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October 7, 2014

Arkansas deputy AG cut to pieces while trying to defend prison beard-cutting policies

This morning the Supreme Court head oral argument in a prisoner rights case, and this SCOTUSblog report on the argument from Lyle Denniston suggests it did not go well for one advocate.  Here is the start of Lyle's argument recap:

The Supreme Court on Tuesday sent a blunt message to prison officials planning a policy that limits the religious freedom of inmates: it would be important to have a good reason for the restriction before it gets into court.  Trying to bolster the rationale at the lectern is not a promising strategy.

A lawyer for Arkansas prison officials found that out in two quick exchanges with Justice Samuel A. Alito, Jr., that came close to collapsing his case.

David A. Curran, a deputy attorney general from Little Rock, arguing for the state in the case of Holt v. Hobbs, took his turn before the Justices after two lawyers on the other side had repeatedly complained that the state simply had no real justification for banning all beards on inmates, even for those who might want insist that they need one for religious reasons.

Curran tried to offer two rationales: the policy keeps prisoners from hiding anything dangerous or illegal in their chin hair, and it helps the guards identify the inmates as they move about in the prison yard or working in the farm fields.  (A third rationale, put forward only briefly, is that “prisoners are capable of a lot of mischief.”)  But the more he talked, the more the skepticism spread across the bench.

Clearly, though, his worst moments came when Justice Alito quietly probed both of the primary arguments.

As to the contraband-hiding problem, Alito suggested that the prison guards could just hand an inmate a comb and have him run it through the beard, “to see if a SIM card — or a revolver — falls out.”  It produced a broad wave of laughter in the courtroom, at the quite ridiculous image of a gun being stashed in a half-inch beard.  (There were enough modernists in the audience to know that a SIM card is a tiny electronic chip that identifies the assigned user of a cellphone; cellphones are not allowed in Arkansas prisons.)

As to the altered-identify problem, Alito tried verbally to imagine how an inmate wishing to enter the wrong barracks after a work period outside would — while out in the field — produce a razor, shave the beard, switch photo ID cards with an inmate who looked like him beardless, and go into a barracks different from the one specified on that ID card.  That, too, was such a stretch that it taxed credulity.

Other Justices had also given Curran little peace, although the Court’s members did at times make some determined — and mostly frustrated — attempts to define a standard as to when courts should defer to prison officials’ judgment about what is required for prison safety, and a standard to determine when a restriction on religious practice among inmates would go too far.

October 7, 2014 at 02:27 PM | Permalink


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Judge Alito protected policemen beards ... Justice Alito protects beards of prisoners.

Equal time might warrant this:


Posted by: Joe | Oct 7, 2014 3:22:40 PM

"Judge Alito protected policemen beards ... Justice Alito protects beards of prisoners."

But not, it is worth noting, the beards of gays.

Posted by: Daniel | Oct 7, 2014 5:37:11 PM

That's good. I'm hopeful they give this prisoner what he is requesting. I can't think of a good justification otherwise.

I do wonder if Justice Scalia wants to decide any case this year, since he suggested this case was inappropriate as well (because Mr. Holt is only requesting a half inch beard but his beliefs would normally require more).

Posted by: Erik M | Oct 7, 2014 5:41:42 PM

Has there ever been any case of contraband being smuggled using a beard (intra-facility)? The only two problems, however, would be the potential of an oral assault (biting) by a designated dangerous criminal while a CO is sifting through the hair, or shanks hidden in particularly curly beard hair. It was very stupidly argued by the state attorney, in my opinion, but at least he should have produced evidence of such possibilities through more robust forensic department witnesses in his briefs than relying on supposition during arguments.

Posted by: Eric Knight | Oct 7, 2014 8:03:00 PM

My religion is the only true religion. It requires the weekly building of a ten foot tall pyre, and the ritual sacrifice of a goat, then the burning of the pyre, on our Sabbath, Wednesdays. My warden says, it is too disruptive and refuses to allow this observance.

Posted by: Supremacy Claus | Oct 7, 2014 11:10:20 PM

Once a crack whore and a whore whore, I found the true religion. Its rules of modesty require that I always wear the Nightrider Burka. Any problem, Justice Alito?


Posted by: Supremacy Claus | Oct 8, 2014 12:08:58 AM

The idea that long time residents of homosexual oriented Washington DC (gayest town in the US after San Fran), worthless, pro-criminal, pro-rent seeking lawyer dumbasses whose mental capacity has been devastated by an Ivy law school 1L can set the rules of prison discipline is absurd. They know a little law, and nothing about nothing else. Yet they get the final word on technical and complicated subjects. They get the final word on legislation from the bench. They make the rules based on their subjective feelings and no other knowledge.

Alito's exchange shows bias, and a non-judicial temperament. He should be asked to recuse himself from this case. Arkansas AG should file such a motion to send a message to stop messing with people trying hard to do an impossible job (the guards).

Naturally, the alternative to tight discipline, corporal punishment, and dominant rule making in prison is...?

More staffing for greater control and safety, thus growing the size of government.

Posted by: Supremacy Claus | Oct 8, 2014 7:20:54 AM

Guarding a prison is not a hard to impossible job. Certainly not the latter since it clearly happens.

For your goat sacrifice ritual, two points: one, I kind of doubt the sincerity of your belief (a necessary component is a sincere belief). Second, the law requires reasonable accommodation. It does sound like the jail has legitimate issues there. With a half-inch beard, I can't say the same thing. Maybe they'd have a rational basis, but that's it.

Otherwise, your complaints are unfounded. If a state doesn't want to have 9 people in DC decide this issue, they can stop accepting federal funds for their prisons. If a federal prison doesn't want it, they can ask Congress to repeal the law (RLUIPA). But the law requires the courts to consider these issues.

Posted by: Erik M | Oct 8, 2014 12:59:34 PM

Erik. You know the law. Volunteer to doa shift even in a nice suburban jail, never mind a tough prison. Report back. One thing you will note, the crime meter is spinning at supersonic speed, and is being ignored for the sake of peace. They will punish people attacking guards but nearly no one else. So the job is not getting done.

I know that after 1L, you came to believe in mind reading. However sociopaths can act sincere, and come up with agood con. You did not address my nightrider burka because it is not PC to criticize Islam. That request would be quite mainstream even among American Muslims. What if I wanted to wear that as atransgender male, in a male prison. Iwould then have adouble claim, one qualifying for intermediate scrutiny because based on sex.

Posted by: Supremacy Claus | Oct 8, 2014 4:00:30 PM

The Burka *clearly* interferes with both easy recognition of inmates (it's important to be able to do so retrospectively even from a camera) and creates substantial additional risk of contraband storage.

You won't even get intermediate scrutiny since the rule is gender neutral (female inmates aren't allowed any different clothing than the male inmates).

As for punishing crimes most crimes even in rich neighborhoods go willfully unpunished. I mean how often do fist fights result in assault charges? How often are people prosecuted for willful trespass or for destruction of a neighbor's property when they sprinkle weed killer on his bushes across the property line? In every society order is primarily maintained by social pressure and the legal system is only invoked when things spiral beyond what the unwritten social rules can control, e.g., someone who breaks a couple glasses in your bar is punished by a ban and disapprobrium from peers but when he sets fire to the place legal charges get filed.

Frankly, I have no idea what the prosecution rate is for offenses in a prison when there is a complaining party. Part of the societal code in prison strongly discourages complaint to the authorities so it's unclear how often you can say it is ignored. Yes, prison is a very ugly place but I think you underestimate just how similar an affluent community is to a bunch of howling monkeys, whatever the law says if you are in sufficient violation of community norms you will find yourself stymied at every turn and punished for your violation.

Posted by: Peter Gerdes | Oct 16, 2014 11:32:05 AM

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