Amicus Curiae Brief — Beard v. Banks

5 Pritt

No 04-1739 |_OFFICE OF THE CLEAK

_—— dn - ve

ee a ~

IN THE

Supreme Caurt of the United States

\

JEFFREY BEARD,

Petitioner

‘ y.

RONALD BANKS,

Respondent

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CiRCUIr

—_—

BRIEF AMICUS CURIAE-OF THE BECKET FUND

FOR RELIGIOUS LIBERTY EN SUPPORT OF

RESPONDENT

CHRISTOPHER C LUND ANTHONY R. PICARELLG, JR

DecHERT LLP Counsel of Record

2929 ARCH STREET DEREK L GAUBATZ

Philadelphia, PA 19104 THE BECKET FUND FOR

Phone (215) 994-2601 RELIGIOUS LIBERTY

1350 Connecticut Ave , NW

Suite 605

Washington, DC 20036

Phone (202) 955-0095

February 9, 2006 Counsel for Amicus Curiae

~~ " — — > =a

TABLE OF CONTENTS

TABLE OF AUTHORITIES. .........c.ccssscssccsssssccesssscesesssseeee i

INTEREST OF THE AMICI ....cccc.sscccosssscscscsssssssessssssscessen !

SUMMARY OF ARGUMENT..........cccccssse+ee+e: sect 3

ARGUMENT .........cecessccssseeeeeo SEE Reels CAN aon MED 5

I. DEPRIVATION THEORY IS INCOMPATIBLE

WITH MAINTAINING INMATES’ MOST

FUNDAMENTAL CONSTITUTIONAL RIGHTS. .:..5

I. DEPRIVATION THEORY IS INCOMPATIBLE

WITH THE FOUR TURNER FACTORS. .................. 12

San crissishicrncnnisincsceeiticinintnurianndanbdetiensdionssatiieasbinditiinsaniiaues 16

TABLE OF AUTHORITIES

Cases

Bell v. Wolfish, 441 U.S. 520 (1979). 0000.02... ceeeeeeeees 5, 12, 17

Cutter v. Wilkinson, 125 S. Ct. 2113 (2005) 0000.0... eee 10

Kimberlin v. Department of Justice, 318 F.3d 228

lass: i A icitesasnccsaptnintpensiiemntgdienaicinieteadbaeinssnnies 10, 11

O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).......... 5,11

Overton v. Bazzetta, 539 U.S. 126 (2003)...0000. cee 5,14

Procunier v. Martinez, 416 U.S. 396 (1974)... eeceees 13

Thornburgh v. Abbott, 490 U.S. 401 (1989) oe 6, 13

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

Statutes

The Religious Land Use and Institutionalized

Pres Act, G2 UG.. © BRIG ccccccesccesccovesteccsesncsessscsess 10

Other Authorities

John Hart Ely, Flag Desecration: A Case Study in the Roles

of Categorization and Balancing in First Amendment

Analysis, 88 HARV. L. REV. 1482 (1975) ou... ceceeeeeeees 14

**

INTEREST OF THE AMICUS

The Becket Fund for Religious Liberty respectfully

submits this brief amicus curiae in support of Respondent

pursuant to Rule 37.3 of this Court.’

The Becket Fund for Religious Liberty is a nonprofit,

nonpartisan public interest law firm dedicated to protecting

the free expression of a// religious traditions and the equal

participation of religious people in public life and public

benefits. Over its first twelve years of existence, The Becket

Fund has represented Buddhists, Christians, Hindus, Jews,

Muslims, Native Americans, Sikhs, and others in cases

involving the full range of religious freedom issues under

federal and state constitutional and statutory law. In

particular, amicus has been intimately involved as either lead

counsel or amicus curiae in numerous cases defending the

religious exercise rights of prisoners.

Amicus submits this brief to highlight the danger of

upholding the deprivation theory of behavior modification

advanced by Petitioner to defend its suppression of the

constitutional right at issue in this case. Because deprivation

theory transforms constitutional rights into mere privileges

that can be manipulated at will by prisons to gain leverage

over inmates, endorsement of this theory by this Court will

grant prisons the ability to declare open season on all

constitutional rights in the prison setting. Inevitably, the

' All parties have consented to the filing of this brief. Consent

letters from Petitioner and Respondent are being filed concurrently

with this brief. No counsel for any party authored this bricf in

whole or in part. No person or entity other than amicus made any

monetary contribution to the preparation or submission of this

brief.

most valued constitutional nghts of prisoners—like the free

exercise of religion—will be most at risk because the

deprivation theory has its greatest usefulness for prisons

when it targets the most-treasured constitutional rights for

suppression.

SUMMARY OF ARGUMENT

The petitioner to this Court raises a unique theory—

the deprivation theory of behavior modification—to justify

its suppression of the constitutional rights in this case. On

this theory, inmates who behave as the prison wants will be

rewarded by being granted so-called “privileges.” Inmates

‘ who do not are denied these privileges. The power to

selectively grant or deny privileges in this way gives the

prison significant leverage over its inmates.

At first glance, deprivation theory, especially when

applied to true privileges such as use of the weight room or

access to cigarettes, seems innocuous. After all, with

incarceration comes the forfeiture of most freedoms that law-

abiding citizens enjoy. But when deprivation theory is

applied to suppress not mere privileges, but constitutional

rights that prisoners do not forfeit upon incarceration, Bell v.

Wolfish, 441 U.S. 520, 545 (1979) (“convicted prisoners do

not forfeit all constitutional protections by reason of their

conviction and confinement in prison.”), the theory

transforms from innocuous to insidious.

The central tenet of deprivation theory is that prison

authorities should be able to use constitutional rights as

levers to induce prisoners to behave the way the prison

wants. But under this theory, of course, constitutional rights

are no longer rights not subject to forfeit—they are mere

licenses (on par with such trivial privileges as using the

weight room) that the prison can give or take depending on

what it believes best.

And there is no stopping point to deprivation theory's

vicious logic. The nght threatened by deprivation theory in

this case—the nght of inmates to receive publications— has

long been considered constitutional by this Court. See

Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). So if

3

deprivation theory can be applied to deny this right, nothing

will stop prison officials from applying it to deny other

fundamental rights, especially the right to free exercise of

religion. Indeed, it is a perverse irony of deprivation theory

that the more fundamental the constitutional right, the more

incentive the government has to deny the right because

prisons will gain the most leverage over the behavior of

prisoners by taking away the most important and valued

rights. When prisons recognize these simple facts, they will

use deprivation theory whenever possible—which is to say

that there will soon be no constitutional rights left for those

in prison.

Because deprivation theory transforms constitutional

rights into mere privileges that can be manipulated at will by

prison officials, the theory is fundamentally inconsistent with

this Court’s precedents that inmates retain constitutional

rights in prison, and this Court should reject it. In addition,

as discussed below, deprivation theory is incompatible with

the four factors for assessing constitutional claims in the

prison context laid out in Turner v. Safley, 482 U.S. 78

(1987). Deprivation theory is not neutral because it is

directly related to the suppression of constitutional

expression and it is designed to close off all alternative

avenues of expression of the constitutional right at issue.

And unlike the ordinary case, where the prison claims that

suppression of the right is needed to prevent some negative

secondary effect, deprivation theory rests on the premise that

the “harm” arises not from a secondary effect, but from the

‘mere fact that the inmate has a right that can be exercised

without the prison’s consent.

ARGUMENT

I. DEPRIVATION THEORY IS INCOMPATIBLE WITH

MAINTAINING INMATES’ Most FUNDAMENTAL

CONSTITUTIONAL RIGHTS

This Court has made clear that that, “as members of

this society, prisoners retain constitutional rights that limit

the exercise of official authority against them.” O'Lone v.

Estate of Shabazz, 482 U.S. 342, 355 (1987). -See also

Overton v. Bazzetta, 539 U.S. 126, 138 (2003) (Stevens, J.,

concurring) (the “restraints and the punishment which a

criminal conviction entails do not place the citizen beyond

the ethical tradition that accords respect to the dignity and

intrinsic worth of every individual.”) (citations and

quotations omitted). To be sure, constitutional rights in

prison are subject to limitations, “both from the fact of

incarceration and from valid penological objectives.”

O'Lone, 482 U.S. at 348. Some rights are difficult to

reconcile with the nature of prison, see, e.g., Overton, 539

U.S. at 131 (“freedom of association is among the rights least

compatible with incarceration”), and other rights, when

exercised, can pose harm to a prison’s interests by creating

“legitimate security concerns” or causing harmful

“ramifications on the liberty of others.” Turner v. Safley,

482 U.S. 78, 90-91 (1987). But though the exercise of

constitutional nghts is subject to limits, this Court has

removed all doubt that prisoners are still endowed with

constitutional rights—not mere _ privileges—when

incarcerated. See Bell v. Wolfish, 441 U.S. 520, 545 (1979)

(“convicted prisoners do not forfeit all constitutional

protections by reason of their conviction and confinement in

prison.”).

At one level, Pennsylvania's effort to restrict the right

of prisoners to receive harmless newspapers, magazines, and

photographs seems to present an ordinary application of the

analysis the Court has developed for addressing prison

infringements of constitutional rights: the state has limited

inmates’ access to publications; this Court has held that

inmates have a constitutional right to receive publications,

see Thornburgh v. Abbott, 490 U.S. 401, 408 (1989);

therefore, the four-part Turner test must be applied to assess

the constitutionality of the infringement.

But what makes this case far from ordinary is the

novel “deprivation theory of behavior modification,”

Petitioner’s Br. at 26,’ advanced by Pennsylvania to defend

its policy of suppressing constitutional rights. As amicus

explains below, the deprivation theory is significant because

if endorsed by this Court it will grant prisons free rein not

only to deny the constitutional right to receive publications at |

issue in this case, but to deny the right to free exercise of

religion and all other constitutional nghts in prison.

The deprivation theory is easy enough to describe.

The state, in its brief, explains it succinctly: “By treating

access to newspapers and magazines as a privilege to be

earned (or retained), the LTSU program provides an

incentive for good behavior and a deterrent to bad behavior.”

Pet. Br. at 5 (emphasis added). The theory is equally easy to

understand. Inmates who behave as the prison wants will be

rewarded by the grant, at the prison’s discretion, of the

“privilege” of exercising constitutional nghts. Inmates who

do not are denied this “privilege.” Psychologists might

_* In the courts below, Pennsylvania asserted two other theories to

justify the policy at issue—it claimed that the restricted materials

could be used either as contraband or as a means to conceal

contraband. Amicus does not doubt that such fears, if properly

substantiated, might be sufficient to sustain the policy. But the

court below found little evidence in the record to support those

concerns, and the state in this Court seems to have largely given up

on these arguments.

describe this conditioning process as “positive and negative

reinforcement,” but one- need not be a psychologist to

understand the simple operational premise of this theory.

Though its simplicity may lend the appearance of

harmlessness, the deprivation theory is in fact radically

different from other justifications for prison regulations that

restrict the exercise of constitutional nghts. In the ordinary

case, the prison identifies some negative consequence that

may result from the exercise of the right in the prison setting.

Perhaps the exercise of the right will endanger “legitimate

security concerns,” or have a harmful impact on the prison

guards, other inmates, or prison resources. Turner, 482 U.S.

at 90-91. In this way, the prison usually alleges some harm

flowing from the exercise of the right—either to its own

interest or of others—and then adds that other avenues are

available for exercising the constitutional right that would not

threaten those interests. /d.

In contrast, the deprivation theory does not rest on the

idea that exercise of the right harms some interest of the

prison. For example, in this case, Pennsylvania does not

claim that the right to receive publications is incompatible

with the mere fact of incarceration. Nor does it allege that

this right causes any latent harm, or risk of harm, to its

interests. Indeed, Pennsylvania does not claim that the

exercise of the constitutional nght will pose any harm or

difficulty for anyone. Instead, the prison prevents exercise of

the constitutional mght simply because it wants to induce

prisoners to behave differently. The inmates will understand

this and will, if they wish to regain the ability to exercise

even the constitutional rights they retain in prison, conform

their behavior to the desired standard. As a result,

deprivation theory enables prisons (like Pennsylvania here)

to convert constitutional rights into mere privileges that can

be used as levers—as sticks and carrots—to force4nmates

into complying with whatever rules the prisons may set.

,

The opinions below and the Petitioner and its amici -

debate at length whether the deprivation theory will be

effective \n achieving its goals. But effectiveness is beside

the point where the means used to achieve the desired goal

are illegitimate. And this is the real problem with

deprivation theory: it is antithetical to the fundamental

premise of this Court's precedents that prisoners retain

constitutional rights, not just privileges, that constrain the

power of prison authorities. Indeed, deprivation theory has

no limiting principle; under it, all constitutional rights

become mere licenses that prison officials can take away at

their discretion.

Deprivation theory provides the state with a rationale

for taking away any constitutional nights a prisoner may

have, because anything that is of value to a prisoner will now

be of value to the state as leverage. This is of particular

concern to amicus, who works to protect the religious

exercise rights of inmates. At least for the present,

Pennsylvania does not apply deprivation theory to limit

religious exercise—religious material is exempted from the

general! ban on publications, and chaplain visits are exempted

from the general ban on visitation.

But this is small consolation to amicus, for

Pennsylvania's argument that constitutional nights are mere

privileges that can be withheld at will may end at any time.

The right to religious exercise—including access to the Bible

or other sacred texts—is a fundamental guarantee of the

Constitution, not a mere privilege that can be withdrawn at

the whim of prison officials.

Thus, although Pennsylvania exempts religious

materials from its policy today, it may not do so tomorrow if

it decides that withholding access to religious texts would

enhance its leverage over prisoners. And, of course, other

8

- prison systems might go even further, not only denying

prisoners access to texts, but denying the ability to exercise

their religion altogether: prohibiting them from praying,

attending worship services, keeping a religious diet,

observing sacraments, receiving or using devotional items, or

consulting with chaplains. Deprivation theory not only

permits such an approach, but recommends it—for depriving

prisoners of such a fundamental right as religious exercise

will only enhance the leverage of prisons under the

deprivation theory.

The undermining effect of deprivation theory on

constitutional mghts in prison is also highlighted by its

potential effects on the constitutional mght to marry. In

Turner, the Court recognized the right to marry as a

fundamental right that prisoners retain, and held that the

prison in that case had not demonstrated a sufficient logical

nexus between the prison’s asserted interests of security and

rehabilitation and its policy of limiting marriage. But the

very importance to inmates of the right to marry would

provide the requisite logical nexus for supporting the prison’s

justification for using it as lever to modify behavior under the

deprivation theory. For the very things that make the right to

marry so important to inmates would also motivate inmates

to conform their behavior to whatever standard the prison

may set in order not to lose it.

This is perhaps the most perverse aspect of

deprivation theory. A state’s incentive to use constitutional

rights as leverage will be directly proportional to the

importance of those rights to inmates. And so the best way

for the state to gain the most leverage over inmates 1s to use

their most fundamental constitutional rights as incentives.

So, if Pennsylvania is correct that use of deprivation theory

will cause inmates to change their behavior if they're denied

access to photographs and magazines, how much greater will

prisons’ leverage be if they can manipulate inmates by

9

withholding the right to read the Bible, worship, pray, marry,

or engage in any other constitutionally protected activity?”

It is this perversity of the deprivation theory that led

Judge Tatel of the D.C. Circuit to issue a stinging criticism of

another incarnation of the deprivation theory. In Kimberlin

v. Department of Justice, 318 F.3d 228 (D.C. Cir. 2003), the

federal Bureau of Prisons advanced the same deprivation

theory asserted here, labeling it instead an interest in

punishment and deterrence. Judge Tatel quickly cut right to

the core of this argument:

Does the goal of enhancing the punitive and

deterrent value of prison by making prison

conditions more onerous justify limiting

prisoners’ constitutional rights? As long as

Safley is the law — that is, as long as prisoners

generally retain their constitutional rights -

the answer must be no, for there is no

discernible limit to the government’s ability to

invoke punishment or deterrence as reasons

for adopting regulations that restrict

constitutional rights. Th{is] rationale .. .

could also justify banning . . . all books,

including the Bible and the Koran, on the

ground-that denying these “perks” will make

* In addition to the constitutional problems that deprivation theory

raises, there is a thorny statutory issue as well. The Religious

Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc,

prevents state prisons from substantially burdening religious

exercise, unless the burden is the least restrictive means of serving

a compelling government interest. See Cutter v. Wilkinson, 125 S.

Ct. 2113 (2005). If this Court were to sanction deprivation theory,

the question of whether (and in what circumstances) deprivation

theory could constitute such a compelling interest would be an

issuc that would surely soon come before the Court.

10

prison more onerous and more of a place of

deterrence and punishment.

Id. at 239 (Tatel, J., concurring in part and dissenting in part)

(citations and quotations omitted).

Moreover, if this Court deems the deprivation theory

of behavior modification a “legitimate penological interest”

that may justify the deprivation of constitutional rights,

prisons will have a strong incentive to recast all of their

policies in terms of it. Deprivation theory’s rationale can

provide constitutional cover for every policy limiting the

exercise of constitutional rights in prison. Deprivation theory

will then expand, as prisons recognize their interest in

creating incentive schemes wherever possible. And as it

expands, the exercise of constitutional rights most precious to

prisoners will shrink and the Court’s promise that “prisoners

retain constitutional rights that limit the exercise of official

authority against them,” O'Lone, 482 U.S. at 355, will be

reduced to a nullity.

Significantly, Pennsylvania and its amici do not deny

that the more fundamental (and thus desirable to the inmate)

"In Kimberlin, the court ultimately ruled for the government, but

on the basis that the privilege denied the prisoner in that case—

playing the electric guitar—‘“does not implicate the appellant’s

First Amendment rights and . . . we therefore need not invoke the

four factor analysis the United States Supreme Court established in

Turner.” Id. at 232. Indeed, the approach of the D.C. Circuit also

demonstrates another point, Prisons will be able to maintain

plenary control over the vast majority of true privileges in prison--

whether it be access to clectric guitars, the weightroom, or

cigarettes—because not every inmate activity is imbued with

constitutional significance. But what this Court should not

countenance is prisons re-defining truc constitutional rights like

free exercise of religion as just another “privilege” like electric

guitar playing that can be manipulated at will by prison officials.

the constitutional right, the more tempted prisons will be to

suppress the exercise of that right under the deprivation

theory. Instead, they either embrace this as a virtue, see, e.g.,

Brief for United States as Amicus Curiae Supporting .

Petitioner, at 19 n.7 (stating that there is “a common-sense

logical connection between the denial of desirable inmate

privileges and the objective of inducing behavioral reform”),

or seek to whitewash the issue by steadfastly referring to

constitutional rights as mere “privileges.” See, e.g.,

Petitioner's Brief at 5; Brief for United States (using the

word “privilege” 36 times in its argument section alone, and

questioning whether so-called “privileges that implicate First

Amendment interests” of inmates should be treated as

“categorically different from other privileges” under the

Constitution. )

Neither approach provides a basis to upset the balance

this Court struck in Turner, when it pledged to be

“responsive both to the policy of judicial restraint regarding

prisoner complaints and to the need to protect constitutional

rights.” Turner, 482 U.S. at 85 (citations omitted). Although

Pennsylvania now wants to use the deprivation theory to re-

weight the Turner balance in its favor, this Court should

adhere to its pronouncement that “convicted prisoners do not

forfeit all constitutional protections by reason of their

conviction and confinement in prison,” Be//, 441 U.S. at 545,

and reject deprivation theory as a basis for limiting

constitutional rights.

Il. DEPRIVATION THEORY IS INCOMPATIBLE WITH THE

_~FOUR TURNER FACTORS

The attempt to jeopardize all constitutional rights in

prisons in a single stroke—by recasting them as mere

privileges that the state can leverage for its own ends—-

should be reason enough to reject the deprivation theory. But’

deprivation theory is unacceptable for a second reason: it is

incompatible with the application of the traditional Turner v.

Safley factors.

Turner's first prong requires that the government be

acting pursuant to a “valid penological interest” that is both

“legitimate and neutral.” Turner v. Safley, 482 U.S. 78, 90-

91 (1987). And for the interest to be “neutral,” this Court has

explained, it must be “‘unrelated to the suppression of

expression.”” Thornburgh v. Abbott, 490 U.S. 401, 415

(1989) (citing Procunier v. Martinez, 416 U.S. 396, 413

(1974)); see also Turner, 482 U.S. at 83 (repeating this test).

But under deprivation theory, the state’s interest is not just

related to the suppression of the right, the state’s interest here

is precisely the suppression of the right.

Unlike the typical case of a prison regulating a

constitutional right, the deprivation theory does not attempt

to curb some unprotected aspect of the right or quell some

negative effect (e.g., security) associated with the exercise of

the right. Cf Thornburgh, 490 U.S. at 415 (preventing

certain publications from reaching prisoners because “of their

potential implications for prison security”). Instead, under

the state’s deprivation theory, denial of the constitutional

right (whether it be the right to receive publications as in this

case, or the mght to read the Bible or other sacred text in the

next) is precisely the -goal of the regulation. This point

should be clear from the theory’s title. Deprivation theory

requires the deliberate suppression of inmate constitutional

rights, and for the very sake of inflicting the consequent harm

on the inmate.

Pennsylvania seeks to avoid the obvious conclusion

that its use of deprivation theory is aimed at the suppression

of a constitutional nght by claiming that its true goal here is

- to facilitate rehabilitation of prisoners. But the claim that

transforming constitutional rights into a mere privilege that

the prison can withdraw at any time under the guise of this

13

noble purpose does not suffice to undo the damage of

deliberately targeting a constitutional right for extinction.

For that purpose (whether it be rehabilitation or something

else) is purely derivative of the initial improper purpose, and

just as much related to the suppression of expression. See

John Hart Ely, Flag Desecration: A Case Study in the Roles

of Categorization and -Balancing in First Amendment

Analysis, 88 HARV. L. REV. 1482, 1496-97 (1975) (“The

constitutional reference must therefore be not to the ultimate

interest to which the state points, for that will always be

unrelated to [the suppression of the constitutional right,] but

rather to the causal connection the state asserts.”).°

Turner’s first prong is therefore fatal for deprivation

theory. But deprivation theory is also deeply inconsistent

with the rest of the Turner factors. The Turner framework is

premised on a situation where the prisoner seeks exercise of a

right, and the prison claims some conceptually distinct harm

arising from the right’s exercise. Courts then evaluate

whether the prison policy still allows other avenues of

expression of the right (the second Turner factor); the impact

that un inmate’s exercise of the right has on other inmates,

guards, and prison resources (the third 7urner factor); and

whether the prison could somehow avoid harm to valid

penological interests without infringing the night (the fourth

Turner factor). See Turner, 482 U.S. at 90-91. But the

Petitioner and its amici make much of stray language in this

Court’s opinion in Overton v. Bazzetta, 539 U.S. 126 (2003),

which they claim supports use of the deprivation theory. But the

permissibility of the deprivation theory was neither squarely

presented nor bricfed in Overton and was certainly not essential to

the holding of that casc, that restricting visitation rules “to prevent

smuggling or trafficking in drugs,” id. at 129, by inmates

imprisoned for that very crime was a constitutionally permissible

penological interest.

14

application of deprivation theory renders consideration of

these factors incoherent.

Consider Turner’s second factor—-the question of

whether other avenues exist for the exercise of the asserted

right. That factor does not harmonize with successful

implementation of the deprivation theory, because it puts a

prison in a very_strange position. The prison has to argue

that there are other ways for the prisoner to exercise his

rights, but the very existence of those alternative avenues

undermines the system of incentives necessary to the

operation of the deprivation theory—for a prison cannot gain

any leverage from the taking away of a constitutional right if

the right is easily obtained in some other way. The Solicitor

General implicitly recognizes this, and sees in it an

opportunity to eviscerate the requirement of alternative

means altogether. See Brief for United States as Amicus

Curiae Supporting Petitioner, at 11 (“Although inmates have

no alternative means of receiving newspapers, magazines,

and photographs [under Pennsylvania’s use of _ the

deprivation theory] . . ., the very object of the restrictions is

to deny those materials in order to induce behavioral

reform.”).

The third Turner factor—the impact that an inmate’s

exercise of the right has on other inmates, guards, and prison

resources—is similarly inconsistent with deprivation theory.

Again, unlike the normal case where the prison claims that

exercise of the right in prison creates some type of negative

secondary effect, deprivation theory makes no claim that the

exercise of ise mght has such a harmful impact on other

inmates, guards, or priscn resources. Indeed, the prison is

perfectly willing to allow the activity countenanced by

exercise of the nght, but only if the inmate will first behave

the way the prison wants.

15

But perhaps the best example of the inconsistency

between deprivation theory and 7Jurner’s framework arises

under the fourth factor. That factor examines whether there

are “ready alternatives” to the regulation that “fully

accommodate the prisoners’ rights at de minimis cost to valid

penological interests.” Turner, 482 U.S. at 90-91. In other

words, it asks whether the prison can address the harm that

exercise of the constitutional right creates without infringing

the right itself. The central premise of this factor is that any

harm to the prison’s interests is conceptually distinct from

the right. But in the view of deprivation theory, the harm to

the prison is the very fact that the inmate is endowed with a

right that can be exercised without the prison’s approval.

This is where 7urner truly breaks down, for it makes

no sense to ask whether the prison can permit the exercise of

the right and still maintain its objectives, when its very

objective is to stop prisoners from having a right that inmates

can exercise without prison approval in the first place. This

is why Pennsylvania does not address the fourth Turner

factor and the Solicitor General treats it as tautologically

satisfied. See Brief for United States, at 29 (arguing that

“partially restoring the denied privileges” would “nullify the

basic object of the restrictions” because the basic object of

the restrictions was indeed to deny the privileges).

[In sum, deprivation theory is incompatible with all of

the Turner factors and should therefore be rejected as a

legitimate justification for restricting the exercise of

constitutional rights (as opposed to non-constitutional

privileges).

CONCLUSION

For generations now, inmates have relied on the

Court’s promise that “convicted prisoners do not forfeit all

constitutional protections by reason of their conviction and

lo

confinement in prison.” Be//, 441 U.S. at 545. Deprivation

theory, if accepted by the Court, will bury that promise and

the Turner framework along with it. It will represent the

beginning of the end of constitutional rights in prison. The

judgment of the court of appeals should be affirmed.

February 9, 2006

Respectfully submitted,

ANTHONY R. PICARELLO, JR.

Counsel of Record

DEREK L. GAUBATZ

THE BECKET FUND FOR

RELIGIOUS LIBERTY

1350 Connecticut Avenue, NW

Suite 605

Washington, DC 20036-1735

Phone: (202) 955-0095

CHRISTOPHER C. LUND

. DECHERT LLP

2929 Arch Street

Philadelphia, PA 19104

Phone: (215) 994-2601

Counsel for Amicus Curiae

17