A simple fact of prison litigation is that prison officials lie-or simply care little for the facts-when asserting concerns about security. When I was a law clerk, the states routinely filed canned briefs asserting grave and unavoidable security concerns , no matter what the reality was-and in one memorable case in defense of a practice( labeling prisoners by race) that the Supreme Court had even then long since condemned. One state commissioner of corrections once told a group of us that he was aware that prison security officials could not be relied on to fairly assess risks and the deputy commissioner of another flatly told me she know prison administrators routinely lied. That sort of paying fast and loose occurred in this case,but was caught by counsel with the skill, time, commitment and knowledge to discover the fraud on the court- luxuries pro se litigants often don't have. And even when they do, some judges will still invoke deference.
Prisons are not like other places, and things that seem innocent and harmless can be deadly weapons. Deference to prison officials therefore makes much sense- but only if prison officials can be counted on to tell the truth and deliver fair and honest assessments of risk. Too many don't and courts should not ratify those malign practices by blindly deferring to prison officials. How to apply deference without judicial abdication is the hard question in this case, not the question of how long Is too long. Marc Stern Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network. From: Friedman, Howard M. Sent: Tuesday, October 7, 2014 9:03 PM To: Law & Religion issues for Law Academics Reply To: Law & Religion issues for Law Academics Subject: RE: Holt v. Hobbs Oral Argument I think this case on its facts is likely to be easy for the Court because so many other states have found ways to accommodate beards. That being the case, I fear that the Court may not be as careful as it should in formulating the strict scrutiny test under RLUIPA. Broadly speaking, prisons have put forward two kinds of justifications for refusals to accomodate religious beliefs-- security concerns (as in this case) and budgetary issues (e.g. in claims for kosher or Halal diets). It seems to me that courts are fairly able to assess budgetary justifications. However I fear that they are less able to assess security concerns as they exist on the ground. If the court imposes truly strict scrutiny when security is at issue, I fear that prisons may be unable to adequately deal with Racist, neo-Nazi, and similar groups that assert they are religious organizations. Currently a number of prisons are facing the question of whether Nations of Gods and Earths should be recognized as a religion or classified as a security threat group. How much deference should be given to prison officials there? Howard Friedman ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Failinger, Marie [mfailin...@hamline.edu] Sent: Tuesday, October 07, 2014 6:38 PM To: Law & Religion issues for Law Academics Subject: Re: Holt v. Hobbs Oral Argument I haven't read all of the background materials, but it seems to me a little bizarre to worry about what one could hide in a 1/4, 1/2 or even 3 inch beard given what one could hide in a typical prison uniform. If uniforms are searched for contraband, why not beards? Seems like it would be much easier and safer than a uniform search, unless there is some religious ban against someone touching one's beard. And what about the value encouraging state to expend a little effort and creativity in meeting believers half-way by putting the state to its burden of proof on its interests? In Hennepin County, the jail created an inmate hijab for Muslim women that doesn't have any folds or places where contraband can be hidden. To use the argument example, why couldn't a Sikh be issued a transparent turban designed to minimize the ability to hide contraband? Could Doug or someone could explain the state's argument in the lower court that someone could drastically change his appearance by shaving his beard as a reason for denial? I presume that implies that he could escape. I am trying to imagine a case in which a guy walking around in prison with a jumpsuit (or less) would be allowed to leave prison because he wasn't recognized as prisoner X. In the movies, at least the prisoners have to steal a guard's uniform to get out:) I also wonder what everybody thinks about Scalia's statement that religious beliefs are "categorical," "it's [what] God tells you," implying that there is no such thing as ethical "partial" compliance and that there has to be a specific oral or written command from God for a RLIUPA claim to be viable? I guess I would have to be a complete pacifist, observe glatt kosher (and no elevators on Shabbat) or go to church every Sunday before I could object to the state's rules. Or does Scalia mistakenly assume that Islam is more "categorical" than these other religions? On Tue, Oct 7, 2014 at 2:59 PM, Berg, Thomas C. <tcb...@stthomas.edu<mailto:tcb...@stthomas.edu>> wrote: The oral argument transcript is up, http://www.supremecourt.gov/oral_arguments/argument_transcripts/13-6827_8758.pdf. I haven't read it yet, but from the SCOTUS Blog report, it looks like things went poorly for the state. http://www.scotusblog.com/2014/10/argument-report-trouble-at-the-lectern/ We've had little discussion of this case on the list. I've presumed that's because there is a wide consensus that the case is easy. SCOTUS Blog likewise concludes that "[t]he case, at least from the tenor of the oral argument, did not seem to be a difficult one." But assuming that Holt wins, there remains the important question of the precise language the Court will use to explicate the compelling interest standard in the prison context, where officials get some deference. ----------------------------------------- Thomas C. Berg James L. Oberstar Professor of Law and Public Policy University of St. Thomas School of Law MSL 400, 1000 LaSalle Avenue Minneapolis, MN 55403-2015 Phone: 651 962 4918<tel:651%20962%204918> Fax: 651 962 4881<tel:651%20962%204881> E-mail: tcb...@stthomas.edu<mailto:tcb...@stthomas.edu> SSRN: http://ssrn.com/author='261564 Weblog: http://www.mirrorofjustice.blogs.com ---------------------------------------------------------------------------- ________________________________ _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Marie A. Failinger Professor of Law Hamline University School of Law 1536 Hewitt Avenue Saint Paul, MN 55104 U.S.A. 651.523.2124 (work phone) 651.523.2236 (work fax) mfailin...@hamline.edu<mailto:mfailin...@hamline.edu> (email)
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
