The Supreme Court's "prisoner Dilemma:" How Johnson, Rluipa, and Cutter Re-defined Inmate Constitutional Claims

• Publication year: 2021

86 Nebraska L. Rev. 279. The Supreme Court's "Prisoner Dilemma:" How Johnson, RLUIPA, and Cutter Re-Defined Inmate Constitutional Claims

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Michael Keegan*

The Supreme Court's "Prisoner Dilemma:" How Johnson, RLUIPA, and Cutter Re-Defined Inmate Constitutional Claims

TABLE OF CONTENTS

I. Introduction ................................................... 280 R
II. Setting the Stage: Turner v. Safley's "Reasonableness"
Test ........................................................... 283 R
A. Turner v. Safley and the "Reasonableness" Test .............. 283 R
B. O'Lone v. Estate of Shabazz.................................. 287 R
C. The Reasonableness Test in Action ........................... 289 R
III. Turner Rejected, Usurped, and then Reapplied ................... 295 R
A. Turner Rejected: Johnson v. California....................... 296 R
B. Turner Usurped: RLUIPA and Cutter v. Wilkinson............... 299 R
1. Employment Division v. Smith's Deferential Free Exercise Standard ........................................ 299 R
2. The Religious Freedom Restoration Act and City of Boerne v. Flores ...................................... 302 R
3. Congress Strikes Back: The Religious Land Use and Institutionalized Persons Act ........................ 303 R
4. The Petitioner's Claim in Cutter.......................... 306 R
5. Cutter's Reasoning ....................................... 308 R
C. Turner Reapplied: Beard v. Banks............................. 310 R
IV. The Practical Consequences of 2005: Uncertainty ................ 312 R
A. Categorical Application of the Reasonableness Test
Undermined by Johnson........................................ 313 R
B. Congressional Prerogative to Alter Scrutiny for
Inmate Claims ............................................... 317 R

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V. The Supreme Court's Decision in Johnson v. California
was Wrong ...................................................... 324 R
A. The Need for Deference in Johnson............................ 324 R
B. Application of Turner to Johnson's Claim .................... 328 R
VI. Turner at 20: Analysis ......................................... 330 R
A. Where Turner Fits into the Constitutional
Jurisprudence ............................................... 331 R
B. The Wisdom of Turner: How and Why the
"Reasonableness Test" Answers all Constitutional Inquiries for Prison Inmates ................................ 336 R
VII. Conclusion ..................................................... 345 R

I. INTRODUCTION

Prisoner rights litigation is a relatively recent phenomenon, taking root only in the latter half of the twentieth century. Since its inception, the Supreme Court consistently held firm on two propositions. First, prison inmates retain the protections of the Constitution, even though they are incarcerated. Second, corrections officials should be granted deference when dealing with the difficult task of running a prison. There is tension between the idea that prison administrators must be granted adequate leeway to operate the prison effectively, and that prisoners' constitutional rights must still be vindicated. In reconciling these competing principles, the Court has consistently ruled that inmates' claims are judged under less searching scrutiny than if those claims were filed by non-incarcerated individuals. This consistency, though, has been eroded by recent Congressional action and by the Court's 2005 decision in Johnson v. California.(fn1) These events have caused uncertainty in the area of prisoner rights, and Johnson did an inadequate job of distinguishing itself from earlier prisoner rights cases.

The Court's prisoner rights jurisprudence was distilled and organized in 1987 by Turner v. Safley.(fn2) In Turner, the Court was asked to consider two constitutional claims: the right of inmate-to-inmate correspondence and the right of an inmate to marry. In this seminal case, the Court first reviewed prior prisoner rights cases and determined that courts should grant deference to the officials charged with running the prisons. After distilling several principles from the relevant precedent, the Court articulated the four-pronged "reasonableness" test to examine inmate constitutional claims. The correspondence regulation at issue was found to pass the reasonableness test, while the marriage restriction was not. Just days later, the Court applied Turner's reasonableness test to a prisoner's free exer

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cise claim in O'Lone v. Estate of Shabazz.(fn3) The Court held that a regulation which prevented certain Islamic inmates from attending Jumu'ah services survived the reasonableness test from Turner. The subsequent inmate constitutional cases recognized that Turner had prescribed a unitary standard, and the Court consistently used the reasonableness test to evaluate each claim.

Recently, however, there have been changes to this landscape, opening up a "prisoner's dilemma" for inmate constitutional rights. In 2005, the Court decided two cases involving prisoners' constitutional rights. First, Johnson v. California determined that short-term racebased classifications must be evaluated using strict scrutiny. The California Department of Corrections employed an unwritten policy of temporarily housing new and transferred prisoners based largely on race. With Johnson, two lines of cases intersected: "prisoner rights" cases, which require Turner's reasonableness test, and racial equal protection cases, which call for strict scrutiny. The Court ruled that all racial classifications, including those in prisons, were subject to strict scrutiny. The Court's other 2005 case, Cutter v. Wilkinson,(fn4) involved inmate free exercise. The background to Cutter begins with Employment Division v. Smith,(fn5) a 1990 decision where the Court abandoned strict scrutiny for non-inmate free exercise claims (i.e., cases outside the prison context) in favor of a deferential facial review. After Congress's first attempt to neutralize the effects of Smith was rebuffed by the Court, Congress passed the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), which statutorily imposed strict scrutiny on inmate free exercise claims. In Cutter, the Court determined that passage of RLUIPA did not violate the Establishment Clause of the First Amendment. Thus, inmate free exercise claims would be evaluated using strict scrutiny, rather than Turner's reasonableness test. Then, in 2006, the Court once again used Turner to evaluate a constitutional claim in Beard v. Banks.(fn6) In Beard, the regulation at issue restricted an inmate's access to publications and photographs.

Part II of this Article discusses Turner v. Safley, O'Lone v. Estate of Shabazz, and the subsequent prisoner rights cases that followed the Turner standard. Part III discusses the 2005 cases, Johnson v. California and Cutter v. Wilkinson, including the run-up to the enactment of RLUIPA. It also includes the 2006 case Beard v. Banks.

Analysis begins in Part IV, which explores the practical consequences of Johnson and RLUIPA. In short, the once-uniform standard for prisoner constitutional claims has been undermined. Instead,

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there is uncertainty. Johnson offered inadequate guidance for when a departure from the unitary Turner standard may occur. Although citing relevant precedent for the use of strict scrutiny, the Court did a poor job of reconciling the Turner prisoner rights cases with the racebased equal protection cases. This Article will show that the Court's dismissal of Turner's precedent is ill-founded in light of the cases outlined in Part II. Second, RLUIPA shows Congress' prerogative to interfere in the realm of inmate claims. By invoking its spending power, Congress has effectively altered the scope of free exercise in prisons. Cutter permitted this action, finding that RLUIPA does not offend the Establishment Clause. This Article analyzes RLUIPA's Spending Clause underpinning and finds that, under the current test, Congress acted within its authority and would be permitted to statutorily heighten scrutiny for any other right.

What was hinted at in Part IV is stated outright in Part V, namely that Johnson v. California was wrongly decided. Both precedent and independent rationale evince that the Turner test is the appropriate standard of review. The reality of the situation in prisons, particularly events taking place after the Court's Johnson decision, underscores the need for deference to prison administrators. Using Justice Thomas' dissent in Johnson as a guide, this Article then analyzes the Johnson claim under the Turner standard. Ultimately, the measures should have passed muster.

Finally, Part VI makes several observations about, and evaluations of, the Turner test. Although Turner is consistently referred to as a "deferential" standard, a close reading of the test and its prongs reveals that Turner is, nonetheless, "heightened" scrutiny. The prongs from Turner effectively "ramp-up" what is otherwise labeled a "reasonableness" test. In addition, the Court's jurisprudence has complicated matters by discussing whether constitutional rights "survive" incarceration, and whether some rights are "consistent" with incarceration. Sometimes, it seems that a right's "survival" or "consistency" with incarceration is meant by the Court to be a threshold inquiry to whether Turner should even apply. This Article reconciles the statements made by the Court and concludes that the Turner test is the proper inquiry for whether rights "survive" in prison. A right's survival is co-extensive with the permissibility of the challenged regulation. A right's consistency with incarceration, on the other hand, is not a constitutional resolution, but a consideration of whether that right survives, or whether the regulation passes muster. Because Turner is a comprehensive test, there is no need...