Amicus Curiae Brief — Alameida v. Mayweathers

Supreme Court, US

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| AUS 1 3 200

No. 02-1655 | OFFICE OF THE CLERK

In The Supreme Court Of The United States

EDWARD S. ALAMEIDA, et al.,

Petitioners,

Vv.

KARLUCK M. MAYWEATHERS, et al.,

, Respondents.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF OHIO AND 33 OTHER AMICI CURIAE

IN SUPPORT OF PETITIONERS

JIM PETRO

Attorney General of Ohio

DOUGLAS R. COLE

State Solicitor

*Counsel of Record

STEPHEN P. CARNEY

Senior Deputy Solicitor

TODD R. MARTI

Assistant Attorney General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

614-466-5087 fax

Counsel for the Amici States

GREGG RENKES

Attorney General

State of Alaska

MIKE BEEBE

Attorney General

State of Arkansas

KEN SALAZAR

Attorney General

State of Colorado

M. JANE BRADY

Attorney General

State of Delaware

ROBERT J. SPAGNOLETTI

Corporation Counsel

District of Columbia

MARK J. BENNETT

Attorney General

State of Hawaii

LAWRENCE G. WASDEN

Attorney General

State of Idaho

LISA MADIGAN

Attorney General

State of Illinois

THOMAS J. MILLER

Attorney General

State of Iowa

RICHARD P. IEYOUB

Attorney General

State of Louisiana

G. STEVEN ROWE

Attorney General

State of Maine

THOMAS F. REILLY

Attorney General

Commonwealth of

Massachusetts

MICHAEL A. Cox

Attorney General

State of Michigan

MIKE MOORE

Attorney General

State of Mississippi

MIKE MCGRATH

Attorney General

State of Montana

JON BRUNING

Attorney General

State of Nebraska

BRIAN SANDOVAL

Attorney General

State of Nevada

PETER HEED

Attorney General

State of New Hampshire

eT ee ea

MICHAEL A. CARDOZO

Corporation Counsel

City of New York

WAYNE STENEHJEM

Attorney General

State of North Dakota

W.A. DREW EDMONDSON

Attorney General

State of Oklahoma

HARDY MYERS

Attorney General

State of Oregon

D. MICHAEL FISHER

Attorney General

Commonwealth of

Pennsylvania

ANABELLE RODRIGUEZ

Attorney General

Commonwealth of

Puerto Rico

HENRY DARGAN

MCMASTER

Attorney General

State of South Carolina

LAWRENCE E. LONG

Attorney General

State of South Dakota

PAUL G. SUMMERS

Attorney General

State of Tennessee

GREG ABBOTT

Attorney General

State of Texas

MARK L. SHURTLEFF

Attorney General

State of Utah

WILLIAM H. SORRELL

Attorney General

State of Vermont

JERRY W. KILGORE

Attorney General

Commonwealth of

Virginia

IVER A. STRIDIRON

Attorney General

U.S. Virgin Islands

DARRELL V. MCGRAW JR.

Attorney General

State of West Virginia

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TABLE OF CONTENTS

Page

Se POT PAE ED svesnssesssiservinivscsoussmnnssseveinsasuiocsses ii

STATEMENT OF AMICI INTEREST ..............ccccsccssssesseeees I

REASONS FOR GRANTING THE WRIT ............cccccscseeeeee 4

A. RLUIPA Has Once Again Changed the

Legal Standard Governing Prisoner Free

Exercise Claims, And The Latest Change

Has Again Greatly Complicated Prison

PN ciictsiinshisinpienlasichianisauiiciinek reciente 4

3 Uncertain Legal Standards Impede

. The States’ Ability To Address

5 The Increasingly Urgent Problem

Re I CII insictievesscacsssnvnativninenvs 7

ra The Questions Presented Are Ripe

For Review Without Further

Development, And Review Would

Help To Resolve A Growing

Number Of Cases Turning On

TRONS CII ceinsenessonsvvinstssesenvesnes 12

AE ET eC ee 14

APPENDIX:

Ttem A: Table of federal cases involving one or

more of the questions presented

ii

TABLE OF AUTHORITIES

Page

Cases

Alameen v. Coughlin,

892 F. Supp. 440 (E.D.N.Y. 1995).........cccccsssessseseeees 1]

Ballard v. Campbell,

1999 U.S. App. Lexis 23309 (6th Cir. 1999) ......00.0.... 10

Barnett v. Rodgers,

IF Fe Fe A Se, FID iirieseaccrcsnicessecacsenicnnnsncntn 2

City of Boerne v. Flores,

| SRR MR SNP OIE iccdetaie tii cihanenicctiataa inal adhe 6

Diaz v. Collins,

S72 F. SUPP. S53 (ED. TOR. UIDS) .0.cccsevsssonsesssonevervess 2

Estep v. Dent,

914 F. Supp. 1462 (W. D. Ky. 1996) uu... eeceeeeseeee 2

Fraise v. Terhune, .

ee Fe FO EEG, Bd vn citsdssecsnesicbhcnoes 7,8, 11

Fromer v. Scully, :

EF Bae CE Cae Geely SET Micicvinissscdeaciaceistacuaancoa 2

George v. Sullivan,

896 F. Supp. 895 (W.D. Wis. 1995)...........cccccssssccssess 11

Gerhardt v. Lazaroff,

221 F. Supp. 2d 827 (S.D. Ohio 2002)............ccesceeeee 10

Hamilton v. Schriro,

FO Fe Tee Ts TI icinicstcrincicrnescviesentaninrcinta 1]

ease ——

ili

Page

Hamilton v. Schriro,

863 F. Supp. 1019 (W.D. Mo. 1994).......cccccccccccsccccees 11

Helling v. McKinney,

: me Re Ts |: Re PORE MOMENT Aen eA F 5

Johnson v. Martin,

223 F. Supp. 2d 820 (W.D. Mich. 2002).........ccccccc000e. 10

Johnson v. Martin,

2002 U.S. Dist. Lexis 19246 .

CF a I EE ecithaeestbbidinincnmace nde ee 7, 8,9

Jones v. North Carolina Prisoners’ Labor Union,

EF ae VER OE TD tinned ire tel ]

Lawson v. Dugger,

844 F. Supp. 1538 (S.D. Fla. 1994)... ccccccccccesceeees 1]

In re Long Term Segregation,

174 F.3d 464 (4th Cir. 1999)... cccccocceeee 7, 10, 11

Luckette v. Lewis,

. 883 F. Supp. 471 (D. Ariz. 1995)........ccccoccsescoscovsesssesees 2

Marria v. Broaddus,

200 F. Supp. 2d 280 (S.D.N.Y. 2002) ........ccccccssssssseess 10

Martinelli v. Dugger,

EE ae BORO TEC, NP hivrisieiceSieriitiches cece fs

McCabe v. Arave,

827 F.3d 634 (9th Cir. 1987) Siideaietiidiieiiichinaiabiieaiee wena 10

Page

Morris-Bey v. Debruyn,

1997 U.S. App. Lexis 22440 (7th Cir. 1997) ............ 8,9

Morris v. Debruyn,

1996 U.S. Dist. Lexis 11165

(N.D. Ind. 1996), aff'd,

124 F.3d 204 (7th Cir. .1997)........ccccccsocssscsccesseesssesoes 10

OQ’ Lone v. Estate of Shabazz,

ABZ US. S42 C19G7) vsovesserorssoncnevenssecsnssnesasavasennsel passim

- Ochs v. Thalacker, :

90 F.3d 293 (Sth Cir. 1996).........ccccccsrscccsrosccveesevseseee 10

Phipps v. Parker,

879 F. Supp. 734 (W.D. Ky. 1995) .....cscsesereeeeseesens 2

Rojas v. Cambra,

8 1997 U.S. Dist. Lexis 7610 (N.D. Cal 1997) ..........06 10

Stefanow v. McFadden,

103 F.3d 1466 (Sth Cir. 1996)..............ccsssccssersessssees 12

Thornburgh v. Abbott,

490 U.S. 401 (19BD) ..cecscersssoscnssrecsensosvesovesocssnosseseuces 4,5

Turner v. Safley,

MBS US. TE IGG) ocvevsnveinsssvoncnrinnncsvs soedanitinaias 2, 4, 5, 12

Udey v. Kastner,

805 F.2d 1218 (Sth Cir. 1986)............cccccsssesrsessessees 5,8

Page

United States v. Huss,

394 F. Supp. 752 (S.D.N.Y. 1975),

vacated on other grounds, ,

re a ee Ce es TE heiastceenesirnininintinsisipesiien 2

Statutes

Religious Land Use and

Institutionalized Persons Act of 2000,

Ge UB. S Be FID csiscevacsensaversestnssaioinsneina passim

Other Authorities

Behind the Walls: An Expert Discusses the Role of Race

Related Gangs and Other Extremists in America’s

Prisons, Southern Poverty Law Center Intelligence Report

= REE I i vsiciconcstssssvinnsionissntesniseivenicbielendaaeaitaaiantaniundiies 9

R. Bonner, The Brotherwoods: The Rise and Fall of a

White Supremacist Gang Inside a Kansas Prison,

Journal of Gang Research, Vol. 6, No. 3, 72

CT TIF vs cinsessenessnesonsresienatnnntenneseaipinteronnensenseensesssonsucsonios 9

G. Camp & C. Camp, Prison Gangs:

Their Impact, Nature and Impact on Prisons

(TIE. SOIR. CE PMRNIE TIT) ccrcenecessnsgeoneisn wisxessewnvesniinincreniniens 7,8

Congressional Record S 14355

(Gakly 06. CCemGt 2G, UGS) .....cscessssnecscsovseorsseosecsessenses 8

Dangerous Convictions: An Introduction to Extremist

Activities in Prisons (Anti-Defamation League 2003}....3, 9, 10

vi

Developments in the Law of Prisons: IV. In the Belly

of the Whale: Religious Practice in Prison,

Ee |, RE

G. Knox, A National Assessment of Gangs and Security

Threat Groups In Adult Correctional Institutions:

Results From The 1999 Corrections Survey,

Journal of Gang Research, Vol. 7, No. 1

CD Te iinsiccaeessisssiinnshstasieimtacnptaciisitialebstietninentainti

G. Knox, An Introduction to Gangs

(Wyndham Hall Press 1994) ..............cccsssssssssscsssessesssecenees

Preliminary Results of the RFRA Survey of All States:

The Impact of the Religious Freedom Restoration Act

on State Correctional Facilities

UE I I

B. Zaitlow & J. Houston, Prison Gangs: The North

Carolina Experience A Summary of the Findings,

‘Journal of Gang Research, Vol. 6, No. 3

Fe ici caaiviitnchlceuilaciciceh bas enheicintaptcabiaaaeieanssbieal

Page

STATEMENT OF AMICI INTEREST

The Amici States do not lightly challenge a federal

Statute, but we are compelled to do so here. That is because the

Religious Land Use and Institutionalized Persons Act of 2000

(“RLUIPA”) further complicates the States’ ability to

effectively manage prisons, a task that was already one of “the

most vexing of all state re\ponsibilities.’ Jones v. North

Carolina Prisoners’ Labor Union, 433 U.S. 119, 137 (1977)

(Burger, C. J., concurring). The RLUIPA statute essentially

replaces the constitutional standard of review for prisoner

claims—namely, that prison regulations implicating ‘religious

exercise are valid if they are reasonably related to legitimate

penological interests, O’Lone v. Estate of Shabazz, 482 U.S.

342 (1987)—with a statutory standard that requires States to

yield to prisoners’ Free Exercise demands unless their

regulations are “the least restrictive means of furthering a

compelling governmental interest.” 42 U.S.C. § 2000cc-

I(a)(2). That least-restrictive-means test, as shown by

experience under both the former Religious Freedom

Restoration Act (“RFRA”), and now under RLUIPA, burdens

States in at least two ways.

First, RLUIPA contributes to the great uncertainty

about the legal standards controlling prisoners’ Free Exercise

demands. The law has changed dramatically in recent years,

alternating between rational basis review and strict scrutiny

three times in the last decade alone. That constantly changing -

legal environment adds significant complexity to the already

difficult task of balancing the protective demands of the Eighth

Amendment against the counter pressure of Free Exercise

requirements. Sut

But the number and magnitude of those changes are not

the only sources of uncertainty. The least-restrictive-means

test is itself so inherently unpredictable that it independently

muddies the already-unclear waters. It simply does not, in the

2

correctional setting, tell States what is expected of them. That

test has been tried twice before, and it twice left corrections

officials guessing.

Before O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987),

the least-restrictive-means test was applied in prisoner cases, and

courts reached contradictory results as to the propriety of

indistinguishable actions. Compare Fromer v. Scully, 817 F.2d

227 (2d Cir. 1987) (grooming regulations invalid) with Martinelli

v. Dugger, 817 F.2d 1499 (11th Cir. 1987) (grooming regulation

valid). Compare also United States v. Huss, 394 F. Supp. 752

(S.D.N.Y. 1975) (supplemental opinion) (special diet not

required), vacated on other grounds, 520 F.2d 598 (2d Cir. 1975)

with Barnett v. Rodgers, 410 F.2d 995 (D.C. Cir. 1969) (special

diet required). Indeed, that test-was abandoned because “every

administrative judgment [was] 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).

The accuracy of that observation was reconfirmed by

RFRA, which once again provided antithetical answers about the

legality of identical policies. Compare Diaz v. Collins, 872

F.Supp. 353, 359 (E.D. Tex. 1994) (upholding grooming

regulations); Phipps v. Parker, 879 F. Supp. 734, 736 (W.D. Ky.

1995) (same) with Estep v. Dent, 914 F. Supp. 1462, 1467 (W. D.

Ky. 1996) (invalidating grooming regulations); Luckette v. Lewis,

883 F. Supp. 471, 481 (D. Ariz. 1995) (same). Indeed, corrections

officials received contradictory decisions about the same

regulations in the same court, Phipps, supra; Estep, supra. That

uncertainty undercuts the States’ ability to “anticipate security

problems and to adopt innovative solutions to the intractable

problems of prison administration.” Turner, 482 U.S. at 89.

3

Second, that uncertainty significantly complicates the

job of combating prison gangs. “[O]fficials have noticed the

common practice of prisoners ‘adopting’ [] religions... in

order to get [] privileges.” Dangerous Convictions: An

Introduction to Extremist Activities in Prisons, 35 (Anti-

Defamation League 2002). For example, “[w]hite supremacists

in prison frequently claim adherence to religious sects... as a

way to circumvent prison regulations,” id. at 37, and they have

openly advised their cohorts on how to abuse religious

accommodations to further very unholy ends. /d. at 36.

Inmates were quick to manipulate RFRA for such purposes,

seizing on its strict scrutiny to undermine corrections officials’

efforts to act against prison gangs. That pattern has re-

emerged under RLUIPA, with. white supremacists and other

gangs invoking the Act in attempts to thwart previously

validated anti-gang measures. The States need clear standards

so they can confidently implement strategies for countering

that problem, a problem that results in significant human

suffering every day by inmates who lack the ability to flee the

gangs’ growing influence.

4

REASONS FOR GRANTING THE WRIT

California’s petition should be granted for two reasons.

First, it presents an opportunity to end a period of

unprecedented uncertainty about the legal standards controlling

prisoners’ Free Exercise claims—uncertainty that greatly

complicates prison management.

Second, this Court should address the latest source of

that uncertainty, RLUIPA, sooner rather than later because the

present state of the law impedes the States’ ability to address

the increasingly urgent problem of prison gangs, a problem that

causes very real human suffering every day. No further

development is needed to fully address the purely legal issues

involved. Finally, a decision here would help to resolve a

growing number of other cases involving the questions

presented here.

A. RLUIPA Has Once Again Changed the Legal

Standard Governing Prisoner Free Exercise

Claims, And The Latest Change Has Again

Greatly Complicated Prison Administration.

Inmates’ religious demands are a consistent aspect of

correctional management, but the legal standards controlling

those demands have been anything but consistent. The

resulting uncertainty complicates the already difficult task of

Operating the nation’s prisons and jails.

“Running a prison is an_ inordinately difficult

undertaking that requires,” among other things, “planning and

the commitment of resources.” Turner v. Safley, 482 U.S. 78,

84-85 (1987). Officials charged with that daunting task must

daily strike a “delicate balance... between the order and

security of the internal prison environment” and prisoners’

First Amendment rights. Thornburgh v. Abbott, 490 U.S. 401,

5

407 (1989). Further, officials cannot simply react to problems

as they occur. They are duty-bound to “anticipate security

problems and to adopt innovative solutions to [] intractable

problems,” Turner, 482 U.S. at 89, in order to meet their

Eighth Amendment obligation to address readily foreseeable

threats. Helling v. McKinney, 509 U.S. 25 (1993).

Corrections officials must therefore balance several

variables, each with varying weights, when deciding what

religious activities to permit in their institutions. “In making

these decisions, prison administrators focus primarily on

specific security risks.” Developments in the Law of Prisons:

IV. In the Belly of the Whale: Religious Practice in Prison,

115 Harv. L. Rev. 1891, 1899 (2002) (“Jn the Belly of the

Whale’’). However, they must also consider “the administrative

costs of a policy, the likelihood of inmate resentment, the

appearance of discrimination, and the possibility of inmates

manipulating the system for personal advantage—all of which

are, to some degree, security concerns.” /d.

That multivariate correctional facility calculus is made

exponentially more difficult when the governing legal standard

is also an uncertain variable, as it has been for far too long.

A variety of standards were applied before O’Lone,

ranging from deferential rational basis review to strict scrutiny,

resulting in what one court accurately characterized as “an

unholy mess.” Udey v. Kastner, 805 F.2d 1218, 1219 n.1 (Sth

Cir. 1986). O’Lone provided welcome guidance with its

modified rational basis standard, but that stability was short

lived.

A sea change occurred with the enactment of RFRA’s

least-restrictive-means standard in 1993. That prompted

thousands of internal, and hundreds of judicial, demands to

reexamine operational issues previously settled under the

O’Lone standard. That period of reexamination lasted for

. \

three-and-a-half years, until RFRA was struck down in June

1997, effectively reinstating the O’Lone standard. See City of

Boerne v. Flores, 521 U.S. 507 (1997).

Things once again changed dramatically when RLUIPA

became effective in September 2000. That law reinstates the

same: strict scrutiny standard imposed by RFRA and, like

RFRA, has prompted reexamination of previously settled

operational issues

In sum, the standards for evaluating prisoners’ religious

demands, demands that must be evaluated everyday in the nations’

prisons and jails, have fluctuated wildly in recent years. The

controlling standard has swung from one end of the legal

continuum, rational basis review, to the other, “the most

demanding test known to constitutional law,” City of Boerne, 521

U.S. at 534, and the pendulum has swung three times over the last

decade alone.

Reasonable people can disagree over Congress’s

constitutional authority to modify this Court’s constitutional

- holding in O’Lone, but surely all agree that the frequent and

dramatic swings in the law poorly serve all concerned.

Consequently, the Court should act to end that unusual uncertainty

by reviewing the validity of RLUIPA now, and by definitively

establishing the law controlling prisoners’ Free Exercise claims.

B. This Court Should Grant Review Now.

While the Ninth Circuit was the first court of appeals to

address the constitutionality of RLUIPA, the Court should review

this case now, rather than wait for further percolation in the courts,

for several compelling reasons. First, the continuing uncertainty in

this area impedes the States’ ability to combat an increasingly

urgent problem that causes significant human suffering every

day—prison gangs. Further, nothing would be gained by delay,

because the questions presented in California’s petition are purely

\

7

legal, and hence need no further development in other cases. And

prompt review of this issue would help to resolve a growing

number of cases involving the questions presented.

1. Uncertain Legal Standards Impede The

States’ Ability To Address The Increasingly

Urgent Problem Of Prison Gangs.

Prompt action to restore stability in this frequently visited

area of the law is supported by the very real, and very dangerous,

consequences of waiting. The uncertainty just discussed interferes

with the States’ ability to respond to the urgent problem of prison

gangs, a problem with indisputable connections to both violence

and “religious” activity behind bars.

It is hard to overstate the adverse impact of prison gangs.

“The types of problems created by gangs include the introduction

and distribution of drugs; intimidation of weaker inmates:

extortion...; requests for protective custody status; violence

associated with gang activity; occasional conflicts between gangs

(usually racial) that create disturbances and contracted inmate

* murders.” G. Camp & C. Camp, Prison Gangs: Their impact,

Nature and Impact on Prisons (U.S. Dept. of Justice 1985) xi.

And those problems are not just administrative

inconveniences. Prison gangs are responsible for violent acts that

result in very real human suffering. See, e.g., Fraise v. Terhune,

283 F.3d 506, 512-513 (3rd Cir. 2002) (detailing the history of

violence by a prison gang claiming religious status); Jn re Long

Term Segregation, 174 F.3d 464, 466-467 (4th Cir. 1999) (same);

Johnson v. Martin, 2002 U.S. Dist. Lexis 19246 (W.D. Mich.

2002), slip op. at **27-29 (same).

Those problems are increasing. Half of the respondents

to a recent national survey of wardens reported a gang-related

disturbance at their prisons within the year preceding the

survey. G. Knox, A National Assessment of Gangs and

8

Security Threat Groups In Adult Correctional Institutions:

Results From The 1999 Corrections Survey, Journal of Gang

Research, Vol. 7, No. 1 (Spring 2000) 19. The percentage of

respondents reporting gang-based assaults on prison staff more

than tripled during the 1990s. /d. at 6-7. Fifty-five percent of

respondents reported a significant gang-driven increase in

homemade weaponry in their prisons, and supermajorities of

respondents expect gang-related violence and related -

operational problems to increase in coming years. /d. at 26, 40.

“Among the major warning signs that emerge from this study

is that the vast majority of prison wardens at adult state

correctional institutions do in fact believe that in the next few

years the gang problem will dramatically increase behind

bars.” /d. at 40.

Unfortunately, prison gangs and religious activities are

frequently connected. Prisoners’ exploitation of the special

protection given religious expression for less than holy

purposes is well known on a general level, Jn the Belly of the

Whale, 115 Harv, L. Rev. at 1902, 1906, 1908; Udey, 805 F.2d

at 1220, 1221, and all involved in corrections recognize that

gang-affiliated prisoners are particularly adept at manipulating

those protections.

Reliable institutions verify the pattern of prison gangs

exploiting Free Exercise protections. That pattern has been

documented in a study commissioned by the federal Justice

Department, a letter joined by all 50 state correctional

administrators and a national survey of State Attorneys

General. See G. Camp & C. Camp, supra, at 120, 141, 154,

155, 158, 175; Congressional Record § 14355 (daily ed.

October 26, 1993); Preliminary Results of the RFRA Survey of

All States: The Impact of the Religious Freedom Restoration

Act on State Correctional Facilities (Florida Atty. Gen. 1996).

The courts have likewise acknowledged that challenging

reality. See, e.g., Fraise, 283 F.3d at 517: Morris-Bey v.

Debruyn, 1997 U.S. App. Lexis 22440 (7th Cir. 1997), slip op.

9

at *3; Johnson v. Martin, 2002 U.S. Dist. Lexis 19246 (W.D.

Mich. 2002), slip op. at **28-29: Academics, law enforcement

professionals and civil liberties groups have also verified it.

See G. Knox, An Introduction to Gangs (Wyndham Hall Press

1994) 27; R. Bonner, The Brotherwoods: The Rise and Fall of

a White Supremacist Gang Inside a Kansas Prison, Journal of

Gang Research, Vol. 6, No. 3, 72 (Spring 1999); Behind the

Walls: An Expert Discusses the Role of Race Related Gangs

and Other Extremists in America’s Prisons, Southern Poverty

Law Center Intelligence Report (Winter 2002) 26-27;

Dangerous Convictions: An Introduction to Extremists

Activities in Prisons (Anti-Defamation League 2003) 7, 34-35, —

37. One expert put it well: “[g]ang 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, An Introduction to Gangs, supra, at

ai.

The most persuasive proof comes from the gangs

themselves. More than a third of the gang-affiliated prisoners

Surveyed admitted that their groups had used “religion as a

‘front’ for gang business.” B. Zaitzow & J. Houston, Prison

Gangs: The North Carolina Experience A Summary of the

Findings, Journal of Gang Research, Vol. 6. No. 3 (Spring

1999) 29. A recent study of extremist groups in prisons

provides a good example:

An editorial in a recent issue of [a white

supremacist publication targeting prisoners]

sums up why [religion] has become important to

incarcerated extremists: “This issue of Strife

comes to you with a purpose, which is to

encourage Bruder within the gulags to file an

affidavit with their institutional chaplain

requesting to be recognized as believers in

Asatru (also known as Heathenism). This is

necessary if we want to have a place within

10

these dungeons where our people’ can

congregate for educational purposes. Those of

you who are not Odinists, we hope you will

participate in and support this. The opportunity

to congregate with our Folk is beneficial to all

of us.”

Dangerous Convictions, supra, at 38.

The lack of knowable Free Exercise standards is a

significant impediment to the States’ ability to respond to that

troubling phenomenon. Between the uncertainty of what

measures permissible under O’Lone will survive RLUIPA’s least-

restrictive-means test, and the inconsistent results between cases °

involving that test, officials are simply unsure what actions they

may legally take to limit gang activities.

And the gangs know it. Gang-affiliated inmates were

quick to exploit the uncertainty created by RFRA’s seismic change

in controlling legal standards and were persistent in manipulating

RFRA to cast doubt upon anti-gang measures. See, e.g., In re

Long Term Segregation, supra; Ochs v. Thalacker, 90 F.3d 293

(8th Cir. 1996); Rojas v. Cambra, 1997 U.S. Dist. Lexis 7610

(N.D. Cal 1997); Morris v. Debruyn, 1996 U.S, Dist. Lexis 11165

(N.D. Ind. 1996), aff'd, 124 F.3d 204 (7th Cir. 1997) (table). That

pattern has re-emerged under RLUIPA, with white supremacist

and other gangs invoking the Act in attempts to thwart anti-gang

practices validated under the O’Lone standard. Compare

Gerhardt v. Lazaroff, 221 F.Supp.2d 827 (S.D. Ohio 2002)

(denial of separate group services for white supremacist inmates)

with McCabe v. Arave, 827 F.3d 634 (9th Cir. 1987) (upholding

such denials under the O’ Lone standard) and Ballard v. Campbell,

1999 U.S. App. Lexis 23309 (6th Cir. 1999) (same). Compare

also Johnson v. Martin, 223 F. Supp.2d 820 (W.D. Mich. 2002),

and Marria v. Broaddus, 200 F. Supp.2d 280 (S.D.N.Y. 2002)

(challenging increased restrictions on inmates adhering to

“religious” groups with a history of gang affiliated violence) with

11

Fraise v. Terhune, .283 F.3d 506, 512-513, 517 (3d Cir. 2002)

(upholding such restrictions under the O’Lone standard) and In re

Long Term Segregation, 174 F.3d at 466-467 (same).

That uncertainty is compounded by the inherent

unpredictability of the least-restrictive-means test. For example,

prison officials know that some gangs use “religious” literature for

various illicit purposes, they know that excluding that literature

from prisons reduces violence, and they know that exclusion is

therefore permissible under the O’Lone standard. But they do not

know whether they can continue that practice; because they have

received inconsistent decisions about the propriety of that action

under the least-restrictive-means test. Compare George v.

Sullivan, 896 F. Supp. 895 (W.D. Wis. 1995) with Lawson v.

Dugger, 844 F, Supp. 1538 (S.D. Fla. 1994). Officials also know

that gangs use jewelry and long hair as non-verbal “identifiers,”

that restricting access to those things impedes gang activities, and

that they could take that preventive action under the O’Lone

standard. But the continued propriety of that prophylactic measure

under the least-restrictive-means test is unclear. Compare

Alameen v. Coughlin, 892 F. Supp. 440 (E.D.N.Y. 1995)

(invalidating an policy prohibiting religious article potentially used

as a gang idéntifier under RFRA) with Hamilton v. Schriro, 74

F.3d 1545 (8th Cir. 1996) (upholding grooming regulation under

RFRA intended to limit use of hair as a gang identifier).' That

inconsistency proves the truth of this Court’s observation that

prison officials cannot be sure of any action surviving least-

restrictive-means analysis because “every administrative judgment

' Although the anti-gang measure at issue in Hamilton was

ultimately sustained on appeal, its operation was enjoined for

almost two years, putting inmates and staff at risk during that

period. See Hamilton v. Schriro, 863 F. Supp. 1019 (W.D.

Mo. 1994).

12

[is] subject to the possibility that some court somewhere would

conclude that it had a less restrictive way of solving the problem at

hand.” Turner, 482 U.S. at 89.

“Anyone familiar with prisons understands the

seriousness of the problems caused by prison gangs... . fueled

by... religious~bigotry,” Stefanow v. McFadden, 103 F.3d

1466, 1472 (9th Cir. 1996), and no one can reasonably deny

that such “religious” groups are responsible for numerous, and

- extremely serious, acts of violence in prisons across the

country. The cumulative result of those hard realities and the

constantly changing legal standards is less control, and hence

more potential for violence, in the nation’s prisons. Review

can eliminate that uncertainty. And given the potential for

additional, significant human suffering each day that

uncertainty exists, this Court should act sooner rather than

later.

2. The Questions Presented Are Ripe For

Review Without Further Development, And

Review Would Help To Resolve A Growing

Number Of Cases Turning On Those

Questions.

The Amici States recognize that the decision below is

the first circuit-level precedent on MRLUIPA’s

constitutionality, and of course, it is often appropriate to allow

various factual patterns relevant to a challenged statute to be

explored in the lower courts before this Court grants review.

However, we submit that there are two reasons why that

approach would not be appropriate here.

First, the nature of the questions presented belie the

need for further factual development. Those questions are

purely legal and turn on the constitutional boundaries of

13

Congress’s power. Those boundaries are set by the

Constitution, as interpreted in this Court’s prior decisions, and

additional factual development will not be relevant.

Second, review now will resolve many pending cases,

or at least greatly aid in their resolution. Cases involving the

same Separation of Powers, Spending Clause or Establishment

Clause challenges to RLUIPA’s prison provisions presented

here are currently pending in many lower federal courts. See

Appendix A. Review in this case could well resolve, or at

least aid in the resolution of, those cases, alleviating their

burdens on those courts. .

14

CONCLUSION

For the foregoing reasons, the amici States urge the

Court to grant California’s petition.

JIM PETRO

Attorney General of Ohio

DOUGLAS R. COLE*

*Counsel of Record

STEPHEN P. CARNEY

Senior Deputy Solicitor

TODD R. MARTI

Assistant Attorney General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

614-466-5087 fax

Counsel for the Amici States

l

APPENDIX

Table of federal cases involving

one or more of the questions presented

First Circuit

Gordon v. Pepe, Case No. 1:00CV 10453 (D. Mass)

Third Circuit

Williams v. Bitner, Case No. 01-2217 (M.D. Pa.)

Gerlach v. N.J. Dept. of Corrections, Case No. 99-4699 (D.N.J.)

Fourth Circuit

Madison v. Ritter, Case No. 03-6362 (4th Cir.) '

_ Sixth Circuit

Cutter v. Wilkinson, Case No. 02- 3270 (6th Cir.)

Johnson v. Martin, Case No. 2:00CV75 (W.D. Mich.)

Mann v. Wilkinson, Case No. C2-00-706 (S.D. Ohio)

Seventh Circuit

Charles v. Verhagen, Case No. 02-3572 (7th Cir.)

Ghashiyah v. WI Dept. of Correction, Case No. 03- 2193 (7th Cir.)

Goodman v. Snyder, Case No. 2000-C-498 (N.D. Ill.)

2

Eighth Circuit

Jones v. Norris, Case No. 5:0CV415 (E.D. Ark.)

Love v. Evans, Case No. 2:00CV91 (E.D. Ark.)

Tenth Circuit

Hammonds v. Saffel, Case No. 02-5009 (10th Cir.)

Ind. v. Wright, Case No. 00-B-428 (D. Colo.)

Eleventh Circuit

Benning v. State of Georgia, Case No. CV602139 (S.D. Ga.)

Wayne v. Wetherington, Case No. 5:02CV0460-02 (M.D. Ga.)

Limbaugh v. Thompson, Case No. CV93-D-1404-N (M.D. Ala.)

Hornsby v. State of Alabama, Case No. CV 95-T-385-N (M.D. Ala.)