It has been a little time since my last post on my research. My foray into military justice scholarship began with a theory that the Supreme Court is largely hands off toward the military justice system because Congress has organized this jurisdiction akin to state jurisdictions, in contrast to other specialized subject areas, such as patents and trademarks. Assuming that to be true, substantial questions follow that have been largely ignored by scholars. I have chosen to start with the effectiveness and efficiency of the institutions within this jurisdiction. This begins with how the Supreme Court interacts with this community, one of three (inmates, students, military) in America that do not enjoy the full panoply of constitutional rights. After some initial background posts, here I dive into the leading case concerning the relationship between the inmate community and the Constitution.
The leading case in this area is Turner v. Safely, 482 U.S. 78 (1987). This case involved a challenge by inmates to two regulations promulgated by the Missouri Division of Corrections.
The first regulation covered correspondence between inmates at different institutions. It allowed inmates to correspond with immediate family members who were also inmates, and to correspond with any other inmate regarding legal matters. No other correspondence was allowed unless the classification and treatment team decided it was “in the best interest of the parties involved.” Witness testimony at trial, however, demonstrated that the decision was based largely on who the individual was, rather than looking at the particular piece of mail.
The second covered inmate marriages. The regulation required the inmate to obtain the prison superintendent’s permission first, and it was only given “when there are compelling reasons to do so.” Though the regulation did not define “compelling,” trial testimony demonstrated that it pretty much meant “pregnancy or the birth of an illegitimate child. . . .”
Normally, we’d quickly cover the procedural history and then jump into the Court’s holding, analysis, and synthesize the rule with existing precedent. But because this exploration looks at how the Court—as a court of last resort—approaches and deals with issues, as well the levels of scrutiny applied to similarly associated communities, let’s spend a little more time in the procedural history and looking at how the Court structured its opinion a little more than the substance of it itself.
It held the marriage regulation to be an unconstitutional infringement upon the fundamental right to marry because it was far more restrictive than was either reasonable or essential for the protection of the State’s interests in security and rehabilitation. The correspondence regulation also was unnecessarily broad, the court concluded, because prison officials could effectively cope with the security problems raised by inmate-to-inmate correspondence through less restrictive means, such as scanning the mail of potentially troublesome inmates.
The trial court began from the position that the rights infringed were fundamental rights requiring the highest level of scrutiny. The State’s asserted compelling interest for both regulations was security and rehabilitation. The trial court did not disagree with the State’s assertion; rather, it concluded the regulations were not the least restrictive method to further that interest.
The Eighth Circuit agreed. It first concluded the trial court properly determined that Martinez covered this situation and strict scrutiny was the proper level of scrutiny to apply to the challenged regulations. The court further agreed with the trial court’s analysis, finding that the methods chosen to further the State’s asserted compelling interest were not the least restrictive methods.
In the Court of Appeals’ view, prison officials could meet the problem of inmate conspiracies by exercising their authority to open and read all prisoner mail.
Regarding the marriage regulation:
The goal of rehabilitation could be met through alternatives such as counseling, and violent “love triangles” were as likely to occur without a formal marriage ceremony as with one. Absent evidence that the relationship was or would become abusive, the connection of a crime was simply too tenuous to justify denial of this constitutional right.
I think it is fair to say that the Court normally transitions from the procedural history of a case by saying something like, “Because of [fill in the blank], we granted certiorari.” In this case, however, it simply stated it granted certiorari. We can probably assume the reason is the lower courts’ identification of the level of scrutiny to apply and the subsequent analysis, but the Court is typically makes it more clear.
The Court then underwent a process that should be familiar to lawyers trained in the common law, and one that I admire and appreciate from a court of last resort. The Court began, as the lower courts did, with the law as it has developed through the Court’s precedent to summarize how we got to the current question.
The whole premise of the common law, inherited from England, is the development of law through rules announced in particular cases over time. In contrast, my best understanding of the civil law is it is a statute-based system. Statutory law became more prevalent in the United States in the 19th century, so we really have a mix now. We look to the statute/regulation/etc at first, and then how the case law has added to our understanding of the statute
A little more breakdown of how this looked might be helpful to non-lawyer (and, dare I say, some lawyer) readers. The Court began with its decision in Martinez. In that case, it “described the principles that necessarily frame our analysis of prisoners’ constitutional claims.” The question to be resolved in Martinez involved that basic question. The first principle announced in that decision was “that federal courts must take cognizance of the valid constitutional claims of prison inmates.” The Court was clear. “Prison walls do not form a barrier separating prison inmates from the protection of the Constitution.”
The second principle was “that ‘courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.’” The Court in Martinez went on to say “[r]unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint.”
These articulated principles demonstrate some deep, considered thought about the legal rights of citizens confined to correctional facilities, the pressing and time-sensitive nature of decision-making in these institutions, and the relationship of these institutions relative to other branches of government.
The Court then tied Martinez to the issue before it in the current case, because Martinez informed, but did not decide, the current question before it. The question before the Court was what standard of review for prisoner constitutional claims to formulate that is responsive to the principles originally articulated in Martinez. That question was not resolved in Martinez because the facts in that case were a little different. The regulations there restricted correspondence between prisoners and members of the general public. Because members of the general public were concerned, the case did not require “resolving the ‘broad questions of “prisoners” rights.’” It involved a “consequential restriction on the First and Fourteenth Amendment rights of those who are not prisoners.” Taking this step by step approach, the Court specifically said in Martinez it was reserving for another day “the question of the proper standard of review to apply in cases ‘involving questions of “prisoner” rights.’”
So, to answer the question squarely before the Court, it looked to its prior cases for building blocks to inform its judgment. It built off of four prior relevant cases that concerned specific questions of prisoner rights: Pell v. Procunier, Jones v. North Carolina Prisoners’ Union, Bell v. Wolfish, and Block v. Rutherford. After reviewing the factual scenarios in those cases and the rules of law articulated from them, the Court concluded that “[i]n none of these four ‘prisoner rights’ cases did the Court apply a standard of heightened scrutiny, but instead inquired whether a prison regulation that burdens fundamental rights is ‘reasonably related’ to legitimate penological objectives, or whether it represents an ‘exaggerated response’ to those concerns.”
This is, as I have described before, rational basis review of a regulation.
After discussing the lower courts’ interpretation of the case law and explaining why the Court disagreed with that interpretation, it then specifically announced its rule and justification, both of which are relevant to the ultimate question of the Court’s interaction with the military community:
[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. In our view, such a standard is necessary if “prison administrators . . . , and not the courts, [are] to make the difficult judgments concerning institutional operations.”
Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decisionmaking process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every administrative problem, thereby “unnecessarily perpetuat[ing] the involvement of the federal courts in affairs of prison administration.”
The Court did not end its analysis there, however. Courts should defer to executive officials, but should not blindly defer to any asserted penological interest. It continued by establishing several factors that “are relevant in determining the reasonableness of the regulation at issue.”
First, there must be a “valid, rational connection” between the prison regulation and the legitimate governmental interest put forward to justify it . . . Thus, a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational. Moreover, the governmental objective must be a legitimate and neutral one.
. . .
A second factor . . . is whether there are alternative means of exercising the right that remain open to prison inmates. Where “other avenues” remain available for the exercise of the asserted right . . . courts should be particularly conscious of the “measure of judicial deference owed to corrections officials . . . in gauging the validity of the regulation.”
. . .
A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally. In the necessarily closed environment of the correctional institution, few changes will have no ramifications on the liberty of others or on the use of the prison’s limited resources for preserving institutional order. When accommodation of an asserted right will have a significant “ripple effect” on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.
. . .
Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation . . . By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an “exaggerated response” to prison concerns. This is not a “least restrictive alternative” test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint . . . But if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.
Applying this analytic framework to the instant case, the Court upheld the regulation concerning inmate-to-inmate correspondence, but struck down the marriage restriction.
There’s a lot here. Safely is an excellent example of a court of last resort in a common law system engaging with a community within its jurisdiction. In a following post, I’ll look to break this decision down a bit more into its composite parts in order to demonstrate the effectiveness of this interaction. After exploring a similar interaction with the student community, it is likely to become clear the Court does not similarly engage with the military legal system.