# Amicus Curiae Brief — Alameida v. Mayweathers

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1571%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2003
- **Citation:** 540 U.S. 815

## Text

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

-
-

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

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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.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1571%3A3. Public record. Not legal advice.