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

Abstract

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 Congressional action and by the Court's 2005 decision in Johnson v. California.

The article begins with a survey of the Supreme Court’s jurisprudence with respect to inmate constitutional claims. Until 2005, the Court evaluated such cases using a unitary standard that was deferential to prison officials — Turner v. Safley’s “reasonableness” test. However, in 2005, the Court decided two cases involving prisoners’ constitutional rights: (1) Johnson v. California, which determined that short-term race-based classifications must be evaluated using strict scrutiny; and (2) Cutter v. Wilkinson, which upheld Congressionally-mandated strict scrutiny for inmate free exercise claims.

In Johnson, the California Department of Corrections employed an unwritten policy of temporarily assigning housing to new and transferred prisoners based largely on race. Here, two lines of cases intersected: “prisoner rights” cases, which required the use of Turner’s reasonableness test, and equal protection cases based on racial classifications, which called for strict scrutiny. The Court ruled that all racial classifications, including those in prisons, were subject to strict scrutiny.

The background to Cutter begins with Employment Division v. Smith, 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.

This article explores the practical consequences of Johnson and RLUIPA. In short, the once-uniform standard for prisoner constitutional claims has been undermined. Instead, 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 race-based equal protection cases. This Article demonstrates that the Court's dismissal of Turner's precedent is ill-founded in light of the Court’s prior inmate rights cases. 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.

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, this article 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 for threshold inquiries, and it remains the most fitting standard for inmate constitutional claims.

Keywords: inmate, prisoner, constitutional claims, constitutional rights, Johnson v. California, Cutter v. Wilkinson, RLUIPA, religious land use and institutionalized persons act