For 25 years, California corrections officials have segregated incoming offenders into cells based on their race or ethnicity, as a temporary measure, to avoid potential racial and gang violence. But the practice may soon end if the Supreme Court rules that it violates the constitution.

Earlier this month the Supreme Court heard oral arguments in the case Johnson v. California, which involves a complaint filed by California inmate Garrison Johnson who had been segregated according to his race at reception and then five additional times when he was transferred to other institutions within the state.

Johnson, who has no history of racial violence in prison, contends that the California Department of Corrections' practice, which keeps prisoners in same-race cells for 60 days after reception, violated his right to equal protection under the Fourteenth Amendment.

"They irrebuttably presume every prisoner is a member of a racially identified gang, which we know not to be true and, even if we assume it to be true, race is not indicative of violence. A case in point is the Bloods versus the Crips. They are both African American gangs," said David Fathi, Special Counsel for the American Civil Liberties Union, which filed an amicus brief with the court in support of Johnson's claim.

Johnson as well as the ACLU contend that the CDC's policy is unlawful and should be deemed as such by applying the "strict scrutiny" standard that the Supreme Court has set forth in previous cases to evaluate state imposed segregation. The court has held that all intentional state racial segregation is subject to strict scrutiny when challenged under the Fourteenth Amendment.

To get to the Supreme Court, Johnson appealed a Ninth Circuit decision against him that upheld the CDC's segregation policy after the judges applied a more relaxed standard based on the Supreme Court's 1987 Turner case decision. Citing Turner, the Ninth Circuit ruled that the state's policy should be reviewed in the context of legitimate penological interest.

In addition, the Ninth Circuit considered whether Johnson had alternative means to exercise his right to be free from governmental racial discrimination by looking at his entire incarceration rather than the multiple 60-day periods in which he was segregated. It found that reasonable alternatives existed for Johnson. The Ninth Circuit also determined that Johnson did not rebut the state's claim that violence would result if the state stopped segregating by race at reception centers.

In briefs and arguments before the Supreme Court earlier this month, Johnson and supporters of his case hope they have persuaded the justices to reverse the Ninth Circuit's ruling and find that the CDC's policy should be abolisherd under the "strict scrutiny" standard.

"Permitting the Ninth Circuit's decision to stand would excuse state prison officials from having to justify their intentional racial segregation under strict judicial scrutiny, notwithstanding that intentional state racial segregation has been outlawed in this country for over half a century," said Bert Deixler, Johnson's attorney in the petitioner's brief requesting the Supreme Court take the case.

But for California corrections officials, the matter is simply one of prison management.

California's Case

According to Margo Bach, a spokesperson for the California Department of Corrections, the segregation is done for the safety of the inmates, the staff and the facility and is not intended to discriminate against any person.

"For the most part, when inmates come to prison, they are placed in a reception center and maximum security inmates are put in [racially segregated] cells for their own protection and the protection of other people. When you're not in maximum, you are put in a dormitory setting but with a mixed background," said Bach.

She added that the unwritten policy places certain offenders together based on the groups that they identify with. For example, the CDC does not cell all Hispanic inmates together. Rather, prison officials determine whether they are northern California Hispanics (norteños) or southern California Hispanics (sureños) and cell those sub-groups together.
 
"If at reception you asked them who they want to be celled with, most would say they want to be housed with someone with like backgrounds," said Bach.

"[This practice] has been a way for us to say, how can we house people safely and at minimum risk to inmates and to staff," she added.

Bach said that the gang violence problem in California, as in other states, is a reality for prison officials and this practice is one way to enhance safety in this climate.

"He is alleging we are discriminating based on race. If we should not be housing people based on race, we need to ask how else would you like us to do it? You have to look at how many times they have been in and out of prison, look at their enemies, if they are from the north or south and if they align together," she said.

Bach said the inmates naturally segregate once they are part of the prison population as well. In a prison yard, for example, corrections officials will see blacks with blacks, whites with whites, northerns with northerns and southerns with southerns.

"It's not an artificial alignment," Bach said. "If you have moved from one prison to another, someone will ask [before you are placed in the population] do you have enemies? [A Hispanic inmate] might say, 'Yes, all northern Hispanics are my enemies because they align with factions that aren't mine.' You have an enemies list."

Bach said that if the Supreme Court asks the state to change the policy, then the state will have no choice but to revisit the practice and come up with alternative ways to create a safe environment for inmates and staff.

Coming to a Decision

To reach a decision, the Supreme Court will not only consider the arguments made by Johnson and the State of California, but also review friend of the court briefs filed by the ACLU and others. One such brief was filed by six former state corrections officials and raises a number of reasons why California's policy should end.

The brief was filed by Walter Dickey, former Administrator of the Wisconsin Division of Corrections; David Evans, former Commissioner of Corrections in Georgia; Larry Fields, former Director of the Oklahoma Department of Corrections; Patrick McManus, former Assistant Commissioner of Corrections for the Minnesota and former Director of Corrections for Kansas; Margaret Pugh, former Commissioner of Corrections for Alaska and Chase Riveland, former Secretary of Corrections for Washington and former Executive Director of the Colorado Department of Corrections.

These officials specifically discuss research conducted in the corrections field that nullifies the reasons behind California's segregation practice. In their brief to the Supreme Court, the officials point out that a study on desegregation in the Texas corrections system revealed that "interracial violence within Texas correctional facilities ha[d] declined dramatically as racial integration of inmate cells ha[d] increased."

They also wrote of a recent survey that showed a majority of wardens at maximum security institutions across the country "believe that interracial violence in prisons diminishes with racial integration of cells."

Based on this research and their own experience in the corrections field, the officials state, "It is the professional judgment of the amici that CDC's rigid and blunderbuss policy of segregating every double cell in every reception center in the California prison system is contrary to sound prison management."

And, according to Fathi, information like this caused the justices to roundly question California officials about the necessity of the practice during oral argument.

According to Fathi, the Supreme Court justices were interested in the fact that California was unique in this segregation practice.

"Other big states do not do this. [They asked] what do the other 49 states and BOP do?," Fathi said.

In their brief, the six corrections officials also highlighted inmate housing assignment policies of other states, including Oklahoma, that do not use race as a basis for housing decisions. In Oklahoma, the policy provides that while "newly received inmates are not generally assigned randomly to racially integrated cells, these inmates are not precluded from integrated cell assignments."

The brief goes on to say that to the extent race is considered in housing assignments in Oklahoma, "it appears to be one factor among many and as a result, individualized consideration is given to all inmates."

In addition, the justices specifically questioned why California officials would need to re-segregate offenders who are being transferred.

Published reports of the oral argument indicate that Justice David Souter questioned California officials about why they would need to re-segregate offenders upon transfer since they should have enough time to analyze an inmate's propensity for violence while they are incarcerated.

"I think it's fair to say the court was much more skeptical of the subsequent segregation upon transfer than the initial segregation. Whatever [need for] segregation that might exist when prisoners are new to the system, those justifications don't exist when a person has been in the system for years," Fathi said.

If the Supreme Court decides to stick with the "strict scrutiny" standard, then many believe that the decision will be specifically tailored to the housing assignment issue and would not necessarily affect the state's gang-related security measures.

"If the Court finds the practice unconstitutional it will be because race alone was singled out as a deciding factor for housing.  Race based discrimination is traditionally subject to a very demanding legal test:  "strict scrutiny."  Other "discriminatory" criteria that might be used in gang work would typically be subject to a much more lenient, prison friendly test," said Bill Collins, Editor of the Correctional Law Reporter and a legal expert in corrections issues.
 
If the court rules to find part of the housing assignment policy unconstitutional, then again, it will likely be tailored to California and would not have a major effect on other states, Collins said.

Where the court's decision would likely have far reaching effects is if it ruled that the racial segregation policy did not need to meet the "strict scrutiny" standard.

"Where it could be important is if the Court upholds the practice and in doing so says racial discrimination in the prison setting is not judged under the strict scrutiny standard, but rather under the much more lenient "rationally related to legitimate penological interest" test.  If this test were adopted, then other states probably could start segregating inmates without much more of a showing of need than saying "we think we need to do this," said Collins.

A decision is expected later this term.

Resources:

Supreme Court Docket - http://www.supremecourtus.gov/docket/03-636.htm