to confine Turner to a subset of constitutional

challenges, and has instead treated Turner as “a unitary,

deferential standard for reviewing prisoners’ constitutional

claims.” Shaw v. Murphy, 532 U.S. 223, 229 (2001).

Petitioner asks this Court to undo what 7urner wrought,

namely, a workable and constitutionally sound affirmation of

the rights of prisoners against :arbitrary or irrational

governmental policies or practices. Under Turner, the rights

of prison inmates, like the rights of free men, are absolutely

6

protected against arbitrary or irrational state action. But that

affirmation of constitutional rights takes into account, as any

standard of review must, the fact that rights always depend to

some degree on the context within which they are exercised.

See, e.g., Schenck v. United States, 249 U.S. 47, 52 (1919)

(“[T]he character of every act depends upon the

circumstances in which it is done.”). In Turner, the Court

acknowledged that the prison context is a uniquely

problematic one and calls for a unique circumscription of

constitutional rights. As shown below, there is nothing in this

Court’s decisions, before or after Turner, remotely to suggest

that prison-based racial equal protection claims are, or should

be, subject to a different standard.

A. As This Court Has Repeatedly Emphasized,

Turner Provides A Unitary Standard Of Review

For All Prison-Based Constitutional Claims.

The 7urner Court resolved any question as to what standard

of review applies to the constitutional claims of prison

inmates. “[W]hen a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably

related to legitimate penological interests.” Turner, 482 U.S.

at 89. With the possible exception of claims under the Eighth

Amendment, this reasonableness measure is “a_ wnitary,

deferential standard for reviewing prisoners’ constitutional

claims.” Shaw v. Murphy, 532 U.S. at 229 (emphasis

added). '

1. In fact, Turner itself chose not to distinguish among

constitutional rights by creating a hierarchy of standards of

review. In 7urner, the Court began its consideration of

' See, e.g., Overton v. Bazzetta, 539 U.S. 126, 140 (2003) (Thomas, J.,

concurring in the judgment) (“The only provision of the Constitution that

speaks to the scope of criminal punishment is the Cruel and Unusual

Punishment of the Eight Amendment, and Turner cited neither that Clause

nor the Court’s precedents interpreting it.”). This exception to Turner, if it

were to be recognized by the Court, could not possibly justify-a different

standard for claims based on other constitutional provisions.

7

prison-based constitutional claims by confirming that

“[pjrison walls do not form a barrier separating prison

inmates from the protections of the Constitution.” Turner,

482 U.S. at 84. The Court observed that it was beyond

dispute that prisoners retain the guaranties and protections of

the First Amendment (noting, as an example, that prisoners

have the right to petition the government for redress of

grievances), the Due Process Clause (citing Wolff v.

McDonnell, 418 U.S. 539 (1974); Haines v. Kerner, 404 U.S.

519 (1972) (per curiam)), and the Equal Protection Clause,

(prison inmates “are protected against invidious racial

discrimination by the Equal Protection Clause of the

Fourteenth Amendment” (citing Lee v. Washington, 390 U.S.

333 (1968)). /d. at 84. Thus, the Court’s task was to formulate

a standard of review responsive to both the rights of prison

inmates and the needs of prison officials, who must deal with

increasingly complex and difficult administrative problems.

Id. Both before and after Turner, reasonableness has been the

key to the Court’s settlement of this long-standing

constitutional tension.

The Court responded to these competing concerns by

formulating a unitary reasonableness standard. Though

Turner involved challenges based on the First Amendment

and the Due Process Clause, the Court, as its reference to Lee

makes clear, anticipated race-based equal protection claims.

The Court, nevertheless, concluded that a prison regulation is

valid if reasonably related to a legitimate penological interest,

regardless of the constitutional origin of the right with which

it interferes. /d. at 89.

Moreover, the Court expressly refused to rule that the

reasonableness standard applies only in cases in which the

restrictions are directed to presumptively dangerous activities.

Indeed, in its brief to the Court in Turner, the United States

explained that such a distinction makes little sense:

Convicted and imprisoned felons necessarily lose not

only those rights that are obviously inconsistent with

incarceration, but also those rights that are inconsistent

with the safety of prison personnel and other prisoners,

the protection of prison property, the administration of a

large and complex facility, and the achievement of

penological objectives, including deterrence and

rehabilitation.

Brief of United States as Amicus Curiae Supporting

Petitioners at 13-14, Turner v. Safley, 482 U.S. 78 (1987)

(No. 85-1384). This Court agreed with the United States and

concluded that a right’s consistency with proper incarceration

is merely a factor to be considered as part of the

reasonableness inquiry. Specifically, this Court noted that the

judgment that some rights warrant greater protection than

others is really “a conclusion about the reasonableness of the

prison restriction in light of the articulated security concerns.

It therefore provides a tenuous basis for creating a hierarchy

of standards of review.” Turner, 482 U.S. at 89.

2. Moreover, the rationale underlying 7Turner—that the

uniquely volatile nature of the prison environment makes

deference to prison authorities necessary—applies to equal

protection claims as much as it applies to claims under the

First Amendment.

The Turner standard was based on this Court’s

understanding that prison administrators face complex and

difficult challenges in ensuring the security and safety of the

prison environment. Turner, 482 U.S. at 84 (prison

administrators need deference “to deal with the increasingly

urgent problems of prison administration and reform”). As

this Court has previously stated in Procunier v. Martinez, 416

U.S. 396 (1974), “[p]rison-administrators are responsible for

maintaining internal order and discipline, for securing their

institutions against unauthorized access or escape, and for

rehabilitating, to the extent that human nature and inadequate

resources allow, the inmates placed in their custody. The

Herculean obstacles to effective discharge of these duties are

too apparent to warrant explication.” /d at 404. And

9

moreover, as this Court later explained, “prison

administrators are . . . under an obligation to take reasonable

measures to guarantee the safety of the inmates themselves.”

Hudson v. Palmer, 468 U.S. 517, 526-27 (1984).

In its analysis of precedent, moreover, Turner rejected the

idea that equal protection claims warrant a stricter standard of

scrutiny than other constitutional claims. One of the decisions

the Court relied upon was Jones v. North Carolina Prisoners’

Labor Union, 433 U.S. 119 (1977); see Turner, 482 U.S. at

86-88. There, the Court addressed an equal protection claim

by inmates who sought to form a labor union. The district

court had struck down prison regulations prohibiting

correspondence and meeting rights related to union activity

on the ground that “this was a denial of equal protection

because bulk mailing and meeting rights had been extended to

the Jaycees, Alcoholics Anonymous, and the Boy Scouts.”

433 U.S. at 133. But this Court disagreed. It determined that

prison administrators should be given “the full latitude of

discretion, unless it can be firmly stated that . . . discretion has

been abused.” /d. at 136.

As it would later do in Turner, the Jones Court rejected a

more rigorous standard of review as “inconsistent with the

deference federal courts should pay to the informed discretion

of prison officials.” /d. Where prison security is at issue, the

Court was not prepared to offer equal protection claims

stricter scrutiny than other constitutional claims. “There is

nothing in the Constitution which requires prison officials to

treat all inmate groups alike where differentiation is necessary

to avoid an imminent threat of institutional disruption or

violence.” /d.

In short, the rationale underlying Turner is the difficulty of

maintaining order within the prison context. That concern is

not of lesser moment because a petitioner brings an equal

protection claim rather than challenging a prison regulation

under the First Amendment or Due Process Clause. This

Court, accordingly, has consistently refused to confine the

10

Turner reasonableness standard to any subset of constitutional

claims.

3. This Court’s subsequent decisions have solidified

Turner’s conclusion that all constitutional claims by prison

inmates are subject to a reasonableness inquiry. In O'Lone v.

Estate of Shabazz, 482 U.S. 343 (1987), decided the same

term as Turner, this Court held that the application of the

Turner test did not turn on the question of whether the right

allegedly violated is inconsistent with prison safety. The

Court rejected, as it had in Turner, the argument that “more

rigorous scrutiny is appropriate unless a court can conclude

that the activity for which prisoners seek protection is

‘presumptively dangerous.”” /d. at 349 n.2 (citing Turner, 482

U.S. at 89)’

Similarly, in Washington v. Harper, the Court reiterated

that the Turner standard applies to “all circumstances in

which the needs of prison administration implicate

constitutional rights.” 494 U.S. at 224 (emphasis added).

There, the Court used the reasonableness standard to review

the claim of a mentally ill prisoner challenging a prison policy

that authorized his treatment with antipsychotic drugs.

Rejecting the position that a higher standard of review was

required because of the highly intrusive nature of

antipsychotic drug treatment, id. at 218, the Court confirmed

that a deferential standard of review best accommodates the

competing principles that make the prison context a unique

one. The Court explained that 7urner applies “in al/ cases in

which a prisoner asserts that a prison regulation violates the

Constitution, not just those in which the prisoner invokes the

* The Court has been no more receptive to the argument “that

heightened scrutiny is appropriate whenever regulations effectively

prohibit, rather than simply limit, a particular exercise of constitutional

rights.” As the Court put it in O'Lone, “the presence or absence of

alternative accommodations of prisoners’ rights is properly considered a

factor in the reasonableness analysis rather than a basis for heightened

scrutiny.” 482 U.S. at 349 n.2 (citing Turner, 482 U.S. at 88, 90-91).

11

First Amendment.” /d. at 224 (emphasis added). Simply put,

it does not matter whether “the constitutional right claimed to”

have been infringed is fundamental, and the State under other

circumstances would have been required to satisfy a more

rigorous standard of review.” /d. at 223.

Turner and its progeny thus unequivocally demonstrate that

prison policies that implicate the constitutional rights of

prisoners—no matter what the source or nature of the right—

are constitutional as long as they are “reasonably related to

legitimate penological interests.” Turner, 482 U.S. at 89.

B. This Court’s Precedents Provide No Basis For

An “Equal Protection Exception” To The Turner

Standard.

Contrary to Petitioner’s position, see Pet’r Br. at 24-27, this

Court has never held or suggested that prison-based racial

equal protection claims are subject to strict scrutiny. In

adopting a “unitary” reasonableness standard for prison-based

> On a number of other occasions as well, the Court has steadfastly

refused to create a hierarchy of standards of review based on the nature of

the right alleged to have been infringed or the nature and degree of

governmental infringement. See, e.g., Overton v. Bazzetta, 539 U.S. at

131 (“Many of the liberties and privileges enjoyed by other citizens must

be surrendered by the prisoner.”); McKune v. Lile, 536 U.S. 24, 36 (2002)

(“A broad range_of choices that might infringe constitutional rights in a

free society fall within the expected conditions of confinement of those

who have suffered a lawful conviction.”); Lewis v. Casey, 518 U.S. 343,

361 (1996) (Turner’s principle of deference has “special force” with

regard to disciplinary and security concerns); Thornburgh v. Abbott, 490

U.S. 401, 409-10 (1989) (“[A] strict standard simply [is] not appropriate

for consideration of regulations that are centrally concerned with the

maintenance of order and security within prisons.”). This refusal to create

a hierarchy of constitutional rights in the prison context is consistent with

the Court’s general position that there is “no principled basis on which to

create a hierarchy of constitutional values.” Valley Forge Christian Coll.

v. Americans United for Separation of Church & State, Inc., 454 U.S. 464,

484 (1982); City of Newport, Ky. v. lacobucci, 479 U.S. 92, 99 n.1 (1986)

(per curiam) (Stevens, J., dissenting) (“all constitutional values are

equivalent”).

oe

12

constitutional claims, including equal protection claims, the

Turner Court articulated what was, implicitly, the standard of

review controlling prison-based racial protection claims.

1. Petitioner relies most heavily on Lee v. Washington,

arguing that “[t]he appropriate standard of review here is

mandated . . . by the specific holding in Lee, where the Court

affirmed that racial segregation of prison inmates violates the

Fourteenth Amendment and is presumed invalid unless it

survives strict scrutiny.” Pet’r Br. 20. But Lee affirms no

such thing.

In fact, Lee neither expressly nor implicitly applied strict

scrutiny to prison-based equal protection claims. There, this

Court, in a per curiam opinion, affirmed the district court's

judgment ordering the desegregation of state prisons and jails.

Lee, 390 U.S. at 333-34. The Court provided no analysis of

the pertinent standard.

Moreover, the district court’s decision, which this Court

adopted, did no more than establish that a state law mandating

the “complete and permanent segregation” of state prisons

violates the Equal Protection Clause. Washington v. Lee, 263

F. Supp. at 331. Observing that “it is no longer open to

question that a State may not constitutionally require

segregation of public facilities,” id (internal quotation marks

and alteration omitted), the district court went on to conclude

that “no consideration of prison security or discipline [would]

sustain the constitutionality of state statutes that on their face

require complete and permanent segregation of the races in

all the Alabama penal facilities,” id. (emphasis added).

Thus, the district court restricted its opinion to claims

involving segregation that is complete, permanent, and

universally applied throughout a state prison system. Its

analysis anticipated—and is consistent with—the Turner

standard in its suggestion that such an arbitrary state policy is

not and cannot be reasonably related to “consideration{s] of

prison security or discipline.”

13

Of particular pertinence here, the district court added that

temaporary segregation would be constitutionally permissible

if supported by such considerations. Indeed, the court noted

that in some instances “prison security and discipline

necessitates segregation of the races.” 263 F. Supp. at 331

(emphasis added). The court cited the example of the so-

called “tank” in the City of Birmingham, where inmates were

temporarily segregated by race. /d. at 331 n.6.

- This Court’s affirmance of the district court’s decision was,

in more general terms, an affirmation that the distinction

between “complete and permanent segregation” and

temporary segregation reasonably related to “consideration(s]

of prison security and discipline” is practically necessary and

constitutionally sound. The Court accepted the district court’s

decision in part on the ground that “the specific [district

court] orders directing desegregation of prisons and jails

make . . . allowance for the necessities of prison security and

discipline.” Lee, 390 U.S. at 333-34. In other words, the

Court approved a desegregation plan for state prisons- that

allowed for temporary and limited race-based solutions to

“the intractable problems of prison administration.” Turner,

482 U.S. at 89.

In a concurring opinion, Justices Black, Harlan, and

Stewart made the same point, though with greater emphasis:

In joining the opinion of the Court, we wish to make

explicit something that is left to be gathered only by

implication from the Court’s opinion. This is that

prison authorities have the right, acting in good faith

and in particularized circumstances, to take into

account racial tensions in maintaining security,

discipline, and good order in prisons and jails.

Lee, 390 U.S. at 334 (Black, Harlan, Stewart, JJ., concurring).

In short, nothing in this Court’s opinion in Lee, or in the

district court decision that it affirmed, suggests a blanket

14

holding that all racial distinctions made by prison authorities

require strict scrutiny.

2. Petitioner and his amici also make much of the fact

that, in other contexts, this Court has sometimes used the

unqualified language of color-blindness in dealing with

affirmative action claims. See Pet’r Brief 15-20, 23, 27-32,

citing, e.g., Gratz v. Bollinger, 539 U.S. 244 (2003) (h gher

education); Grutter v. Bollinger, 539 U.S. 306 (2003) (higher

education); Adarand Constructors, Inc. v Petia, 515 U.S. 200

(1995) (government contracting); City of Richmond v. J. A.

Croson Co., 488 U.S. 469 (1989) (plurality opinion)

(government contracting). Respondent does not dispute that

strict scrutiny governs race-based classifications in such

contexts. But nothing in those decisions, or in the opinions of

individual Justices, suggests that the Turner standard has been

or should be overruled with respect to race-based equal

protection claims in prisons.

For example, Petitioner relies heavily upon this Court’s

statement that “all racial classifications imposed by

government ‘must be analyzed by a reviewing court under

strict scrutiny.”” Grutter, 539 U.S. at 326 (quoting Adarand,

515 U.S. at 227); Pet’r Brief at 15. Petitioner fails to note,

however, that this statement was responding to the assertion

that so-called “benign” racial preferences are subject to

something less than strict scrutiny. Specifically, the quoted

language originated in this Court’s decision in Adarand, in

which the Court rejected the portion of Metro Broadcasting,

Inc. v. FCC, 497 U.S. 547 (1990), holding that the race of the

preferred individual was “critical to the determination of

which standard of review to apply.” Adarand, 515 U.S. at

226-227. The Court overruled this holding with the statement

that “all racial classifications” are subject to strict scrutiny —

not just those that favor whites over blacks. /d.; accord

Grutter, 539 U.S. at 353 (Thomas, J., dissenting).

Obviously, this statement and others like it were not

designed to overrule, sub silentio, the Court’s holding in

15

Turner and its progeny that, in the uniquely volatile prison

context, the “reasonable relationship” test applies to “all

circumstances in which the needs of prison administration

implicate constitutional rights.” Washington v. Harper, 494

U.S. at 224 (emphasis added). Such a reading of these

statements would be especially inappropriate in light of this

Court’s repeated recognition that the prison context is unique.

See Thornburgh v. Abbott, 490 U.S. at 407 (the rights of

_prison inmates “must be exercised with due regard for the

‘inordinately ‘difficult undertaking’ that is modern prison

administration.”) (quoting Turner, 482 U.S. at 85).

In sum, this Court should follow its prior precedents and

decline to create a hierarchy of standards of review for prison-

based constitutional claims. To do otherwise would require a

stark departure from Turner as well as a host of other

decisions.

Il. APPLICATION OF THE TURNER STANDARD TO

EQUAL PROTECTION CLAIMS OF THE SORT

RAISED BY PETITIONER IS ESPECIALLY

JUSTIFIED.

Creating an equal-protection “exception” to Turner would

be equally inappropriate as a matter of policy. As shown

below, racially motivated violence is one of the most

intractable problems in American prisons. Prison

* It would be difficult, indeed, to find a context analogous to the world

behind prison walls. As one commentator has pointed out, for example,

prisons cannot be analogized to schools because “they have different

populations, different social functions, and different administrative

problems. Behavior taken for granted in prisons would be considered

aberrant in schools, indeed, probably in all other social contexts. No other

~ institution so thoroughly controls and regiments its inmates or clients,

denying them privacy and freedom of choice. In no other institution are

relations so fraught with violence. It is a serious mistake to believe that

what makes sense in the educational environment is appropriate for

prisons.” James B. Jacobs, New Perspectives on Prisons and

Imprisonment 86-87 (1983).

16

administrators must have the discretion that Turner gives

them to address this pressing concern. At the same time, the

Turner standard is sufficiently rigorous to ensure that prison

administrators will not be able to make racial classifications

unrelated to legitimate penological objectives.

A. The Turner Standard Is Necessary To Ensure

That Prison Authorities Can Address The Urgent

Problem Of Race-Related Prison Violence.

1. Contrary to the position of Petitioner and his amici, see

Pet’r Br. at 8 n.5, 34; Brief of Former State Corrections

Officials as Amici Curiae in Support of Petitioner

(“Corrections Officials’ Brief’) at 5-6, 10-16, there is a

significant body of evidence that much of the violence in

prison is motivated by racial hostility and perpetrated by race-

based gangs.

As one commentator put it, “[a]nyone familiar with prisons

understands the seriousness of the problems caused by prison

gangs that are fueled by actively virulent racism... .

Protecting staff from prisoners and prisoners from each other

is a constant challenge.” Stefanow v. McFadden, 103 F.3d

1466, 1472 (9th Cir. 1996); see also Dawson v. Delaware,

503 U.S. 159, 173 n.1 (1992) (Thomas, J., dissenting) (citing

cases and scholarly writings that have taken note of prison-

based racial violence).°

Indeed, “racial avoidance and conflict [is] the most salient

aspect of the prisoner subculture.” James B. Jacobs, New

* In Turner, the particularized circumstance that gave rise to restrictions

on prison correspondence was “a growing problem with prison gangs.”

482 U.S. at 91. Witnesses testified that “restricting communications

among gang members, both by transferring gang members to different

institutions and by restricting their correspondence, was an important

element” in a strategy of “separating and isolating gang members.” /d. at

91-92; see also Thornburgh v. Abbott, 490 U.S. at 412 (possession of

subscription publications may allow other inmates to draw inference about

gang affiliation.)

17

Perspectives on Prisons and Imprisonment 67 (1983).

“Inside the prison interracial hostilities intensify because

intraracial peer groups completely dominate the lives of the

prisoners. Few, if any, other activities or interests compete

for a prisoner’s energies.” /d at 71. In fact, for many

prisoners, their criminal identity has been supplanted with a

racial-ethnic one. John Irwin, The Felon 80-82 (1970).

The problem, moreover, is growing. The racial subculture

of prison life “is an extension of gang life” on the outside.

Jacobs, supra, at 71; see, e.g., Jonathan A. Willens, Structure,

Content and the Exigencies of War: American Prison Law

Afier Twenty-Five Years 1962-1987, 37 Am. U. L. Rev. 41,

55-56 (1987) (prison population “is divided among

identifiable gangs openly tied to Black, white, and Hispanic

gangs simultaneously operating in the streets”). Accordingly,

with gang membership in general on the rise, the proportion

of prisoners affiliated with a prison gang has risen

considerably over the last decade See National Criminal

Justice Reference Service, Gang Resources 1, available at

http://www.ncjrs.org/gangs/summary.html (last visited Aug.

6, 2004) (“According to a 1999 survey by the National Gang

Crime Research Center, gang membership within adult state

correctional facilities increased from 9.4% in 1991 to 24.7%

in 1999.”). And these racially separated gangs “are believed

to be responsible for much of the violence in prisons.” Scott

N. Tachiki, Comment, /ndeterminate Sentences in Supermax

Prisons Based Upon Alleged Gang Affiliations: A

Reexamination of Procedural Protection and a Proposal for

Greater Procedural Requirements, 83 Cal. L. Rev. 1115,

1126 (1995). Race-based prison gangs have “an endless

capacity for violence. Gangs systematically rape and murder

both prisoners who are not gang members and guards who

interfere with their activities.” Willens, supra, at 55-56.

2. The viciousness of race-based, gang-related prison

violence is aptly demonstrated by the facts of State v. Kell,

where a white supremacist savagely murdered an African

American inmate. 61 P.3d 1019, 1024-25 (Utah 2002). The

Utah Supreme Court was appropriately shocked by the

heinous nature of the attack:

For over two and a half minutes, defendant slashed

Blackmon with his shank, inflicting sixty-seven stab

wounds.... Despite Blackmon’s pleas to stop,

defendant continued the assault and, in fact, after

walking away, returned twice to inflict more wounds,

until Blackmon lay motionless on the floor of the cell

block.

Id. at 1025. The defendant in that case had previously “been

involved in race-related altercations with several African-

American inmates,” id. at 1024, and there can be little doubt

that the ferocity of the attack was motivated by the

defendant’s hatred of African Americans. And this case is

just one of many that demonstrates that race-based prison

violence is quite literally a matter of life and death.

3. Closely related to the problem of race-related gangs is

the problem of inter-racial rape in prisons. Numerous studies

of prison violence, including an exhaustive study of male rape

by Human Rights Watch, have noted that inter-racial rape has

reached epidemic proportions. See Human Rights Watch,

United States, No Escape: Male Rape in U.S. Prisons (2001),

available at http://www.hrw.org/reports/2001/prison/report.

html.

Moreover, negligent celling, including celling together men

who are “racially antagonistic,” is one of several factors that

increase the threat of prisoner rape. /d. at ch. VIII; see also

Brief of Stop Prisoner Rape as Amicus Curiae in Support of

Petitioner, Farmer v. Brennan, 511 U.S. 825 (1994) (No. 92-

7247) (discussing race as a risk factor in prisoner rape);

Christopher D. Man & John P. Cronan, Forecasting Sexual

Abuse in Prison: The Prison Subculture of Masculinity as a

Backdrop for “Deliberate Indifference,” 92 J. Crim. L. &

19

Criminology 127, 158-65 (2001) (citing studies that indicate

“a clear relationship between race and prisoner rape”).

In short, racial conflict and race-related violence within

prisons is a national problem. See Jacobs, supra, at 71 (“In

every region of the country, race is the most important

determinant of an individual’s prison experience.”).°

4. Given the extent of racial violence associated in our

Nation’s prisons, it is no exaggeration to say that the

discretion given to prison administrators under the Turner

standard may be necessary to protect the safety—indeed, to

protect the lives—of prison inmates. In fact, given the

prevalence of racial violence, the failure to take segregative

® The California Department of Corrections has faced particularly

serious gang-related racial conflict. The state prison system is dominated

by race-based prison gangs. See Willens, supra, at 56 n.69 (California is

one of three prison systems most dominated by gangs); Jacobs, supra, at

68 (citing studies of racial polarization -within the California prison

system). And the problems caused by gang activity are “the chief

operational fact of life inside California prisons.” John J. Dilulio, Jr.,

Governing Prisons: A Comparative Study of Correctional Management

129 (1987). As one commentator has noted, “[flor years in states such as

California . . . prison gangs have terrorized fellow inmates, injured and

killed staff members, trafficked in drugs and disrupted the delivery of

prison services.” /d. at 249. The result has been a series of “never-ending

race wars.” Micha Maguire, Racism II, in Inside: Prison American Style

84, 84 (Robert J. Minton, Jr. ed., 1971). Accordingly, inmate accounts of

prison life within the California system describe a violent world where

prisoners must racially self-segregate if they are to survive. See Frank L.

Rundle, The Roots of Violence at Soledad, in The Politics of Punishment:

A Critical Analysis of Prisons in America 163, 167-68 (Erik Olin Wright

ed., 1973).

Given the dominance of prison gangs within the California prison

system, it is hardly surprising that the CDC has been the scene of a “high

level of racial violence.” Johnson, 321 F.3d at 800 n.9 (describing

numerous incidents of racial violence within the California prison system).

For his part, moreover, Petitioner neither disputes that prison gangs are a

fact of life in California prisons nor “disagree[s] that racial violence is

pervasive in the CDC.” /d. at 802.

20

measures “could be considered ‘deliberate indifference’ to

prisoners’ safety and could itself constitute a constitutional

violation.” Johnson, 321 F.3d at 807. See Robinson v. Prunty,

249 F.3d 862 (9th Cir. 2001) (triable issue as to whether

prison officials were deliberately indifferent to an excessive

risk that prisoner would be harmed when he was placed in an

integrated yard); Jacobs, supra, at 97-98 (policy of random

cell assignment without regard to the reality of interracial

violence could be viewed as deliberate indifference).

5. In light of the widespread and serious problem of

racially motivated violence, moreover, a prison administrator

could reasonably believe that it is both wise and responsible

to avoid celling together new inmates of different races until

the prison has an opportunity to determine their propensity for

engaging in such violence. In fact, it is not obvious, as

Petitioner and his amici suggest, that temporary segregative

measures are ineffective in reducing interracial violence in

prisons.

First, there is no consensus among prison experts that

temporary segregative measures are ineffective. See

Corrections Officials’ Brief at 18-19. While it is true that

some prison officials believe that total and complete

integration is the best policy for avoiding racial violence,

other officials disagree with this conclusion. In fact, 30

percent of wardens at maximum security prisons have

expressed the belief that integrating individual prison cells “is

likely to increase the level of violence in an institution.”

Martha Henderson et al., Race, Rights, and Order in Prison:

A National Survey of Wardens on the Racial Integration o

Prison Cells, 80 The Prison Journal 295, 304 tbl. 5 (2000).

” There is good reason why prison administrators disagree about the

relationship between temporary segregative measures and racial violence.

It is safe to say that, in terms of racial dynamics, no two prisons are alike:

There is surely too much variation in overcrowding, administrative

capacity, and prisoner subculture to expect a single rule of thumb to

suffice. Even if prisons were identical in all of these respects, the fact

that some contain prisoner populations with nearly equal numbers of

21

Petitioner and his amici expect this Court to second-guess the

judgments of these seasoned prison administrators on what is

potentially a matter of life and death.

Moreover, prior experience supports the conclusion that

integration, undertaken with insufficient care by prison

‘officials, can lead to increased violence. For example, in

White v. Morris, the U.S. District Court for the Southern

District of Ohio explained how integration contributed to a

devastating prison riot:

On April 11, 1993, the worst prison riot in Ohio history,

and one of the worst in the United States history, erupted

at the Southern Ohio Correctional Facility (“SOCF”).

Nine inmates and one corrections officer were murdered

and many others were injured during the eleven day

st»ndoff. During negotiations as well as after the riot,

prisoners repeatedly cited integrated celling as a factor

contributing to the tense atmosphere at SOCF. Among

the demands the prisoners made as part of their

agreement to end the siege, was that [the policy of

integrated celling] be reviewed.

832 F. Supp. 1129, 1130 (S.D. Ohio 1993). While the Ohio

experience may not be repeated in every case, it clearly

suggests that, in some cases, integration can worsen already

severe racial tensions in prisons.

6. The ongoing debate between prison officials about the

best way to reduce racial violence in prisons demonstrates

forcefully why federal courts should not subject prison

policies to strict scrutiny. While penologists may disagree

about the efficacy of particular measures to reduce racially

based prison violence, it is the job “of prison

administrators ...and not the courts, to make the difficult

[racial sub-groups], while others have a single race overwhelmingly

in the majority, suggests that there will be different patterns of racial

conflict and different strategies for control.

Jacobs, supra, at 81.

22

judgments concerning institutional operations.” Jones v.

North Carolina Prisoners’ Labor Union, Inc., 433 U.S. at

128. The federal courts are not in a better position than

prison administrators to determine how best to reduce racial

violence in prisons.

Indeed, this Court has often stated that questions of prison

safety are “peculiarly within the province of the legislative

and executive branches, of government,” Turner, 482 U.S. at

84-85, and not within the expertise of the courts. See, e.g.,

Procunier v. Martinez, 416 U.S. at 404-05; Pell v. Procunier,

417 U.S. at 827. And federalism concerns strongly “counsel

a policy of judicial restraint” where a state penal system is

involved Turner, 482 U.S. at 85 (“Where a state penal system

is involved, federal courts have . . . additional reason to

accord deference to the appropriate prison authorities.”); see

also Lewis v. Casey, 518 U.S. at 387 (Thomas, J., concurring)

(“State prisons should be run by state officials with the

expertise and the primary authority for running such

institutions.”).

The problem with strict scrutiny in this context is, as this

Court put it in Turner, that it would make courts “the primary

arbiters of what constitutes the best solution” to the problems

of prison administration. 482 U.S. at 89. Simply put, such a

rule would place impossible burdens on prison administrators:

Subjecting the day-to-day judgments of prison officials

to an inflexible strict scrutiny analysis would seriously

hamper their ability to anticipate security problems and

to adopt innovative solutions to the intractable problems

of prison administration. The rule would also distort the

decisionmaking process, for every administrative

judgment would be subject to the possibility that some

court somewhere would conclude that it had a less

restrictive way of solving the problem at hand.

Id.

23

In short, subjecting equal protection claims to strict scrutiny

would fail to accord deference to the appropriate prison

authorities. That would make “an already daunting task

virtually impossible.” Lewis v. Casey, 518 U.S. at 387

(Thomas, J. , concurring).*

B. The Turner Standard Is Sufficient To Prevent

Invidious Discrimination.

Finally, Petitioner and his amici are wrong to suggest that

adherence to the Turner standard in this context will give

prison administrators license to engage in_ invidious

discrimination under the guise of protecting prison security.

This Court adopted the Turner standard “with confidence

that...a reasonableness standard is not toothless.”

Thornburgh v. Abbott, 490 U.S. at 414 (internal quotation

marks omitted). The Turner standard is designed to “smoke

out” arbitrary or irrational state actions. See Turner, 482 U.S.

at 89-90 (“[A] regulation cannot be sustained where the

goal is so remote as to render the policy arbitrary or

irrational.”). And it is fully capable of discerning illegitimate

uses of racial criteria.

In Turner itself, the Court struck down a regulation

restricting the rights of prisoners to marry as an “exaggerated

response to . . . security objectives.” /d. at 98. There is no

~

* Petitioner's claim would affect not only racial classifications but also

all classifications which require equal protection analysis. A separate

standard for equal protection claims could not logically be limited to racial

classifications, but would require close, equal-protection scrutiny of all

forms of prison classifications. Prison administrators would be required to

more carefully examine classifications based upon a prisoner’s gender,

see, e.g., Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989) (applying

heightened scrutiny to prison-based claims of gender discrimination), and

would have to closely examine differential treatment of prisoners with

mental and physical impairments. Cf City of Cleburne, Tex. v. Cleburne

Living Ctr, Inc., 473 U.S. 432 (1985).

24

reason to think that similarly arbitrary or irrational measures,

including raced-based ones, will not meet a similar fate.

Far from giving governmental authorities license to trample

on the constitutional rights of prison inmates, the Turner test

requires prison officials to articuiate the “particularized

circumstances” that justify a restriction on a prisoner’s rights.

See, e.g., id. at 91-93 (testimony at trial supports contention

that correspondence provision was promulgated primarily for

security reasons); cf Thornburgh v. Abbott, 490 U.S. at 419

(“prison officials [must be] able to demonstrate that they have

rejected a less restrictive alternative because of reasonably

founded fears that it will lead to greater harm”). The relevant

factors identified in Turner “serve to channel” the

reasonableness inquiry, id. at 414, ensuring that prison

authorities do not enjoy the kind of “unbounded discretion

[that] carries with it grave potential for abuse.” Afwater v.

City of Lago Vista, 532 U.S. 318, 372 (2001) (O’Connor, J.,

dissenting).

Thus, while Turner gives broad discretion to prison

officials to prevent disorder, see Shaw v. Murphy, 532 U.S. at

232; Thornburgh v. Abbott, 490 U.S. at 413, it does not give

them free range to presume or speculate, or to invent security

rationales at odds with common sense. Nor is a “generalized

or vague fear of racial violence ... a sufficient justification

for a broad policy of racial segregation.” Sockwell v. Phelps,

20 F.3d 187, 191 (Sth Cir. 1994) (citing United States v.

Wyandotte County, Kan., 480 F.2d 969, 971 (10th Cir. 1973))

(relying on Lee to strike down “general policies of racial

segregation in prison housing and administration”).

Applying Turner, courts will be able to prevent arbitrary,

pretextual uses of race, as they have in the past. See Black v.

Lane, 824 F.2d 561, 562 (7th Cir. 1987) (rejecting

magistrate’s grant of summary judgment where magistrate

“simply chose to believe the conclusory statements by the

prison officials that they had confined [a black inmate]

merely for security reasons”). For example, the Turner factors

ew

<< eet we

-

y

would preclude complete and permanent segregation of the

races in violation of Lee, 390 U.S. at 333-34. And Turner

would clearly not allow prison officials to justify the

preferential treatment of one race. See Johnson, 321 F.3d at

799 n.7 (racially preferential treatment “could not be

sustained as neutral”).”

To be sure, there is little doubt that some measures taken in

response to the unique requirements of prison administration

“would raise grave . . . concerns outside the prison context.”

Thornburg v. Abbott, 490 U.S. at 407. See also Jones v.

North Carolina Prisoners’ Labor Union, Inc., 433 U.S. at 133

n.9 (“The informed decision of prison officials that there is

potential danger may be sufficient for limiting rights even

though this showing might be ‘unimpressive if . . . submitted

as justification for governmental restriction of personal

communication among members of the general public.””)

(ellipsis in original) (quoting Pell v. Procunier, 417-U.S. at

825). What is clear, however, is that while Turner gives

* With regard to race-based equal protection claims, the “bite” of

Turner was borne out in Morrison v. Garraghty, in which the Fourth

Circuit struck down a prison policy that gave preference to prisoners of

Native American heritage. 239 F.3d 648 (4th Cir. 2001). There, a prison

inmate alleged that his equal protection rights had been violated when his

request to obtain Native American religious items was denied because he

was not of Native American heritage. The Fourth Circuit found that prison —

authorities had “failed ...to demonstrate that the race-based . . . policy

[was] reasonably related to this legitimate penological interest.” /d at

660. The court noted that while prison officials “perhaps could have

prohibited inmate possession of the requested items because they threaten

prison safety and security, they have chosen not to do so.” /d The policy

at issue “allow[ed] consideration of requests for religious exemptions

from the personal property restrictions submitted by Native American

inmates . . . but which unequivocally denies non-Native Americans . . . the

same consideration solely on the basis of their lack of membership in the

Native American race.” /d The Court considered the claim that such a

policy promoted prison security and, under the Turner standard,

concluded that the prison policy was not “rationally related to the goal of

prison safety.” /d

%6 27

prison officials the “ability to anticipate security problems

and to adopt innovative solutions to the intractable problems ae ican ee — —.

of prison administration,” 482 U.S. at 89, Turner also gives ALABAMA STATE OF ALASKA

courts the power to smoke out constitutionally illegitimate 11 South Union Street P.O. Box 110300

uses of race. Montgomery, AL 36130 Juneau, AK 99801

*ee% (334) 242-7300 (907) 465-2133

Almost two decades ago, this Court adopted a deferential M. JANE BRADY LAWRENCE G. WASDEN

standard that it understood would apply, and subsequently _ ATTORNEY GENERAL IDAHO ATTORNEY GENERAL

interpreted as applying, to all non-Eighth Amendment STATE OF DELAWARE P.O. Box 83720

constitutional claims challenging conditions of confinement 820 N. French Street Boise, ID 83720-0010

in the Nation’s penal institutions. There simply is no basis in Wilmington, DE 19801 (208) 334-2400

law or sound policy for this Court to revisit that conclusion by (302) 577-8400

creating a potentially limitless and dangerous “exception” for

equal protection claims. If anything, the increase in gang- ATTORNEY GENERAL KELLY A. AYOTTE

related activity and prison violence since Turner make it even coe poor tae temps bo oe

more important to adhere to the standard adopted there. If A

prison officials are to be subjected to a higher standard when = North Carson Street 33 Capitol Street

' de arson City, NV 89701-4717 Concord, NH 03301 -

dealing with the inherent tension between constitutional (775) 684-1100 (603) 271-3655

values and the needs of prison security, that standard should

be imposed by a duly authorized legislative or executive

authority, not by the federal courts. EE, an

CONCLUSION 600 E. Boulevard Avenue

7 : Bismarck, ND 58505-0040

The decision by the United States Court of Appeals for the (701) 328-2210

Ninth Circuit should be affirmed.

Respectfully submitted,

MARK L. SHURTLEFF GENE C. SCHAERR*

UTAH ATTORNEY GENERAL ROBERT KLINCK

236 State Capitol SIDLEY AUSTIN BROWN &

_ Salt Lake City, UT 84114 Woop LLP

(801) 538-9600 1501 K Street, N.W

Washi D.C. 20005

(202) 736-8000