Correctional Case Law: 2004-2005

• DOI: 10.1177/0734016806290139
• Date: 01 June 2006
• Author: James E. Robertson
• Published date: 01 June 2006
• Subject Matter: Articles

Criminal Justice Review
Recent Legal Developments
Volume 31 Number 2
June 2006 185-204
© 2006 Georgia State University
Correctional Case Law:
Research Foundation, Inc.
10.1177/0734016806290139
http://cjr.sagepub.com
2004-2005
hosted at
http://online.sagepub.com
James E. Robertson
Minnesota State University
In 2004, the Justice Anthony Kennedy Commission issued its report on the sorry state of
prison conditions to the American Bar Association (ABA Justice Kennedy Commission,
2004). The commission faulted mandatory minimum sentencing, the disproportionate num-
bers of imprisoned minorities, and the warehousing of unprecedented numbers of inmates.
To this list, the commission ought to have added bureaucratic rationality. As illustrated by
this review, the bureaucratization of correctional agencies has not prevented the violation
of rights-based norms (Super, 2005; see also Alschuler, 2003, for an examination of the
impact of bureaucratic rationality on institutional corrections and other aspects of the crim-
inal justice system).
The most influential prisoners’ rights decision, Turner v. Safley (1987), has permitted
bureaucratic methods to trump rights-based norms. Turner’s significance largely rests on
the four-part reasonableness standard it promulgated. In Harbin-Bey v. Rutter (2005), the
court of appeals presented the four-part Turner test as follows:
(1) whether there is a valid, rational connection between the prison policy and the legitimate
governmental interest asserted to justify it; (2) the existence of alternative means for inmates
to exercise their constitutional rights; (3) the impact that accommodation of these constitu-
tional rights may have on other guards and inmates, and on the allocation of prison resources;
and (4) the absence of ready alternatives as evidence of the reasonableness of the regulation.
(p. 578)
Although first impression of these components suggests a balancing model, their appli-
cation by the Court in a host of cases reveals a structural tilt favoring prison officials (see,
e.g., Overton v. Bazzetta, 2003, applying the Turner test to a freedom of association claim;
Washington v. Harper, 1990, applying the Turner test to a policy regarding the administra-
tion of antipsychotic medication; Thornburgh v. Abbott, 1989, applying the Turner test to a
free speech claim; O’Lone v. Estate of Shabazz, 1987, applying the Turner test to a free
exercise of religion claim). As Branham (2004) observed, “What is striking about the
Court’s application of the Turner test is the way in which the Turner factors are crafted (or,
critics might contend, contrived) to generally foreordain a finding against a prisoner’s con-
stitutional claim” (p. 297).
In Washington v. Harper (1990), the Court in dicta envisaged the Turner test having
expansive reach: “The standard of review we adopted in Turner applies to all circumstances
in which the needs of prison administration implicate constitutional rights” (p. 224). Later,
in Shaw v. Murphy (2001), the Court with no less certainty described it as the “unitary,
deferential standard for reviewing prisoners’ rights claims” (p. 229). Several lower federal
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Criminal Justice Review
courts read the above dicta as a roadmap for applying the Turner test well outside its
original First Amendment boundaries so as to govern challenges arising under (a) the Fourth
Amendment (see Doe v. Delie, 2001), (b) the prohibition of cruel and unusual punishment
(see, e.g., Tillman v. Lebanon County Correctional Facility, 2000), (c) pretrial detention
(see, e.g., Hause v. Vaught, 1993), (d) statutory rights (see, e.g., Gates v. Deukmejian,
1999), and (e) equal protection challenges to dissimilar treatment based on race (see, e.g.,
White v. Morris, 1993), gender (see, e.g., Klinger v. Department of Corrections, 1994), and
religious affiliation (see, e.g., Salaam v. Robinson, 1993).
In 2005, the Supreme Court in Johnson v. California (2005) repudiated its prior charac-
terization of the Turner test as the “unitary” standard by confining it to situations in which
asserted rights are “inconsistent with proper incarceration” (p. 1149). Johnson thus broke
ground for the bifurcation of prisoners’ rights—a constitutional divide between those cases
governed by Turner and those by amendment-specific tests.
This survey charts the bifurcation of prisoners’ rights as well as other major developments
in prisoners’ constitutional rights by selectively examining cases decided by the United
States Courts of Appeals during 2004-2005 and recommended for full-text publication in the
Federal Reporter (3rd series). The author selected these cases because they address persis-
tent, important, or emergent constitutional issues raised by penal confinement.
During 2003, the year of the most recent tally, there were 2,761 private prisoner civil
rights appeals and 210 prison conditions appeals from U.S District Courts to U.S. Courts
of Appeals (Sourcebook of Criminal Justice Statistics Online, 2005, pp. 461-464). These
numbers represent a dramatic decline from 8,053 private prisoner civil rights filings in 1996
(Sourcebook of Criminal Justice Statistics Online, 2005, pp. 461-464). State inmate civil
rights filings in U.S. District Courts, which totaled slightly less than 40,000 in 1996, fell
to 13,708 in 2003, of which 9,108 addressed prison conditions (Sourcebook of Criminal
Justice Statistics Online, 2005, pp. 461-464). Impediments to litigation created by the
Prison Reform Litigation Act likely account for much of this decline (Schlanger, 2003).
First Amendment Freedoms
Prison rules and policies that have no counterpart in the civilian community have long
curtailed prisoners’ ability to exercise First Amendment freedoms (Robertson, 2000).
Inmates have repeatedly challenged the constitutionality of these rules and policies. At the
behest of the Supreme Court, lower courts have applied the Turner test in adjudicating these
challenges.
Religious Freedom
The Supreme Court in O’Lone v. Estate of Shabazz (1987) embraced Turner’s reason-
ableness test as the governing standard in free exercise of religion claims. Dissenting,
Justice Brennan feared that this test would render First Amendment rights subservient to
the bureaucratic values of efficiency and administrative expertise. His concerns found
expression in Freeman v. Texas Department of Criminal Justice (2004), where expansion
of the prison population in combination with a plethora of religious sects led Texas prison

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187
officials to rationalize the delivery of institutional religious services. Their scheme provided
religious services for 5 “major faith sub-groups” and slotted the plaintiffs in the Christian,
non-Catholic subgroup (p. 859). The plaintiffs, members of the Church of Christ, whose
total membership composed 1% of the prison population, sought judicial intervention after
prison officials had rejected their request to be listed as an independent subgroup and thus
worship apart from inmates of other religions. The Fifth Circuit found that each of the four
components comprising the Turner test supported the prison officials’ actions. The lower
court’s application of this standard illustrated how bureaucratic values trump rights. At
issue here, explained the three-judge panel, were not security concerns but “staff and space
limitations, as well as financial burdens,” all of which “are valid penological interests”
(Freeman, p. 861). Although the founders intended to safeguard minority religions like the
plaintiffs’ Church of Christ, the Freeman ruling also demonstrated how the third prong of
the Turner test—the impact of accommodating the plaintiffs’ demands on staff, prisoners,
and prison resources—can disadvantage small sects. Accommodating members of the
plaintiff’s Church of Christ, according to the Fifth Circuit, could have an adverse “ripple
effect” by emboldening other small religious sects to make similar demands (p. 861).
Indeed, the prisoners’ rights envisaged by the O’Lone court as well as the Freeman court
operate as a zero sum game—one inmate’s gain must count as a debit against the well-being
of other inmates or prison staff.
Whereas the Freeman case illustrates the bureaucratization of the Free Exercise Clause
at a systemwide “macrolevel,” Dehart v. Horn (2004) exemplifies the same process at work
on a “microlevel.” A practicing Mahayana Buddhist sought a diet consistent with his reli-
gious beliefs that excluded animal products and by-products. Prison officials refused. In
finding that all the Turner factors favored the defendants, the Dehart court approvingly
described the cold rationality of what it labeled “the mass production of meals” (p. 265),
replete with bulk purchasing and bulk preparation. The meals “machine” gave inmates few
choices, with provision for “therapeutic diets” for diabetic inmates and the like, as well as
a “cold kosher bag” for Jewish inmates and a counterpart “bag” for Muslim inmates, the
contents of which could be supplied from the master menu (p. 265). By contrast, the plain-
tiff’s requested diet would require individualized preparation and food stuffs not on the
master menu—deviations that disqualified the plaintiff from the limited protections of a
“Turnerized” First Amendment, which mandates only efficient rights.
Since the demise of the hands-off doctrine, inmates have dressed a plethora of uncon-
ventional beliefs and practices in religious garb. In turn, lower federal courts have advanced
a host of tests to identify religious beliefs. Mushlin...