# Amicus Curiae Brief — Beard v. Banks

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0107%3A10

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 521

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0107%3A10. Public record. Not legal advice.