Johnson, Garrison v. California, et al. (02/23/2005)

Questions presented:(1) Is a state's practice of temporary racial segregation of state prisoners subject to the Turner v. Safley, 482 U.S. 78 (1987) test or is it subject to the strict scrutiny standard? (2) Does California's practice of temporary racial segregation of state prisoners violate the Equal Protection Clause?

BY RANDY JAMES, MEDILL NEWS SERVICE

It's conventional wisdom that the legal sanctioning of racial segregation in the United States was abolished by the U.S. Supreme Courts ruling in Brown v. Board of Education. That landmark 1954 decision declared that "separate but equal" educational facilities are inherently unconstitutional, and stated plainly that "segregation is a denial of the equal protection of the laws."

However, government-enforced racial segregation continues to this day, acknowledged openly and freely. In California's prisons - the largest state prison system in the nation - housing for new inmates is routinely determined by race: blacks are assigned to cells for up to 60 days with other blacks, whites with other whites, etc.

The practice of dividing prisoners by race in California is more than 20 years old. Prison officials say inmates are segregated for a simple reason: members of the same group are less likely to hurt or kill each other.

In 2002, there were nearly 7,000 reported incidents of assault or battery within California prisons that left nine inmates dead, according to state figures.

"There are a lot of groups that just don't get along," said California Department of Corrections spokeswoman Margot Bach. "If [all] inmates were housed together, there could be a conflict. There is peer pressure when you get to prison to align with a group for protection."

Inmates are divided into more nuanced categories, as well: Latinos from Northern California are separated from Latinos from Southern California, and some Asians. Chinese and Japanese, for instance, are also kept apart from one another.

"If we have a Northern Hispanic with a Southern Hispanic, they already have a conflict before they come to prison, and it's going to intensify when they come to prison," Bach said, adding that gang rivalries are responsible for a large proportion of violence inside prisons.

The segregated housing policy applies in two-person cells in the states "reception centers," prison facilities where new inmates are first taken after being sentenced. They stay in the reception centers for up to two months while corrections officials determine where they will be held for the remainder of their sentence, based on such factors as gang affiliations and likelihood to commit violence. Once inmates arrive at their permanent facilities, they can generally choose their own cellmates.

Prison officials in New York, Florida and Illinois said race or ethnicity is not a factor in housing decisions, though they have practices that seek to minimize gang rivalries.

"We don't segregate by race, age or religion, and we haven't experienced any problems," said New York State Department of Corrections spokeswoman Linda Foglia, adding that prisoner assaults are currently at a record low.

Opponents of California's practice say rather than reducing racial conflict, segregating prisoners actually fuels hostility and violence.

"Prisons in California are one of the most racially charged environments on the planet," said Charles Carbone, a lawyer with California Prison Focus, a San Francisco prisoners rights group. "When you have a state that embraces and institutionalizes race, you end up prolonging and exacerbating racial divides."

Carbone said one California prison is so preoccupied with race that it keeps a separate pair of hair clippers for prisoners of each racial group.

"When these people return to society, they tend to hold more bias than when they arrived," he said.

In 1987, Garrison Johnson was convicted of murder, robbery and assault with a deadly weapon. Since he began serving his sentence, Johnson has been assigned to reception centers in three different California prisons, and each time housed with another black inmate. Calling the housing assignments a violation of equal protection, Johnson filed a series of pro se complaints with the U.S. District Court for the Central District of California beginning in February 1995.

In January 1998, the district court dismissed Johnson's third complaint, which he appealed to the 9th Circuit Court of Appeals. The 9th Circuit reversed in part (the dismissal of an unrelated claim of overcharging for telephone use was left standing). In a per curiam opinion, the appeals court ruled that Johnson's charges were "sufficient to state a claim for racial discrimination in violation of the Equal Protection Clause of the Fourteenth Amendment," and the case was remanded.

Johnson was appointed a lawyer and filed a fourth complaint in July 2000, seeking monetary damages and injunctive relief against the California Department of Corrections director and two predecessors, one of whom was James Gomez. The case was dismissed on summary judgment.

This time, a 9th Circuit panel unanimously affirmed, holding that California's segregated housing policy passed the test for examining the constitutional rights of prisoners established in a 1987 U.S. Supreme Court decision. According to that test, known as the Turner stndard, a prison regulation "is valid if it is reasonably related to legitimate penological interests." The Supreme Court ruling provided four factors to determine if a regulation meets that requirement; the 9th Circuit ruled that the housing policy met all four.

"Given the admittedly high racial tensions and violence already existing within [California's prisons], there is clearly a common-sense connection between the use of race as the predominant factor in assigning cell mates for 60 days - reducing racial violence and maintaining a safer environment," wrote Judge Diarmuid O'Scannlain. O'Scannlain also noted that Johnson did not claim that any racial groups were given preferential treatment by prison authorities.

While the 9th Circuit panel acknowledged that the housing policy would be struck down if it were established outside of a prison environment, the ruling stated that prisons are "inherently different," and that courts should grant prison authorities wide latitude in creating reasonable regulations.

Johnson filed a petition for rehearing by the 9th Circuit en banc, which was denied in July 2003. However, four judges dissented, arguing that the panel used the wrong standard of review in its analysis, and gave prison authorities too much leeway in establishing regulations based on race.

As with all race-based government classifications, the court should have applied the tougher "strict scrutiny" standard to the housing policy, according to the dissent. That standard would permit the housing policy only if it were considered narrowly tailored to serve a compelling state interest.

"The panel's decision gives carte blanche to prison officials to impose their own notions of racial hatred and conflict upon prisoners, regardless of whether these notions are based in fact or deeply held stereotypes," wrote Judge Warren Ferguson.

Ferguson added that, under the panel's logic, a prison official could ban prisoners from visiting with spouses or children of a different race simply because the official claimed it might result in violence.

"[O]ur society, as well as our prisons, contains an abundance of persons who believe that any cross-racial interaction is dangerous." Ferguson wrote.

Garrison's attorney, Bert Deixler, agrees.

"The problem is they're making [rules] up as they go along, based upon whatever is in the head of the jailing authority at the moment," Deixler said, adding that segregated housing increases violence by preventing bonds from forming between members of feuding groups.

California Deputy Attorney General Sara Turner countered that most inmates prefer being assigned to cells with members of their own race or regional group. Experience has taught prison officials that the policy helps ward off gang fights and worse, she said.

"The prisons have had a lot of riots and racial problems, and they have an obligation to protect inmates' safety," Turner said. "They've had problems that have led to death."

Turner also pointed out that dining areas, recreation rooms and most other parts of reception centers are not divided by race.

Nevertheless, Deixler said, the risk of violence does not justify racial segregation.

"We all agree that a prison has an obligation to defend and protect inmates," he said. "It also has an obligation to ensure that it doesn't violate the civil rights of inmates, or the Constitution of the United States."

On March 1, 2004, the U.S. Supreme Court accepted the case for review, and almost a year later, on Feb. 23, 2005, a divided Court reversed, holding that the 9th Circuit failed to use a strict scrutiny standard to determine whether the segregation policy violates the 14th Amendment's ban on racial discrimination. The Court remanded the case for re-consideration using a strict scrutiny standard that would make it harder for California to justify its segregation policy.

Writing for the majority, Justice Sandra Day O'Connor rejected California's argument that the policy was neutral in that all prisoners were equally segregated. Harkening back 50 years to the Court's seminal decision in Brown v. Board of Education, O'Connor declared that separate, even if arguably neutral, cannot be equal. In so concluding, the majority noted that the U.S. argued that it is possible to address prison concerns such as gang recruitment and race-related violence through individualized consideration without resorting to racial segregation.

Justices John Paul Stevens, Clarence Thomas and Antonin Scalia dissented, but Justice Stevens was coming from a quite different perspective from the other two.

Justice Stevens argued that the majority should have gone further and concluded that the state policy of segregating prisoners by race during the first 60 days of their incarceration, as well as the first 60 days after their transfer from one facility to another, in fact violated the 14th Amendment's Equal Protection Clause. Stevens observed that despite the policy's logic -- that an inmate's race is a proxy for gang membership, and gang membership is a proxy for violence -- Californa failed to offer "scant empirical evidence or expert opinion to justify this use of race under even a minimal level of constitutional scrutiny." Stevens pointed to the Federal Bureau of Prisons and its 104 institutions for which no similar policy of racial segregation is applied.

On the other hand, Justices Thomas and Scalia argued against strict scrutiny, preferring to adopt a relaxed standard of review to reflect better the needs of prison administration. "Time and again, even when faced with constitutional rights no less 'fundamental' than the right to be free from state-sponsored racial discrimination, we have deferred to the reasonable judgments of officials experienced in running this Nation's prisons," wrote Thomas. "The majority is concerned with sparing inmates the indignity and stigma of racial discrimination. California is concerned with their safety and saving their lives."

Chief Justice William Rehnquist, who was ill for the period of time during which the Court deliberated its decision, took no part in the decision.