Amicus Curiae Brief — Wilkinson v. Flagner

‘ey | Supreme Court, U.S.

FILED

No. 01-324 SEP 24 200!

In the

CLERK

Supreme Court of the United-States—

Reginald A. Wilkinson, et al.,

Petitioners,

v.

Hbrandon Lee Flagner,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Sixth Circuit

Brief of the States of New Jersey, Alaska, California,

Colorado, Delaware, Florida, Indiana, Iowa, Kansas,

Louisiana, Michigan, Missouri, Nebraska, Nevada,

Oklahoma, South Carolina, Tenessee, U.S. Virgin

Islands, Utah, Virginia and Wyoming as Amici Curiae

in Support of Petitioners

John J. Farmer, Jr.

Attorney General of New Jersey

R.J. Hughes Justice Complex

PO Box 106

Trenton, New Jersey 08625

(609) 292-8550

Patrick DeAlmeida

Deputy Attorney General

Of Counsel

Victoria L. Kuhn

Deputy Attorney General

Counsel of Record and On the Brief

[Additional Counsel on Inside Cover]

\\ x

BRUCE M. BOTELHO

Attorney General of Alaska

P.O. Box 110300

Juneau, AK 99811-0300

KEN SALAZAR

Attorney General of Colorado

Department of Law

1525 Sherman Street, 7th Floor

Denver, CO 80203

M. JANE BRADY

Attorney General of Delaware

820 N. French Street

Wilmington, DE 19801

ROBERT A. BUTTERWORTH

Attorney General of Florida

The Capitol PL-01 ~

Tallahassee, FL 32399-1050

THOMAS J. MILLER

Attorney General of lowa

Hoover State Office Building

Des Moines, IA 50319

CARLA J. STOVALL

Attorney General of Kansas

Memorial Hall, 2nd Floor

120 S.W. 10th Avenue

Topeka, Kansas 66612-1597

RICHARD P. IEYOUB

Attorney General

State of Louisiana

One American Place

301 Main Street, Suite 600

P.O. Box 94005

\Baton Rouge, LA 70804-9005

JENNIFER M. GRANHOLM

Michigan Attormmey General

P.O. Box 30212

Lansing, MI 48909

JEREMIAH W. (JAY) NIXON

Attorney General of Missouri

Supreme Court Building

207 West High Street

Jefferson City, MO 65101

DON STENBERG

Nebraska Attorney General

2115 State Capitol

Lincoln, NE 68509

FRANKIE SUE DEL PAPA

Attorney General of Nevada

100 N. Carson Street

Carson City, NV 89701-4717

W.A.DREW EDMONDSON

Attorney General of Oklahoma

2300 N. Lincoln Boulevard

Suite 112

Oklahoma City, OK73105-4894

HARDY MYERS

Attorney General of Oregon

1162 Court Street

Salem, OR 97310

CHARLES M. CONDON

Attorney General

State of South Carolina

P.O. Box 11549

Columbia, SC 29211

PAUL G. SUMMERS

Attorney General and Reporter

of Tennessee

P.O. BOX 20207

Nashville, TN 37202

MARK L. SHURTLEFF

Attorney General of Utah

236 State Capital

Salt Lake City, Utah 84114

IVER A. STRIDIRON

Attorney General of the ”

U.S. Virgin Islands

48B-50C Kronprindsens Gade-GERS Bldg.

2nd Floor

St. Thomas, U.S. Virgin Islands 00802

MARK L. EARLEY

Attorney General of Virginia

900 E. Main Street

Richmond, VA 23219

HOKE MACMILLAN

Attorney General of Wyoming

123 State Capitol

Cheyenne, Wyoming 82002 -

STEVE CARTER

Attorney General of Indiana

219 State House

Indianapolis, IN 46204

BILL LOCKYER

Attorney General of California

1300 I Street, 17th Floor

Sacramento, CA 95814

\

TABLE OF CONTENTS

Statement of Amici Interest ................... ]

Summary of Argument ..................... 3

NS aaa 65e dee KA A kb wo 4-0 0-6 we % 4

THE DECISION OF THE SIXTH CIRCUIT TO

ALLOW INDIVIDUAL-INMATE EXEMPTIONS

FROM CONSTITUTIONALLY VALID PRISON

SECURITY REGULATIONS THREATENS THE

ORDERLY OPERATION OF CORRECTIONAL

INSTITUTIONS NATIONWIDE, WARRANTING

oe |, 4

a rr 13

il

TABLE OF AUTHORITIES

Cases Cited:

Bell v. Wolfish,

gi ae OF) ae ere passim

Blyther v. New Jersey Dep't of Corrections,

730 A.2d 396 (N.J. Super. Ct. App. Div. 1999)... . 15

Flagner v. Wilkinson,

241 F.3d 475 (6th Cir. 2001) ............. 3,5,9

Jones v. North Carolina Prisoners Labor Union,

gh Mo. Be oy, rr 5, 6,7,11,12

O'Lone v. Shabazz,

Me UD. DOe CHR) wc ee ee a Cee ee ee passim

Pell v. Procunier,

ee Ss ee Ge oa ha bee ee oes 9,17

Procunier v. Martinez,

a, Ee. vk oes bee een ewes 2,6,7,12

Turner v. Safley,

tk ee re ree 2,5,13,17

ill

Regulations Cited:

N.J. Admin. Code tit.10A, §4-4.1(a)*.010 (1999) . 10,15

N.J. Admin. Code tit.10A, §4-4.1(a)*.0T1 (1999) . 11,15

Alaska Admin. Code tit.22, §05.069 .......... 11,15

New York Comp. Codes R. & Regs. Tit.7, § 200.2 . 11,16

af FM CRS 6 kt 11,16

STATEMENT OF AMICI INTEREST

The amici States have a compelling interest in protecting

the security of their prisons through the uniform application

of prison regulations intended to protect corrections officers,

to inhibit inmate escapes, and to facilitate the secure and

orderly operation of correctional institutions. The Sixth

Circuit's decision to scrutinize constitutionally valid prison

disciplinary regulations on a case-by-case basis for the

purpose of creating individual-inmate exceptions to those

rules, merely because certain prisoners happen to have no

history of serious disciplinary infractions, threatens the

security of prisons nationwide by unnecessarily restricting

State prison officials in the execution of their responsibilities.

The potential impact of the Sixth Circuit's ill-considered and

legally flawed decision on the operation of State correctional

facilities, and the resulting threat to public safety, warrant

review by this Court.

The Sixth Circuit has determined, contrary to the

holdings of this Court and other courts of appeals, that the

judiciary may decide, on a case-by-case basis, whether a

specific inmate may be exempted from abiding by

constitutionally valid prison regulations. This decision

challenges the efforts of this Court to protect the deference

given to prison administrators in maintaining security in

correctional facilities. Specifically, this Court has repeatedly

found that "the problems that arise in the day-to-day operation

of a corrections facility are not susceptible of easy solutions."

Bell v. Wolfish, 441 U.S. 520, 547 (1979) (citing Jones v.

North Carolina Prisoners' Labor Union, 433 U.S. 119, 128

(1977)). Thus, "[p]rison administrators...should be accorded

wide-ranging deference in the adoption and execution of

policies and practices that in their judgment are needed to

preserve internal order and discipline and to maintain

institutional security." Jd. As a result, "prison administrators

.. . , and not the courts, [are] to make the difficult judgments

concerning institutional operations" because "courts are ill

equipped to deal with the increasingly urgent problems of

prison administration and reform." Turner v. Safley, 482

2

U.S. 78 (citing Procunier v. Martinez, 416 U.S. 396, 405

(1974)). .

Nevertheless, the Sixth Circuit has found that the

judiciary may substitute its judgment for that of State prison

officials to determine whether a particular inmate may be

exempted from valid prison regulations based on the inmate's

prior disciplinary history. If the Sixth Circuit's decision is

permitted to stand, the corrosive impact on prison safety will

grow as the number of inmates seeking exemptions from

otherwise generally applicable regulations rises. Moreover,

if the courts substitute their judgment for that of prison

officials and permit exemptions for individual inmates from

security regulations, the ability of prison officials to maintain

security will inevitably falter, thereby placing the safety and

welfare of prison staff, inmates, and the general public at risk.

The Petition for Certiorari filed by the State of Ohio

details how the decision of the Sixth Circuit conflicts with the

legal precedents of this Court and the decision of other courts

of appeals and highlights the detrimental effect of the Sixth

Circuit's decision on prison security. The amici States bring

to the Court's attention the widespread effect of this decision

on state correctional facilities nationwide. In light of the

dangerous implications to prison security presented by the

Sixth Circuit's decision and the importance of the issue

presented in the petition, the amici States join Ohio in urging

the Court to grant certiorari.

3

SUMMARY OF ARGUMENT

Review of the question presented by the petition is a

matter of critical importance to the amici States because the

decision by the Sixth Circuit to allow individual inmates to

litigate, on a case-by-case basis, whether the inmate may be

exempted from a constitutionally valid prison regulation

threatens the security of correctional institutions throughout

the country. Despite this Court's unequivocal holding that

"prison officials must be free to take appropriate action to

ensure the safety of inmates and corrections personnel and to

prevent escape or unauthorized entry," Bell v. Wolfish, supra,

441 U.S. at 546, the Sixth Circuit undermined the important

work of State prison officials by arming inmates with a novel

and potentially far-reaching method of evading appropriate

and necessary prison regulations.

The decision of the Sixth Circuit, if not reversed, will

certainly impact the States' ability to manage safely their

prisons by erecting an obstacle to the enforcement of

regulations created to prevent security problems, and to

protect corrections officers, inmates and the public. If

followed by other courts of appeals, the rationale of the Sixth

Circuit will necessitate an unmanageable and unnecessary

tracking by prison administrators of individual-inmate

exceptions to hundreds of prison rules. Ultimately, the Sixth

Circuit's decision to allow repeated inmate Challenges to

otherwise valid prison regulations will create an unworkable

patchwork of regulations and exceptions that will neither be

manageable nor enforceable in an institutional setting that

requires order and security to survive.

4

ARGUMENT

THE DECISION OF THE SIXTH CIRCUIT TO ALLOW

INDIVIDUAL-INMATE EXEMPTIONS FROM

CONSTITUTIONALLY VALID PRISON SECURITY

REGULATIONS THREATENS THE ORDERLY

OPERATION OF CORRECTIONAL INSTITUTIONS

NATIONWIDE, WARRANTING REVIEW BY THIS

COURT.

The Sixth Circuit's decision creates both a security

hazard within our nation's correctional institutions and

offends this Court's precedents by removing security and

administrative decisions from State prison officials in favor of

the substituted judgment of the judiciary. The Sixth Circuit

has determined that an inmate who seeks to challenge a prison

regulation previously determined to be constitutional may

subject the regulation to fresh scrutiny under an analysis

tailored specifically to the individual inmate's circumstances.

This determination is contrary to Turner v. Safley, supra, and

other Supreme Court decisions. See O'Lone v. Shabazz, 482

U.S. 342 (1987); Bell v. Wolfish, supra, 441 U.S. 520

(1979); Jones v. North Carolina Prisoners Labor Union,

supra, 433 U.S. 119 (1977).

Contrary to the finding of the Sixth Circuit, this Court

has routinely accorded a great amount of deference to the

decisions of State prison officials regarding the

administration, operation and security of their institutions.

For example, in Procunier v. Martinez, supra, this Court

expressed the importance of providing deference to the

decisions of prison authorities. The Court found:

Traditionally, federal courts have adopted a broad

hands--off attitude toward problems of prison

administration. In part this policy is the product of

various limitations on the scope of federal review of

conditions in state penal institutions. |More

5

fundamentally, this attitude springs from

complementary perceptions about the nature of the

problems and the efficacy of judicial intervention . .

. Suffice it to say that the problems of prisons in

America are complex and intractable, and . . . are

not readily susceptible of resolution by decree. Most

require expertise, comprehensive planning, and the

commitment of resources, all of which are peculiarly

within the province of the legislative and executive

branches of government. For all of those reasons,

courts are ill equipped to deal with the increasingly

urgent problems of prison administration and reform.

Judicial recognition of that fact reflects no more than

a healthy sense of realism.

Procunier v. Martinez, supra, 416 U.S. at 404-405.

This Court has clearly provided that State prison

administrators are to be accorded deference in the

administration, operation and security of their institutions.

For example, in Bell v. Wolfish, supra, this Court found that

"the problems that arise in the day-to-day operation of a

corrections facility are not susceptible of easy solutions.

Prison administrators therefore should be accorded wide-

ranging deference in the adoption and execution of policies

and practices that in their judgment are needed to preserve

internal order and discipline and to maintain institutional

security." Bell v. Wolfish, supra, 441 U.S. at 547, (citing

Jones v. North Carolina Prisoners' Labor Union, supra, 433

U.S. at 128). "[W]e have often said that evaluation of

penological objectives is committed to the considered

judgment of prison administrators, 'who are actually charged

with and trained in the running of the particular institution

under examination.'" O'Lone v. Shabazz, supra, 482 U.S. at

349.

In addition, contrary to the Sixth Circuit's finding that

prison regulations may be subjected to repeated scrutiny on

6

the basis of the vagaries of each inmate's disciplinary history,

this Court has specified that a State prison regulation, once

found to meet constitutional muster, should not be subjected

to repeated challenges. This Court's decision in Turner v.

Safley, supra, is instructive with respect to the across-the-

board application of constitutionally valid prison regulations

to all inmates, rather than the case-by-case obstacle course

mandated by the Sixth Circuit. As the dissenting judge in

Flagner noted:

By creating the 7urner test, the Supreme Court

surely did not intend to provide a mechanism

through which prisoners could mount repeated

challenges to prison regulations and require courts to

analyze, in detail, the impact such regulations would

have in any particular factual setting, even if prior

court precedent would seem to dictate the validity of :

the regulations. On the contrary: the Supreme

Court's creation of the Turner standard was

motivated by a desire to "ensure the ability of

corrections officials to anticipate security problems

and to adopt innovative solutions to the intractable

problems of prison administration, and avoid

unnecessary intrusion of the judiciary into problems

particularly ill suited to resolution by decree."

Flagner v. Wilkinson, 241 F.3d 475, 489 (6th Cir.

2001)(Nelson, C.J., dissenting)(citing O'Lone v. Shabazz,

supra, 482 U.S. at 349). Judge Nelson convincingly

explained that:

[t]he Turner opinion does not imply that an inmate

who seeks to challenge a prison regulation the

constitutionality of which has already been

established is entitled to have the regulation

subjected to fresh scrutiny under a four-factor

analysis tailored to the plaintiff's individual

circumstances.

7

Flagner v. Wilkinson, supra, 241 F.3d at 489.

Moreover, this Court has repeatedly recognized that

"[mJaintaining institutional security and preserving internal

order and discipline are essential goals that may require

limitation or retraction of the retained constitutional rights of

. . convicted prisoners .. . ." Bell v. Wolfish, supra, 441

U.S. at 546. "[C]entral to all other corrections goals is the

institutional consideration of internal security within the

corrections facilities themselves." Jd. (citing Pell v.

Procunier, supra, 417 U.S. at 823). Thus, "prison officials

must be free to take appropriate action to ensure the safety of

inmates and corrections personnel and to prevent escape or

unauthorized entry." /d., 441 U.S. at 546. However, the

decision of the Sixth Circuit hinders the ability of State prison

administrators to operate safe and orderly prison facilities

and, ultimately, contradicts this Court's instructions to protect

the determinations of State prison officials.

The Sixth Circuit has overlooked the dynamics of prison

life and the problems that lie therein and has placed prison

security in jeopardy by doing so. Specifically, the court failed

to recognize that prison security regulations are promulgated

in anticipation of security problems because such regulations

are necessary in order to discourage inmates from

endangering safety, escaping, or disrupting correctional

facilities. This Court has recognized that it is entirely

appropriate for prison officials to enact disciplinary

regulations as preventive measures. See O'Lone v. Shabazz,

supra, 482 U.S. at 349 (corrections officials must have the

ability "to anticipate security problems and to adopt

innovative solutions to the intractable problems of prison

administration"). Nothing in this Court's precedents suggests

that prison officials must wait for an inmate to create a risk to

safety before imposing valid restrictions on prisoner behavior.

To require such an approach would eliminate the ability of

State officials to anticipate threats to security before they

8

occur and deter dangerous behavior through predictable and

uniform application of disciplinary regulations.

The Sixth Circuit further fails to recognize that a personal

exemption from regulations will permit an inmate to easily

cause a security threat by implicitly authorizing otherwise

prohibited and potentially dangerous conduct. Rather, the

court bases its. decision on the unrealistic prediction that

simply because an inmate has not engaged in a specific

security problem in the past he or she will continue to behave

in an appropriate manner, even without the threat of discipline

for misconduct. This reasoning is contrary to the findings of

this Court and fails to consider the criminal element that is

housed in our nation's prisons. It strains reason to suggest

that convicted criminals will abide by prison regulations

during their incarceration if they are aware that exceptions to

the rules are doled out by the courts based on a lack of

previous disciplinary infractions.

This Court has consistently recognized the unique

dynamics of prisons and the resulting effect on security. For

example, in Jones v. North Carolina Prisoners' Labor Union,

Inc., supra, 433 U.S. at 129, this Court explained:

Prisons, it is obvious, differ in numerous respects

from free society. They, to begin with, are

populated, involuntarily, by people who have been

found to have violated one or more of the criminal

laws established by society for its orderly

governance. In seeking a ‘mutual accommodation

between institutional needs and objectives (of

prisons) and the provisions of the Constitution that

are of general application . . . this Court has

repeatedly recognized the need for major restrictions

on a prisoner's rights.

(citations omitted).

9

Similarly, in Procunier v. Martinez, supra, 416 U.S. at

404, this Court noted that:

Prison administrators are responsible for maintaining

internal order and discipline, for securing their

institutions against unauthorized access or escape,

and for rehabilitating, to the extent that human

nature and inadequate resources allow, the inmates

placed in their custody. The Hurculean obstacles to

effective discharge of these duties are too apparent to

warrant explication.

Despite the recognition by this Court that, due to the

unfortunate but very real dangers presented by prison life

State officials are to be given discretion by the judiciary in

implementing security regulations, the Sixth Circuit has

restricted that discretion by allowing the judiciary to substitute

its judgment for that of State officials on a case-by-case basis

whenever an inmate can demonstrate that he or she has not

previously violated prison rules.

In effect, the decision of the Sixth Circuit will open

numerous prison regulations, previously found by this Court

to be constitutional, to a new round of judicial review in the

federal courts and, ultimately, will produce dangerous results

for prison security. For example, in Turner v. Safley, supra,

this Court upheld a regulation promulgated by the Missouri

Division of Corrections prohibiting inmate correspondence

between prison institutions. Missouri prison officials

provided testimony that the correspondence rule was security

based because "mail between institutions can be used to

communicate escape plans and to arrange assaults and other

violent acts". Jd., 482 U.S. at 91. This Court found that the

regulation reasonably related to legitimate security concerns

of prison officials and upheld its validity. Jd.

However, under the Sixth Circuit's analysis, inmates

confined in a Missouri correctional facility could bring suit

10

against that State alleging that they should be exempted from

the simply because, in the past, they had never used the mail

to communicate escape plans or to arrange assaults or other

violent acts. As a result, those inmates who qualified for

exemptions could freely engage in the exchange of

correspondence that communicates escape plans, assaults or

other violent acts, the very dangers that the regulations were

designed to prevent. Because of the individualized

exemptions, Missouri officials would be unable to detect the

security threat, the effectiveness of the rule would be severely

hampered, and the security of Missouri's prisons jeopardized.

Similarly, in Bell v. Wolfish, supra, this Court upheld

federal prison security regulations prohibiting receipt of books

not sent directly from the manufacturer, as well as packages

of food and personal items sent from outside of the prison.

The reason for the rules was to keep individuals from

smuggling contraband into the institution. /d., 441 U.S. at

555. Under the Sixth Circuit's approach, this Court's

decision in Bell would be subjected to repeated exemptions for

any inmate who had never been caught smuggling contraband

into the prison in the past. Such an exemption would enable

inmates to smuggle contraband into the prison undetected. A

weapon is no less dangerous if it is the first piece of

contraband introduced by an inmate into the prison setting.

Yet, the Sixth Circuit's decision would allow a free pass to

traffic in weapons for any inmate who can demonstrate that he

or she has not been adjudicated guilty of violating prison rules

in the past.

Moreover, the decision of the Sixth Circuit to permit

continual review of valid prison security regulations will have

a detrimental effect on numerous State prison systems. For

example, the New Jersey Department of Corrections

(hereinafter "NJDOC") has adopted security regulations

prohibiting participation in or possession of security threat

group (gang) materials. See New Jersey Admin. Code tit.10A,

§4-4.1(a)*.010 (1999)(prohibiting participation in any activity

1]

related to a security threat group); N./J. Admin. Code tit. 10A,

§4-4.1(a)*.011 (1999)(prohibiting possession of security

threat group materials). The intent of the regulations is to

terminate gang-related violence within the NJDOC prison

system. See Blyther v. New Jersey Dep't of Corrections, 730

A.2d 396 (N.J. Super. Ct. App. Div. 1999). Under the Sixth

Circuit's analysis, inmates could mount numerous challenges

to these regulations and be awarded judicially sanctioned

exemptions merely because they had not previously engaged

in gang-related violence. These "exempted" inmates could

subsequently possess gang paraphernalia and participate in

security threat group activities with impunity until their

actions resulted in a breach of security. Until that time, these

prisoners could easily congregate and plan gang-related

violence, the exact result the regulations were intended to

prevent. The threat to prison security in such circumstances

is obvious and is in no way mandated by law.

Similarly, security regulations and policies, such as

regulations regarding substance abuse testing, grooming,

inmate searches, limitations on mailing and phone use, among

other security regulations, will be jeopardized if the decision

of the Sixth Circuit were to be adopted by other courts of

appeals. See Alaska Admin. Code tit., §05.069 (Alaska

Department of Corrections security regulation permitting the

substance abuse screening of inmates); New York Comp.

Codes R. & Regs. tit.7, § 200.2 (New York Department of

Corrections security regulation allowing the searches of

inmates after visitation to prevent the possession of

contraband); 37 P.A. Code §93.2 (Pennsylvania Department

of Corrections security regulation permitting the opening and

examination of incoming inmate mail to prevent the entry of

contraband); Michigan PD § 04.04.113 (Michigan

Department of Corrections Policy Directive permitting the

identification and management of security threat groups and

their members); Ohio Admin. Code § 5120-9-25(D)(F) (Ohio

Department of Corrections security regulation requiring

inmate compliance with grooming specifications for the

12

detection of contraband). Notably, most States have enacted

similar regulations and policies in anticipation of prison

security issues that would be directly affected by the rationale

of the Sixth Circuit. If the decision of the Sixth Circuit is

permitted to stand as a viable option for other courts of

appeals, countless inmates may be exempted from these and

other prison security regulations, resulting in_ the

unencumbered ability of inmates to wreak havoc on our

nation's prison security.

Moreover, the decision of the Sixth Circuit invites a

dangerous lack of uniformity in the application of prison

rules. Equal treatment of inmates in the context of

disciplinary decisions is essential to the perception of fairness

among prisoners. However, an even-handed application of

security regulations is not possible if individual inmates can

claim an exemption from rules that are applicable to other

prisoners.

The potential effect of the Sixth Circuit's decision clearly

offends the precedents of this Court that allows State prison

officials to promulgate policies in anticipation of dangerous

activity by inmates. See O'Lone v. Shabazz, supra, 482 U.S.

at 349. Moreover, the Flagner decision contradicts this

Court's mandate that State prison officials be accorded

judicial deference in matters of security and prison

administration. See Turner v. Safley, supra, 482 U.S. 78;

Pell v. Procunier, supra, 417 U.S. 817; Bell v. Wolfish,

supra, 441 U.S. 520. If permitted to stand, the decision of

the Sixth Circuit will jeopardize the ability of the States to

maintain security in their prisons, thereby placing the safety

and welfare of prison staff, inmates and the general public at

risk.

13

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted,

John J. Farmer, Jr.

Attorney General of New Jersey

Attorney for State Respondent

Patrick DeAlmeida

Assistant Attorney General

Of Counsel

Victoria L. Kuhn

Deputy Attorney General

Counsel of Record and On the Brief

R.J. Hughes Justice Complex

PO BOX 106

Trenton, New Jersey 08625

(609) 292-8550

Dated: September 21, 2001