In October 1964, the US Supreme Court, through a denial of a petition for a writ of certiorari, declined to hear a case concerning religious-rights claims by Muslim prisoners in New York. Martin Sostre and other New York prisoners asserted not only that they were denied the opportunity to practice their religion, but also that they were actually placed in solitary confinement and faced other punishments for their adherence to their Islamic faith (Sostre v. McGinnis 1964). The prisoners filed the case themselves in 1962. The federal trial judge found that they were genuine adherents to a religion. However, the judge also ruled against their claims in order to give New Yorkâs state courts the opportunity to define the nature of any legal protections to which the prisoners were entitled. On appeal, the US Court of Appeals for the Second Circuit declined to rule in the prisonersâ favor. Instead, the appellate opinion said, âIt is not the business of the Federal Courts to work out a set of rules and regulations to govern the practices of religion in state prisons. Surely this is a task for state authorities to undertakeâ (Sostre v. McGinnis 1964, 911â12). The Supreme Court declined to consider the prisonersâ challenge to this decision that withheld federal judicial attention to the religious-rights claims of incarcerated offenders.
Almost exactly 50 years later, on October 7, 2014, the Supreme Court heard oral arguments in the case of Gregory Holt, an offender serving a life sentence in an Arkansas prison. Holtâs case began with a handwritten petition he filed himself in federal court. He sought to challenge a state prison regulation that barred him from growing a half-inch beard that he asserted was a required element of his Muslim faith. His claim that the prison regulation violated his First Amendment right to the free exercise of religion was notable for only one reason: all nine justicesâliberal and conservativeâappeared to openly support the criminal offenderâs claim during the lawyersâ arguments in the case. Indeed, Adam Liptak, the New York Times reporter who covered the oral argument, observed that âseveral justices expressed an unusual concern[:] They said the question before them ⊠was too easy. Such short beards are not a problem from the standpoint of prison security, Chief Justice John G. Roberts, Jr., told a lawyer for the inmateâ (Liptak 2014). Indeed, the prison systems of 40 states already permitted such beards for religious purposes, so Arkansas was essentially an outlier with policies lagging behind those of other states. The Supreme Court ultimately issued a unanimous decision in favor of Holtâs religious freedom claim (Holt v. Hobbs 2015).
The contrasting examples of these two cases demonstrate the existence of significant changes in law affecting prisonersâ rights over the course of five decades. For example, Sostre was entirely dependent on seekingâunsuccessfullyâjudgesâ approval for his religious-rights claim, while Holt could also rely on a statute enacted by Congress, entitled the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which provided protections for prisonersâ free exercise of religion. For students of Supreme Court history, at first blush the contrasting examples seem even more noteworthy as the 1964 decision declining to examine a rights claim was made by the Warren Court, with its reputation for upholding rights in criminal justice contexts despite political opposition and public controversy (OâBrien 1993). By contrast, the 2014 example of consensus during oral argument in support for this specific right for convicted offenders occurred on the watch of the Roberts Court, whose composition and actions led commentators to label it as the âmost conservative [Supreme Court] in decadesâ (Liptak 2010). Thus, the extent of doctrinal change and evolving nature of judicial values appear even more significant in light of the composition and ideological leanings of the Supreme Court and its justices at these two illustrative moments in time.
These two examples are not intended to show endpoints on a pathway of change for a specific legal doctrine. Such was the case when Brown v. Board of Education (1954) dramatically reversed the Supreme Courtâs official endorsement of âseparate-but-equalâ racial segregation 58 years earlier in Plessy v. Ferguson (1896). The foregoing examples of convicted offenders Sostre in 1964 and Holt in 2014 show the distance traveled in prisonersâ rights law concerning a single issue, free exercise of religion. However, judicial decisions, as well as social and political developments that shaped constitutional law and prisonersâ rights, occurred throughout the decades from the 1960s onward. They were not embodied in a single, monumental decision, such as Brown, that defined a dramatic moment of change in legal doctrine and public policy. The stream of developments affecting law that produced the contrast between the Warren Courtâs refusal to address the Sostre case in 1964 and the Roberts Courtâs consensus in support of Holt a half-century later also shaped a variety of other constitutional rights, not just free exercise of religion. Changes affecting prisonersâ rights developed largely from judicial interpretations of several constitutional amendments, especially the First, Eighth, and Fourteenth Amendments.
The recognition, expansion, and limitation of constitutional rights for incarcerated criminal offenders provide an especially illuminating vehicle for analyzing the influences that shape constitutional law. The story of the development of prisonersâ rights highlights key issues concerning the governing systemâs adherenceâor lack thereofâto the constitutional ideals embodied in the language of the Bill of Rights. At the same time, it shows the challenge of advancing policy goals, such as the maintenance of order and security in correctional institutions, in a legal system that defines its self-image with the rhetoric of liberty, individual rights, and limits on governmental power. All the while, the processes of defining law to properly allocate emphases on rights protection and institutional power in this context were different from those affecting civil rights generally. Prisonersâ rights law was not influenced by the same level of grassroots and legislation-producing political pressures that affected developments advancing equal protection interests based on race, gender, disability, and other categories of inequality and discrimination. In the prison context, judges, legislators, and interest groups utilized their own sense of policy priorities and constitutional ideals in shaping law as the news media, voters, and public opinion gave limited attention to these issues. The people most affected by legal developments in corrections were convicted criminal offenders, the most powerless of political minorities whose despised status in societyâs eyes was earned through harm-causing misbehavior. Thus, they differed significantly from innocent victims of gender and racial discrimination who received increasing support from widespread political activism and judicial attention that reflected changes in societyâs values. This is not to say that there was a complete absence of political pressure to recognize and protect constitutional rights for convicted offenders. Indeed, there were civil rights activists and journalists who sought to call attention to abusive treatment and excessively authoritarian environments within correctional institutions (Jacobs 1977). Rather, political pressure was weaker and less instrumental in shaping prisonersâ rights because of convicted offendersâ isolation, powerlessness, and disconnection from their fellow citizensâ empathetic impulses. As a result, the development of constitutional rights concerning prisonersâ legal protections rested primarily on the processes that affect decision making by judges.
Judicial Decision Making and Constitutional Law
Keith Bybee observed that âresearch suggests good reasons to believe that the modern judicial process is really an uneasy mix of legal and political factorsâ (Bybee 2010, 4). Judges typically portray themselves as making decisions by applying a specific theory of legal interpretation, carefully considering andâwhen appropriateârespecting existing case precedents, and setting aside their personal values and policy preferences. Theories of interpretation, especially concerning constitutional interpretation, can be grand theories that purport to guide judgesâ interpretations comprehensively. The originalist interpretive theory espoused by Justices Clarence Thomas and Antonin Scalia purports to be such a theory that has applicability in determining the meaning of every provision within the US Constitution. These justices believe that reliance on history to identify the original meanings of constitutional provisions steers judges to appropriate decisions while preventing the risk that judicial decision makers will exceed the scope of their authority by including illegitimate factors, such as personal values, into court decisions (Scalia 2007). Other interpretive theories or guiding approaches to interpretation may, by contrast, focus specifically on particular provisions of the Constitution. For example, Justice John Paul Stevens articulated an approach to interpreting the substantive meaning of the concept of âlibertyâ in the Due Process Clause and this approach shaped his decisions about a number of different rights claims (McDonald v. City of Chicago 2010).
With respect to many topics in constitutional law, the Supreme Court and other courts arguably engage in problem solving which may or may not be informed by specific theories of interpretation. Issues concerning congressional power under the Commerce Clause, for example, arise when actions by Congress are challenged by individuals or states claiming that recognized interests are improperly violated by national statutes that exceed the constitutional boundaries for federal legislation. The challenges to federal gun laws in United States v. Lopez (1995) and to the Affordable Care Act in National Federation of Independent Business v. Sebelius (2012) both based their arguments on the widely acknowledged interest and authority of state governments to define law and policy for themselves with respect to many policy issues. By contrast, cases affecting the development of constitutional law concerning prisonersâ rights addressed many issues for which no legal interest and protection for prisoners had yet been firmly established to provide a basis for challenging laws and policies. In such contexts in which the Court addresses issues of first impression, arguments about competing constitutional visions and theories of interpretation potentially have more importance.
How, for example, should judges address initial fundamental questions about whether incarcerated offenders have any legally protected interests that must be taken into account when prisoners mount legal challenges to laws, regulations, and practices governing prison operations? For most of American history, either incarcerated offenders were blocked from raising legal claims about rights inside correctional contexts or their legal claims were quickly dismissed by courts. While some state courts in individual cases recognized protections against abusive treatment of prisoners, there was a dearth of appellate precedents with broad applicability (Wallace 1994). Because the US Supreme Court had not addressed these issues, when opportunities arose for prisoners to pursue cases in the federal courts, lower court judges faced questions for which they lacked guidance. Without a body of precedential court cases to guide or constrain decisions, judicial officers must inevitably call upon, at least in part, their own ideal visions of constitutional values and approaches to interpretation.
One can easily imagine the âblank slateâ context of decision making as federal judges first encountered a number of questions, such as: Do prisoners retain the constitutional right to practice their religions while incarcerated? Do prisoners possess any protection against unreasonable searches with respect to their cells or their bodies while residing in correctional institutions? Are prisoners entitled to any due process protections before being sanctioned for violating institutional rules? Does the Eighth Amendmentâs prohibition on âcruel and unusual punishmentsâ limit the decisions and actions of corrections officers and administrators?
Such questions addressed by the Supreme Courtâand other courtsâdid not initially involve the problem-solving issues of balancing or prioritizing well-established, competing interests. Instead, judges needed to make fundamental preliminary decisions about whether any recognized interests, such as constitutional rights, existed on the prisonersâ side of the ledger. When writing on a blank or nearly blank slate concerning issues of constitutional rights, judges will be informedâalbeit perhaps not firmly guidedâby their ideal visions of constitutional values or approaches to constitutional interpretation. Thus, the developmental history of prisonersâ rights cases in the Supreme Court illustrates especially illuminating debates about approaches to constitutional interpretation. It should be noted, however, that while specific visions of constitutional values and approaches to interpretation inform debates about issues of first impression, they do not necessarily determine the outcomes of cases. Those justices who presented the clearest and strongest competing visions, such as Justices Thomas and Stevens in the realm of prisonersâ rights, were also among the least likely to write majority opinions that defined the law. The articulation of a clear, strong vision of constitutional values or approaches to decision making raises significant risks that a majority of justices on the Court at any given moment will not agree on a single, well-defined viewpoint. As a result, although approaches to interpretation inform decision making, actual outcomes in prisonersâ rights cases, like other constitutional i...