Respondents, prison inmates and members of the Islamic faith,
brought suit under 42 U.S.C. § 1983 contending that two policies
adopted by New Jersey prison officials prevented them from
attending Jumu'ah, a Muslim congregational service held on Friday
afternoons, and thereby violated their rights under the Free
Exercise Clause of the First Amendment. The first such policy,
Standard 853, required inmates in respondents' custody
classifications to work outside the buildings in which they were
housed and in which Jumu'ah was held, while the second, a policy
memorandum, prohibited inmates assigned to outside work from
returning to those buildings during the day. The Federal District
Court concluded that no constitutional violation had occurred, but
the Court of Appeals vacated and remanded, ruling that the prison
policies could be sustained only if the State showed that the
challenged regulations were intended to and did serve the
penological goal of security, and that no reasonable method existed
by which prisoners' religious rights could be accommodated without
creating bona fide security problems. The court also held that the
expert testimony of prison officials should be given due weight on,
but is not dispositive of, the accommodation issue.
Held:
1. The Court of Appeals erred in placing the burden on prison
officials to disprove the availability of alternative methods of
accommodating prisoners' religious rights. That approach fails to
reflect the respect and deference the Constitution allows for the
judgment of prison administrators. P.
482 U. S.
350.
2. The District Court's findings establish that the policies
challenged here are reasonably related to legitimate penological
interests, and therefore do not offend the Free Exercise Clause.
Both policies have a rational connection to the legitimate
governmental interests in institutional order and security invoked
to justify them, as is demonstrated by findings that Standard 853
was a response to critical overcrowding and was designed to ease
tension and drain on the facilities during that part of the day
when the inmates were outside, and that the policy memorandum was
necessary since returns from outside work details generated
congestion and delays at the main gate, a high-risk area, and since
the
Page 482 U. S. 343
need to decide return requests placed pressure on guards
supervising outside work details. Rehabilitative concerns also
support the policy memorandum, in light of testimony indicating
that corrections officials sought thereby to simulate working
conditions and responsibilities in society. Although the policies
at issue may prevent some Muslim prisoners from attending Jumu'ah,
their reasonableness is supported by the fact that they do not
deprive respondents of all forms of religious exercise, but instead
allow participation in a number of Muslim religious ceremonies.
Furthermore, there are no obvious, easy alternatives to the
policies, since both of respondents' suggested accommodations
would, in the judgment of prison officials, have adverse effects on
the prison institution. Placing all Muslim inmates in inside work
details would be inconsistent with the legitimate concerns
underlying Standard 853, while providing weekend labor for Muslims
would require extra supervision that would be a drain on scarce
human resources. Both proposed accommodations would also threaten
prison security by fostering "affinity groups" likely to challenge
institutional authority, while any special arrangements for one
group would create a perception of favoritism on the part of other
inmates. Pp.
482 U. S.
350-353.
3. Even where claims are made under the First Amendment, this
Court will not substitute its judgment on difficult and sensitive
matters of institutional administration for the determinations of
those charged with the formidable task of running a prison. P.
482 U. S.
353.
782 F.2d 416, reversed.
REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, POWELL, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J.,
filed a dissenting opinion, in which MARSHALL, BLACKMUN, and
STEVENS, JJ., joined,
post p.
482 U. S.
354.
Page 482 U. S. 344
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
This case requires us to consider once again the standard of
review for prison regulations claimed to inhibit the exercise of
constitutional rights. Respondents, members of the Islamic
Page 482 U. S. 345
faith, were prisoners in New Jersey's Leesburg State Prison.
[
Footnote 1] They challenged
policies adopted by prison officials which resulted in their
inability to attend Jumu'ah, a weekly Muslim congregational service
regularly held in the main prison building and in a separate
facility known as "the Farm." Jumu'ah is commanded by the Koran,
and must be held every Friday after the sun reaches its zenith and
before the Asr, or afternoon prayer.
See Koran 62:9-10;
Brief for Imam Jamil Abdullah Al-Amin
et al. as
Amici
Curiae 18-31. There is no question that respondents' sincerely
held religious beliefs compelled attendance at Jumu'ah. We hold
that the prison regulations here challenged did not violate
respondents' rights under the Free Exercise Clause of the First
Amendment to the United States Constitution.
Inmates at Leesburg are placed in one of three custody
classifications. Maximum security and "gang minimum" security
inmates are housed in the main prison building, and those with the
lowest classification -- full minimum -- live in "the Farm." Both
respondents were classified as gang minimum security prisoners when
this suit was filed, and respondent Mateen was later classified as
full minimum.
Several changes in prison policy prompted this litigation. In
April, 1983, the New Jersey Department of Corrections issued
Standard 853, which provided that inmates could no longer move
directly from maximum security to full minimum status, but were
instead required to first spend a period of time in the
intermediate gang minimum status. App. 147. This change was
designed to redress problems that had arisen when inmates were
transferred directly from the restrictive maximum security status
to full minimum status, with its markedly higher level of freedom.
Because of serious overcrowding in the main building, Standard 853
further mandated that gang minimum inmates ordinarily be assigned
jobs outside the main building.
Ibid. These inmates work
in details of 8 to 15 persons, supervised by one guard.
Page 482 U. S. 346
Standard 853 also required that full minimum inmates work
outside the main institution, whether on or off prison grounds, or
in a satellite building such as the Farm.
Ibid.
Corrections officials at Leesburg implemented these policies
gradually and, as the District Court noted, with some difficulty.
Shabazz v. O'Lone, 595 F.
Supp. 928, 929 (NJ 1984). In the initial stages of outside work
details for gang minimum prisoners, officials apparently allowed
some Muslim inmates to work inside the main building on Fridays so
that they could attend Jumu'ah. This alternative was eventually
eliminated in March, 1984, in light of the directive of Standard
853 that all gang minimum inmates work outside the main
building.
Significant problems arose with those inmates assigned to
outside work details. Some avoided reporting for their assignments,
while others found reasons for returning to the main building
during the course of the workday (including their desire to attend
religious services). Evidence showed that the return of prisoners
during the day resulted in security risks and administrative
burdens that prison officials found unacceptable. Because details
of inmates were supervised by only one guard, the whole detail was
forced to return to the main gate when one prisoner desired to
return to the facility. The gate was the site of all incoming foot
and vehicle traffic during the day, and prison officials viewed it
as a high security risk area. When an inmate returned, vehicle
traffic was delayed while the inmate was logged in and
searched.
In response to these burdens, Leesburg officials took steps to
ensure that those assigned to outside details remained there for
the whole day. Thus, arrangements were made to have lunch and
required medications brought out to the prisoners, and appointments
with doctors and social workers were scheduled for the late
afternoon. These changes proved insufficient, however, and prison
officials began to study alternatives. After consulting with the
director of social services, the director of professional services,
and the
Page 482 U. S. 347
prison's imam and chaplain, prison officials in March, 1984,
issued a policy memorandum which prohibited inmates assigned to
outside work details from returning to the prison during the day
except in the case of emergency.
The prohibition of returns prevented Muslims assigned to outside
work details from attending Jumu'ah. Respondents filed suit under
42 U.S.C. § 1983, alleging that the prison policies
unconstitutionally denied them their Free Exercise rights under the
First Amendment, as applied to the States through the Fourteenth
Amendment. The District Court, applying the standards announced in
an earlier decision of the Court of Appeals for the Third Circuit,
concluded that no constitutional violation had occurred. The
District Court decided that Standard 853 and the March, 1984,
prohibition on returns "plausibly advance" the goals of security,
order, and rehabilitation. 595 F. Supp. at 934. It rejected
alternative arrangements suggested by respondents, finding that "no
less restrictive alternative could be adopted without potentially
compromising a legitimate institutional objective."
Ibid.
The Court of Appeals,
sua sponte hearing the case en
banc, decided that its earlier decision relied upon by the District
Court was not sufficiently protective of prisoners' free exercise
rights, and went on to state that prison policies could be
sustained only if:
"the state . . . show[s] that the challenged regulations were
intended to serve, and do serve, the important penological goal of
security, and that no reasonable method exists by which
[prisoners'] religious rights can be accommodated without creating
bona fide security problems. The expert testimony of prison
officials should be given due weight, but such testimony is not
dispositive of the issue whether no reasonable adjustment is
possible. . . . Where it is found that reasonable methods of
accommodation can be adopted without sacrificing either the state's
interest in security or the prisoners'
Page 482 U. S. 348
in freely exercising their religious rights, the state's refusal
to allow the observance of a central religious practice cannot be
justified, and violates the prisoner's first amendment rights."
Shabazz v. O'Lone, 782 F.2d 416, 420 (CA3 1986)
(footnotes omitted).
In considering whether a potential method of accommodation is
reasonable, the court added, relevant factors include cost, the
effects of overcrowding, understaffing, and inmates' demonstrated
proclivity to unruly conduct.
See id. at 420, n. 3. The
case was remanded to the District Court for reconsideration under
the standards enumerated in the opinion. We granted certiorari to
consider the important federal constitutional issues presented by
the Court of Appeals' decision, and to resolve apparent confusion
among the Courts of Appeals on the proper standards to be applied
in considering prisoners' free exercise claims. 479 U.S. 881
(1986).
Several general principles guide our consideration of the issues
presented here. First, "convicted prisoners do not forfeit all
constitutional protections by reason of their conviction and
confinement in prison."
Bell v. Wolfish, 441 U.
S. 520, 545 (1979).
See Turner v. Safley, ante
at
482 U. S. 84;
Jones v. North Carolina Prisoners' Labor Union, Inc.,
433 U. S. 119,
433 U. S. 129
(1977). Inmates clearly retain protections afforded by the First
Amendment,
Pell v. Procunier, 417 U.
S. 817,
417 U. S. 822
(1974), including its directive that no law shall prohibit the free
exercise of religion.
See Cruz v. Beto, 405 U.
S. 319 (1972) (per curiam). Second,
"[l]awful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction justified by
the considerations underlying our penal system."
Price v. Johnston, 334 U. S. 266,
334 U. S. 285
(1948). The limitations on the exercise of constitutional rights
arise both from the fact of incarceration and from valid
penological objectives -- including deterrence of crime,
rehabilitation of prisoners, and institutional security.
Pell
v. Procunier, supra, at
417 U. S.
822-823;
Procunier v. Martinez, 416 U.
S. 396,
416 U. S. 412
(1974).
Page 482 U. S. 349
In considering the appropriate balance of these factors, we have
often said that evaluation of penological objectives is committed
to the considered judgment of prison administrators, "who are
actually charged with and trained in the running of the particular
institution under examination."
Bell v. Wolfish, supra, at
441 U. S. 562.
See Turner v. Safley, ante at
482 U. S. 86-87.
To ensure that courts afford appropriate deference to prison
officials, we have determined that prison regulations alleged to
infringe constitutional rights are judged under a "reasonableness"
test less restrictive than that ordinarily applied to alleged
infringements of fundamental constitutional rights.
See, e.g.,
Jones v. North Carolina Prisoners' Labor Union, Inc., supra,
at
433 U. S. 128.
We recently restated the proper standard:
"[W]hen a prison regulation impinges on inmates' constitutional
rights, the regulation is valid if it is reasonably related to
legitimate penological interests."
Turner v. Safley, ante at
482 U. S. 89.
[
Footnote 2] This approach
ensures the ability of corrections officials "to anticipate
security problems and to adopt innovative solutions to the
intractable problems of prison administration,"
ibid., and
avoids unnecessary intrusion of the judiciary into problems
particularly
Page 482 U. S. 350
ill-suited to "resolution by decree."
Procunier v. Martinez,
supra, at
416 U. S. 405.
See also Turner v. Safley, ante at
482 U. S. 89;
Bell v. Wolfish, supra, at
441 U. S.
548.
We think the Court of Appeals decision in this case was wrong
when it established a separate burden on prison officials to
prove
"that no reasonable method exists by which [prisoners']
religious rights can be accommodated without creating bona fide
security problems."
782 F.2d at 420.
See also id. at 419 (prison officials
should be required "to produce convincing evidence that they are
unable to satisfy their institutional goals in any way that does
not infringe inmates' free exercise rights"). Though the
availability of accommodations is relevant to the reasonableness
inquiry, we have rejected the notion that
"prison officials . . . have to set up and then shoot down every
conceivable alternative method of accommodating the claimant's
constitutional complaint."
Turner v. Safley, ante at
482 U. S. 90-91.
By placing the burden on prison officials to disprove the
availability of alternatives, the approach articulated by the Court
of Appeals fails to reflect the respect and deference that the
United States Constitution allows for the judgment of prison
administrators.
Turning to consideration of the policies challenged in this
case, we think the findings of the District Court establish clearly
that prison officials have acted in a reasonable manner.
Turner
v. Safley drew upon our previous decisions to identify several
factors relevant to this reasonableness determination. First, a
regulation must have a logical connection to legitimate
governmental interests invoked to justify it.
Ante at
482 U. S. 89-90.
The policies at issue here clearly meet that standard. The
requirement that full minimum and gang minimum prisoners work
outside the main facility was justified by concerns of
institutional order and security, for the District Court found that
it was
"at least in part a response to a critical overcrowding in the
state's prisons, and . . . at least in part designed to ease
tension and drain on the facilities
Page 482 U. S. 351
during that part of the day when the inmates were outside the
confines of the main buildings."
595 F. Supp. at 929. We think it beyond doubt that the standard
is related to this legitimate concern.
The subsequent policy prohibiting returns to the institution
during the day also passes muster under this standard. Prison
officials testified that the returns from outside work details
generated congestion and delays at the main gate, a high-risk area
in any event. Return requests also placed pressure on guards
supervising outside details, who previously were required to
"evaluate each reason possibly justifying a return to the
facilities and either accept or reject that reason."
Id.
at 931. Rehabilitative concerns further supported the policy;
corrections officials sought a simulation of working conditions and
responsibilities in society. Chief Deputy Ucci testified:
"One of the things that society demands or expects is that, when
you have a job, you show up on time, you put in your eight hours,
or whatever hours you are supposed to put in, and you don't get
off. . . . If we can show inmates that they're supposed to show up
for work and work a full day, then, when they get out, at least
we've done something."
Tr. 89. These legitimate goals were advanced by the prohibition
on returns; it cannot seriously be maintained that "the logical
connection between the regulation and the asserted goal is so
remote as to render the policy arbitrary or irrational."
Turner
v. Safley, ante at
482 U. S.
89-90.
Our decision in
Turner also found it relevant that
"alternative means of exercising the right . . . remain open to
prison inmates."
Ante at
482 U. S. 90.
There are, of course, no alternative means of attending Jumu'ah;
respondents' religious beliefs insist that it occur at a particular
time. But the very stringent requirements as to the time at which
Jumu'ah may be held may make it extraordinarily difficult for
prison officials to assure that every Muslim prisoner is able to
attend that service. While we in no way minimize the central
importance of Jumu'ah to respondents, we are unwilling to hold that
prison
Page 482 U. S. 352
officials are required by the Constitution to sacrifice
legitimate penological objectives to that end. In
Turner,
we did not look to see whether prisoners had other means of
communicating with fellow inmates, but instead examined whether the
inmates were deprived of "all means of expression."
Ante
at
482 U. S. 92.
Here, similarly, we think it appropriate to see whether, under
these regulations, respondents retain the ability to participate in
other Muslim religious ceremonies. The record establishes that
respondents are not deprived of all forms of religious exercise,
but instead freely observe a number of their religious obligations.
The right to congregate for prayer or discussion is "virtually
unlimited except during working hours," Tr. 182 (testimony of
O'Lone), and the state-provided imam has free access to the prison.
Muslim prisoners are given different meals whenever pork is served
in the prison cafeteria. Special arrangements are also made during
the month-long observance of Ramadan, a period of fasting and
prayer. During Ramadan, Muslim prisoners are awakened at 4 a.m. for
an early breakfast, and receive dinner at 8:30 each evening. We
think this ability on the part of respondents to participate in
other religious observances of their faith supports the conclusion
that the restrictions at issue here were reasonable.
Finally, the case for the validity of these regulations is
strengthened by examination of the impact that accommodation of
respondents' asserted right would have on other inmates, on prison
personnel, and on allocation of prison resources generally.
See
Turner v. Safley, ante at
482 U. S. 90.
Respondents suggest several accommodations of their practices,
including placing all Muslim inmates in one or two inside work
details or providing weekend labor for Muslim inmates.
See
Brief for Respondents 52-53. As noted by the District Court,
however, each of respondents' suggested accommodations would, in
the judgment of prison officials, have adverse effects on the
institution. Inside work details for gang minimum inmates would be
inconsistent with the legitimate concerns
Page 482 U. S. 353
underlying Standard 853, and the District Court found that the
extra supervision necessary to establish weekend details for Muslim
prisoners "would be a drain on scarce human resources" at the
prison. 595 F. Supp. at 932. Prison officials determined that the
alternatives would also threaten prison security by allowing
"affinity groups" in the prison to flourish. Administrator O'Lone
testified that
"we have found out and think almost every prison administrator
knows that any time you put a group of individuals together with
one particular affinity interest . . . you wind up with . . . a
leadership role and an organizational structure that will almost
invariably challenge the institutional authority."
Tr. 179-180. Finally, the officials determined that special
arrangements for one group would create problems as "other inmates
[see] that a certain segment is escaping a rigorous work detail"
and perceive favoritism.
Id. at 178-179. These concerns of
prison administrators provide adequate support for the conclusion
that accommodations of respondents' request to attend Jumu'ah would
have undesirable results in the institution. These difficulties
also make clear that there are no "obvious, easy alternatives to
the policy adopted by petitioners."
Turner v. Safley, ante
at
482 U. S.
93.
We take this opportunity to reaffirm our refusal, even where
claims are made under the First Amendment, to "substitute our
judgment on . . . difficult and sensitive matters of institutional
administration,"
Block v. Rutherford, 468 U.
S. 576,
468 U. S. 588
(1984), for the determinations of those charged with the formidable
task of running a prison. Here the District Court decided that the
regulations alleged to infringe constitutional rights were
reasonably related to legitimate penological objectives. We agree
with the District Court, and it necessarily follows that the
regulations in question do not offend the Free Exercise Clause of
the First Amendment to the United States Constitution. The judgment
of the Court of Appeals is therefore
Reversed.
Page 482 U. S. 354
[
Footnote 1]
Respondent Shabazz died on January 15, 1986.
[
Footnote 2]
Our decision in
Turner v. Safley rejected respondents'
principal argument in this case -- that more rigorous scrutiny is
appropriate unless a court can conclude that the activity for which
prisoners seek protection is "presumptively dangerous."
See Brief for Respondents 30.
See also Abdul Wali v.
Coughlin, 754 F.2d 1015, 1033 (CA2 1985). As we noted in
Turner, ante at
482 U. S.
89,
"[t]he determination that an activity is 'presumptively
dangerous' appears simply to be a conclusion about the
reasonableness of the prison restriction in light of the
articulated security concerns. It therefore provides a tenuous
basis for creating a hierarchy of standards of review."
Nor are we convinced that heightened scrutiny is appropriate
whenever regulations effectively prohibit, rather than simply
limit, a particular exercise of constitutional rights.
See
Brief for Respondents 30. As
Turner makes clear, the
presence or absence of alternative accommodations of prisoners'
rights is properly considered a factor in the reasonableness
analysis, rather than a basis for heightened scrutiny.
See
Turner, ante at
482 U. S. 88,
482 U. S.
90-91.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE STEVENS join, dissenting.
The religious ceremony that these respondents seek to attend is
not presumptively dangerous, and the prison has completely
foreclosed respondents' participation in it. I therefore would
require prison officials to demonstrate that the restrictions they
have imposed are necessary to further an important government
interest, and that these restrictions are no greater than necessary
to achieve prison objectives.
See Turner v. Safley, ante
at
482 U. S. 101,
n. 1 (STEVENS, J., concurring in part and dissenting in part)
(citing
Abdul Wali v. Coughlin, 754 F.2d 1015 (CA2 1985)).
As a result, I would affirm the Court of Appeals' order to remand
the case to the District Court, and would require prison officials
to make this showing. Even were I to accept the Court's standard of
review, however, I would remand the case to the District Court,
since that court has not had the opportunity to review respondents'
claim under the new standard established by this Court in
Turner. As the record now stands, the reasonableness of
foreclosing respondents' participation in Jumu'ah has not been
established.
I
Prisoners are persons whom most of us would rather not think
about. Banished from everyday sight, they exist in a shadow world
that only dimly enters our awareness. They are members of a "total
institution" [
Footnote 2/1] that
controls their daily existence in a way that few of us can
imagine:
"[P]rison is a complex of physical arrangements and of measures,
all wholly governmental, all wholly performed by agents of
government, which determine the total existence of certain human
beings (except perhaps in the realm of the spirit, and inevitably
there as well) from sundown to sundown, sleeping, waking, speaking,
silent,
Page 482 U. S. 355
working, playing, viewing, eating, voiding, reading, alone, with
others. It is not so, with members of the general adult population.
State governments have not undertaken to require members of the
general adult population to rise at a certain hour, retire at a
certain hour, eat at certain hours, live for periods with no
companionship whatever, wear certain clothing, or submit to oral
and anal searches after visiting hours, nor have state governments
undertaken to prohibit members of the general adult population from
speaking to one another, wearing beards, embracing their spouses,
or corresponding with their lovers."
Morales v. Schmidt, 340 F.
Supp. 544, 550 (WD Wis.1972).
It is thus easy to think of prisoners as members of a separate
netherworld, driven by its own demands, ordered by its own customs,
ruled by those whose claim to power rests on raw necessity. Nothing
can change the fact, however, that the society that these prisoners
inhabit is our own. Prisons may exist on the margins of that
society, but no act of will can sever them from the body politic.
When prisoners emerge from the shadows to press a constitutional
claim, they invoke no alien set of principles drawn from a distant
culture. Rather, they speak the language of the charter upon which
all of us rely to hold official power accountable. They ask us to
acknowledge that power exercised in the shadows must be restrained
at least as diligently as power that acts in the sunlight.
In reviewing a prisoner's claim of the infringement of a
constitutional right, we must therefore begin from the premise
that, as members of this society, prisoners retain constitutional
rights that limit the exercise of official authority against them.
See Bell v. Wolfish, 441 U. S. 520,
441 U. S. 545
(1979). At the same time, we must acknowledge that incarceration,
by its nature, changes an individual's status in society. Prison
officials have the difficult and often thankless job of preserving
security in a potentially explosive setting,
Page 482 U. S. 356
as well as of attempting to provide rehabilitation that prepares
some inmates for reentry into the social mainstream. Both these
demands require the curtailment and elimination of certain
rights.
The challenge for this Court is to determine how best to protect
those prisoners' rights that remain. Our objective in selecting a
standard of review is therefore not, as the Court declares, "[t]o
ensure that courts afford appropriate deference to prison
officials."
Ante at
482 U. S. 349.
The Constitution was not adopted as a means of enhancing the
efficiency with which government officials conduct their affairs,
nor as a blueprint for ensuring sufficient reliance on
administrative expertise. Rather, it was meant to provide a bulwark
against infringements that might otherwise be justified as
necessary expedients of governing. The practice of Europe, wrote
James Madison, was "charters of liberty . . . granted by power"; of
America, "charters of power granted by liberty." 6 Writings of
James Madison 83 (G. Hunt ed.1906). While we must give due
consideration to the needs of those in power, this Court's role is
to ensure that fundamental
restraints on that power are
enforced.
In my view, adoption of "reasonableness" as a standard of review
for
all constitutional challenges by inmates is inadequate
to this task. Such a standard is categorically deferential, and
does not discriminate among degrees of deprivation. From this
perspective, restricting use of the prison library to certain hours
warrants the same level of scrutiny as preventing inmates from
reading at all. Various "factors" may be weighed differently in
each situation, but the message to prison officials is clear:
merely act "reasonably" and your actions will be upheld. If a
directive that officials act "reasonably" were deemed sufficient to
check all exercises of power, the Constitution would hardly be
necessary. Yet the Court deems this single standard adequate to
restrain
any type of conduct in which prison officials
might engage.
Page 482 U. S. 357
It is true that the degree of deprivation is one of the factors
in the Court's reasonableness determination. This, by itself, does
not make the standard of review appropriate, however. If it did, we
would need but a single standard for evaluating all constitutional
claims, as long as every relevant factor were considered under its
rubric. Clearly, we have never followed such an approach. A
standard of review frames the terms in which justification may be
offered, and thus delineates the boundaries within which argument
may take place. [
Footnote 2/2] The
use of differing levels of scrutiny proclaims that, on some
occasions, official power must justify itself in a way that
otherwise it need not. A relatively strict standard of review is a
signal that a decree prohibiting a political demonstration on the
basis of the participants' political beliefs is of more serious
concern, and therefore will be scrutinized more closely, than a
rule limiting the number of demonstrations that may take place
downtown at noon.
Thus, even if the absolute nature of the deprivation may be
taken into account in the Court's formulation, it makes a
difference that this is merely one factor in determining if
official conduct is "reasonable." Once we provide such an elastic
and deferential principle of justification,
"[t]he principle . . . lies about like a loaded weapon ready for
the hand of any authority that can bring forth a plausible claim of
an urgent need. Every repetition imbeds that principle more deeply
in our law and thinking, and expands it to new purposes."
Korematsu v. United States, 323 U.
S. 214,
323 U. S. 246
(1944) (Jackson, J.,
Page 482 U. S. 358
dissenting). Mere assertions of exigency have a way of providing
a colorable defense for governmental deprivation, and we should be
especially wary of expansive delegations of power to those who
wield it on the margins of society. Prisons are too often shielded
from public view; there is no need to make them virtually
invisible.
An approach better suited to the sensitive task of protecting
the constitutional rights of inmates is laid out by Judge Kaufman
in
Abdul Wali v. Coughlin, 754 F.2d 1015 (CA2 1985). That
approach maintains that the degree of scrutiny of prison
regulations should depend on
"the nature of the right being asserted by prisoners, the type
of activity in which they seek to engage, and whether the
challenged restriction works a total deprivation (as opposed to a
mere limitation) on the exercise of that right."
Id. at 1033. Essentially, if the activity in which
inmates seek to engage is presumptively dangerous, or if a
regulation merely restricts the time, place, or manner in which
prisoners may exercise a right, a prison regulation will be
invalidated only if there is no reasonable justification for
official action.
Ibid. Where exercise of the asserted
right is not presumptively dangerous, however, and where the prison
has completely deprived an inmate of that right, then prison
officials must show that
"a particular restriction is necessary to further an important
governmental interest, and that the limitations on freedoms
occasioned by the restrictions are no greater than necessary to
effectuate the governmental objective involved."
Ibid.
The court's analytical framework in
Abdul Wali
recognizes that, in many instances, it is inappropriate for courts
"to substitute our judgments for those of trained professionals
with years of first-hand experience."
Ibid. It would thus
apply a standard of review identical to the Court's
"reasonableness" standard in a significant percentage of cases. At
the same time, the
Abdul Wali approach takes seriously the
Constitution's function of requiring that official power be called
to account when it completely deprives a person of a right that
Page 482 U. S. 359
society regards as basic. In this limited number of cases, it
would require more than a demonstration of "reasonableness" to
justify such infringement. To the extent that prison is meant to
inculcate a respect for social and legal norms, a requirement that
prison officials persuasively demonstrate the need for the absolute
deprivation of inmate rights is consistent with that end.
Furthermore, prison officials are in control of the evidence that
is essential to establish the superiority of such deprivation over
other alternatives. It is thus only fair for these officials to be
held to a stringent standard of review in such extreme cases.
The prison in this case has completely prevented respondent
inmates from attending the central religious service of their
Muslim faith. I would therefore hold prison officials to the
standard articulated in
Abdul Wali, and would find their
proffered justifications wanting. The State has neither
demonstrated that the restriction is necessary to further an
important objective nor proved that less extreme measures may not
serve its purpose. Even if I accepted the Court's standard of
review, however, I could not conclude on this record that prison
officials have proved that it is reasonable to preclude respondents
from attending Jumu'ah. Petitioners have provided mere
unsubstantiated assertions that the plausible alternatives proposed
by respondents are infeasible.
II
In
Turner, the Court set forth a framework for
reviewing allegations that a constitutional right has been
infringed by prison officials. The Court found relevant to that
review "whether there are alternative means of exercising the right
that remain open to prison inmates."
Ante at
482 U. S. 90.
The Court in this case acknowledges that "respondents' sincerely
held religious beliefs compe[l] attendance at Jumu'ah,"
ante at
482 U. S. 345,
and concedes that there are "no alternative means of attending
Jumu'ah."
Ante at
482 U. S. 351. Nonetheless, the Court finds that prison
policy does not work a complete
Page 482 U. S. 360
deprivation of respondents' asserted religious right, because
respondents have the opportunity to participate in other religious
activities.
Ante at
482 U. S. 352.
This analysis ignores the fact that, as the District Court found,
Jumu'ah is the central religious ceremony of Muslims, "comparable
to the Saturday service of the Jewish faith and the Sunday service
of the various Christian sects."
Shabazz v.
O'Lone, 595 F.
Supp. 928, 930 (NJ 1984). As with other faiths, this ceremony
provides a special time in which Muslims "assert their identity as
a community covenanted to God." Brief for Imam Jamil Abdullah
Al-Amin
et al. as
Amici Curiae 32. As a
result:
"unlike other Muslim prayers, which are performed individually
and can be made up if missed, the Jumu'ah is obligatory, cannot be
made up, and must be performed in congregation. The Jumu'ah is
therefore regarded as the central service of the Muslim religion,
and the obligation to attend is commanded by the Qur'an, the
central book of the Muslim religion."
595 F. Supp. at 930.
Jumu'ah therefore cannot be regarded as one of several
essentially fungible religious practices. The ability to engage in
other religious activities cannot obscure the fact that the denial
at issue in this case is absolute: respondents are completely
foreclosed from participating in the core ceremony that reflects
their membership in a particular religious community. If a Catholic
prisoner were prevented from attending Mass on Sunday, few would
regard that deprivation as anything but absolute, even if the
prisoner were afforded other opportunities to pray, to discuss the
Catholic faith with others, and even to avoid eating meat on Friday
if that were a preference. Prison officials in this case therefore
cannot show that "
other avenues' remain available for the
exercise of the asserted right." Turner, ante at
482 U. S. 90
(quoting Jones v. North Carolina Prisoners' Union,
433 U. S. 119,
433 U. S. 131
(1977)).
Under the Court's approach, as enunciated in
Turner,
the availability of other means of exercising the right in
question
Page 482 U. S. 361
counsels considerable deference to prison officials.
Ante at
482 U. S. 90. By
the same token, the infliction of an absolute deprivation should
require more than mere assertion that such a deprivation is
necessary. In particular,
"the existence of obvious, easy alternatives may be evidence
that the regulation is not reasonable, but is an 'exaggerated
response' to prison concerns."
Ibid. In this case, petitioners have not established
the reasonableness of their policy, because they have provided only
bare assertions that the proposals for accommodation offered by
respondents are infeasible. As discussed below, the federal policy
of permitting inmates in federal prisons to participate in Jumu'ah,
as well as Leesburg's own policy of permitting participation for
several years, lends plausibility to respondents' suggestion that
their religious practice can be accommodated.
In
Turner, the Court found that the practices of the
Federal Bureau of Prisons were relevant to the availability of
reasonable alternatives to the policy under challenge. [
Footnote 2/3] In upholding a ban on
inmate-to-inmate mail, the Court noted that the Bureau had adopted
"substantially similar restrictions."
Ante at
482 U. S. 93
(citing 28 CFR § 540.17 (1986)). In finding that there were
alternatives to a stringent restriction on the ability to marry,
the Court observed that marriages by inmates in federal prisons
were generally permitted absent a threat to security or public
safety.
See ante at
482 U. S. 97
(citing 28 CFR § 551.10 (1986)). In the present case, it is
therefore worth noting that Federal Bureau of Prisons regulations
require the adjustment of work assignments to permit inmate
participation in religious ceremonies, absent a threat to
"security, safety, and good order." 28 CFR § 548.14 (1986). The
Bureau's Directive implementing the regulations on Religious
Beliefs and Practices of Committed Offenders,
Page 482 U. S. 362
28 CFR §§ 548.10-548.15 (1986), states that, with respect to
scheduling religious observances,
"[t]he more central the religious activity is to the tenets of
the inmate's religious faith, the greater the presumption is for
relieving the inmate from the institution program or
assignment."
App. to Brief for Respondents 8a. Furthermore, the Chaplain
Director of the Bureau has spoken directly to the issue of
participation of Muslim inmates in Jumu'ah:
"Provision is made, by policy, in all Bureau facilities for the
observance of Jumu-ah by all inmates in general population who wish
to keep this faith practice. The service is held each Friday
afternoon in the general time frame that corresponds to the
requirements of Islamic jurisprudence. . . ."
"Subject only to restraints of security and good order in the
institution, all routine and normal work assignments are suspended
for the Islamic inmates to ensure freedom to attend such services.
. . ."
"In those institutions where the outside work details contain
Islamic inmates, they are permitted access to the inside of the
institution to attend the Jumu-ah."
Id. at 1a.
That Muslim inmates are able to participate in Jumu'ah
throughout the entire federal prison system suggests that the
practice is, under normal circumstances, compatible with the
demands of prison administration. [
Footnote 2/4] Indeed, the Leesburg State Prison
permitted participation in this ceremony for five years, and
experienced no threats to security or safety as a result. In light
of both standard federal prison practice and Leesburg's own past
practice, a reasonableness test in this
Page 482 U. S. 363
case demands at least minimal substantiation by prison officials
that alternatives that would permit participation in Jumu'ah are
infeasible. [
Footnote 2/5] Under
the standard articulated by the Court in
Turner, this does
not mean that petitioners are responsible for identifying and
discrediting these alternatives;
"prison officials do not have to set up and then shoot down
every conceivable alternative method of accommodating the
claimant's constitutional complaint."
Ante at
482 U. S. 90-91.
When prisoners themselves present alternatives, however, and when
they fairly call into question official claims that these
alternatives are infeasible, we must demand at least some evidence
beyond mere assertion that the religious practice at issue cannot
be accommodated. Examination of the alternatives proposed in this
case indicates that prison officials have not provided such
substantiation.
III
Respondents' first proposal is that gang minimum prisoners be
assigned to an alternative inside work detail on Friday, as they
had been before the recent change in policy. Prison officials
testified that the alternative work detail is now restricted to
maximum security prisoners, and that they did not wish maximum and
minimum security prisoners to
Page 482 U. S. 364
mingle. Even the District Court had difficulty with this
assertion, as it commented that
"[t]he defendants did not explain why inmates of different
security levels are not mixed on work assignments when otherwise
they are mixed."
595 F. Supp. at 932. The court found, nonetheless, that this
alternative would be inconsistent with Standard 853's mandate to
move gang minimum inmates to outside work details.
Ibid.
This conclusion, however, neglects the fact that the very issue is
whether the prison's policy, of which Standard 853 is a part,
should be administered so as to accommodate Muslim inmates. The
policy itself cannot serve as a justification for its failure to
provide reasonable accommodation. The record, as it now stands,
thus does not establish that the Friday alternative work detail
would create a problem for the institution.
Respondents' second proposal is that gang minimum inmates be
assigned to work details inside the main building on a regular
basis. While admitting that the prison used inside details in the
kitchen, bakery, and tailor shop, officials stated that these jobs
are reserved for the riskiest gang minimum inmates, for whom an
outside job might be unwise.
Ibid. Thus, concluded
officials, it would be a bad idea to move these inmates outside to
make room for Muslim gang minimum inmates. Respondents contend,
however, that the prison's own records indicate that there are a
significant number of jobs inside the institution that could be
performed by inmates posing a lesser security risk. This suggests
that it might not be necessary for the riskier gang minimum inmates
to be moved outside to make room for the less risky inmates.
Officials provided no data on the number of inside jobs available,
the number of high-risk gang minimum inmates performing them, the
number of Muslim inmates that might seek inside positions, or the
number of staff that would be necessary to monitor such an
arrangement. Given the plausibility of respondents' claim, prison
officials should present at least
Page 482 U. S. 365
this information in substantiating their contention that inside
assignments are infeasible.
Third, respondents suggested that gang minimum inmates be
assigned to Saturday or Sunday work details, which would allow them
to make up any time lost by attending Jumu'ah on Friday. While
prison officials admitted the existence of weekend work details,
they stated that,
"[s]ince prison personnel are needed for other programs on
weekends, the creation of additional weekend details would be a
drain on scarce human resources."
Ibid. The record provides no indication, however, of
the number of Muslims that would seek such a work detail, the
current number of weekend details, or why it would be infeasible
simply to reassign current Saturday or Sunday workers to Friday,
rather than create additional details. The prison is able to
arrange work schedules so that Jewish inmates may attend services
on Saturday and Christian inmates may attend services on Sunday.
Id. at 935. Despite the fact that virtually all inmates
are housed in the main building over the weekend, so that the
demand on the facility is greater than at any other time, the
prison is able to provide sufficient staff coverage to permit
Jewish and Christian inmates to participate in their central
religious ceremonies. Given the prison's duty to provide Muslims
a
"reasonable opportunity of pursuing [their] faith comparable to
the opportunity afforded fellow prisoners who adhere to
conventional religious precepts,"
Cruz v. Beto, 405 U. S. 319,
405 U. S. 322
(1972), prison officials should be required to provide more than
mere assertions of the infeasibility of weekend details for Muslim
inmates.
Finally, respondents proposed that minimum security inmates
living at the Farm be assigned to jobs either in the Farm building
or in its immediate vicinity. Since Standard 853 permits such
assignments for full minimum inmates, and since such inmates need
not return to prison facilities through the main entrance, this
would interfere neither with Standard 853 nor the concern
underlying the no-return policy. [
Footnote 2/6]
Page 482 U. S. 366
Nonetheless, prison officials stated that such an arrangement
might create an "affinity group" of Muslims representing a threat
to prison authority. Officials pointed to no such problem in the
five years in which Muslim inmates were permitted to assemble for
Jumu'ah, and in which the alternative Friday work detail was in
existence. Nor could they identify any threat resulting from the
fact that, during the month of Ramadan, all Muslim prisoners
participate in both breakfast and dinner at special times.
[
Footnote 2/7] Furthermore, there
was no testimony that the concentration of Jewish or Christian
inmates on work details or in religious services posed any type of
"affinity group" threat. As the record now stands, prison officials
have declared that a security risk is created by a grouping of
Muslim inmates in the least dangerous security classification, but
not by a grouping of maximum security inmates who are concentrated
in a work detail inside the main building, and who are the only
Muslims assured of participating in Jumu'ah. Surely, prison
officials should be required to provide at least some
substantiation for this facially implausible contention.
Petitioners also maintained that the assignment of full minimum
Muslim inmates to the Farm or its near vicinity might provoke
resentment because of other inmates' perception that Muslims were
receiving special treatment. Officials pointed to no such
perception during the period in which the alternative Friday detail
was in existence, nor to any resentment of the fact that Muslims'
dietary preferences are accommodated and that Muslims are permitted
to operate on a special schedule during the month of Ramadan. Nor
do they identify any such problems created by the accommodation
of
Page 482 U. S. 367
the religious preferences of inmates of other faiths. Once
again, prison officials should be required at a minimum to identify
the basis for their assertions.
Despite the plausibility of the alternatives proposed by
respondents in light of federal practice and the prison's own past
practice, officials have essentially provided mere pronouncements
that such alternatives are not workable. If this Court is to take
seriously its commitment to the principle that "[p]rison walls do
not form a barrier separating prison inmates from the protections
of the Constitution,"
Turner, ante at
482 U. S. 84, it
must demand more than this record provides to justify a Muslim
inmate's complete foreclosure from participation in the central
religious service of the Muslim faith.
IV
That the record in this case contains little more than
assertions is not surprising in light of the fact that the District
Court proceeded on the basis of the approach set forth in
St.
Claire v. Cuyler, 634 F.2d 109 (CA3 1980). That case held that
mere "sincer[e]" and "arguably correct" testimony by prison
officials is sufficient to demonstrate the need to limit prisoners'
exercise of constitutional rights.
Id. at 114 (quoting
Jones, 433 U.S. at
433 U. S.
127). This Court in
Turner, ante p.
482 U. S. 78,
however, set forth a more systematic framework for analyzing
challenges to prison regulations.
Turner directed
attention to two factors of particular relevance to this case: the
degree of constitutional deprivation and the availability of
reasonable alternatives. The respondents in this case have been
absolutely foreclosed from participating in the central religious
ceremony of their Muslim faith. At least a colorable claim that
such a drastic policy is not necessary can be made in light of the
ability of federal prisons to accommodate Muslim inmates,
Leesburg's own past practice of doing so, and the plausibility of
the alternatives proposed by respondents. If the Court's standard
of review is to represent anything more than reflexive deference to
prison officials, any
Page 482 U. S. 368
finding of reasonableness must rest on firmer ground than the
record now presents.
Incarceration, by its nature, denies a prisoner participation in
the larger human community. To deny the opportunity to affirm
membership in a spiritual community, however, may extinguish an
inmate's last source of hope for dignity and redemption. [
Footnote 2/8] Such a denial requires more
justification than mere assertion that any other course of action
is infeasible. While I would prefer that this case be analyzed
under the approach set out in Part I,
supra, I would at a
minimum remand to the District Court for an analysis of
respondents' claims in accordance with the standard enunciated by
the Court in
Turner and in this case. I therefore
dissent.
[
Footnote 2/1]
See E. Goffman, Asylums: Essays on the Social Situation
of Mental Patients and Other Inmates 1-125 (1961).
[
Footnote 2/2]
As one scholar has commented:
"The language that the lawyer uses and remakes is a language of
meaning in the fullest sense. It is a language in which our
perceptions of the natural universe are constructed and related, in
which our values and motives are defined, in which our methods of
reasoning are elaborated and enacted; and it gives us our terms for
constructing a social universe by defining roles and actors and by
establishing expectations as to the propriety of speech and
conduct."
J. B. White, Rhetoric and Law: The Arts of Cultural and Communal
Life, in Heracles' Bow: Essays on the Rhetoric and Poetics of the
Law 36 (1986).
[
Footnote 2/3]
See also Procunier v. Martinez, 416 U.
S. 396,
416 U. S. 414,
n. 14 (1974) ("While not necessarily controlling, the policies
followed at other well-run institutions would be relevant to a
determination of the need for a particular type of
restriction").
[
Footnote 2/4]
See also American Correctional Association, Manual of
Correctional Standards xxi (3d ed.1966) ("Religion represents a
rich resource in the moral and spiritual regeneration of mankind.
Especially trained chaplains, religious instruction and counseling,
together with adequate facilities for group worship of the inmate's
own choice, are essential elements in the program of a correctional
institution").
[
Footnote 2/5]
This is particularly true in light of the fact that Black
Muslims in prisons in this country have not always been provided
the same opportunities to practice their religion as members of
other denominations. As the American Bar Association Section of
Criminal Justice has observed:
"The real problem comes not with facilities
for
religious service, but with attempts of prison officials to
prevent or restrict certain religious movements within the
prison. Chief among these movements has been the Black Muslims,
whose lawsuits to compel recognition of their religion were the
opening volley in prison litigation.
See, e.g., Sostre v.
McGinnis, 334 F.2d 906 (2d Cir.1964);
Pierce v.
LaVallee, 293 F.2d 233 (2d Cir.1961),
on remand, 212
F. Supp. 866 (N.D.N.Y.1962),
aff'd per curiam, 319 F.2d
844 (2d Cir.1963);
Bryant v. Wilkins, 268 N.Y.S.2d 465, 46
Misc.2d 923 (Sup.Ct.1966)."
ABA Committee on the Legal Status of Prisoners, Legal Status of
Prisoners (Tent.Draft 1977), 14 Am.Crim.L.Rev. 377, 508 (1977).
[
Footnote 2/6]
The Chief Deputy testified that there was no congestion problem
with respect to the entrance to the full minimum security Farm
building. Tr. 119.
[
Footnote 2/7]
Indeed, the Chief Deputy testified that full minimum Muslim
inmates presented no greater threat to security or discipline than
non-Muslim inmates.
Id. at 138-139.
[
Footnote 2/8]
As one federal court has stated:
"Treatment that degrades the inmate, invades his privacy, and
frustrates the ability to choose pursuits through which he can
manifest himself and gain self-respect erodes the very foundations
upon which he can prepare for a socially useful life. Religion in
prison subserves the rehabilitative function by providing an area
within which the inmate may reclaim his dignity and reassert his
individuality."
Barnett v. Rodgers, 133 U.S.App.D.C. 296, 303, 410 F.2d
995, 1002 (1969) (footnotes omitted).
See also Comment,
Religious Rights of the Incarcerated, 125 U.Pa.L.Rev. 812, 853-854
(1977) ("An inmate's conscience is no less inviolable than that of
an unconfined citizen, and a violation could well work an even
greater harm upon the inmate, whose means of spiritual recovery are
limited by the prison environment"). On the important role of
religious commitment in penological rehabilitation,
see
generally Batson, Sociobiology and the Role of Religion in
Promoting Prosocial Behavior: An Alternative View, 45 J. of
Personality and Social Psychology 1380 (1983); Heintzelman &
Fehr, Relationship Between Religious Orthodoxy and Three
Personality Variables, 38 Psych.Reports 756 (1976).