The Supreme Court\u27s Prisoner Dilemma: How \u3ci\u3eJohnson\u3c/i\u3e, RLUIPA, and \u3ci\u3eCutter\u3c/i\u3e Re-Defined Inmate Constitutional Claims

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\u27 constitutional rights must still be vindicated. In reconciling these competing principles, the Court has consistently ruled that inmates\u27 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\u27s 2005 decision in Johnson v. California. 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\u27s prisoner rights jurisprudence was distilled and organized in 1987 by Turner v. Safley. 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\u27s reasonableness test to a prisoner\u27s free exercise claim in O\u27Lone v. Estate of Shabazz. The Court held that a regulation which prevented certain Islamic inmates from attending Jumu\u27ah 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\u27s dilemma for inmate constitutional rights. In 2005, the Court decided two cases involving prisoners\u27 constitutional rights. First, Johnson v. California determined that short-term race-based 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\u27s 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\u27s other 2005 case, Cutter v. Wilkinson, involved inmate free exercise. The background to Cutter begins with Employment Division v. Smith, 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\u27s 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\u27s reasonableness test. Then, in 2006, the Court once again used Turner to evaluate a constitutional claim in Beard v. Banks. In Beard, the regulation at issue restricted an inmate\u27s access to publications and photographs