Amicus Curiae Brief — Cutter v. Wilkinson

No. 03-9877

IN THE

Supreme Court Of The United States

JON B. CUTTER. ET AL...

Petitioners.

REGINALD WILKINSON. ET AL..

Re spondenty,

On Writ Of Certrorari

To The United States Court Of Appeals

bor The Sixth Circut

BRIEF OF AMICT CURTAE AMERICAN JAIL

ASSOCIATION, ASSOCTATION OF STATE

CORRECTIONAL ADMINISTRATORS, NATIONAL

MAJOR GANG TASK FORCE, NATIONAL

SHERIFFS’ ASSOCTATION, NEW YORK STATE

SHERIFES* ASSOCIATION, AND NORTH

AMERICAN ASSOCIATION OF WARDENS &

SUPERINTENDENTS IN SUPPORT OF

RESPONDENTS

MICHAEL H. CARPENTER MICHAEL No. BEEKHUIZEN

HePEREY AJ LIPPS Counsel of Record

CARPENTER & LIPPS LLP CARPENTER & LIPPS LLP

280 Plaza, Suite 1300 280 Plaza. Suite 1300

280 North High Street 280 North High Street

Columbus, Ohto 43215 Columbus, Ohio 43215

(614) 365-4100 (614) 3605-4 100

Counsel for Anuct Curtae

TABLE OF CONTENTS

Page

RE CI Cy SUD biuiiicisiiisnaniivnidinlncnntennineniaaiiimpaiian ii

STATEMENT OF INTEREST OF AMICI CURIAE............. I

OPPS OIE FPR E sevcccccenesscnesecsnessosstsniasustiiiniiiaes 3

SEEEDEPUEET | <snsciescsniciueitsinsistinsouiiinnicieiieiiaeaiitelinshiimidaiiiiiatiniiiaiia lai 4

I. Gangs And Gang Violence Are Among

The Most Pressing Concerns In The

Highly Regulated Corrections

III sccstcsnscsacecnsnvniaseiiiisigiaibaesammtdabines 4

Il. Gang Members’ Seek Religious

Accommodations In Order To Obtain

Exemptions From The Highly Regulated

Corrections Environment .........................00+++. 8

Il. The Least Restrictive Means Test

Greatly Exacerbates The Abuse Of

Religious Accommodations ..................0000+ 12

A. The Least Restrictive Means Test

PCOS TRETIBIOR ....2000ccccscccsccesesceees 13

B The Least Restrictive Means Test

Has Caused An Explosion In

Inmate “Religious” Demands........... 14

xd The Least Restrictive Means Test

Causes An Excessive

Entanglement With Religion............ 15

IO e AL UITS wessnsnncnsnnsansimnenasicanntanisigaienmasniieaiabeieaiensiiiiadiibiel 17

TABLE OF AUTHORITIES

Page(s)

CASES

O'Lone v. Estate Of Shabazz, 482 U.S. 342 (1987)... 17

Turner v. Safley, 482 U.S. 78 (1987)...............cccccccccscsssssseees 16

STATUTES

Religious Freedom Restoration Act, 42 U.S.C. §§ :

Religious Land Use And Institutionalized Persons

ae 3, 12

OTHER AUTHORITIES

Dangerous Convictions: An Introduction To

Extremist Activities In Prisons (Anti-Defamation

a aac eeideaceatncadeneadidadeiaainimaatgnineemonmonisisenene 10, 11, 12

Davis, Heather, Comment: Inmates’ Religious

Rights: Deference To Religious Leaders And

Accommodation Of Individualized Religious

Beliefs, 64 Alb. L. Rev. 773 (2000)..................c.cscscssssseeeees 8, 15

Developments In The Law -- The Law Of Prisons,

In The Belly Of The Whale: Religious Practice In

Prison. 115 Harv. L. Rev. 1891 (2002)........0....... 4,12, 13,14

Fischer, Daryl R., Ph.D., Arizona Department Of

Corrections: — Security Threat Group (STG)

Program Evaluation, Final Report (National

Criminal Justice Reference Service 2002) ............:cccccc00cc0000s 5

ill

TABLE OF AUTHORITIES--Continued

Fleisher, Mark S. and Decker, Scott H., An

Overview Of The Challenge Of Prison Gangs,

Corrections Management Quarterly (Winter 2001) ....... 4,5,6

Frey, Sara Anderson, Comment: Religion Behind

Bars: Prison Litigation Under The Religious

Freedom Restoration Act In The Wake Of Mack v.

O'Leary, 101 Dick. L. Rev. 753 (1997) ............ssccceesseees 10, 13

Gaes, Gerald G., et al., The Influence Of Prison

Gang Affiliation On Violence And Other Prison

Misconduct, The Prison Journal, Vol. 82, No. 3

Knox, George W., Ph.D., An Introduction To

Gangs (New Chicago School Press 2000) ..............:::e0e00 9, 10

Knox, George W., Ph.D., A National Assessment

Of Gangs And Security Threat Groups (STGs) In

Adult Correctional Institutions: Results Of The

1999 Adult Corrections Survey, Journal Of Gang

Research, Vol. 7, No. 3 (Spring 2000) .............cccceeesseeeeeeees 5,6

Review Of The Federal Bureau Of Prisons’

Selection Of Muslim Religious Services Providers

(U.S. Department of Justice, Office of the

Inspector General April 2004)...............ccccccccssscosesesseeeess 9, 12

Tucker, Kim, Preliminary Results Of The RFRA

Survey Of All States: The Impact Of The

Religious Freedom Restoration Act On_ State

Correctional Systems (Florida Attorney General's

SIE III ssinhastushdeneniiendiiaanerenennsnsentecensnnsoonnecovseeneness 10, 13, 14

iV

TABLE OF AUTHORITIES--Continued

Zaitzow, Barbara H., Ph.D. and Houston, James G.,

Ph.D., Prison Gangs: The North Carolina

Experience, Journal Of Gang Research, Vol. 6, No. 3

RE FI i ccncenesencnssincsinininmusaienenininihauisainaisisiussnitanseaspinieiiil

STATEMENT OF INTEREST OF AMICI CURIAE

Amici curiae submit this brief in order to provide the

Court with an understanding of the problem presented by

gang violence in correctional institutions, and how that

problem is impacted by the Religious Land Use And

Institutionalized Persons Act.’

The American Jail Association is a national, non-

profit organization formed in 1981. It is dedicated to

supporting those who work in and operate the Nation’s jails.

It conducts training conferences and certification programs

for jail officers and managers, and is the publisher of

American Jails magazine. The association has approximately

4,200 members nationwide.

The Association of State Correctional Administrators

is a not-for-profit organization formed in 1970. Its

membership consists of the Directors of Corrections for the

50 States, the Federal Bureau of Prisons, and four large urban

jail systems, as well as U.S. territories and commonwealths.

The Association’s major goals are to influence and shape

correctional policy; to identify proven correctional practices,

standards, and performance measures; and to share with its

members training and professional development programs

designed to enhance members’ professional skills and

awareness of advancements in the profession.

The National Major Gang Task Force is a non-profit

organization formed in 1993 for the purpose of minimizing

the effects of security threat groups, gangs and terrorists in

' Letters of consent to the filing of this brief have been submitted to the Court.

No counsel for any of the parties authored this brief in whole or in part.

Furthermore, no person or entity, other than the amici curiae, their members or

their counsel, made any monetary contribution to the preparation or

submission of this brief.

Le)

jails, prisons and communities. It conducts annual training

conferences, conducts studies, and partners with corrections

and law enforcement officials throughout the country,

regarding gang intervention and management strategies. The

National Major Gang Task Force has approximately 1,600

members nationwide.

The National Sheriffs’ Association was founded in

1940 to represent the criminal justice and law enforcement

activities of the Nation’s 3,088 Offices of Sheriff, including

the operation of local jails. It is a non-profit association with

over 21,000 members. Among other things, it provides

training to jail officers and supervisors, and prepares jail

manuals, guidelines and handbooks relating to all aspects of

jail operations.

The New York State Sheriffs’ Association is a non-

profit organization formed in 1934 for the purpose of

assisting Sheriffs in the efficient and effective delivery of

Sheriffs’ services to the public, including maintenance and

operation of county jails. Among other things, it develops

accreditation standards for jail administrators, and conducts

conferences and training sessions for jail administrators and

other supervisory jail officers. The Association is composed

of all Sheriffs in the State of New York.

The North American Association of Wardens &

Superintendents is a non-profit organization formed in the

1940s. It is committed to promoting and supporting the

needs of jail and prison wardens, superintendents and

administrators throughout North America. It provides a

forum, through conferences and newsletters, for jail and

prison officials to share and exchange information and ideas,

and offers training workshops in connection with other

professional organizations. The Association — has

approximately 900 members throughout the United States

and Canada.

3

SUMMARY OF ARGUMENT

Correctional institutions are highly — regulated

environments in which security concerns dominate. In

particular, gang violence is one of the most pressing

problems currently facing corrections administrators

throughout the country. One recent survey has estimated that

approximately one-fourth of all inmates in adult male state

correctional institutions are gang members. The rate is even

higher in maximum security institutions, with roughly one-

third of the inmate population belonging to a gang or other

security threat group. As the evidentiary record in this matter

reveals, controlling gang violence is not simply a matter of

administrative convenience, but literally a matter of life and

death for inmates and correctional staff.

Given the highly regulated nature of correctional

institutions, participation in religious services is one of the

few opportunities for inmates to obtain special privileges or

exemptions from normal limitations on daily activities. Gang

members are aware of the legal protections afforded to

religious practice, and unfortunately, seek to take advantage

of these special privileges. Gang members use religious

affiliation and practice for recruitment and identification of

members, and as a means of organizing criminal activities in

correctional institutions.

The least restrictive means test -- mandated by the

Religious Land Use And _ Institutionalized Persons Act

(“RLUIPA”) and the former Religious Freedom Restoration

Act (“RFRA”) -- has greatly exacerbated gang members’

abuse of religious accommodations. Specifically, the least

restrictive means test has: (1) promoted the proliferation of

various religions, including numerous pagan “religions”

dominated by white supremacists, such as Odinism and

Asatru; (2) caused the number of inmate “religious” demands

to skyrocket, creating an excessive burden on correctional

4

chaplains and officials, and often causing a reduction in the

provision of religious services to inmates; and (3) caused an

excessive entanglement of corrections officials with religion

by forcing those officials to scrutinize closely every claimed

“religion” and every request for “religious” accommodation.

In sum, RLUIPA restricts the ability of corrections officials

to address the security problems presented by gangs in

correctional institutions throughout the country.

ARGUMENT

I. Gangs And Gang Violence Are Among The Most

Pressing Concerns In The Highly Regulated

Corrections Environment.

Correctional institutions are highly — regulated

environments in which security concerns dominate. Even

seemingly “administrative or technical concerns,” including

“uniformity of schedule, appearance, and diet,” involve

considerations of security. See Developments In The Law --

The Law Of Prisons, In The Belly Of The Whale: Religious

Practice In Prison, 115 Harv. L. Rev. 1891, 1891, 1899

(2002) (“Developments”). Corrections administrators must

consider not only the administrative costs of a policy, but

also the “likelihood of inmate resentment, the appearance of

discrimination, and the possibility of inmates manipulating

the system for personal advantage[.]” /d. at 1899.

Gangs and gang violence are the primary threats to

management of the highly regulated corrections environment.

See Fleisher, Mark S. and Decker, Scott H., An Overview Of

The Challenge Of Prison Gangs, Corrections Management

Quarterly (Winter 2001) at 2. In fact, the problem of gangs

and gang violence in correctional institutions is widespread

and growing. A 1999 survey of correctional institutions in 47

states concluded that approximately “one fourth of all male

inmates confined in adult state correctional institutions are

5

gang members.” Knox, George W., Ph.D., A National

Assessment Of Gangs And Security Threat Groups (STGs) In

Adult Correctional Institutions: Results Of The 1999 Adult

Corrections Survey, Journal Of Gang Research, Vol. 7, No. 3

(Spring 2000) (“A National Assessment”) at 5. This

represented a dramatic increase from the 1991 gang density

level of only one in ten male inmates. /d.

Furthermore, it is widely agreed that gangs are

“responsible for most prison violence.” Fleisher, supra, at 5.

A 1985 study, for example, found that gangs “caused 50

percent or more of the prison violence” at a time when gang

density was estimated at only three percent of the prison

population. /d. A 2002 study of gang violence in Arizona

correctional institutions concluded that gang members

“commit serious disciplinary violations at rates two to three

times higher than do non-gang inmates housed in units of the

same security level” and “members of certified prison gangs

(STGs) recorded the highest violation rates in the case of

assault, drug violations, rioting, weapons violations, and

other violent violations.” Fischer, Daryl R., Ph.D., Arizona

Department Of Corrections: Security Threat Group (STG)

Program Evaluation, Final Report (National Criminal Justice

Reference Service 2002) at ii; see also Gaes, Gerald G., et

al., The influence Of Prison Gang Affiliation On Violence

And Other Prison Misconduct, The Prison Journal, Vol. 82,

No. 3 (2002).’

Indeed, the increase in gang density during the 1990s

corresponded to an increase in gang violence within adult

state correctional institutions. In 1992, “only one out of ten

institutions reported gang members being a problem in terms

of assaults on the staff.” Knox, A National Assessment,

supra, at 6. By 1999, however, “about one-third of all adult

? The Knox, Fischer and Gaes studies cited above are available online at

http://www.ncjrs.org/gangs/publications.html.

6

State correctional institutions would report gang members as

a problem in terms of assaults on staff.” /d. Similarly, in

1992, only “a fourth of the institutions reported gang

members as a problem in terms of threats against staff

members.” /d. at 7. By 1999, that percentage had increased

to one half of all correctional institutions. /d.

The problem of gangs and gang violence is

particularly acute in maximum security institutions because

gang density increases by level of institutional security. “[{I]n

a typical maximum security adult state correctional

institution, in the year 1999, about 32.7 percent of the

inmates could be expected to be gang/STG members.” Knox,

A National Assessment, supra, at 5. This is not surprising

given that the “highest security prisons hold the most violent

and disruptive inmates who are most likely to be as

disruptive inside as they were outside.” Fleisher, supra, at 2.

The evidentiary record in this matter confirms the

findings of the scholars and researchers discussed above. For

example, Matthew Meyer is the former Security Threat

Group/Investigation Coordinator for the Ohio Department of

Rehabilitation and Correction (“ODRC”). Affidavit Of

Matthew Meyer at 4 1 (Jt. App. 229). As Mr. Meyer

explained, gang activity “is a very serious problem with

ODRC’s institutions” and “is a significant cause of violence

between inmates as a result of intra and inter-gang disputes.”

Id. at 4 2 (Jt. App. 230). Furthermore, gang activity “creates

alternate power structures” that “pose a direct threat to

ODRC’s ability to maintain safety and security within its

prisons.” Jd. (Jt. App. 230).

Mr. Meyer’s deposition testimony provides a stark

iustration of the very real threat of violence posed by gang

members in ODRC’s institutions. Mr. Meyer, for example,

provided the following testimony regarding one of the

putative class members in this case:

Q. Do you know why he received Level 3

participation?

A. Yes I do.

Q. Could you tel! me.

A. He received it for sure — for one

reason, from the fact that he killed

Officer Davis in °92 at Mansfield.

Q. And could you tell me again what

Level 3 meant.

A. Disruptive.

Q. Could you read the paragraph below

notes.

A. Yes. It says inmate killed CO Davis ir

"92 at Mansfield. Incident believed to

be Aryan Brotherhood related.

Q. What was the ethnicity of Officer

Davis?

A. He was black.

Deposition Of Matthew Meyer at 62-63 (Jt. App. 148).

Similarly, another putative class member was involved with

the stabbing of a black inmate as a result of a power fight

within the Aryan Brotherhood. /d. at 70 (Jt. App. 154).

Finally, Mr. Meyer offered the following testimony:

Q. Let me put it this way: Could you

please mention any personal

8

experiences you have to support your

conclusion in Paragraph 3 of your

affidavit.

A. Well, I guess one of the — the biggest

experiences I have is the Lucasville —

SOCF riot on April 11"", 1993, wherein

a group of inmates — actually three

different security threat groups were

involved in a riot which took the lives

of, I believe, nine inmates and one

staff member, cost the State roughly

$63 million.

Id. at 82 (Jt. App. 159). In short, control of gang activity

within correctional institutions is not simply a matter of

administrative converiience, but literally a matter of life and

death for inmates and correctional staff.

Il. Gang Members Seek Religious Accommodations

In Order To Obtain Exemptions From The Highly

Regulated Corrections Environment.

Given the highly regulated nature of correctional

institutions, the practice of religion presents one of the few

opportunities for inmates to obtain special privileges or

exemptions from normal limitations on daily activities.

“Inmates who are members of religious groups in

correctional facilities are entitled to be accommodated in

accordance with their religions’ mandates, and thus

‘religious’ inmates receive special privileges.” Davis,

Heather, Comment: Inmates’ Religious Rights: Deference

To Religious Leaders And Accommodation Of Individualized

Religious Beliefs, 64 Alb. i. Rev. 773, 784 (2000). These

special privileges often include possession of religious

literature and objects, and accommodations for diet and

appearance. /d.

The practice of religion also provides one of the few

Opportunities for inmates to meet in a group setting. In the

federal prison system, for example, the “chapel is one of the

few areas . . . where large numbers of inmates are permitted

to meet as a group and to converse.” A Review Of The

Federal Bureau Of Prisons’ Selection Of Muslim Religious

Services Providers (U.S. Department of Justice, Office of the

Inspector General April 2004) (“Review”) at 39. In short,

“belonging to a religious group while incarcerated is one of

the few ways to actually receive more privileges and alter the

conditions of confinement.” Davis, supra, at 784-785.

Gang members are well aware of the legal protections

afforded to religious practice, and unfortunately, seek to take

advantage of these special privileges. In one survey of prison

gang members, one third of the members admitted that th °

groups had used “religion as a ‘front’ for gang busines..

Zaitzow, Barbara H., Ph.D. and Houston, James G., Ph.D.,

Prison Gangs: The North Carolina Experience, Journal Of

Gang Research, Vol. 6, No. 3 (Spring 1999) at 29. As one

scholar concluded, “[uJnder law today, almost anything,

including witcheraft, could be protected as an established

system of beliefs (i.e., having the protections afforded to

mainstream religions). Prison inmates in America have

certainly discovered this loophole.” Knox, George W..,

Ph.D., An Introduction To Gangs (New Chicago School Press

2000) (“Introduction To Gangs”) at 232; see also Affidavit

Of Matthew Meyer at 47 16-17 (Jt. App. 234-235) (gangs

“frequently use religion to facilitate and cover their illicit

activities”); Affidavit Of David Schwarz at 4] 11-12 (Jt. App.

202) (“many gangs have adopted ‘religious’ postures to []

obtain protection for their illicit activities”).

The ability to meet in a group setting is »ne of the

most powerful privileges, which gang members abuse by

becoming religious adherents. “[I]nmates who are otherwise

10

separated can come together to attend congregate religious

activities, where they can plan and execute the operations of

their [gang]. Affidavit Of Matthew Meyer at J 16 (Jt. App.

234). “Gang members in prison know this routine: they go

to chapel to act like they are a prayer group, but it is just a

meeting place for the gang members to transact business.”

Knox, Introduction To Gangs, supra, at 21.

For example, a gang operating in a District of

Columbia prison “used ‘religious’ activities to facilitate

prostitution, drug dealing and the production and distribution

of pornography within that prison.” Affidavit Of Matthew

Meyer at ¥ 16 (Jt. App. 235); see also Frey, Sara Anderson,

Comment: Religion Behind Bars: Prison Litigation Under

The Religious Freedom Restoration Act In The Wake Of

Mack v. O'Leary, 101 Dick. L. Rev. 753, 772-773 (1997),

Similarly, in Wyoming, prison officials “felt compelled by

RFRA to allow a group of ‘Luciferians’ to have an

unsupervised service in the prison chapel. In an apparent

burst of religious enthusiasm, the Luciferian inmates burned

Christian hymnals and Bibles . . . causing substantial smoke

damage to the Chapel . and, obviously, creating a

significant safety hazard to the life and safety of all inmates

and staff within the institution.” Tucker, Kim, Preliminary

Results Of The RFRA Survey Of All States: The Impact Of

The Religious Freedom Restoration Act On State

Correctional Systems (Florida Attorney General's Office

1996) at n.3 (Jt. App. 213).

Abuse of religious accommodations is particularly

rampant among white supremacist gangs. “Christian Identity

and Asatru/Odinism are the two religions most commonly

used by white supremacists to get religious privileges{.]”

Dangerous Convictions: An Introduction To Extremist

Activities In Prisons (Anti-Defamation League 2002)

(“Dangerous Convictions”) at 35.° “Asatru” is “an Icelandic

term for an ancient pagan Northern European religion that

has been revived in modern times” and which “incorporates

the worship of Odin, Thor and other Norse gods and

goddesses.” Jd. at 37. Odinism is a form of Asatru. Id.

Christian Identity, in turn, “is a racist and anti-Semitic

religious sect whose members believe that whites are the

descendants of the Lost Tribes of Israel and are God’s chosen

people; many also believe that Jews are descended from

Satan.” Jd. at 26. Christian Identity includes such racist

groups as Aryan Nations. /d. at 35.

These white supremacist groups are we!" aware of the

accommodations made for religious adherents and actively

seek to exploit them. In one Christian Identity newsletter, for

example, inmates were advised as follows:

“You are not compromising your faith or your

race [] by setting the services up on an

established framework or constitution . . . or

an established fundamentalist Christian

denomination recognized by prison officials . .

. Obtain a list and choose the most appropriate

one, and study their organization. Then, when

worship begins, the . . . Israel message may be

gradually introduced and no red flags will pop

up. If any minorities attended at the outset,

they'll soon leave out of boredom. The Holy

Bible is the Life Manual of the white race!’

Dangerous Convictions, supra, at 34.

In addition to using literature for recruitment and

training, white supremacist groups also use “religious”

symbols for identification purposes. “Thor's hammer” is an

* Available at hitp://www.adl.org/learn/Ext_terr/Dangerous_Convictions.pdf.

12

example of a gang symbol used by Asatru/Odinists. See

Dangerous Convictions, supra, at 39. Such “identifiers” are

used to indicate gang affiliation, to “build unity and

cohesiveness,” and to “identify each other for purposes of

violent altercations.” Affidavit Of Matthew Meyer at 44 12-

14 (Jt. App. 233-234).

Not surprisingly, correctional institutions “have

struggled with the issue of political and ideological groups,

including hate groups, masquerading as __ religious

organizations.” Developments, supra, at 1903-1904.

Nonetheless, despite concern regarding the adoption by white

supremacist groups of pagan religions such as Odinism and

Asatru, “these groups have gained wide acceptance as prison

religious communities, and most states permit them to

function at some level.” /d. at 1903-1904; see also

Dangerous Convictions, supra, at 39.

As the U.S. Department of Justice has concluded,

“[p]rison systems throughout the world have been and

continue to be breeding grounds for radicalism, recruiting

grounds for extremist movements, and facilities for the

planning and training of radical activities.” Review, supra, at

6.

Ill. The Least Restrictive Means Test Greatly

Exacerbates The Abuse Of Religious

Accommodations.

RLUIPA, like RFRA before it, imposes a least

restrictive means test on corrections administrators. The least

restrictive means test has greatly exacerbated gang members’

abuse of religious accommodations in three ways: (1) it has

promoted the proliferation of various religions, including

numerous pagan “religions” dominated by white

supremacists, such as Odinism and Asatru; (2) it has caused

the number 0° inmate “religious” demands to skyrocket,

13

creating an excessive burden on correctional chaplains and

officials, and often causing a reduction in the provision of

religious services to inmates; and (3) it has caused an

excessive entanglement of corrections officials with religion

by forcing those officials to scrutinize closely every claimed

“religion” and every request for “religious” accommodation.

A. The Least Restrictive Means Test Promotes

Religion.

Prior to enactment, one concern about RFRA was

“that inmates would learn to create ‘religions’ just to obtain

special benefits or to avoid certain prison regulations.” Frey,

supra, at 765. This is, in fact, what happened. In 1996, the

Florida Attorney General’s Office conducted a survey of

state and territorial correctional institutions regarding the

impact of RFRA. See Tucker, supra (Jt. App. 207). The

survey revealed that the “enactment of RFRA has resulted in

the proliferation of claims for exemptions from prison

security regulations and requests for special privileges,

grounded in obscure or previously little-known ‘religions’,

including: Wicca, Satanism, Odinism, Asartu, and

Luciferianism.” (Jt. App. 210).

One recent survey of state correctional officials

determined that the “average number of religious groups

listed by state correctional departments is approximately

twenty.” Developments, supra, at 1900; see also id. at 1896

n.28 (listing thirty-three states surveyed). “Of the states

surveyed, Texas lists by far the largest number of faith

groups, with 144 distinct religious classifications.” Jd. at

1900. By way of example, the State of Washington

recognizes the following twenty-three religions: Astara

(Asatru), Buddhism, Church of Christ Scientist, Church of

Jesus Christ Christian (Aryan Nation), Hindu, Islam,

Jehovah’s Witness, Judaism, International Society for

Krishna Consciousness, Latter-Day Saints, Moorish Science,

I4

Nation of Islam, Native American, Native American Church.

Odinism, Protestant, Rastafarian, Roman Catholic. Seventh

Day Adventist, Seventh Day Church of God, Sikh, Unity, and

Wicca. /d. at 1900 n.48.

As noted previously, several of these “religions” are,

in fact, closely identified with white supremacist groups, and

are present in the Ohio correctional institutions overseen by

respondents in this matter. Affidavit Of Matthew Meyer at

W1 5-6. 9-10 (Jt. App. 231-233). The RLUIPA/REFRA least

restrictive means test has undoubtedly been a strong force

promoting the proliferation of these “religions.”

B. The Least Restrictive Means Test Has

Caused An_ Explosion In Inmate

*“Religious’”’ Demands.

Imposition of the least restrictive means test has also

caused an explosion in inmate “religious” demands. This has

greatly burdened corrections officials charged with the

provision of religious services, and ironically resulted in a

reduction in the ability of those officials to provide religious

services to inmates. The 1996 survey conducted by the

Florida Attorney General's Office revealed that, after

enactment of RFRA, “there has been a tremendous increase

in the number of lawsuits and internal demands for

‘religiously motivated’ alterations of prison practices,

creating significant burdens on the resources of corrections

Systems, State attorneys general, and the courts.” Tucker,

supra (Jt. App. 210).

Again, the experience of the Ohio Department of

Rehabilitation and Correction (“ODRC”) is consistent with

this finding. David Schwarz is the former Religious Services

Administrator for the South Region of ODRC. Affidavit Of

David Schwarz at ¥ 1 (Jt. App. 199). In that position, Mr.

Schwarz oversaw the delivery of religious services and

15

operational issues involving religious matters. /d. His duties

included “developing new religious programming, recruiting

paid staff and volunteers for the delivery of religious services

and acting as a liaison between O.D.R.C. and the religious

community at large.” /d.

Prior to enactment of RFRA, Mr. Schwarz “spent

little time on litigation related issues.” Affidavit Of David

Schwarz at 4 3 (Jt. App. 200). After enactment of RFRA,

however, Mr. Schwarz was required to spend “between

fifteen and twenty percent of [his] time working with the

Office of the Ohio Attorney General in connection with

lawsuits filed under R.F.R.A.” and “between sixty to seventy

percent of [his] time working with institutional staff to

determine how to comply with R.F.R.A.” Jd. at 44 3-4 (Jt.

App. 199-200). This resulted in “a very significant reduction

in the amount of time spent on actually facilitating the

delivery of religious services.” Jd. at 5 (Jt. App. 200). This

problem did not affect Mr. Schwarz alone. All religious

services personnel were forced to spend more time dealing

with RFRA issues, and less time actually providing religious

services to inmates. /d. at 4{ 8-10 (Jt. App. 201-202).

c. The Least Restrictive Means Test Causes

An Excessive Entanglement With Religion.

The least restrictive means test also causes an

excessive entanglement of corrections officials with religion

by forcing those officials to scrutinize closely every claimed

“religion” and every request for “religious” accommodation.

First, as one commentator noted, “[c]Jorrectional facility

officials lack the requisite knowledge of each religious

group's practices, norms, and traditions. Without such

knowledge, correctional facility officials are not able to

effectively determine whether an inmate is a bona-fide

member of a religious group.” Davis, supra, at 777. As a

result of the least restrictive means test, religious services

16

Staff are required to investigate “the authenticity and

requirements of such ‘religions..” Affidavit Of David

Schwarz at J 12 (Jt. App. 202).

Second, as this Court anticipated, the least restrictive

means test “distort[s] 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.” Turner v.

Safley, 482 U.S. 78, 89 (1987). Corrections officials are well

aware of this problem. Because of the least restrictive means

test, religious services staff expend large amounts of time to

“set up and shoot down’ all possible alternatives for dealing

with ‘religiously’ motivated requests for alterations of normal

prison operations.” Affidavit Of David Schwarz, Exhibit |

(Jt. App. 204). Failure to do so opens the possibility of

judicial second-guessing noted by this Court in Turner.

Third, because of the abuse of religious

accommodations by gang members, the provision of religious

services has, in effect, become a security issue. Corrections

officials, however, must still justify every infringement of

“religion” under the least restrictive means test. This results

in an excessive involvement of corrections officials with

every demand for religious accommodation. In ODRC

institutions, for example, “a number of white supremacist

groups claimed to be pursuing Christian Identity beliefs and

the tenants of the Church Of The Creator in an effort to cover

their otherwise illicit, and disruptive activities[,]” while other

inmates sought to establish “several new ‘religions’ which

purported to require such accommodations as group martial

arts classes.” Affidavit Of David Schwarz at 4 11-12 (Jt.

App. 202). Obviously, the “cumulative result of these

activities was that religious staff were required to devote

significant amounts of time to investigating the legitimacy

[sic] these ‘religious’ groups and their ‘religious’ claims in

17

order to assist security staff in dealing with the problems

posed by those groups[.]” /d. at ¥ 11 (Jt. App. 202).

In sum, this Court has previously recognized that the

“evaluation of penological objectives is committed to the

considered judgment of prison administrators” and that

corrections officials should have the ability “‘to anticipate

security problems and to adopt innovative solutions to the

intractable problems of prison administration[.]’” O’Lone v.

Estate Of Shabazz, 482 U.S. 342, 349 (1987). RLUIPA, like

RFRA before it, prevents corrections administrators from

doing so. The problem of gang violence, along with abuse by

gang members of religious accommodations and the

corresponding threat to the health and safety of inmates and

corrections staff, is one such intractable security problem that

should be left to the considered judgment of corrections

administrators.

CONCLUSION

For the foregoing reasons, the amici curiae urge the

Court to affirm the judgment of the United States Court of

Appeals for the Sixth Circuit. :

Respectfully submitted,

MICHAEL N. BEEKHUIZEN

Counsel of Record

MICHAEL H. CARPENTER

JEFFREY A. LIPPS

CARPENTER & LIPPS LLP

280 Plaza, Suite 1300

280 North High Street

Columbus, Ohio 43215

(614) 365-4100

Counsel for Amici Curiae

February 11, 2005