# Amicus Curiae Brief — Johnson v. California

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0717%3A15

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 499

## Text

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 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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0717%3A15. Public record. Not legal advice.