Petitioners Brief — Johnson v. California
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No. 03-636 LOFFICE OF THE CLERK
IN THE
Supreme Court of the United States
GARRISON S. JOHNSON,
Petitioner,
Vv.
CALIFORNIA, et al.,
Respondents.
On Writ oF CERTIORARI TO THE UNITED STATES
Court OF APPEALS FOR THE NINTH CIRCUIT
BRIEF FOR PETITIONER
Bert H. DEIxLer
Counsel of Record
Cuar-es S. Sims
Lois D. THOMPSON
AARON P. ALLAN
TANYA L. FORSHEIT
Lee K. CRAWFORD
PROSKAUER Rose LLP
2049 Century Park East
Suite 3200
Los Angeles, California 90067
(310) 557-2900
Counsel for Petitioner
187735 g
COUNSEL PRESS
(800) 274-3321 + (800) 359-6859 -
QUESTIONS PRESENTED
1. Is a state’s practice of routine racial segregation of
state prisoners for at least a 60-day period subject to the same
strict scrutiny generally applicable to all other challenges to
intentional racial segregation, or is it excused from such
scrutiny and subject only to the more relaxed review afforded
under Turner v. Safley, 482 U.S. 78 (1987)?
2. Does California’s practice of routine racial
segregation of state prisoners for at least a 60-day period
violate the Equal Protection Clause?
ul
LIST OF PARTIES
The parties to this proceeding are petitioner Garrison S.
Johnson and respondents the State of California, James H.
Gomez, and James Rowland.
iil
TABLE OF CONTENTS
QUESTIONS PRESENTED .....cccccccccccess
DE chasesecececeecescoocceces
i cotuceddecccececesvces
TABLE OF CITED AUTHORITIES ............
DE, c6Guleudcoccecéceecvccess
STATEMENT OF JURISDICTION .. ..........
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED .................
STATEMENT OF THE CASE .................
A.
The CDC’s Policy of Routine Racial
tt Siete ees eseccssceeeecees
Garrison Johnson’s Experience of Racial
Segregation in CDC Facilities ...........
Garrison Johnson’s Equal Protection Claims
and the First Appeal Addressing His
DT ohshbaebesSeeececeescccesces
The District Court Proceedings ..........
The Ninth Circuit’s Decision ............
The Ninth Circuit’s Denial of Rehearing and
DE eehebekdoeuees coecedccece<
10
10
iv
Contents
SUMMARY OF THE ARGUMENT .............
GUE a cntecudseccecechsadetsensaaens
RACE-BASED PRISON CELL ASSIGN-
MENTS, LIKE ALL OTHER RACE-BASED
GOVERNMENT CLASSIFICATIONS, ARE
SUBJECT TO STRICT SCRUTINY ......
A. This Court Has Repeatedly Held That All
Government Race-Based Classifications
Are Invalid Unless They Survive the
Court’s Most Rigid Scrutiny .........
B. Lee v. Washington Demands That Courts
Strictly Scrutinize Prison-Based Racial
Equal Protection Claims ............
C. Turner v. Safley Created No Exception
to Lee v. Washington or the Unitary
Standard of Review Mandated by the
Court’s Other Racial Equal Protection
PD ecccceudcecdunseddeamhant
Page
11
15
15
15
20
24
Il.
Contents
THE CDC’S POLICY OF SEGREGATING
ALL ARRIVING INMATES BY RACE
AND ETHNICITY VIOLATES THE
EQUAL PROTECTION CLAUSE ........
A. The CDC’s Implementation of Racial
Segregation Is Not Narrowly Tailored to
Serve a Compelling State Interest, or
BTS can 000 cécnbeckusedass
Because the CDC’s Arbitrary Racial
Segregation Is an Exaggerated Response
to Unsubstantiated Fears, It Does Not
Even Withstand Scrutiny Under
Pe . ccccevuseenkavenseeeeeneas
CEES cc cc ccccoccactvscosanecééusanne
Page
32
33
vi
TABLE OF CITED AUTHORITIES
Page
FEDERAL CASES
Adarand Constructors, Inc. v. Pena,
CB rere Hee passim
Bell v. Wolfish,
ee ee ED. ncuncnsdubeckedesecesets 25
Black v. Lane,
824 F.2d 561 (7th Cir. 1987) ................ 24
Blevins v. Brew,
593 F. Supp. 245 (W.D. Wisc. 1984) .......... 24
Block v. Rutherford,
ED oc nnn cadcunseusdeuvenen 25
Brown v. Board of Education,
Dee ED necdcecocencenskedeess passim
Buchanan v. Warley,
ES oo an aie waning core ee eae 18
Cohens v. Virginia,
ED ot shedidnsel enema denne 11
Cruz v. Beto,
ee rn 20
Fullilove v. Klutznick,
Ge ED ovccdecdécecsnnedésecesas 16, 31
vil
Cited Authorities
; Page
Gayle v. Browder,
ee SPD kcvcncecewssdeskndeeues 21
Gratz v. Bollinger,
Se ee OD occ cncdececceduatesecs passim
Grutter v. Bollinger,
Fe SEED cdksucandvisedtesséions passim
Harris v. Thigpen,
941 F.2d 1495 (11th Cir. 1991) .............. 41
Hirabayashi v. United States,
Ps EP ED. nkn-s ese duddeusadtetabinl 17, 32
Holmes v. City of Atlanta,
Pe 21
Hudson v. McMillian,
SPE PEED esceccesesvecadanctessues 29
Hudson v. Palmer,
GE es SET ED 06 csedccccccdencicctaes 22
Johnson v. California, ;
207 F.3d 650 (9th Cir. 2000) ................ 5
Johnson v. Virginia,
POP Ee ED sceccbdkccencncsceusucks 21
vill
Cited Authorities
Page
Jones v. North Carolina Prisoners’ Union,
TP a EE ocboned ceeds paneteeoess 25
Koremats:: v. United States,
Pe a ED ce cncecceseceeccecsea 3, 16, 17
Lee v. Washington,
ED Seudutasunsdiedaccess passim
Lewis v. Casey,
518 U.S. 343 (1996) ..... ee éuueeeaeenudew’s 26
Loving v. Virginia,
PED u“Jitnundecbiueedasuoasule 16, 19
Madrid v. Gomez,
889 F. Supp. 1146 (N.D. Cal. 1995) .......... 6
Mayor of Baltimore v. Dawson,
ey ccuecocedcecaskicesiuae 21
McClelland v. Sigler,
327 F. Supp. 829 (D. Neb. 1971) ............. 24
Metro Broadcasting, Inc. v. FCC,
Cy PGND cevssccccestcccéenecess 16
Miller-El v. Cockrell,
re re 38
oe
ix
Cited Authorities
Page
Morrison v. Garraghty,
239 F.3d 648 (4th Cir. 2001) ................ 24
Muir v. Louisville Park Thearical Association,
og 8 re rrr Tory 21
Nelson v. Campbell,
No. 03-6821, 2004 U.S. Lexis 3680
SE ED Sabb vou cescbcecbaveecectess 29
New Orleans City Park Improvement
Association v. Detiege,
TT TY TTT 21
O'Lone v. Shabazz,
4 Be eer eee 27
Overton v. Bazetta,
SPE: SED cctbcdavdaseecnassaeese 26
Palmore v. Sidoti,
Ss GD occ ctcccvececesedncdas 18, 37
Pell v. Procuinier,
GBF es SE GOED okv cc nnccevesésotonscave 25
Pitts v. Thornburgh,
866 F.2d 1450 (D.C. Cir. 1989) .............. 40
Planned Parenthood of Southeastern Pa. v. Casey,
ut Ree rere yer 28
x
Cited Authorities
Page
Plessy v. Ferguson,
Se Gs ST EE: 604k s0encnsenerasddunes 19
Powers v. Ohio,
Se ees EE 400000 ehencnsnecéasceay 19
Reed v. Faulkner,
842 F.2d 960 (7th Cir. 1988) ................ 38
Regents of University of Cal. v. Bakke,
ee Ce RUPUED ee ccbevekeueeceavas 17, 30, 34
Richmond vy. J.A. Croson Co., -
Gee ee EE bCieedocenenasteanceas passim
Rodriguez de Quijas v.
Shearson/American Express, Inc.,
ee ee ED <b dedeecenagnseecedsdes 28
Saucier v. Katz,
Se es SEY 0 esacndveuncescenieeeb ss 9
Schiro v. Bynum,
ED 0.0 00osédeucsisssaiinces 21
Shaw v. Murphy,
See ek eT EE” 6c hnkk0 oe Kes wee cses 26, 27, 39
Shaw v. Reno,
Pe a UD: cis ct edGivnveseeucens 20, 24
xi
Cited Authorities
Page
Sockwell v. Phelps,
20 F.3d 187 (Sth Cir. 1994) ................. 24
Spain v. Procunier,
600 F.2d 189 (9th Cir. 1979) ................ 29
State Athletic Commission v. Dorsey, |
Se ee a EE oeb.60ndsadeocseektanns 21
Stewart v. Rhodes,
473 F. Supp. 1185 (S.D. Ohio 1979) .......... 24
Thornburgh v. Abbott,
Gs NOD 6.60 6e cb chindcecvcéenss 26
Turner v. City of Memphis,
969 U.S. 350 (19GZ) once ccccccccseccccccees Sh
Turner v. Safley,
ee ah PEED evbcecdecesacesetesesaes passim
United States v. Wyandotte County, A
480 F.2d 969 (10th Cir. 1973) ............4.. 24
Vester v. Rogers,
Ge Ce POEROETD knv neue a cnccvtcncaccess 27
Washington v. Harper,
Pe ee EOE 606 0b006escdescceedanes 26, 27
xii
- Cited Authorities
Washington v. Lee,
263 F. Supp. 327 (M.D. Ala. 1968) ...........
White v. Morris,
832 F. Supp. 1129 (S.D. Ohio 1993) ..........
Wilson v. Seiter,
et Se ED «5644 seGeasenbaseweawer
U.S. CONSTITUTION
ees Ge, SL GEE OPO wr edduceccecdducucéd
FEDERAL STATUTES
a EEE, SK code eden cvissadvecencest
Se OEE acdeneasecacusdavsessedesess
Gas EE 8-0. 60 Vaden Kosvaesscndiedsddes
MISCELLANEOUS
Alan Elsner, Gates of Injustice: The Crisis in
America’s Prisons 41-42 (2004) ..............
Federal Bureau of Prisons Program Statement
1040.4, Policy § 551.90 (1999) ..............
Page
22
24
29
xili
Cited Authorities
Page
David Grann, The Brand: How the Aryan
Brotherhood became the most murderous prison
gang in America, The New Yorker, Feb. 16, 2004,
GE ccncweswaccidsctbduendeukeces eeu 43
Martha L. Henderson, et al., Race, Rights, and Order
in Prison: A National Survey of Wardens on the
Racial Integration of Prison Cells, 80 The Prison
SOS ee SE | No sckcaeunscevecoeines 8, 36, 42
Brief for Appellants, Lee v. Washington,
390 U.S. 333 (1968) (No. 75) ............... 28
Appellants’ Reply Brief, Lee v. Washington,
390 U.S. 333 (1968) (No. 75) .............4.. 30
Larry Meachum, Prisons: Breeding Grounds for
Hate?, Corrections Today, Dec. 2000, at 130 ... 6
Lee Nichols, Breakthrough on the Color
Pe 6 GE die tntdebendedcunusyn coneetes 34, 35
Chad Trulson & James W. Marquart, The Caged
Melting Pot: Toward an Understanding of the
Consequences of Desegregation in Prisons,
36 Law & Soc’y Rev. 743 (2002) ........... 8, 42, 44
]
OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Ninth Circuit is reported at 321 F.3d 791 (9th Cir. 2003).
Pet. App. la-3la. The Ninth Circuit affirmed the July 30,
2001, decision of the United States District Court for the
Central District of California, which is unreported. Pet. App.
32a-35a. The Ninth Circuit’s opinion denying a petition for
rehearing with suggestion for rehearing en banc (with four
judges dissenting) is reported at 336 F.3d 1117 (9th Cir.
2003). Pet. App. 36a-50a.
STATEMENT OF JURISDICTION
The court of appeals’ judgment was entered on February
25, 2003. J.A. 8a. A timely petition for rehearing with
suggestion for rehearing en banc was denied on July 28, 2003.
J.A. 9a. The jurisdiction of this Court is invoked under
28 U.S.C. § 1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fourteenth Amendment to the United States
Constitution provides in pertinent part: “No State shall make
or enforce any law which shall . . . deny to any person within
its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1.
Title 42 U.S.C. § 1983 provides, in pertinent part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State or Territory or the District of Columbia,
2
subjects, or causes to be subjected, any citizen of
the United States or other person within the
jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress. . . .
STATEMENT OF THE CASE
The California Department of Corrections (“CDC”)
automatically segregates by race all prisoners upon their
initial assignment to a CDC facility for a 60-day period, and
for another 60-day period upon each transfer. Petitioner
Garrison Johnson (“Johnson”), an African-American, has
been racially segregated in his cell assignments at least five
times — once on arrival, and at least four more times upon
transfer between CDC facilities.' The Ninth Circuit rejected
Johnson’s claim that this CDC policy has violated his right
to equal protection under the Fourteenth Amendment.
In upholding the CDC’s racial segregation policy, the
Ninth Circuit refused to follow this Court’s holding in Lee v.
Washington, 390 U.S. 333 (1968), that racial segregation in
prisons is unlawful, and declined to subject the CDC’s policy
to strict scrutiny despite this Court’s consistent application
of such scrutiny to all state actions discriminating on the
basis of race. E.g., Grutter v. Bollinger, 539 U.S. 306 (2003);
Gratz v. Bollinger, 539 U.S. 244 (2003); Adarand
Constructors, Inc. v. Pena, 515 U.S. 200 (1995); Richmond
1. Given that Johnson already has been transferred four times
in 17 years, it is highly likely he will be transferred again, and
subjected again to the admittedly segregationist policy, in the eight-
plus years remaining in his sentence of 25 years to life.
3
v. J.A. Croson Co., 488 U.S. 469 (1989); Korematsu v. United
States, 323 U.S. 214 (1944).
Instead, the Ninth Circuit applied a standard articulated
in Turner v. Safley, 482 U.S. 78 (1987), which evaluated
whether certain prison regulations having nothing to do with
race were “reasonably related to legitimate penological
interests.” Pet. App. 12a-13a. Noting that the standard of
review in this case is “paramount” — that is, outcome-
determinative — the Ninth Circuit nonetheless declined to
apply the strict scrutiny previously accorded all governmental
racial classifications and then upheld California’s race-based
assignment policy. Pet. App. 1 la-13a.
A. The CDC’s Policy of Routine Racial Segregation
For more than 25 years, the CDC has segregated
prisoners by race when assigning them to double-cell housing
upon their arrival at prison, and again upon transfer to another
prison. J.A. 182a-183a, 185a [Deposition of Linda L.
Schulteis (“Schulteis Depo.”)]; J.A. 197a-198a, 203a
[Deposition of Steven Cambra (“Cambra Depo.”)}; J.A. 302a-
307a [Declaration of S. Cambra (“Cambra Decl.”), #4 8, 10,
12); J.A. 308a-312a [Declaration of L. Schulteis (“Schulteis
Decl.”), ¥ 5]. Arriving inmates are immediately classified by
the CDC as “black, white, Asian, and other.” Pet. App. 3a.
Prisoners are placed into cells with other prisoners of their
same “ethnic race.” J.A. 213a(¥ 18); 249a (¥ 5); Opposition
to Petition for Certiorari at 2.
Race is concededly the decisive factor in determining
with whom new inmates will be housed. J.A. 182a-183a,
185a, 197a-198a, 203a, 302a-307a (FF 8, 10, 12), 308a-312a
(¥ 5). In making cell assignments, the CDC uses a form
4
(CDC-135) that provides only three pieces of information:
Name/Number, Security/Custody Level, and Ethnicity/Race.
J.A. 207a. The CDC “use[s] ... race as the predominant
factor” to determine double-cell housing assignments in the
reception center. Pet. App. 20a (emphasis added); see also
Pet. App. 3a.
B. Garrison Johnson’s Experience of Racial
Segregation in CDC Facilities
Johnson has been incarcerated in CDC institutions
since 1987 when he was convicted of murder. J.A. 255a-
256a. When Johnson first arrived at a CDC institution, CDC
personnel told him that he had to be placed in a “black cell.”
J.A. 174a. The CDC has transferred Johnson at least four
times during his tenure in the California prison system. J.A.
80a-82a. Each time, he was placed in a cell with another
African-American. J.A. 173a-177a. In his more than 15 years
of observing CDC practices, Johnson has noted that every
arriving prisoner has been placed in a cell with a prisoner of
the same race. J.A. 178a.
C. Garrison Johnson’s Equal Protection Claims and .
the First Appeal Addressing His Complaint
Having suffered the humiliation of forced racial
segregation multiple times, Johnson filed a complaint in
federal district court on February 24, 1995, in pro per,
alleging that the CDC’s policy violated his right to equal
protection under the Fourteenth Amendment. J.A. 15a.
Nearly three years later, on January 8, 1998, the United States
District Court for the Central District of California dismissed
5
Johnson’s Third Amended Complaint without leave to amend.
J.A. 26a.
On March 21, 2000, the United States Court of Appeals
for the Ninth Circuit reversed in part and remanded, holding
that Johnson’s allegations were sufficient to state a claim for
racial discrimination in violation of the Fourteenth
Amendment. Johnson v. California, 207 F.3d 650, 655
(9th Cir. 2000). J.A. 158a-168a.
D. The District Court Proceedings
On remand, the district court appointed counsel for
Johnson and granted leave to file a Fourth Amended
Complaint, in which Johnson sought monetary damages and
injunctive relief. J.A. 28a-29a; 45a-S5a. Discovery was |
conducted, and all parties sought summary judgment on the
equal protection claims. J.A. 130a-277a.
In moving for summary judgment, the CDC contended
that security concerns related to possible violence among
inmates have necessitated its 25-year segregationist policy.
J.A. 302a-312a [Schulteis Decl. 4] 5, 10, 11; Cambra Decl.
{4 13-14). In support of its policy, however, the CDC offered
no evidence, because it had none, of violence, security
breaches, or disorder resulting from integration of two-person
cells. Instead, the CDC stated a belief that “race is very
important to inmates and ... plays a significant role in
antisocial behavior” (J.A. 302a-307a [Cambra Decl. 4 9]),
but offered no data, surveys, academic literature, or other
evidence demonstrating that its belief justifies racial
segregation. Rather, the CDC relied on subjective fears of
racial violence and generalized accounts of conflicts at
Pelican Bay, a unique facility housing notoriously violent
6
convicts, where Johnson has never resided.” The CDC made
no attempt in any of their summary judgment papers to
establish a connection between housing assignments and the
outbreak of violence.’
Mn
2. The Security Housing Unit of Pelican Bay, commonly
referred to as the “SHU,”
has gained a well-deserved reputation as a place which,
by design, imposes conditions far harsher than those
anywhere else in the California prison system... .
[A]ssignment to the SHU is not based on the inmate’s
underlying offense; rather, SHU cells are reserved for
those inmates in the California prison system who
~ become affiliated with a prison gang or commit serious
disciplinary infractions once in prison. They represent
.. “the worst of the worst.”
Madrid v. Gomez, 889 F. Supp. 1146, 1155 (N.D. Cal. 1995).
The CDC admits that the Pelican Bay facility was specifically
designed to house notoriously violent male convicts. [Cambra Depo.,
17:17-19, attached as Exhibit 1 to Defendants’ Response to Plaintiff's
“Statement of Uncontroverted Fact [sic] and Conclusions of Law”
(“[{A}t Pelican Bay, we have some of the most violent men in the — in
the California prison system. . . .”).]
3. Nor did the CDC address the potential that integrated housing
assignments of incoming prisoners might even help to avoid the
outbreak of racial violence. See Larry Meachum, Prisons: Breeding
Grounds for Hate? , Corrections Today, Dec. 2000, at 130. Corrections
officials and hate crimes experts participating in a roundtable in 1999,
hosted by the United States Department of Justice Office of Justice
Programs and the Corrections Program Office, agreed that in order
to prevent prisons from catalyzing racial hatred, “[p)rinciples of
acceptance and tolerance should be integrated into existing programs
and population management practices,” that prison “administrators
must be deliberate about strategies to promote diversity in housing
_.. 3” and that allowing even natural social self-segregation to occur
may unnecessarily allow racial prejudice to flourish. /d. at 131-32.
7
The testimony of the CDC’s o vn prison officials
demonstrated that the CDC segregation policy rests on
anecdotally-based assumptions that inmates of one race will
always tend to be violent toward inmates of otaer races rather
than any quantitative data or other specific information.
The entirety of the evidence relied upon by the CDC consisted
of: (a) four declarations, totaling 28 pages, describing and
attempting to justify the CDC’s segregated housing policy;*
(b) short excerpts from the depositions of two of
the declarants providing similar opinion testimony
(J.A. 313a-316a; Cambra Depo. excerpts attached as Exhibit
1 to Defendants’ Response to Plaintiff’s “Statement of
Uncontroverted Fact [sic] and Conclusions of Law”);
and (c) 14 pages of testimony from Johnson’s deposition (J.A.
21la, 216a-217a). The CDC presented no empirical studies,
no guidelines or regulations from the Federal Bureau of
Prisons or any correctional association, no expert testimony,
and no policies or practices from any other state that
4. The CDC provided declarations from Steven Cambra, at the
time the Acting Director of the CDC (“Cambra”) (J.A. 302a-307a),
and Linda Schulteis, the Associate Warden of California State Prison
~ Lancaster (“Schulteis”) (J.A. 308a-312a). As Acting Director of
the CDC, Cambra oversaw all of the California prisons and was
familiar with the CDC’s policies regarding housing decisions.
J.A. 302a-303a. Schulteis, who at the time of her deposition had
been employed with the CDC for 24 years, testified on behalf of
CDC as the person most knowledgeable at the Lancaster facility
(where Johnson resided at the time) regarding cell housing assignment
policies and procedures. J.A. 18la-195a. A third declaration was
supplied by Barry O'Neill, at the time the Associate Warden at Pelican
Bay State Prison. J.A. 296a-30la. The fourth declaration was
submitted by counsel of record for the CDC, Deputy Attorney General
Sara Turner, to introduce and authenticate certain documents.
J.A. 253a-254a.
8
demonstrate racial segregation of newly arriving prisoners
for two months is necessary or even helpful in averting prison
violence.°
The support the CDC offered to justify its policy
was conclusory and merely anecdotal, relying on “feelings”
and “beliefs”:
[A]s to the initial housing assignment, if we were
not to consider race and gang affiliation in the
initial double-cell housing decision, I am certain
that there will be conflicts both in the cells and
the conflict will flow onto the yards. . . . [I]f we
were to disregard the initial housing placement
being done [by housing an inmate with another
inmate of his same ethnic race], then I am certain
there would be serious violence among inmates.
J.A. 308a-312a (Schulteis Decl. ¥¥ 10, 11). As Cambra
5. The few studies that do exist have demonstrated that the
rate of violence among inmates segregated by race in double cells
_ Surpasses the rate of violence among inmates who are racially
integrated. See, e.g., Chad Trulson & James W. Marquart, The Caged
Melting Pot: Toward an Understanding of the Consequences of
Desegregation in Prisons, 36 Law Soc’y Rev. 743, 769 (2002) (study
of the Texas prison system in the aftermath of federal court
intervention requiring desegregation of two-man cells, which “found
that equal status contact via desegregation did not result in more
violence compared to violence among inmates who were segregated”
and that “the rate of racially motivated assaults among integrated
cell partners decreased as integration increased”) (emp? asis added);
Martha L. Henderson, et al., Race, Rights, and Order in Prison:
A National Survey of Wardens on the Racial Integration of Prison
Cells, 80 The Prison Journal 295, 304 (2000). See discussion
infra p. 36.
9
similarly stated in his declaration:
If race were to be disregarded entirely, ... 1 am
certain, based upon my experience with CDC
prisoners, that there will be problems within the
individual cells. These will be problems that the
staff will have a difficult time in controlling.
I believe there will be fights in the cells and the
problems will emanate onto the prison yards. With
respect to inside individual cells, / do not feel that
prison housing staff are adequately able to deal
with the problems that could arise... . Because
of the problems we have on the yards, which are
open and easily observable areas, with respect to
racial conflicts including riots, which have led to
serious injury and deaths, / believe that the same
problems could and will surface inside of the
individual cells.
J.A. 302a-307a (Cambra Decl. 44 13-14) (emphasis added).
Among other obvious deficiencies, the declarations did not
even attempt to justify the application of the segregationist
policy to prisoners more than once, i.e., when they have
already been observed by CDC personnel for an initial 60-
day period and are later moved from one institution to
another.
On June 11, 2001, the district court denied the summary
judgment motions. J.A. 420a-425a. After this Court decided
Saucier v. Katz, 533 U.S. 194 (2001), however, respondents
Rowland and Gomez successfully moved for reconsideration
of the denial of their motion for summary judgment based
on qualified immunity. Pet. App. 7a. Johnson appealed.
J.A. 40a.
10
E. The Ninth Circuit’s Decision
The Ninth Circuit Court of Appeals affirmed the district
court on different grounds, holding that the CDC’s autem tic
racial segregation policy is entitled to a presumpiion of
constitutionality and that Johnson had not rebutted that
presumption. Pet. App. 31a.
The panel concluded that the standard of scrutiny would
be determinative, perceiving that the justification proffered
by California was far too slim to prevail if the policy were
subjected to strict scrutiny. Pet. App. 11a. Notwithstanding
Lee v. Washington, 390 U.S. 333 (1968), and the Supreme
Court’s repeated holdings that a// state racial classifications
are presumptively unlawful and may be upheld, if at all, only
if able to withstand strict scrutiny, the Ninth Circuit carved
out a wholesale “prison exception.” It held that the more
relaxed review of Turner v. Safley, 482 U.S. 78 (1987), should
be applied to any intentional racial segregation undertaken
by prison administrators. The court upheld California’s policy
on that relaxed review, concluding that Johnson had not met
his burden of refuting a “common-sense connection” between
the government’s objective and the CDC’s racial segregation
policy. Pet. App. 19a, 21a. According to the Ninth Circuit
panel, in order to prevail, Johnson would have to offer
evidence showing that, in the absence of the CDC’s racial
segregation policy, racial violence would not increase. Jd.
F. The Ninth Circuit’s Denial of Rehearing and the
Dissent
Johnson petitioned unsuccessfully for rehearing with a
suggestion for rehearing en banc. Pet. App. 36a-37a.
Four judges dissented from the denial of rehearing. Pet. App.
11
38a-50a. The dissenting judges argued that this Court has
not overruled Lee, and distinguished Turner because it was
not a case involving racial segregation:
“[G]Jeneral expressions, in every opinion, are to
be taken in connection with the case in which
those expressions are used. If they go beyond the
case, they may be respected, but ought not to
control the judgment in a subsequent suit when
the very point is presented for decision.”
Pet. App. 41a n.1 (quoting Cohens v. Virginia, 19 U.S. 264,
399 (1821)). The dissent also noted that “[bJoth the Fifth
and Seventh Circuits have refused to accord such extreme
deference [to racial segregation by prison administrators],
recognizing that, in the context of race, more must be
required.” Pet. App. 44a. The dissenting judges found Lee
controlling, especially in light of this Court’s recent and
repeated command that lower courts apply strict scrutiny to
all race-based classifications. Pet. App. 38a-42a, 50a.
SUMMARY OF THE ARGUMENT
Thirty-six years ago, this Court held in Lee that racial
segregation which is constitutionally prohibited outside of
prisons is equally prohibited inside prison walls. The Court’s
opinion affirmed, and found “unexceptionable,” the decision
of a three-judge court that rejected an argument essentially
indistinguishable from that advanced by California here,
namely that “the practice of racial segregation in penal
facilities is a matter of routine prison security and discipline.”
Lee requires application of strict scrutiny and the reversal of
the Ninth Circuit’s judgment that California’s routine
12
segregation of prisoners by race and ethnicity is not subject
to strict scrutiny and does not violate the Equal Protection
Clause.
This Court has repeatedly held, and repeated
unanimously just last year, that every governmental use of
race to classify individuals or assign them benefits or burdens
is subject to strict scrutiny and is permissible only if the
government proves its use of race necessary and narrowly
tailored to advance compelling governmental objectives.
California’s policy, by which all initial cell assignments —
on arrival and on every subsequent transfer — are determined
by race or ethnicity, is subject to that rule. This is so regardless
of the professed motivation (protection of inmates against
violence) that underlies the policy.
The Ninth Circuit erred in disregarding Lee and
concluding that it was overruled sub silentio by Turner.
The holdings that all governmental segregation and racial
classification is permissible, if at all, only upon strict scrutiny,
are more recent, more carefully considered, more relevant
(reached as they were in cases involving racial
discrimination), and more fundamental than the dicta cited
from Jurner and its progeny. The 7urner standard was not
formulated in a case involving intentional racial
discrimination, and has never been applied by this Court in
any case involving racial discrimination. The same reasons
that have led the Court to apply Eighth Amendment review
(rather than Turner review) to claims alleging violation of
Eighth Amendment rights also require application of
Fourteenth Amendment strict scrutiny to the intentional racial
segregation of prisoners. Further, the policy reasons that
underlie Turner — the need to preserve for prison
administrators a full range of discretion to operate prisons
13
in the interests of community and prisoner safety — do not
extend to cases challenging routine racial segregation,
because prison administrators do not need, and are ordinarily
not supposed to have, the discretion to engage in racial
segregation. To put it another way, under the Fourteenth
Amendment, racial discrimination generally, and racial
segregation in particular, are not “tools” that prison
administrators should routinely use to protect prisoners and
the public. Point J.
Under the strict scrutiny required by Lee and all other
cases examining government racial classifications from
Brown v. Board of Education, 347 U.S. 483 (1954), to Grutter
v. Bollinger, 539 U.S. 306 (2003), the CDC’s routine,
automatic, and unexamined segregation policy is invalid.
Assuming arguendo that routine racial segregation ever
could be justified for long-term prison management — as
distinct from its imposition in connection with some specific
event such as a post-race-riot emergency — respondents utterly
failed to provide the kind of proof necessary to survive strict
scrutiny. The CDC pointed to no particularized circumstances
requiring the permanent enshrinement of its racial segregation
policy; adduced no empirical data or statistical analyses to
support the notion that housing together members of different
races will always and necessarily lead to violence; and
presented no expert testimony or other evidence establishing
that its policy was necessary and narrowly tailored to advance
compelling state interests. The policy has continued through
bureaucratic inertia for twenty-five years without ever being
given a hard look. The CDC rested its justification
exclusively on anecdotal beliefs and the “feelings” of a
handful of administrators, which lack any support and have
never been tested or subjected to careful review.
14
The justification it advanced was no more specific or sound
than the justifications advanced in this Court, always
unsuccessfully, for numerous “Jim Crow” laws, including
those restricting integration in housing, on buses, on golf
courses, in restaurants, and in courtrooms. The state’s reliance
on race or ethnicity categorically, rather than as part of an
individualized assessment of each inmate’s particular history
of racial animosity and pattern of racial violence, violates
the Equal Protection Clause. Compare Grutter, 539 U.S. 306,
with Gratz, 539 U.S. 244. Point IIA.
The CDC’s policy would be invalid even if the more
relaxed standard of Zurner applied. The policy rests on
premises (that inmates of different backgrounds will tend to
be violent with one another, and that segregated cells will
tend to reduce prison violence) that lack any rational support;
it causes precisely the full harm that the Equal Protection
Clause was intended to eliminate; it is not justifiable as
conserving scarce administrative or economic resources; and
there are ready alternatives that fully accommodate the state’s
interests while affording inmates the equal protection and
elimination of state-imposed segregation that the Constitution
guarantees. Prison officials do not need discretion to routinely
segregate prisoners by race and ethnicity. They are required
to run prisons, while protecting the public and inmates alike,
by means other than routine racial segregation. Point JIB.
15
ARGUMENT
I. RACE-BASED PRISON CELL ASSIGNMENTS,
LIKE ALL OTHER RACE-BASED GOVERN-
MENT CLASSIFICATIONS, ARE SUBJECT TO
STRICT SCRUTINY
A. This Court Has Repeatedly Held That All
Government Race-Based Classifications Are
Invalid Unless They Survive the Court’s Most
Rigid Scrutiny
Over the last 60 years, this Court has consistently held
that government racial classifications must be strictly
scrutinized to determine whether such classifications are
permissible under the Fourteenth Amendment. The Ninth
Circuit’s refusal to apply that settled rule, and decision to
apply instead the more relaxed standard provided in Turner,
is grave error, mandating reversal.
The Court recently reaffirmed its deeply rooted holding
that “all racial classifications imposed by government ‘must
be analyzed by a reviewing court under strict scrutiny.’””
Grutter, 539 U.S. at 326; Gratz, 539 U.S. at 270 (“It is by
now well established that ‘a// racial classifications reviewable
under the Equal Protection Clause must be strictly
scrutinized.’”) (quoting Adarand Constructors, Inc. v. Pena,
515 U.S. 200 (1995)) (emphasis added). Although the Court
split over the constitutionality of the admissions policies at
issue, all nine Justices were in agreement that strict scrutiny
applies whenever the government classifies based on race.
Grutter, 539 U.S. at 326 (O’Connor, J., for the Court, joined
by Stevens, Souter, Ginsburg, and Breyer, JJ.) (“We apply
strict scrutiny to all racial classifications... .”); id. at 378
16
(Rehnquist, C.J., dissenting, joined by Scalia, J., Kennedy,
J., and Thomas, J.) (“[I]n the limited circumstance when
drawing racial distinctions is permissible, the government
must ensure that its means are narrowly tailored to achieve a
compelling state interest.”) (citation and internal quotation
omitted); id. at 388 (Kennedy, J., dissenting) (relying on the
Court’s repeated reaffirmation of “the absolute necessity of
strict scrutiny when the state uses race as an operative
category’).
The unanimous holding last year in Grutter by every
current member of this Court that every governmental
intentional classification on the basis of race be justified, if
at all, on a showing by the government that the practice is
necessary and narrowly tailored to serve compelling
governmental ends, was not novel. It reflected the Court’s
longstanding understanding of constitutional imperative.
Enforcement of the cqual protection guarantees requires strict
scrutiny for a// rules classifying by race, and this has been
the Court’s view for decades prior to Grutter and Gratz. See
Adarand, 515 U.S. 200; Richmond v. J.A. Croson Co., 488
U.S. 469 (1989); Loving v. Virginia, 388 U.S. 1 (1967);
Korematsu v. United States, 323 U.S. 214 (1944). The Court
has consistently held that strict scrutiny is required for
governmental racial classification “regardless of the
government’s purported reason for using race and regardless
of the setting in which race was being used.” Grutter, 539
U.S. at 379 (Rehnquist, C.J., dissenting, joined by Scalia,
Kennedy, and Thomas, JJ.).°
6. It was uncertain, for a time, whether that same rule applied
to remedial classifications — those intended to remedy the effects of
prior state segregation. See, e.g., Metro Broadcasting, Inc. v. FCC,
497 U.S. 547 (1990); Fullilove v. Klutznick, 448 U.S. 448 (1980);
(Cont'd)
17
The unwavering application of strict scrutiny to
governmental racial or ethnic classifications derives from
the Fourteenth Amendment’s history and core purposes.
Shortly after it recognized in Hirabayashi v. United States,
320 U.S. 81, 100 (1943), that “[d]istinctions between citizens
solely because of their ancestry are by their very nature odious
to a free people whose institutions are founded upon the
doctrine of equality,” the Court first decided that the Equal
Protection Clause demands that racial classifications be
subjected to “the most rigid scrutiny.” Korematsu, 323 U.S.
at 216. The Court held that if racial classifications are to be
sustained, they must be shown to be necessary to the
accomplishment of a compelling or overriding state objective.
Id. at 216; see also Adarand, 515 U.S. at 223-24 (“[A]ll racial
classifications reviewable under the Equal Protection Clause
must be strictly scrutinized,” and “any preference based on
racial or ethnic criteria must necessarily receive the
most searching examination.”) (emphasis added, citations
omitted).
Strict scrutiny is no less required in the face of odious
government racial distinctions made among prisoners.
As Justice Scalia has written:
The benign purpose of compensating for social
dise jvantages, whether they have been acquired
by reason of prior discrimination or otherwise, can
no more be pursued » y the illegitimate means of
racial discrimination than can other assertedly
(Cont'd)
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978). More recent
decisions of this Court dispelled that uncertainty. See Adarand,
515 U.S. 200; Grutter, 539 U.S. 306.
18
benign purposes we have repeatedly rejected.
See, e. g., Lee v. Washington, 390 U.S. 333 (1968)
(per curiam) (permanent racial segregation of all
prison inmates, presumably to reduce possibility
of racial conflict).
Croson, 488 U.S. at 520 (Scalia, J., concurring in judgment)
(citations omitted).
Strict scrutiny applies to review all claims challenging
intentional governmental racial discrimination for three
reasons. First, only a narrow tailoring requirement can
“ensure that ‘the means chosen “fit” . . . the compelling goal
so closely that there is little or no possibility that the motive
for the classification was illegitimate racial prejudice or
stereotype.’” Grutter, 539 U.S. at 331 (quoting Croson, 488
U.S. at 493 (plurality opinion)) (alteration in original).
This first rationale serves a “core purpose of the Fourteenth
Amendment,” that is “to do away with all governmentally
imposed discrimination based on race.” Grutter, 539 U.S.
at 341 (quoting Palmore v. Sidoti, 466 U.S. 429, 432 (1984)).
Second, racial classifications threaten to cause stigmatic
harm, to promote notions of racial inferiority, and to incite
racial hostility. Croson, 488 U.S. at 494 (plurality opinion).
Never has the Court accepted the contention that the
government can constitutionally resort to racial segregation
or classification to quell racial hostility. “The Constitution
cannot control [individual] prejudices but neither can it
tolerate them. Private biases may be outside the reach of the
law, but the law cannot, directly or indirectly, give them
effect.” Palmore, 466 U.S. at 433; see also Buchanan yv.
Warley, 245 U.S. 60, 81 (1917) (“It is urged that this proposed
segregation will promote the public peace by preventing race
19
conflicts. Desirable as this is, and important as is the
preservation of the public peace, this aim cannot be
accomplished by laws or ordinances which deny rights
created or protected by the Federal Constitution.”).
Race-based government classification is presumptively
unlawful and invariably subject to strict scrutiny even if
applied equally. Loving, 388 U.S. at 9; Brown, 347 U.S. 483.
The suggestion that racial classifications may
survive when visited upon all persons is no more
authoritative today than the case which advanced
the theorem, Plessy v. Ferguson, 163 U.S. 537
(1896). This idea has no place in our modern equal
protection jurisprudence. It is axiomatic that racial
classifications do not become legitimate on the
assumption that all persons suffer them in equal
decree.
Powers v. Ohio, 499 U.S. 400, 410 (1991) (parallel citations
omitted).
Third, the bloody history that resulted in the Fourteenth
Amendment’s goal of a colorblind society demands a higher
threshold of proof for any governmental racial classification.
The forced separation of citizens based on race is odious to
this equal protection principle.
[T]he Constitution abhors classifications based on
race, not only because those classifications can
harm favored races or are based on illegitimate
motives, but also because every time the
government places citizens on racial registers and
makes race relevant to the provision of burdens
or benefits, it demeans us all.
20
Grutter, 539 U.S. at 353 (Thomas, J., dissenting). See also
Croson, 488 U.S. at 518 (“The moral imperative of racial
neutrality is the driving force of the Equal Protection
Clause.”) (Kennedy, J., concurring); id. at 520 (Scalia, J.,
concurring in judgment). To permit review of any racial
classification without strict scrutiny would “reinforce and
preserve for future mischief the way of thinking that produced
race slavery, race privilege and race hatred.” Adarand, 515
U.S. at 239 (Scalia, J., concurring).
For these reasons, a “racial classification, regardless
of purported motivation, is presumptively invalid and
can be upheld only upon an extraordinary justification.”
Shaw v. Reno, 509 U.S. 630, 643-44 (1993) (citation and
internal quotation omitted) (applying strict scrutiny to racial
gerrymanders).
B. Lee v. Washington Demands That Courts Strictly
Scrutinize Prison-Based Racial Equal Protection
Claims
The appropriate standard of review here is mandated not
only by the repeated holdings in Grutter and its predecessors,
but also by the specific holding in Lee, where the Court
affirmed that racial segregation of prison inmates violates
the Fourteenth Amendment and is presumed invalid unless
it survives strict scrutiny. 390 U.S. 333. “[R]acial segregation,
which is unconstitutional outside prisons, is unconstitutional
within prisons, save for ‘the necessities of prison security
and discipline.”” Cruz v. Beto, 405 U.S. 319, 321 (1972)
(citing Lee, 390 U.S. at 334) (emphasis added).
Like many of the decisions applying Brown 5s invalidation
of separate but equal, the Court’s decision in Lee was a
21
short per curiam opinion, recognizing the simple proposition
that state statutes imposing racial segregation in
prisons violate the Fourteenth Amendment.’ Affirming the
desegregation decree of the court below, the Court found it
“unexceptionable.” 390 U.S. at 334. The argument advanced
by Alabama to justify its policies which the lower court
categorically rejected was, as described, virtually identical
to the argument modeled on Jurner made by California here
(and accepted by the Ninth Circuit): “The only defense
offered to the contention that the statutes involved herein
... violate the Equal Protection Clause of the Fourteenth
Amendment to the Constitution of the United States is that
the practice of racial segregation in penal facilities is a matter
of routine prison security and discipline.” Washington v. Lee,
263 F. Supp. 327, 331 (M.D. Ala. 1968) (three-judge court).
The judgment affirmed by the Supreme Court rejected an
attempt to subject governmental racial discrimination in
prisons to lesser scrutiny than is applied to such
discrimination elsewhere, noting that “the case was governed
by Brown v. Board of Education, 347 U.S. 483 (1954), and
the numerous cases implementing that decision, [which
made] unmistakably clear that racial discrimination by
7. See, e.g., Mayor of Baltimore v. Dawson, 350 U.S. 877
(1955) (public beaches and bathhouses); Holmes v. City of Atlanta,
350 U.S. 879 (1955) (municipal golf courses); Gayle v. Browder,
352 U.S. 903 (1956) (public transportation); Muir v. Louisville Park
Theatrical Ass'n, 347 U.S. 971 (1954) (parks); New Orleans City
Park Improvement Ass'n v. Detiege, 358 U.S. 54 (1958) (parks);
State Athletic Comm'n v. Dorsey, 359 U.S. 533 (1959) (athletic
contests); Turner v. City of Memphis, 369 U.S. 350 (1962) (airport
restaurants); Johnson v. Virginia, 373 U.S. 61 (1963) (courtroom
seating); Schiro v. Bynum, 375 U.S. 395 (1964) (municipal
auditoriums).
22
governmental authorities in the use of public facilities cannot
be tolerated.” Washington v. Lee, 263 F. Supp. at 331.
The three-judge court added that it could
conceive of no consideration of prison security or
discipline which will sustain the constitutionality of
state statutes that on their face require complete and
permanent segregation of the races in all the Alabama
penal facilities. We recognize that there is merit in
the contention that in some isolated instances prison
security and discipline necessitates segregation of
the races for a limited period. However, recognition
of such instances does nothing to bolster the statutes
or the general practice that requires or permits prison
or jail officials to separate the races arbitrarily.
Such statutes and practices must be declared
unconstitutional in light of the clear principles
controlling.
Id. at 331-32.
The references to Lee, 390 U.S. 333, in subsequent
opinions suggest without exception that it remains very good
law, and do not suggest any overruling of its holding that
Strict scrutiny, rather than any special exception to it for
prisons generally, is the constitutionally mandated standard
that must be applied to all prison racial classifications. For
example, in Hudson v. Palmer, 468 U.S. 517, 523 (1984),
the Court cited and quoted Lee for the holding “that invidious
racial discrimination is as intolerable within a prison as
outside, except as may be essential to ‘prison security and
discipline.’”
23
The Court cited Lee again in Turner, 482 U.S. at 84, as
authority for the point that inmates retain constitutional
protections in prison, including protection from race
discrimination. The Court did not suggest in any way that
the application of strict scrutiny to a race-based equal
protection claim in Lee had been called into question.
Justice Scalia’s 1989 concurrence in Croson cited Lee
in the course of recognizing that only “a social emergency”
imminently threatening “life and limb” could justify limited
racial segregation of inmates. Croson, 488 U.S. at 520-21
(Scalia, J., concurring in judgment). Last year, after first
explaining that “pressing public necessity” is synonymous
with “compelling governmental interest” under the strict
scrutiny standard, Justice Thomas cited Lee for the holding
that prison racial segregation can be justified, if at all, only
if it survives strict scrutiny:
I conclude that only those measures the State must
take to provide a bulwark against anarchy, or to
prevent violence, will constitute a “pressing public
necessity.” Cf. Lee v. Washington, 390 U. S. 333,
334 (1968) (per curiam) (Black, J., concurring) ©
(indicating that protecting prisoners from violence
might justify narrowly tailored racial
discrimination) ... .
Grutter, 539 U.S. at 353 (Thomas, J., concurring in part and
dissenting in part) (parallel citations omitted) (emphasis
added).
The holding of Lee, in common with the holding of
post-Brown cases generally, is plain: the cell-segregation
policy challenged here is presumptively unlawful and may
24
be upheld, if at all, only if the state has carried its burden of
proving that policy necessary and narrowly tailored to
advance compelling governmental purposes. Shaw v. Reno,
509 U.S. at 643-44; Lee, 390 U.S. 333.8
C. Turner v. Safley Created No Exception to Lee v.
Washington or the Unitary Standard of Review
Mandated by the Court’s Other Racial Equal
Protection Holdings
In neither 7urner nor its progeny has this Court departed
from its unbroken line of precedents applying strict scrutiny
to intentional governmental racial segregation.
1. In Turner, the Court considered an inmate class action
challenging state prison regulations that restricted
8. Numerous lower courts applying Lee both before and after
Turner have strictly scrutinized prison racial segregation policies and
practices, invalidating them unless prison officials provide a
compelling and narrowly tailored justification for their racial
classifications. See, e.g., Sockwell v. Phelps, 20 F. 3d 187 (Sth Cir.
1994) (strict scrutiny applied under Lee to invalidate Texas prison
racial segregation); Black v. Lane, 824 F.2d 561 (7th Cir. 1987) (strict
scrutiny invoked to reverse summary judgment on prisoner’s race
discrimination claim); United States v. Wyandotte County, 480 F.2d
969 (10th Cir. 1973) (a vague fear of racial violence was insufficient
to justify a racial segregation policy); Blevins v. Brew, 593 F. Supp.
245 (W.D. Wisc. 1984) (under Lee, to justify even temporary initial
racial segregation for one night, officials must show the practice is
necessitated by extreme or exigent circumstances involving racial
conflict); Stewart v. Rhodes, 473 F. Supp. 1185 (S.D. Ohio 1979)
(vague fear that integration will result in violence held insufficient
to justify segregation); McClelland v. Sigler, 327 F. Supp. 829
(D. Neb. 1971) (the argument that integration would endanger internal
prison security did not justify racial segregation); but see, Morrison
v. Garraghty, 239 F.3d 648, 655 (4th Cir. 2001); White v. Morris,
832 F. Supp. 1129 (S.D. Ohio 1993).
25
correspondence between inmates and restricted inmate
marriage. 482 U.S. at 81. Before addressing the inmates’
specific First Amendment and Fourteenth Amendment due
process claims, the Court articulated a standard of review
for those claims that would be responsive to two relevant
principles. /d. at 85. On the one hand, “[p]rison walls do not
form a barrier separating prison inmates from the protections
of the Constitution.” /d. at 84. Because prison inmates remain
protected by the Constitution, “federal courts must take
cognizance of valid constitutional claims of prison inmates.”
Id. The Court cited Lee among other cases in support of the
principle that prisoners retain constitutional rights. On the
other hand, separation of powers and federalism counsel
deference to state prison authorities, who are better equipped
than federal courts to deal with the problems of prison
administration or reform. Because certain “complex and
intractable” problems that bedevil America’s prisons are
“not readily susceptible of resolution by decree[,]” the
“expertise, planning, and the commitment of resources”
necessary to run a prison “are peculiarly within the province
of the legislative and executive branches of government.”
Id. at 84-85.
Consistent with these principles, the Court formulated a
standard of review based on four of the Court’s prior
prisoners’ rights decisions which, like Turner, did not involve
any claimed violation of the right to racial equal protection.’
The Court did not cite Lee or any cases involving equal
protection, race, or any other suspect classifications as a basis
9. See Turner, 482 U°S. at 86-87 (citing Block v. Rutherford,
468 U.S. 576 (1984); Bell v. Wolfish, 441 U.S. 520 (1979); Jones v.
North Carolina Prisoners’ Union, 433 U.S. 119 (1977); and Pell v.
Procuinier, 417 U.S. 817 (1974)).
26
for the “reasonably related to legitimate penological interests”
standard it adopted. Turner, 482 U.S. at 84.'°
The Court has since applied the 7urner standard to
inmate challenges to prison regulations that arguably
impinged on First Amendment rights of free association, free
speech, and free exercise, the right to substantive due process
under the Fourteenth Amendment, and the constitutional nght
to access the courts.'' Moreover, it has written, in dicta, that
10. Turner summarizes the standard as follows: “[W]hen a
prison regulation impinges on inmates’ constitutional rights, the
regulation is valid if it is reasonably related to legitimate penological
interests [and is not] an ‘exaggerated response’ to prison concerns.”
Turner, 482 U.S. at 89, 90. Turner identifies four factors that should
be considered under this standard: (1) whether there is a valid, rational
connection between the prison regulation and a neutral, legitimate
government interest put forward to justify it; (2) whether alternative
means of exercising the asserted constitutional right remain open to
the inmate; (3) whether and to what extent accommodation of the
asserted right will have an impact on prison personnel, inmates, and
the allocation of prison resources; and (4) whether a ready alternative
to the challenged practice exists that will fully accommodate the
prisoners’ interest at de minimis cost to valid penological interests.
Id. at 89-91.
11. Overton v. Bazetta, 539 U.S. 126 (2003) (upholding a prison
system’s limitations on non-contact visits regardless of whether a
right to association survived incarceration); Shaw v. Murphy,
532 U.S. 223 (2001) (prisoners have no First Amendment right to
provide legal assistance to others); Lewis v. Casey, 518 U.S. 343
(1996) (lower court failed to accord sufficient deference to prison
restrictions on inmates’ access to law libraries); Washington v. Harper,
494 U.S. 210 (1990) (upholding administration of anti-psychotic
drugs to inmates against their will); Thornburgh v. Abbott, 490 U.S.
401 (1989) (prison regulations governing what publications inmates
(Cont’d)
27
the Turner standard “applies to all circumstances in which
the needs of prison administration implicate constitutional
rights.” Washington v. Harper, 494 U.S. 210, 223-24 (1990);
see also Shaw v. Murphy, 532 U.S. 223, 229 (2001). But the
Court has never applied 7Jurner in a case involving equal
protection of suspect classes, much less held that the more
relaxed standard of review applied in Turner — rather than
the strict scrutiny accorded to racial equal protection claims
under Lee and the Court’s subsequent cases — applies to
allegations that prison officials segregate or otherwise classify
prisoners by race.
2. Notwithstanding Lee and the subsequent repeated
holdings (by every member of the present Court, and as
recently as June 2003) that a// governmental racial
classifications require strict scrutiny, the Ninth Circuit
refused to subject California’s policy to that demanding
standard. In substituting the relaxed review of Turner, it erred,
for Turner and its progeny” neither overturned Lee nor
created a prison exception to strict scrutiny for governmental
racial discrimination. At least five considerations support the
conclusion that the rule of Lee, Croson, and Grutter — not
Turner — governs this case.
(Cont’d)
may receive must be reasonably related to legitimate penological
interests); O’Lone v. Shabazz, 482 U.S. 342 (1987) (a prison
regulation that impinges upon inmates’ free exercise rights is
constitutionally valid if it is reasonably related to legitimate
penological interests); Vester v. Rogers, 482 U.S. 916 (1987) (denying
review of challenge to restriction on prisoner-to-prisoner
correspondence with citation to Turner).
12. Shaw v. Murphy, 532 U.S. 223; Washington, 494 U.S. 210;
O’'Lone, 482 U.S. 342.
28
First, the present case is squarely governed by a specific
decision of this Court which has not been overruled.
Lee was decided under the rule of strict scrutiny applied in
Brown and its progeny. Lee rejected a position advanced by
Alabama that would have created a prison exception to the
strict scrutiny otherwise governing all intentional
governmental racial segregation.'’ But Alabama’s archaic
position — rejected in Lee — would have to be embraced here
if Turner were applied to governmental action involving
racial discrimination. The case is therefore governed by
precedent, see Planned Parenthood of Southeastern Pa. v.
Casey, 505 U.S. 833, 854-55, 862-84 (1992), and by the rule
that the Court’s prior decisions are not subject to overruling
by implication. Rodriguez de Quijas v. Shearson/American
Express, Inc., 490 U.S. 477, 484 (1989)."*
Second, the Croson-Grutter rule was formulated in cases
involving racial discrimination — the very issue presented
here. The reference to Lee in both Croson and Grutter makes
plain that racial classifications in prison are included in the
class of “all racial classifications” that are subject to strict
scrutiny. By contrast, the Turner standard was formulated in
a case not involving racial discrimination, and has never been
applied in a racial classification case by this Court.
13. In the Brief for Appellants, filed by Alabama with this Court
in Lee, the state unsuccessfully argued that “[t}he same rules relating
to race which have been judicially applied since 1954 to public parks,
schools and similar public facilities are not applicable to and should
not be applied to prisons and jails.” Brief for Appellants at 10,
Lee, 390 U.S. 333 (No. 75).
14. Lee was not a summary affirmance. It was subject to oral
argument; thereafter, the Court issued a per curiam opinion, and three
justices wrote a concurring opinion.
29
Third, if there is any conflict between the broad,
categorical rule stated in Grutter and its predecessors
(for racial discrimination) and the rule stated in Turner and
its progeny (for prison regulations), the Grutter rule is more
fundamental and specifically applicable. Strict scrutiny for
all racial classifications is rooted in the history of slavery,
the Civil War amendments and the constitutional commitment
to achieving a colorblind society. Strict scrutiny of
government racial classifications has been repeatedly and
carefully considered by this Court; has been reiterated more
recently than has the Jurner rule; and is demonstrably correct
as stated. The dicta in Turner, and repeated subsequently,
suggesting a general application of its holding to prison cases,
does not apply to rules segregating prisoners by race or
“ethnic race” (the term used by the CDC [Opposition to
Petition for Writ of Certiorari at 2}), just as it does not apply
to cruel or unusual punishment meted out by prison officers.
That Turner s dicta does not trump settled holdings in
other areas is shown by the Court’s subsequent Eighth
Amendment jurisprudence. Claims under the Eighth
Amendment that prisoners have been subject to cruel or
unusual punishment are subject to the Eighth Amendment’s
own sui generis standard, not the broadly deferential Turner
rule. See Nelson v. Campbell, No. 03-6821, 2004 U.S. Lexis
3680, *14-15 (May 24, 2004) (analyzing prisoner’s
claim that his constitutional rights were impinged with no
reference to Turner); Hudson v. McMillian, 503 U.S. 1 (1992)
(same); Wilson v. Seiter, 501 U.S. 294 (1991) (same);
Spain v. Procunier, 600 F.2d 189, 194 (9th Cir. 1979)
(Kennedy, J.) (“The whole point of the amendment is to
protect persons convicted of crimes. Eighth amendment
protections are not forfeited by one’s prior acts. Mechanical
deference to the findings of state prison officials in the
30
context of the eighth amendment would reduce that provision
to a nullity in precisely the context where it is most
necessary.”). Claims involving intentional racial segregation
are equally subject to the Equal Protection Clause’s
controlling standard of review, and deference to the beliefs
of the CDC in this context would similarly reduce the
protections of the Fourteenth Amendment to a nullity."
Fourth, this Court has expressly rejected the argument
that government representatives — whether in the legislative
or executive branch of local, state, or federal government —
are entitled to judicial deference when racial classifications
are involved. Adarand, 515 U.S. at 235-36.'° Even Congress
is not entitled to deference that would permit the Court to
15. When the government brings an enforcement action under
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, the
question whether the state program discriminates on the basis of race
is subject to strict scrutiny. Regents of Univ. of Cal. v. Bakke, 438
U.S. 265, 290-91 (1978); see also Gratz, 539 U.S. at 276 n.23. It is
therefore inconceivable that the same question, when examined in
the context of a suit brought under the Equal Protection Clause by
the victim of such discrimination, would be subject to some more
relaxed standard.
16. This argument was also made, and rejected, in Lee, wherein
the state of Alabama unsuccessfully argued in its reply brief that
[w]e have in this case an illustration of a legitimate area
for the exercise of administrative discretion. It would
be wrong, and even dangerous, for this court to upset
the time honored, judicially recognized, principle
permitting wide administrative discretion in an effort to
stop one alleged invidious practice, particularly when
you can insure the end of that alleged practice by a simple
and clear declaration of the law.
Appellants’ Reply Brief at 2, Lee, 390 U.S. 333 (No. 75).
31
use a relaxed standard of scrutiny when reviewing
assertedly benign classifications based on race or ethnicity.
Id. at 223-24, rev'g, Fullilove v. Klutznick, 448 U.S. 448
(1980). The legislative and executive branches may be
generally better equipped than the judiciary to determine how
to manage prisons with respect to the vast generality of prison
rules or prison administrator conduct, but the judiciary is
best suited to evaluate racial protection claims and to
scrutinize carefully any claimed necessity to segregate
prisoners by race. Croson, 488 U.S. at 490-91 (plurality
ren see Grutter, 539 U.S. at 326; Adarand, 515 U.S. at
Finally, the Turner rationale does not reach, and has no
logical application to, official, regularized state-sanctioned
racial segregation or other discrimination. Rooted as it is in
the recognition that prison administration is difficult and
within the peculiar province of prison officials (see Turner,
482 U.S. at 85), Turner neither afforded nor was intended to
foster or protect the discretion to treat prisoners differently
because of their race or ethnic background. Under the law,
prison administrators must first find ways other than racial
classifications to advance compelling state interests.
“[OJnly a social emergency rising to the level of imminent
danger to life and limb — for example, a prison race riot,
requiring temporary segregation of inmates, cf. Lee v.
Washington, supra — can justify an exception to the
principle .. . that our Constitution is colorblind.” Croson,
488 U.S. at 520-21 (Scalia, J., concurring in judgment)
(citation and internal quotation omitted).
Freedom from racial segregation is qualitatively different
from the rights to which the Court has applied 7urner.
See supra note 11. The right to freedom from racial
32
segregation implicates not only all the historic concerns
inherent in the Court’s racial protection jurisprudence, but
also the very legitimacy of the penal system, an institution
which was “founded upon the doctrine of equality.”
Hirabayashi v. United States, 320 U.S. 81, 100 (1943). Given
the significant societal harms posed by the threat of
government-created racial classifications, and the rare and
highly unusual circumstances in which segregating prisoners
by race might ever be temporarily necessary, strict scrutiny
is necessary to determine whether the CDC is using race
illegitimately, unnecessarily classifying and segregating
prisoners by race when compelling governmental goals can
be advanced just as well, and almost certainly far better, by
colorblind means.
ll. THE CDC’S POLICY OF SEGREGATING ALL
ARRIVING INMATES BY RACE AND ETHNICITY
VIOLATES THE EQUAL PROTECTION CLAUSE
The CDC presented no evidence that its policy of racially
segregating two-man cells in all CDC facilities for all
incoming inmates and a// transferred inmates (regardless of,
inter alia, the length of their tenure and prior conduct) is
necessary to protect against inmate violence. Nor did the CDC
present evidence that it had ever questioned, reviewed, or
assessed the need for the policy during its 25-plus year
history. The CDC offered no testimony or other evidence
demonstrating that a mixed-race cell assignment had led to
any violence at any CDC institution, at any time, much less
that its policy is necessary and narrowly tailored to avert such
violence. Nor did the CDC offer any expert testimony to
support the notion that its policy of automatic segregation
by race minimizes the risk of prison violence. A generalized
fear of racial violence is the only basis on which the CDC’s
policy of racial segregation rests.
33
Whether the policy is subjected to strict scrutiny under
Lee, or even the more relaxed standard employed in Turner,
the CDC’s automatic, blanket segregation policy does not
withstand scrutiny under the Equal Protection Clause.
A. The CDC’s Implementation of Racial Segregation
Is Not Narrowly Tailored to Serve a Compelling
State Interest, or Any Interest
Under standards advocated by Justices Scalia and
Thomas, it is doubtful that the daily management of the
California prison system — as distinct from some particular
situation constituting an emergency — presents a sufficiently
“compelling necessity” that might merit further analysis
under strict scrutiny. Croson, 488 U.S. at 521 (Scalia, J.,
concurring in judgment); Grutter, 539 U.S. at 352-53
(Thomas, J., concurring and dissenting). Even if the routine
use of racially segregated cell assignments of all arriving
prisoners for 60 days so as to minimize inmate violence to
other inmates could present a “compelling governmental
interest” in justifying routine racial segregation under a strict
scrutiny analysis, the CDC entirely fails to meet its burden
of showing that its policy is necessary to advance that interest
or is narrowly tailored to do so.
. The CDC’s policy of routinely subjecting arriving
inmates to racially segregated cells is the antithesis of
narrowly tailored. It is an overbroad, blanket approach that
has been mechanically applied for more than 25 years, and
is applied today in the face of empirical data (see supra
note 5) suggesting it is the wrong policy to address any need
asserted by the CDC. No individualized consideration is
given to assess whether the policy is necessary for each newly
incarcerated prisoner. No individualized consideration is
34
given to assess whether segregation is necessary for each
transferred prisoner. Compare Grutter, 539 U.S. at 333-34,
and Bakke, 438 U.S. at 315-18 (consideration of race
on an individualized basis, together with other factors,
held permissible) with Gratz, 539 U.S. at 269-76
(holding unconstitutional the mechanical, un-individualized
consideration of race).
Nor has the CDC proffered anything but ipse dixit to
support its contention that such a blanket, arbitrary policy is
necessary to prevent violence. The CDC has proffered
nothing more than its untested assumption that all prisoners
will be violent with other prisoners of a different race or
national origin. See supra pp. 8-9, 13. The entire CDC record
comprises the speculation of two CDC witnesses that they
(and therefore by extension the CDC) are “certain” that “there
will be conflicts” and “serious violence among inmates,” and
that “there will be conflicts both in the cells and the conflict
will flow onto the yards,” if race “were disregarded entirely.”
J.A. 308a-312a [Schulteis Decl. 4 10-11 (emphasis added)];
J.A. 302a-307a [Cambra Decl. 4 13-14]. Courts uniformly
hold the kinds of unquantitative, conclusory assertions
offered here insufficient to justify racial classification under
strict scrutiny. See, e.g., Gratz, 539 U.S. at 269-276; Adarand,
515 U.S. at 238; Croson, 488 U.S. at 498-506."’
17. The CDC’s time-worn arguments of racial violence
stemming from integration have been made repeatedly by
segregationists, in several contexts, over the past century. When the
Army began to desegregate its ranks in 1950, there were “general
predictions of ruined efficiency, wrecked morale, even bloody revolt
....” Lee Nichols, Breakthrough on the Color Front 7 (1954).
In addition to objections from the enlisted men, Army officials
predicted serious trouble based on past experience with serious
(Cont'd)
35
As noted by the four judges dissenting from the
Ninth Circuit’s denial of rehearing, “[t}he prison official
affidavits . . . do not cite one concrete instance or statistical
example of racial violence, instead referring only to the
unsubstantiated ‘beliefs’ of prison officials about what they
presume will happen.” Pet. App. 43a n.3.
Moreover, carefully read, the depositions and
declarations proffered by the CDC do not support its policy
under the 7urner factors, for they are curiously phrased to
predict harm “if race were to be disregarded entirely.”
J.A. 302a-307a [Cambra Decl. 4 13]. But that is not the issue
posed by Johnson’s challenge to the CDC’s policy. Race is
at present the dominant factor; as the Ninth Circuit noted,
“the chances of an inmate being assigned a cell mate of
another race is ‘[p]retty close’ to zero percent.” Pet. App. 3a
(alteration in original).'* Accordingly, the question presented
here is not whether race must be disregarded entirely, but
whether it is constitutional for the state to effectively ignore
or subordinate all other factors in favor of a single-minded
(Cont’d)
racial disturbances, and even full-scale race riots. Jd. at 58-59.
The experience of the Army, however, once the desegregation process
had actually begun was quite different, according to Nichols:
“Detailed official analysis by statements of hundreds of field
commanders, showed that racial conflict — once a critical military
problem that led to repeated bloody riots, had all but vanished.
With Negroes and whites no longer grouped separately, there was
apparently little motive for racial ‘gang’ conflict.” Jd. at 7.
18. See also J.A. 183a [Schulteis Depo.] (Q: “Why as a
practice do you put a black with a black and a white with a white?
~ A: Ora Hispanic with a Hispanic? Q: Or a Hispanic with a Hispanic?
A: My whole career we’ve done that. My whole entire 24 years with
the department. It is what the department has done.”).
36
consideration of race as the predominant factor governing
initial 60-day placements. The declarations do not assert that
there would be harm in the CDC’s prisons if race were no
longer the controlling, overwhelmingly dominating factor,
only (in conclusory terms) that there would be harm if it were
“disregarded entirely.” Pet. App. 25a; J.A. 302a-307a
{Cambra Decl. ¥ 13].
The few available published studies implicitly condemn
the CDC’s policy by demonstrating that the rate of violence
between inmates segregated by race in double cells surpasses
the rate of violence among inmates in cells that are racially
integrated. See supra note 5; cf. Martha L. Henderson, et al.,
Race, Rights, and Order in Prison: A National Survey of
Wardens on the Racial Integration of Prison Cells, 80 The
Prison Journal 295, 304 (2000) (in a 1997 nationwide survey,
88.5% of maximum-security wardens responding were of the
opinion that integrated cells have a similar or lesser level of
conflict than segregated cells).
The CDC’s attempt to justify segregation based on its
perception of typical beliefs, gang affiliations, hostilities and
prejudices of the inmates falls far short of the kind of showing
that could justify the policy on strict scrutiny. The CDC
asserts that the reason arriving prisoners must be segregated
by race is that “inmates believe race to be an important
issue . . . [which] stems from the identification that prisoners,
particularly male prisoners, make of themselves .. . [and]
from the gang involvement that is a part of many of the
inmates’ backgrounds and is generally found to play a role
in those inmates’ anti-social, criminal behavior.” J.A. 302a-
307a [Cambra Decl. ¥ 9]. But an assertion of that generality
does not begin to justify routine 60-day racial segregation of
all incoming inmates, regardless of their crimes or the
37
character of information already available to the CDC about
any given inmate; it does not begin to justify the automatic
assignment of Johnson, upon each of four transfers after years
of observation by CDC personnel, to a racially segregated
cell; and it does not explain why cell assignments that are
deemed safe on day 61 are presumptively unsafe on day 59
(or day 30, or day 10); or why a prisoner who has been
segregated for 2 months already and can therefore safely be
celled with those of any “ethnic race” must be re-segregated
for another two months merely because the CDC has decided
for its own administrative convenience to transfer him to a
different CDC institution.
That some inmates may indulge in race-based hatreds
and stereotypes does not suggest that the CDC should
condone or support such biases as a matter of policy and
practice. See, e.g., Palmore, 466 U.S. 429 (the state cannot
justify removal of a child from its mother’s custody based
on effects of racial prejudice expected to result from mother’s
marriage to a man of a different race).
B. Because the CDC’s Arbitrary Racial Segregation
Is an Exaggerated Response to Unsubstantiated
Fears, It Does Not Even Withstand Scrutiny
Under Turner
Even assuming arguendo that Turner rather than Lee
should be applied to the CDC’s racial segregation policy,
the Court’s deference to prison administrators’ judgment
under that standard is not absolute, and the CDC’s showing
fails even that lesser scrutiny, properly applied. Cf Turner,
482 U.S. at 100 (Stevens, J. concurring in part and dissenting
in part) (“How a court describes its standard of review when
a prison regulation infringes fundamental constitutional nghts
38
often has far less consequence for the inmates than the actual
showing that the court demands of the State in order to uphold
the regulation.”); Miller-El v. Cockrell, 537 U.S. 322, 340
(2003) (“[D]eference does not imply abandonment or
abdication of judicial review.”).
The CDC has failed to satisfy the first, and most
important, prong of the 7urner test — “a regulation cannot be
sustained where the logical connection between the regulation
and the asserted goal is so remote as to render the policy
arbitrary or irrational.” Turner, 482 U.S. at 89-90. The CDC
failed to provide any evidence supporting a valid, logical
connection between the CDC’s racial segregation policy and
the concededly legitimate penological interest of preserving
prison security, and the Equal Protection Clause prevents the
courts from presuming any such support. The CDC presented
no documented cases of prison violence stemming from
integration of a two-man cell, no empirical evidence of
increased violence resulting from the integration of cells in
other prison systems, and no expert testimony tending to
support a heightened risk of violence or lack of discipline
stemming from such integration. Indeed, as discussed above,
the CDC offered nothing more than unsupported conjecture
in support of its assertion that integration would lead to
increased violence.'? On the record in the district court
19 Compare Reed v. Faulkner, 842 F.2d 960, 963 (7th Cir. 1988)
(Posner, J.), in which a rule barring dreadlocks did not survive
scrutiny under 7urner.
No evidence of ... a danger [of racial conflict] was
presented. . . . One prison administrator testified “that a
person who is wearing the symbol of the dreadlock might
indeed be wearing something as a symbol” that blacks
(Cont'd)
39
(and here), the CDC’s policy is nothing more than an
“exaggerated response” to its subjective fears of racial
violence. Turner, 482 U.S. at 87. Because the CDC’s policy
cannot satisfy the first and most important 7urner factor, it
should be invalidated “irrespective of whether the other
[ Turner] factors tilt in its favor.” Shaw v. Murphy, 532 U.S.
at 229-30. :
The CDC’s automatic racial segregation policy fails the
remaining 7urner factors as well. First, the inmates do not
have available alternative means to exercise the abridged
constitutional right to be free from racial discrimination.
The Ninth Circuit’s finding that Johnson has a “reasonable
alternative” to exercise his right to be free from
discrimination because he is not subject to segregation during
meals and recreational time and because the practice is
temporary (Pet. App. 22a-24a) inaccurately suggests that
this Court’s jurisprudence permits judicial endorsement of
state-sponsored discrimination provided that the
discrimination is applied only part-time. The evils of state
(Cont'd)
are superior to whites, and apparently it was this
testimony that became transmogrified in the district
court’s opinion into “a security concern for potential
racial conflict from the professed Rastafarian belief that
dreadlock symbolizes black superiority.” Actually there
was no evidence that the dreadlock symbolizes black
superiority, as distinct from being a conspicuous outward
manifestation of Rastafarianism, a faith that does teach
black superiority; however, as such a manifestation it
might remind white inmates of the Rastafarian belief in
black superiority. Yet this is pure conjecture, and to
suppose that the wearing of dreadlocks would lead to
racial violence is, on this record, the piling of conjecture
upon conjecture.
40
racial segregation do not dissipate merely because it is doled
out only in successive 60-day intervals, or because the inmate
is not locked in a segregated cell for 24 hours a day.”°
Not only is the time spent by inmates in dining halls and on
the yard inconsequential as compared to the time spent living
and sleeping in racially segregated two-man cells, but the
whole argument is flawed, and
[a]kin to asserting that if a school-child only has
to go to a segregated school one-third of the year,
the requirements of Brown v. Board of Education
are met. As the District of Columbia Circuit stated
in Pitts v. Thornburgh, the right to be free from
discrimination is the right to be free from a
particular, definite, constitutional harm, not the
right to engage in a particular activity or associate
with particular persons.
Pet. App. 46a [Denial of Rehearing (dissenting opinion)}.
See also Adarand, 515 U.S. at 229-30 (“[W]henever the
government treats any person unequally because of his or
her race, that person has suffered an injury that falls squarely
within the language and spirit of the Constitution’s guarantee
of equal protection.”).
The right to be free of racial discrimination does
not lend itself to alternative channels of expression.
20. The Ninth Circuit’s perception that the automatic
segregation policy lasts for only 60 days is contrary to the record,
which demonstrates that the automatic segregation policy is applied
again upon transfer of any inmate. Pet. App. 2a, J.A. 302a-307a
{Cambra Decl. 4 12]. As noted by the panel itself, “[i]f the inmate is
transferred, he again goes through the initial housing screening
process.” Pet. App. 4a-Sa.
41
Racial discrimination either occurs or it does not. Cf. Harris
v. Thigpen, 941 F. 2d 1495, 1517 (11th Cir. 1991).
[A]ny privacy right claimed here by the
scropositive inmates in their medical status is a
“passive” one. It is difficult to talk of “alternative
means” of protecting such a right, since, unlike
the first amendment context, there is no range or
continuum of other affirmative activity against
which to measure the encroachment of a given
prison restriction. Just as one cannot be “a little
bit pregnant,” disclosure of one’s HIV status either
occurs or it does not. Thus, in our case, this
particular factor of the Turner calculus does little
to channel our inquiry into the reasonableness of
the segregation policy as a restriction on
seropositive inmates’ right to privacy in disclosing
their medical diagnoses.
Id. Because all prisoners are subject to the automatic
segregation policy — there is no alternative — this Turner factor
also weighs against the CDC policy.
Under Turner, the Court would also examine whether
the CDC’s automatic segregation policy may be justified as
necessary to avoid a detrimental impact on prison resources.
With respect to this factor, the CDC’s entire argument below
rested on the premise that initial cell assignments made
without regard to race will inevitably lead to increased
violence, but the CDC supplied no evidence to support this
faulty premise. Other than a mere assertion of inevitable
violence, nothing has been offered to support the notion that
avoiding race-based criteria will cause more violence or any
consequential strain on prison resources, and the experiences
42
of other jurisdictions suggest otherwise. The CDC produced
no evidence to suggest that integration will create a ripple
effect endangering staff and other prisoners, or require greater
expenditure of scarce resources - and again, the empirical
evidence from other prison systems suggests, to the contrary,
that the level of violence will decrease with integration.
See Trulson, supra note 5; Henderson, supra note 5.
This Turner factor also condemns the CDC racial segregation
policy.
The remaining 7urner factor examines whether there
exist “obvious, easy alternatives” that could achieve the same
security purposes as the automatic segregation policy at
de minimis cost to valid penological interests. Turner,
482 U.S. at 90-91. Here, such “obvious, easy alternatives”
are plain. First, for all assignments subsequent to the first,
the “obvious, easy alternative” is to look at the inmate’s file
and assign him to housing based on his own demonstrated
character and conduct.?' Second, even for the first
assignment, the same alternatives applied by the Federal
Bureau of Prisons and other states — looking at the pre-
sentence report, or such other information as is made
available to the prison system for every arriving inmate, and
using any of the remaining tools of prison administration —
suffice.
To the extent that the CDC repeatedly professes that its
race-based policy is designed to avoid violent encounters
between members of rival gangs, and believes that it is
important to segregate prison cells by race because of “the
gang involvement that is a part of many of the inmates’
21. Even those inmates who have not been incarcerated by the
CDC previously will have jail records.
43
backgrounds” (J.A. 302a-307a [Cambra Decl. 4 9]), those
goals can easily be achieved by screening inmates on the
basis of easily observed signifiers of gang affiliation rather
than by the color of their skin. In fact, this goal would be
better achieved without using race-based criteria at all, given
that many rival gang members are members of the same race
(and many members of any race are not gang members).”
In furtherance of its stated goal of maintaining prison security,
the CDC could also refer to psychological profiles received
when an inmate arrives at, or is transferred to, a CDC facility,
indicating racial animus or a history of interracial violence.
There is no need to make the unlawful and offensive
assumption that all members of a particular race will become
violent toward members of other racial groups, but not their
own, if housed with inmates of other races. By minimally
altering the screening criteria in this fashion away from a
strictly race-based test, the same goals can be better achieved.
The Court has previously looked to well-run prison
systems in other states, and the Federal Bureau of Prisons,
in determining whether obvious, easy alternatives exist that
do not unnecessarily impinge on inmates’ rights. As noted
22. The CDC’s assumption that merely being of the same race
is a good proxy for compatibility is belied by the realities of prison
gang violence. For example, members of the Aryan Brotherhood target
and kill other members of the Aryan Brotherhood for reasons that
have nothing to do with race. See David Grann, The Brand: How the
Aryan Brotherhood became the most murderous prison gang in
America, The New Yorker, Feb. 16, 2004, at 157. Nor do prison gangs
operate along strict racial lines. There are mixed-race prison gangs
and alliances between gangs of different races. Alan Elsner, Gates of
Injustice: The Crisis in America’s Prisons 41-42 (2004). For instance,
the Aryan Brotherhood has a working relationship with the Mexican
Mafia, and the Black Guerilla Family has been known to work with
La Nuestra Familia. /d.
44
by the Court in evaluating 7urner’s restrictions on
First Amendment rights, “[o]ther well-run prison systems,
including the Federal Bureau of Prisons, have concluded that
substantially similar restrictions on inmate correspondence
were necessary to protect institutional order and security.”
Turner, 482 U.S. at 93. The Federal Bureau of Prisons
Program Statement 1040.04, Policy § 551.90 (1999), states
that “Bureau staff shall not discriminate against inmates on
the basis of race ... [t]his includes the making of
administrative decisions and providing access to work,
housing, and programs.” (Emphasis added.) Further, as
mentioned above, other states that have desegregated two-
man cells have found that racially motivated violence has
decreased. See Trulson, supra note 5.
In short, the CDC’s policy of racially segregating inmate
cell assignments would fail even 7urner review, were it
applicable. The policy rests on premises (that inmates of
different races will tend to be violent with one another, and
that segregated cells will tend to reduce prison violence) that
lack any rational support; it causes precisely the full harm
that the Equal Protection Clause was intended to eliminate;
it is not justifiable as conserving scarce administrative or
economic resources; and there are ready alternatives that fully
accommodate penological interests while affording inmates
the equal protection and elimination of state-imposed
segregation that the Constitution guarantees. State prison
officials do not need discretion to routinely segregate
prisoners by race and ethnicity. The discrimination tool is
not one that prison officials ought to have.
45
CONCLUSION
For all the foregoing reasons, the judgment below should
be reversed, and the case remanded for further proceedings
in accordance with the Court’s decision.
Respectfully submitted,
Bert H. DEIxLer
Counsel of Record
Cuar_es S. Sims
Lois D. THOMPSON
AARON P. ALLAN
TANYA L. FoRSHEIT
Lee K. CRAWFORD
PROSKAUER Rose LLP
2049 Century Park East
Suite 3200
Los Angeles, California 90067
(310) 557-2900
Counsel for Petitioner
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