On February 23, the United States Supreme Court issued a ruling that is likely to stamp out the last vestige of government-enforced racial segregation in the United States. In Johnson v. California, it ordered the Ninth Circuit Court of Appeals to review the housing policies of the California prison system, and to apply legal standards that will probably lead it to ban the practice of temporarily grouping new arrivals by race and ethnicity. At issue was whether the California Department of Correction’s (CDC) decades-old practice of giving prisoners initial cellmates of their own race violates the Equal Protection Clause of the 14th Amendment. The policy, of course, was to keep inmates from killing each other, but merely saving lives is less important to six Supreme Court justices than promoting the myth that race is not supposed to matter.
The California prison system is not only the largest in the country but also the most racially mixed. Of 160,000 inmates, men account for 150,000 or 94 percent. In 2003, the system took in more than 112,000 men. The racial mix is an almost perfect recipe for friction: 37 percent Hispanic, 29 percent white, 29 percent black, and six percent Asian, American Indian, and Pacific Islander. Race- and even ethnic-based gang violence is the top security concern for prison guards. California, in the words of one official, is “ground-zero” for race-based prison gangs.
For prisoners in most states, aside from the fact of incarceration itself, race is the central reality of life. For California prisoners, race-based gangs are often the very key to survival. Gangs protect members from other gangs, and are a source of information on friends and enemies. Gangs supply food and cigarettes, and arrange visits from people on the outside. Gangs dictate prison etiquette, and enforce it with violence. Because prison is such a dangerous place — a single misstep can provoke a beating or even death — gang members form strong bonds.
There are two main Hispanic prison gangs in California: the Mexican Mafia or La Eme (from the Spanish pronunciation of the letter “m”), which is a southern California Hispanic gang, and Nuestra Familia, a northern California Hispanic gang. The northern and southern Hispanics hate each other. Nuestra Familia has a sub-group, Nuestra Raza, that operates in the high-security housing units. The main black prison gang is the Black Guerilla Family, although the Crips and the Bloods are also active. There are two major white gangs, the Aryan Brotherhood and the Nazi Low Riders. The Low Riders grew out of the Aryan Brotherhood in the 1980s and tend to be younger. The Hells Angels have a minor presence.
Interestingly, the Aryan Brotherhood has a defensive alliance with the southern Hispanics of the Mexican Mafia against the northern Hispanics of Nuestra Familia and against the Black Guerilla Family. Apparently southern Hispanics hate their northern kinfolk even more than they hate white people. The Aryan Brotherhood also has friendly relations with the other white gangs, the Nazi Low Riders and the Hells Angels.
Gangs are inherently violent. They routinely rob other prisoners or force them into prostitution. Some gangs make prospective members kill another prisoner in order to join. This is known as “making your bones.” Hispanic and black gangs are notorious for mayhem but the Aryan Brotherhood is no stranger to violence, either. Prison authorities describe it as “a singularly vicious prison gang that has a hostility to black inmates.” Race-based gangs are such a problem in California that the state built a special “Supermax” prison at Pelican Bay — in the northwest corner of the state, as far from other prisons as possible — to hold the worst cases. This is where the leaders live.
Gangs are the only significant prisoner groupings, which means there are no real affiliations that are not race-based. Race and ethnicity are the boundaries of what amount to warring armies. This is why California temporarily separates new male inmates by race. Women are less violent, so they are never segregated.
Housing prisoners is complicated. There are 32 prisons in the state, but only seven have what are euphemistically known as “reception centers” that process newcomers and transfers. There is segregation only in the reception centers, and a new convict never stays in a center for more than 60 days before he is assigned permanent quarters. These are either attached to the reception center or in a prison that doesn’t have a center. Whenever a man transfers from one prison to another, he makes a stop of no more than 14 days in a center before he gets his new assignment.
There is great variety in prison housing, with many men double- and triple-bunked in great, barracks-like rooms that hold as many as 225. In “reception centers,” however, prisoners get two-man cells, where they are evaluated to see what kind of permanent housing (general population, maximum security, etc.) they should get. These two-man, reception-center cells where men are held for brief evaluation are never integrated. Most men probably don’t even know there is a segregation policy; they get a cellmate of the same race and think nothing of it.
What is the purpose of the evaluation? First, the authorities have to decide how violent a prisoner is likely to be. They consider his physical and mental health. They check his criminal history, and if he is transferring from another prison, they read his prison record. Low-security men — the most numerous — go to dormitories. Medium-security men get permanent two-man cells, and maximum-security threats get single cells. If a man is known to have testified against another prisoner, to have shot someone’s best friend, or to have some other reason to hate or be hated, this affects his housing assignment. Convicted police officers and child molesters — whom all other prisoners despise — get special treatment, too. The prison system tries to be very thorough in its evaluations, and has a 75-man unit that does background checks both inside and outside the walls.
The men in centers are therefore new additions to a population, and guards want to look them over before deciding what to do with them. They are probably complete strangers to each other, sharing living quarters that are more cramped and intimate than anything most of us will ever experience, and prison authorities want cellmates to get along. Size and physical condition are part of the calculation, since no one wants to put a weakling in with a gorilla. The idea is to give a man a cellmate he is unlikely to hate — someone of his own race.
In many cases, officials even subdivide prisoners along ethnic lines. “You cannot house a Japanese inmate with a Chinese inmate. You cannot,” says Linda L. Schulteis, Associate Warden at California State Prison-Lancaster. “They will kill each other. They won’t even tell you about it. They will just do it,” She says the same is true for Laotians, Vietnamese, Cambodians, and Filipinos. Likewise, a Hispanic from northern California cannot be put in the same cell with a Hispanic from southern California. “They already have a conflict before they come to prison,” explains prison spokesman Margot Bach, “and it’s going to intensify when they come to prison.”
No other part of the California prison system is segregated, not the recreational facilities, dining halls, work areas or job assignments. Nor are dormitories reserved for certain races, though the authorities make sure they are racially balanced to reduce tension. If a prison is 50 percent Hispanic, 30 percent black and 20 percent white, dormitories should reflect those proportions. If there are just a few prisoners of one race in a dormitory dominated by another there is likely to be trouble. But even in mixed dorms, no prisoner is ever assigned a bunk directly over a prisoner of another race. Fights have broken out when this happened.
What about the two-man cells for medium-risk offenders? In order to increase compatibility and reduce violence, the system lets inmates choose their own permanent cellmates. Both men sign forms saying they want to share a cell, and authorities grant the request unless there are security reasons not to. Needless to say, no one can think of a case in which someone asked for a roommate of another race. Miss Bach of the prison system says, “there is peer pressure when you get to prison to align with a [racial] group for protection.” Charles Hughes, a corrections lieutenant at the Lancaster prison is blunter: “If a black inmate asked for a white celly [cellmate] there is no way in hell that I would do that. I’d refer them both for a mental-health evaluation.”
Given the extraordinary level of racial tension in California prisons, guards would clearly like to segregate the entire system. Initial segregation, before authorities have a sense of whom they are dealing with, appears to be the minimum of common sense, and the California system stands behind it. Prisoners never willingly share a two-man cell with someone of another race. The system wisely refrains from forcing them to do so.
What is the origin of the challenge to the practice? Garrison Johnson, who filed the original complaint, is a career criminal and former Crip, who was convicted in 1987 of murder, robbery and assault, and sentenced to 25 years to life. Mr. Johnson has been transferred five times, and at each stop along the way he got a black cellmate. In 1995, Mr. Garrison filed a pro se(meaning he represented himself) complaint with the Central District of California against the prison system, arguing that always being paired with a black violated his 14th Amendment rights to equal protection. After several years of procedural give-and-take, including appeals, in 2000 the Ninth Circuit Court of Appeals in San Francisco instructed the district court to assign Mr. Johnson a lawyer and hear the case. When the district court upheld the segregation policy, he appealed to the Ninth Circuit, which, in 2003, also upheld the policy. That was when he took the case to the Supreme Court.
Since Mr. Johnson is a violent, medium-security prisoner, he lives in a two-man cell. This means he gets to choose his celly — and he has always asked for a black. He says he simply could not ask for a white: “You can’t cross races. That will start racial tension right there. So I know I can’t go to a white guy and say, ‘Hey, I want to move with you’ because he is not going to move with me.”
Mr. Johnson’s reasoning for challenging the system is the following: Racial tension in prisons is so bad it is impossible for him to make friends with anyone who is not black. Blacks would turn on him if he tried, and non-blacks would spurn him. This, he says, puts in him danger whenever there is racial violence, because he does not have a single friend of another race to stick up for him in a riot. If, however, he spent 14 days with a white cellmate when he was transferred, he might make a bosom friend who would protect him the next time blacks and whites are fighting. Mr. Johnson has 25 years to life to make white friends. In effect, he is saying he wants the prison system to make friends for him.
The Ninth Circuit Ruling
Like so many court cases, Johnson v. California has a complex but interesting legal background. The equal protection clause, on which Mr. Johnson hung his case, has generally been interpreted to require that government pretend race does not exist. In Shaw v. Hunt in 1996 (which challenged the creation of two largely black North Carolina congressional districts), the Supreme Court wrote, “Racial classifications are antithetical to the Fourteenth Amendment, whose central purpose was to eliminate racial discrimination emanating from official sources in the States.” The Court has established a standard of “strict scrutiny” when it comes to race (or religion, national origin, and sometimes sex), meaning a government agency must have a very compelling reason to take any notice of race at all.
The Supreme Court did not formally end prison segregation until the 1968 case of Lee v. Washington, when it ruled that Alabama could no longer segregate cellblocks. The court did note that “prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails,” but never offered guidelines for when racial classification was legitimate. Several lower courts have cited Lee to argue that “unsubstantiated” fears of racial violence do not justify segregation. These courts have usually limited racial separation to lockdowns following race riots or other violence.
In 1987, however, the Supreme Court ruled in Turner v. Safley that prison administrators may limit constitutional rights of inmates if limiting those rights serves a “legitimate penological interest.” Turner had nothing to do with race — the question was whether prisoners could write letters and get married — but the Court held that the standard of “legitimate penological interest” applied to all constitutional claims, which would include equal protection. The justices wisely pointed out that “courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform,” and that “the problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree.”
In Turner, the Supreme Court established four rules for deciding whether a prison policy that limits inmate rights meets the standard of “legitimate penological interest.” The first is whether there is a “valid, rational connection” between the policy and the goal it is supposed to achieve. The second is whether there are “alternative means” by which prisoners can exercise the rights they lost because of the policy. The third is how much trouble it will make for a prison if inmates exercise their rights, and the fourth is whether there are any “ready alternatives” to the policy in question.
Mr. Johnson’s lawyers argued that segregation did not meet the Turner standard because there was no rational connection between temporary segregation and preventing violence. They claimed — amazingly — that since California prisons could not point to a single act of violence that had been caused by integrating two-man cells, the system’s reasons for segregation were “unsubstantiated fears” of racial violence and therefore unconstitutional. Of course, there have been no such acts of violence because two-man cells are never integrated.
The Ninth Circuit found a clear Turner standard connection between the segregation policy and its objective of reducing racial violence. It noted that one of the worst prison riots in US history was triggered in large part by the forced integration of cells (see next article). “Under Johnson’s view,” it added, “the same violence would have to occur within the CDC [California Department of Corrections] in order to permit race to be considered as a factor in making initial housing decisions. We disagree… The CDC simply does not have to wait until inmates or guards are murdered specifically because race is not considered in assigning an inmate’s initial cell mate; instead, Turner allows the administrators to stave off potentially dangerous policies without first ‘seeing what happens.’” In other words, California was under no obligation to integrate prison cells just to see if its decades-old segregation policy really was preventing murder.
The Ninth Circuit also refuted Mr. Johnson’s argument that the policy of temporary segregation increased racial animosity by perpetuating racial stereotypes. It pointed out there was already plenty of racial tension in prisons with or without segregation, and that it was silly to argue that a measure designed to keep violence down was actually increasing it. Mixing up the races in cells would probably lead to more racial violence, not interracial friendship. The court also went to great pains to point out just how pervasive racial tension is in California prisons. It listed case after case in which racial gangs attacked each other, and noted that some prisons have been kept locked down for years at a stretch because race riots would erupt if there was the slightest contact.
At the end of this grisly recitation, the court noted dryly, “In short, this is hardly a case where the prison administrators are acting on an unsubstantiated record.” Therefore, “administrators are well within their discretion to attempt to rectify or to reduce further violence by taking reasonable measures.”
The second Turner test is whether there are “alternate means” for a prisoner to exercise his rights, that is, whether blacks and whites have other opportunities to get acquainted despite the segregation policy in the reception centers. The Ninth Circuit found this was obviously true, since the same-race cell assignment never lasted more than 60 days. Mr. Johnson can meet all the whites he wants in the dining hall or the recreation yard.
The third Turner standard, whether granting prisoners constitutional rights would make a lot of trouble for the prison authorities, was met by testimony from prison officials. Then-California prison system director Steven Cambra told the court, “If race were to be disregarded entirely … there will be problems within the individual cells. These will be problems that the staff will have a difficult time controlling. I believe there will be fights in the cells and the problems will emanate onto the prison yards… [I]t would be very difficult to assist inmates if the staff were needed in several places at one time.” In other words, there would be fights in the cells, violence would spill into the rest of the prison, and the guards would be overwhelmed.
As for the fourth Turner standard, whether there was a simple alternative to segregation, it was the responsibility of Mr. Johnson, as plaintiff, to offer one. His solution? Ask prisoners if they have ever been in a racial gang or if they don’t like people of other races. The Ninth Circuit called this “disingenuous,” adding, “There is little chance that inmates will be forthcoming about their past violent episodes or criminal gang activity so as to provide an accurate and dependable picture of the inmate.” That, of course, is why the system has a staff of 75 investigators — prisoners lie.
The Ninth Circuit therefore concluded that the 14th Amendment permits temporary segregation. Because of the special circumstances of prisons, this form of racial classification need meet only the looser standards of Turner and not the “strict scrutiny” standard that prevails elsewhere. Mr. Johnson did not accept this ruling and appealed to the US Supreme Court.
Before the Supreme Court
By this time, of course, Mr. Johnson had a hot, court-appointed lawyer, a prominent litigator named Bert H. Deixler with the nationally-known firm of Proskauer Rose. Mr. Deixler argued that the Ninth Circuit was wrong to apply the Turner standard and that by doing so, the lower court had “carved out a wholesale ‘prison exception’” when it came to race. He repeatedly invoked the Supreme Court’s ruling in the University of Michigan affirmative action cases, Gratz and Grutter, pointing out that “all nine Justices were in agreement that strict scrutiny applies whenever the government classifies based on race” and arguing that this should be the standard everywhere and without exception.
Mr. Deixler bought Mr. Johnson’s claim that even brief segregation fed dangerous racial stereotypes, and proposed that the best way to undermine the influence of race-based gangs in prison was to integrate two-man cells. Justice John Paul Stevens, one of the Court’s most liberal members, was especially pleased by this silly argument.
Mr. Johnson found an ally in the Bush administration, which sent the acting solicitor general, Paul D. Clement, to argue that given the country’s “pernicious history of race” — from which prisons are not exempt — it is vital that all racial classifications be subject to strict scrutiny. Otherwise, he implied, the innate racism of prison administrators would take over.
During oral arguments, the justices seemed most concerned that the segregation policy applied to prisoner transfers as well as newcomers, wondering why they needed to be segregated when they had already been under prison system control, and had already been evaluated. The response of California senior assistant attorney general Frances T. Grunder was weak. She said it was often hard to get a prisoner’s records transferred at the same time as the prisoner. Justice David Souter wondered if instead of segregating transfer prisoners, the system should just send the papers more quickly. Miss Grunder could have made a different argument: No one already in the prison system ever asks for a roommate of a different race, so the system should not court trouble by forcibly integrating two-man cells.
The segregation policy also seems to have suffered because of its success. The justices wanted to know if there had ever been racial violence because people of different races were put in a reception cell. No, there hadn’t, because the cells are never integrated. Rather than see this as proof the policy works, some justices seemed to think it showed the prison system’s fears were exaggerated.
In its February ruling, Justices Breyer, Ginsburg, Kennedy and Souter joined Sandra Day O’Connor in sending the case back to the Ninth Circuit where the segregation policy will be subject to “strict scrutiny.” In her view, any consideration of race by government is “immediately suspect” and must clearly promote a “compelling state interest.” Any lower standard will fail to “ferret out invidious uses of race.” Justice O’Connor also fell for Mr. Johnson’s claim that segregation — even for as few as 14 days — may increase interracial violence by “perpetuating the notion that race matters most.”
Justice John Paul Stevens issued a dissent, but only to insist that the housing policy was unconstitutional on 14th Amendment grounds and did not need any further “strict scrutiny” review. He wants the cells integrated right away.
Chief Justice Rehnquist was sick with thyroid cancer during the case, and did not participate. Justice Clarence Thomas issued a real dissent, in which Justice Scalia joined.
Justice Thomas pointed out that the case required the Court to choose between two conflicting lines of precedent. On the one hand, the Court has stated that all racial classifications by government must be subject to strict scrutiny. At the same time, the Court has said the Turnerstandard applies every time a prison policy limits a prisoner’s constitutional rights.
Which precedent should the Court choose? To Justice Thomas, decisions about race and violence “are better left in the first instance to the officials who run our nation’s prisons.” He accused his colleagues of indifference to the reality of prison life, writing, “The majority is concerned with sparing inmates the indignity and stigma of racial discrimination. California is concerned with their safety and saving their lives.” Justice Thomas even wrote that he thought temporary segregation might survive “strict scrutiny.” Keeping Americans from killing each other is surely a “compelling state interest.” If the Ninth Circuit decides it is not, the California prison system will start mixing up the two-man cells. Mr. Johnson’s white celly might turn out to be a 200-pound Skinhead who has always wanted to strangle a black man in his sleep. As Justice Thomas put it, somewhat more delicately, Mr. Johnson, “who concedes that California’s prisons are racially violent places, and that he lives in fear of being attacked because of his race … may well have won a Pyrrhic victory.”
In fact, it is whites who will suffer most from forced integration. Blacks and Hispanics have a well-documented history of raping whites, especially the young and the weak. For many convicts, night after night of uninterrupted sodomy with a terrified white cellmate would be a dream come true.
Whites who have served time know how much race matters. Joshua Englehart is a white man who served 37 months in San Quentin on drug charges. He wrote in the Los Angles Times that prisoners will pay the price for this foolish decision “because the truth is that mixing races and ethnic groups in cells would be extremely dangerous for inmates.” “[P]rison is an undeniably racist place, and court rulings aren’t going to stop it,” he explained. “Rule No. 1: The various races and ethnic groups stick together.” Mr. Engelhart concluded that segregation “is looked on by no one — of any race — as oppressive or as a way of promoting racism. It is done for their own safety, and they know it… This ruling will strike dread in the hearts of all California inmates when they read about it.”
This Supreme Court decision is a particularly dangerous example of how our nation lets ideology blind it to reality. That Sandra O’Connor and five other justices of the Supreme Court of the United States could actually think that briefly separating blacks from whites from Hispanics during evaluation adds to racial tensions in prison simply beggars belief. Can they really believe convicts show up without strong racial feelings, notice they got a same-race roommate in the reception center, and then decide the races are not supposed to get along? These six justices — who hold more power than even the President — have a completely fantasy-land view of what race means, either in prison or in the country at large. This is the view that guides them and our other rulers when they make important decisions that affect our very survival as a nation and a people.