Amicus Curiae Brief — Johnson v. California

(F) , ae)

No. 03-636 JUN 4 - 2004

ee Picea |

3n The

Supreme Court of the Anited States

¢

GARRISON S. JOHNSON,

Petitioner,

vs.

CALIFORNIA, et al.,

Respondents.

®

On Writ Of Certiorari To The

United States Court Of

For The Ninth Circuit

+

BRIEF OF AMICI CURIAE AMERICAN CIVIL

LIBERTIES UNION AND ITS THREE CALIFORNIA

AFFILIATES IN SUPPORT OF PETITIONER

¢

ELIZABETH ALEXANDER STEVEN R. SHAPIRO

Counsel of Record AMERICAN CIVIL LIBERTIES

CralG A. COWIE UNION FOUNDATION

Davin C. FATHI 125 Broad Street

NATIONAL PRISON PROJECT New York, NY 10004

OF THE AMERICAN CIVIL (212) 549-2660

LIBERTIES UNION FOUNDATION

733 15th Street, NW ,

Suite 620

Washington, DC 20005

(202) 393-4930

(Counsel Continued On Inside Front Cover)

LIST OF ADDITIONAL COUNSEL

JORDAN C. BUDD

ACLU FOUNDATION OF SAN DIEGO

AND IMPERIAL COUNTIES

P.O. Box 87131

San Diego, CA 92138

(619) 232-2121

ALAN SCHLOSSER

ACLU oF NORTHERN CALIFORNIA

1663 Mission Street

Suite 460

San Francisco, CA 94103

(415) 621-2493

MARK D. ROSENBAUM

BEN WIZNER

PETER J. ELIASBERG

ACLU oF SOUTHERN CALIFORNIA

1616 Beverly Blvd.

Los Angeles, CA 90026

(213) 977-9500

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............00cceceeeeeeee ii

INTEREST OF AMICI CURIAE ........00000cceeeeeees 1

STATEMENT OF THE CASE ...........00cceeeeeeees 1

SUMMARY OF ARGUMENT ............0000ceeeeees 3

_ PEPEPPPTTTTTITTTITTT ETE 5

' a Pomc is sobjec subject ett

— PPPPPPITTITITICITITIT TITTLE )

II. eee ot nee epestaaateene & eneaie

blic perceptions of fairness in the criminal

PPPPPTTTTTITTIT TITLE TTT 11

Il. | The Court should not apply Turner to racial

segregation claims .............0eeeeeeeeeees 15

A. The rationale for applying Turner does not

ee TTTT 15

B. The Turner standard would roti susie

) ames ae

Cc The Turner standard is too blunt a tool

enn engaaan -

Cc The Turner standard is unnecessary to

protect the interest in maintaining prison

safety and security .............000005 26

TABLE OF CITED AUTHORITIES

CASES

Adarand Constructors, Inc. v. Pena,

FED Ua GUD GITUED cccccccecescecccccececesees passim

Batson v. Ken ,

BO COED 00 0+ evcceceseseccssosececss 7,14

Blevins v. Brew,

593 F. Supp. 245 (W.D. Wis. 1984) .............. 21, 22

Brown v. Board of Education,

Pe GR GP EEEED cccocceccncecocsedeees 6, 13, 14, 21

v. Aaron,

SA BEEN cncccccccocescotcccnceseesenesese 7

Farmer v. Brennan,.

ED DUR GP OEEEED cccccccccccecocesccencessss 18, 19

ia v. McCollum,

GENER cvcccccccceccsscesconcenssecees 11

Gratz v. Bollinger,

539 US. 244 (2003) seeeeébesadeckdausaneemees 6, 8,9

Grutter v. Bollinger,

539 U.S. 306 D ccccsecesosevesonesensnses 6, 8, 10

Helling v. McKin

509°U S. 23 (1993) PPPOE SO PPO EE Ese. 19

Hirabayashi v. United States,

Se nS GEE cceccccdncéccessccccsssesceseues 6

Hope v. Pelzer,

CD SEED ccccccesccssceasescesacoess 19, 20

Hudson v. McMillian,

Se OE BEEN cocesccccccecccsesecoceseceseses 19

Hudson v. Palmer,

re 9

v. Californi

20? F.3d 650 (9 Cir. 2000) ebtedadiidbebbakadundned 2

Korematsu v. United States,

BED WE GROUPED cccccccccccccccccccoceceseses 6,7

Lee v. Washin "

390 U.S. 33 (1968) pesovcceesoecaccescesoesoes passim

Lewis v.

518 USS. 3 (1996) ieunednsdtadsodsdauddeekasass 17

— ae

Pr rr 6,8

McClelland v. Sigler,

327 F. Su saemetien aff d, 456 F.2d 1266

ttt RER atin te a AREA 2

Mickens v. Winston,

462 F. Supp. 910 (E.D. Va. 1978) i tiles ihiatiac laid touk inhi 27

Miller v. Johnson,

SED A CEEEEED cccccccccccccccescoesececeseoss 5

O’Lone v. Estate of Shabazz,

GEE GE FERC cccccccccccccccccccscccceseoss 17

Overton v.

539 U.S. 126 (2003) ... 2... cece cece eee ee eeees passim

Palmore v. Sidoti,

GO GD cc ccccccccccccccccccccecocceses 6

“igus Br cise, overruled by Brown v. Board of

SIN. sucandadedukecambae 14

iv

Powers v. Ohio,

GP GIES ccc ccccccccccccccccececoetecess 8

Procunier v. Martinez,

416 U.S. 396 (1974), overruled in oho)

1

Thornburgh v. Abbott, 490 U.S. 401 (1989) ............ 17

Ren

eh Sn F. Supp. 301 Pees GER, TR co ccccccccccccvccses 23

Richmond v. ].A. Croson Co.,

GP SPEND cccccccesccccccocccccceeseess 6,8

Roberts v. United States Jaycees,

SP SGD cccccccccccccccccgoccecosceses 17

Sandin v. Conner,

PP A GENE ccccccccccccoscccccscoceccoves 19

Saucier v. Katz,

SPD ED coccccececucecucescsaseccsceese 2

Shaw v. Hunt,

Sy EEE ccccccsccccctcoscescccscsseeosse 5

Shaw v. Mu ,

532 US. Bs (2001) RI Ce OPO ER ey 17

Sockwell v. Phelps,

20 F.3d 187 Ge BOSE cc ccccesesccoscecesesoucs 22

Thornburgh v. Abbott,

SPEED. Seececeuscccoccescosececesenes 17

Turner v. q

PEED ceccaseceveseccesesssccévecs passim

United States v. County, Kansas,

Se SP Gi SESE cocdccccccocescecescces 22

494 vers ee. nsoniaiclaniadaala 17,19, 20

Vv

63 f Sup, “67 (MD. Ala. 1966), aff'd, 390 US. 333

1

(1968) . oe peccccnccecesescococcesceséesoesees 8, 27

White v. Morris,

832 F. Supp. 1129 (S.D. Ohio 1993) ...........+..- 28, 29

Wilson v. Seiter,

BEE OB BICC) cccccccccccccccccccccccsccecss 19

Wolff v. McDonnell,

418 U.S. 539 (1974) ....... cece ccc ewe cece eeeencees 18

t v. Jackson Board of Education,

DUE Bev CRED cccccccccccccccccsccossceces 6, 10

Youn v. Romeo,

CE SE CUED cccccccccccccccccecososccocees 20

Zablocki v. Redhail,

GO UD TIO GOED cccccccccscccccccccccescscsess 17

CONSTITUTIONAL AUTHORITIES

UG, Comet, GGG F occ ccccccccccccccccccccseces 16, 17

US. Const. amend. VIII ... 2.2... 22 ccceeeeeeeeeee passim

U.S. Const. amend. XIV, Due Process Clause ....... passim

US. Const. amend. XIV, Equal Protection Clause ... passim

ADDITIONAL AUTHORITIES

American Bar Association, The State of Criminal Justice

CIID ccccccccccccccccccccccccccccccccccccecees 12

Ian Ayres & Joel W. , A Market Test for

Race Discrimination in Bail Setting, 46 Stan. L.

Oe eT State and Federal

vi

Bureau of Justice Statistics, Prisoners in 2002 (rev. 2003) . 12

Bureau of Justice Statistics, Sentencing in the Federal

Courts: Does Race Matter? The Transition to Sentencing

Guidelines, 1986-90 (1993)... 2.22.0 cc ccceeeeeeeeees 13

Paul Butler, Racially Based Jury Nulli a Black Power

in the Criminal Justice System, 105 Yale L.J. 677 (1995) . 12

Alan Elsner, Gates of Injustice: The Crisis in America’s

PREPUNEEED coccccvccccscncescccccecescsooosess 26

Gallup Poll Social Audit, Black/White Relations in the

United States 1997: Topline and Trends (1997) ......... 11

International Convention on the Elimination of All

Forms of Racial Discrimination, adopted and opened

for signature by the United Nations General Assembly

December 21, 1965, art. 3, 660 U.N.T.S. 195,

U.N. Doc. A/ BED cecccccccccsccseccosececsceeces 10

a Trulson, The 2 Amon Sa Pot: a an

ing of t se of Desegregation in

omg py Chom

a States Sentencing Commission, Special

poh pes Cocaine and Federal Sentencing Poli rey (1995),

nat / /www.ussc. wieaks

chaps-8 pdf MWITTTITITITITITTT TTT TTT TTT TTT Tree - &

U.S. Census Bureau, Population by Race and Hispanic or

Latino Origin, for All Ages and for 18 Years and Over,

Aoay ya tates: 2000 (2001), available at

l

INTEREST OF AMICI CURIAE’

The American Civil Liberties Union (ACLU) is a

nationwide, non-profit, nonpartisan organization of more

than 400,000 members dedicated to the principles of liberty

and equality embodied in the Constitution and this nation's

civil rights laws. Consistent with that mission, the National

Prison Project of the ACLU Foundation was established in

1972 to protect and promote the civil and constitutional rights

of prisoners. Of particular note here, the ACLU represented

the prisoner appellees in Lee v. Washington, 390 U.S. 333

(1968), where this Court held that Alabama statutes requiring

racial segregation in prisons and jails violated the Fourteenth

Amendment. The ACLU is joined on this brief by its three

California affiliates: the ACLU of Southern California, the

ACLU of Northern California, and the ACLU of San Diego

STATEMENT OF THE CASE

California has a policy of segregating prisoners by race

for the first sixty days of their incarceration and for the first

sixty days after their transfer to a new institution. This case

presents the question of whether California’s policy violates

the Constitution. In 1995, Garrison Johnson, acting without

a lawyer, sued the California Department of Corrections,

alleging that the State’s long-standing practice of segregating

prisoners by race for sixty days each time they arrive at a new

institution violated his right to equal protection of the laws

under the Fourteenth Amendment. Pet. App. 3a-6a. In 1998,

the United States District Court for the Central District of

California dismissed his complaint, but the Ninth Circuit

' No counsel for any party authored any part of this brief.

No persons or entities other than the amici curiae made any monetary

contribution to the preparation or submission of this brief. Pursuant

to Supreme Court Rule 37.3, copies of letters of consent to the filing

of this brief have been lodged with the Court.

2

reversed in part, holding that Johnson had stated a claim of

racial discrimination under the Equal Protection Clause.

Johnson v. California, 207 F.3d 650, 655 (9" Cir. 2000) (per

curiam).

On remand the district court appointed counsel, and

discovery was conducted. Pet. App. 6a. After initially

denying defendants’ motion to dismiss, the district court

reconsidered defendants’ motion to dismiss on the grounds

of qualified immunity in light of Saucier v. Katz, 533 U.S. 194

(2001). Pet. App. 33a. Upon reconsideration, the court

restated its holding that there was a triable issue of fact as to

whether the State’s policy violated the Equal Protection

Clause. Id. However, citing Turner v. Safley, 482 U.S. 78

(1987), the district court noted that the State’s policy might not

violate the Equal Protection Clause, and it therefore granted

qualified immunity to the two defendants who had been sued

- for damages, finding that the applicable law had not been

clearly established. Pet. App. 34a.

| On appeal, the Ninth Circuit reached the merits of

petitioner's equal protection claim. Pet. App. 7a. However,

it rejected petitioner’s argument that the State’s explicit policy

of racial discrimination should be subject to strict judicial

scrutiny. Instead, it held that the four-part Turner test was

controlling and that the relevant issue to be decided was

whether the State’s uncontested policy of racial segregation

“is reasonably related to [its] concern for increased racial

violence.” Pet. App. 13a. In resolving that question, the court

first assumed a “common-sense connection” between the

State’s legitimate interest in prison safety and its policy of

racially segregating prisoners, which in the court's view

Johnson was unable to disprove. Pet. App. 22a Asa result,

the State “was not required to make any evidentiary showing

concerning the connection.” Id. (internal quotation and

citation omitted). Next, the court broadly framed the question

of whether Johnson had alternative means to exercise his right

to be free from governmental racial discrimination by looking

3

at his entire period of incarceration rather than the multiple

sixty-day periods during which the State segregated him, and

it found that reasonable alternatives existed. Pet. App. 23a-

24a. The court then held that Johnson did not rebut the State’s

claim that violence would result if the State stopped

segregating the reception centers by race. Pet. App. 27a.

Finally, the court found that Johnson had failed to meet his

burden of showing that there are “obvious, easy alternatives”

to racial segregation, which would demonstrate that the

State’s response was exaggerated. Pet. App. 29a. Thus, while

noting that the court would “undoubtedly . . . strike [the

policy] down as unconstitutional” if it were implemented

anywhere other than a prison, the court held that the policy

was constitutional. Pet. App. 31a.

The Ninth Circuit denied Johnson's petition for

rehearing and rehearing en banc, Pet. App. 37a, and this Court

granted certiorari.

SUMMARY OF ARGUMENT

The Ninth Circuit erred when it applied the deferential

standard of Turner v. Safley, 482 U.S. 78 (1987), rather than

strict scrutiny, to California’s policy of segregating prisoners

by race for sixty days every time they arrive at a new

institution.

All government classifications based on race are

subject to strict scrutiny under this Court's holdings. That is

true for the criminal justice system in general, and it is true

more specifically for prisons and jails. Nothing in this case

justifies an exception to that general rule. A State’s allegedly

good intentions in classifying its citizens by race do not

remove the need for strict judicial scrutiny.

If anything, the need for strict scrutiny is underscored

by the context in which this case arises. Minorities are vastly

over-represented in prisons and jails. Minority defendants

also receive longer sentences and higher bail amounts than

4

white defendants. These well-known statistics have led to a

widespread perception of racial discrimination in the criminal

justice system. In the face of that perception, the assurance

that any express racial classification will be subject to strict

scrutiny is critical to restoring public confidence in the

evenhanded administration of justice.

Moreover, the rationale for applying the deferential

Turner standard does not extend to claims of racial

discrimination. Turner rests on the understanding that

prisoners necessarily lose control over many aspects of their

daily lives once incarcerated, and that the exercise of certain

rights by prisoners will often conflict with the necessities of

confinement. The right of free association, for example, is

inevitably restricted in prison. Accordingly, the Court has

applied the Turner standard when reviewing regulations

restricting such rights, and has upheld those regulations if

they are reasonably related to a legitimate penological

interest.

On the other hand, the Court has not applied Turner

when the rights at issue do not depend on volitional choices

by the prisoner but, rather, exist independent of those choices

as constitutionally-imposed limits on government power. For

example, the Court has not applied Turner when reviewing

claims of cruel and unusual punishment under the Eighth

Amendment, or the right to be free from arbitrary punishment

safeguarded by the Due Process Clause. These are not rights

that are “exercised,” to use the language of Turner. They are

rights that are enjoyed by all prisoners, that cannot be waived

by any prisoner, and that are not diminished by the fact of

incarceration. Racial segregation plainly fits into this latter

category, as the Court made clear in Lee v. Washington, 390

US. 333 (1968).

In Lee, this Court was properly skeptical of allowing

racial segregation on the mere assertion of possible racial

violence. At the same time, it made clear that courts remain

5

free to consider the exigencies of prison security and

discipline in particularized circumstances when reviewing

policies that segregate by race. Accordingly, application of

the Turner standard to racial segregation claims is

unnecessary.

Such application would also be inconsistent with the

core values of a system dedicated to equal justice under the

law; prison policies imposing racial segregation should not

carry the presumption of constitutionality required by the

Turner standard. Moreover, under Turner, evidence that

segregation actually promotes racial violence and creates an

atmosphere of racial fear and mistrust can simply be ignored.

By using race as a proxy for gang membership and for a

proclivity for violence, the State’s policy in this case is both

overinclusive and underinclusive; it also perpetuates

stigmatizing racial stereotypes.

When reviewed under strict scrutiny, the State’s policy

fails because it is not narrowly tailored: it is indefinite in

duration; it is undifferentiated in its sweeping generalizations

regarding race and the propensity for violence; and there is no

evidence that the State considered any race-neutral means of

achieving its goals. Therefore, the judgment of the Ninth

Circuit should be reversed.

ARGUMENT

L A state policy that regularly segregates prisoners

according to race is subject to strict judicial

scrutiny

“Racial classifications are antithetical to the Fourteenth

Amendment, whose central purpose was to eliminate racial

discrimination emanating from official sources in the States.”

Shaw v. Hunt, 517 U.S. 899, 907 (1996) (citation and internal

quotations omitted); see also Miller v. Johnson, 515 U.S. 900, 904

(1995) (noting that the “central mandate [of the Equal

Protection Clause] is racial neutrality in governmental

6

decisionmaking”); Brown v. Bd. of Educ., 347 U.S. 483, 493, 495

(1954) (holding that segregation of school children solely on

the basis of race violates the Equal Protection Clause “even

though the physical facilities and other ‘tangible’ factors may

be equal”); cf. Hirabayashi v. United States, 320 U.S. 81, 100

(1943) (“Distinctions between citizens solely because of their

ancestry are by their very nature odious to a free people

‘ool

Thus, this Court has held that “all racial classifications,

imposed by whatever federal, state, or local governmental

actor, must be analyzed by a reviewing court under strict

scrutiny. In other words, such classifications are

constitutional only if they are narrowly tailored measures that

further compelling governmental interests.” Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); Grutter v.

Bollinger, 539 U.S. 306, 326 (2003) (“We have held that all racial

classifications imposed by government must be analyzed by

a reviewing court under strict scrutiny.”) (internal quotation

omitted); Gratz v. Bollinger, 539 U.S. 244, 270 (2003) (“It is by

now well established that all racial classifications reviewable

under the Equal Protection Clause must be strictly

scrutinized.”) (internal quotation omitted); Richmond v. J.A.

Croson Co., 488 U.S. 469, 493-94 (1989) (O’Connor, J., plurality

opinion) (applying strict scrutiny to racial classifications); id.

at 520 (Scalia, J., concurring in judgment) (“I agree . . . with

Justice O’Connor’s conclusion that strict scrutiny must be

applied to all governmental classification by race. . . .”);

Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 285 (1986)

(O’Connor, J., concurring in part and concurring in the

judgment) (stating that “racial classifications of any sort must

be subjected to ‘strict scrutiny”); Palmore v. Sidoti, 466 U.S.

429, 432 (1984) (“Such classifications are subject to the most

exacting scrutiny[.]”); Loving v. Virginia, 388 U.S. 1, 11 (1967)

(stating that at “the very least, the Equal Protection Clause

demands that racial classifications . . . be subjected to the

‘most rigid scrutiny’”) (quoting Korematsu v. United States, 323

US. 214, 216 (1944)).

Even when this nation was at war, this Court has

applied the “most rigid scrutiny” to racial classifications

related to national security. Korematsu, 323 U.S. at 216. The

Court in that case recognized that the Government believed

“a menace to the national defense and safety [existed], which

demanded that prompt and adequate measures be taken,” but

nonetheless applied strict scrutiny in its review of an order

excluding all persons of Japanese origin. Id. at 218-19

(internal quotation omitted). Similarly, this Court has refused

in the face of violence to alter its finding that segregated

schools do not survive strict scrutiny, requiring a state to

integrate a public high school despite accepting the lower

court’s findings that the integration had led to repeated

violence, had an adverse effect on the education of the

students, and had generally led to “chaos, bedlam and

turmoil.” Cooper v. Aaron, 358 U.S. 1, 13, 16 (1958) (quotation

omitted) (“The constitutional rights of respondents are not to

be sacrificed or yielded to the violence and disorder which

have followed upon the actions of the Governor and

Legislature.”).

Nor has this Court hesitated to apply strict scrutiny to

racial classifications in sensitive areas of the criminal justice

system. See, e.g., Batson v. Kentucky, 476 U.S. 79, 100 (1986).

The Court in Batson noted “the prosecutor's historical

privilege of peremptory challenge free of judicial control” and

the “long and widely held belief that peremptory challenge

is a necessary part of trial by jury” as a “means of assuring

the selection of a qualified and unbiased jury.” Id. at 91 &

n.15 (quoting Swain v. Alabama, 380 U.S. 202, 219 (1965)).

Nonetheless, the Court flatly held that challenging a juror on

account of his or her race violates the Equal Protection Clause.

Id. at 89.

Furthermore, “the fact of equal application [to

members of all races] does not immunize the statute from the

8

very heavy burden of justification which the Fourteenth

Amendment has traditionally required of state statutes drawn

according to race.” Loving, 388 U.S. at 9.

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, 16S. Ct. 1138, 41 L. Ed.

256 (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

degree.

Powers v. Ohio, 499 U.S. 400, 410 (1991).

Not even a State’s allegedly “good intentions” in

considering race remove the need for strict judicial scrutiny.

See Grutter, 539 U.S. at 326; Gratz, 539 U.S. at 270; Adarand, 515

U.S. at 224; id. at 240 (Thomas, J., concurring in part and

concurring in the judgment) (“That these programs may have

been motivated, in part, by good intentions cannot provide

refuge from the principle that under our Constitution, the

government may not make distinctions on the basis of race.”);

Croson, 488 U.S. at 493.

Lastly, in Lee v. Washington, 390 U.S. 333 (1968) (per

curiam), this Court applied heightened scrutiny to Alabama

statutes that required racial segregation in prisons and jails,

the very issue in this case. Id. at 333-34. The lower court

rejected the prison’s claims “that the practice of racial

segregation in penal facilities is a matter of routine prison

security and discipline and is, therefore, not within the scope

of permissible inquiry by the courts,” and held that “it is

unmistakably clear that racial discrimination by governmental

authorities in the use of public facilities cannot be tolerated.”

Washington v. Lee, 263 F. Supp. 327, 331 (M.D. Ala. 1966)

(footnote omitted), affd, 390 U.S. 333 (1968). This Court

affirmed in a per curiam opinion. Lee, 390 U.S. at 333-34; see

9

also Hudson v. Palmer, 468 U.S. 517, 523 (1984) (quoting Lee and

stating “that invidious racial discrimination is as intolerable

within a prison as outside, except as may be essential to

‘prison security and discipline”).

In his concurrence in Lee, Justice Black noted 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.” Lee, 390 U.S. at 334 (Black, J., concurring)

(emphasis added). However, the right to take racial tensions

“into account” in order to ensure prisoners’ safety does not

relieve the States from strict judicial scrutiny of classifications

on the basis of race. See Lee, 390 U.S. at 333; cf. Gratz, 539 U.S.

at 270 (reviewing admissions policy that considered race in

order to ensure educational diversity and stating, “ [b]ecause

racial classifications are simply too pernicious to permit any

but the most exact connection between justification and

classification, our review of whether such requirements have

been met must entail a most searching examination” ) (internal

quotations and citations omitted; alteration incorporated);

Adarand, 515 US. at 228 (“[T]he point of strict scrutiny is to

‘differentiate between’ permissible and impermissible

governmental use of race.”).

The State’s policy here does not survive review under

strict scrutiny. Although protecting the safety of prisoners is

a compelling state interest, the State’s policy is not narrowly

tailored to that interest: it is indefinite in duration and

undifferentiated in its sweeping generalizations regarding

race and the propensity for violence. Every time a male

prisoner arrives at a California Department of Corrections

facility, either as a new prisoner or as a transfer, he is initially

housed for sixty days in a reception center, and while there,

his chance of being celled with a prisoner of a different race

“is ‘[p]retty close’ to zero percent” because race is the

dominant factor in housing at the reception centers. Pet. App.

2a-4a. This policy has been in place for over twenty years,

10

Pet. App. 21a, and has “no logical stopping point,” Wygant,

476 US. at 275. In fact, there is no movement at all toward a

non-racial initial classification system; instead, the current

system will simply exist in perpetuity.

Further, there is no evidence that the State in this case

considered race-neutral means of protecting the prisoners, see

Adarand, 515 U.S. at 237-38, or that its practice is the least

restrictive means to reach its goal. So far as the record reveals,

no other prison system in the country, state or federal, has

adopted a similar policy.

Finally, the State’s broad use of race in its policy is not

the best fit for its goal of reducing violence. The policy uses

race as a mere proxy for gang membership, which is in turn

a proxy for the potential for violence. The court below

described seven specific incidents, all of which involved gang

violence and many of which involved intraracial violence as

opposed to interracial violence. Pet. App. 16a-17a n.9. The

use of race as a proxy for gang membership also ignores the

potential for violence and pressure against non-gang

members by gang members of the same ethnicity.

Because the court below failed to apply strict scrutiny

to the State’s policy of racially segregating prisoners for sixty

days every time the prisoners arrive at a new facility, see Pet.

App. 11a-12a, its decision cannot be upheld.’

? The application of the most exacting scrutiny to state-

imposed racial segregation is also consistent with this nation’s

obligations under the International Convention on the Elimination of

All Forms of Racial Discrimination which provides, “States Parties

particularly condemn racial segregation and apartheid and undertake

to prevent, prohibit and eradicate all practices of this nature in

territories under their jurisdiction.” International Convention on the

Elimination of All Forms of Racial Discrimination, adopted and opened for

signature by the United Nations General Assembly Dec. 21, 1965, art. 3, 660

U.N.T.S. 195, U.N. Doc. A/6014. The United States ratified the

Convention in 1994. See Grutter, 539 US. at 344 (Ginsburg, J.,

11

IL. Strict scrutiny of racial classifications is essential to

public perceptions of fairness in the criminal justice

system

“The unhappy persistence of both the practice and the

lingering effects of racial discrimination against minority

groups in this country is an unfortunate reality ....” Adarand,

515 U.S. at 237. And despite this Court's “unceasing efforts to

eradicate racial prejudice from our criminal justice system,”

McCleskey v. Kemp, 481 U.S. 279, 309 (1987) (internal

quotations omitted), there is no area of our national life in

which the perception of continuing racial discrimination is

more widespread.

For example, in a 1997 Gallup poll, 72% of black

respondents stated a belief that blacks are treated more

harshly than whites in the criminal justice system; only 22%

of black respondents believed that blacks and whites are

treated “about the same.” A Gallup Poll Social Audit,

Black/White Relations in the United States 1997: Topline and

Trends 27 (1997) (Item 24). Even among white respondents,

nearly half (44%) believed that blacks are treated more

harshly. Id. In the same poll, 60% of black respondents

believed that blacks are treated less fairly than whites in

dealings with the police. Id. at 25 (Item 22(f)). Indeed, the

perception that race matters in the criminal justice system is

all but universal. See Georgia v. McCollum, 505 U.S. 42,61 n.1

(1992) (Thomas, J., concurring in the judgment) (noting that

the phrase “all white jury” had appeared over 200 times in the

preceding five years in the New York Times, Chicago Tribune,

and Los Angeles Times).

The effects of a widespread loss of confidence in the

racial fairness of the criminal justice system are obvious,

concrete and substantial. “[L]awyers and judges increasingly

perceive that some African-American jurors vote to acquit

concurring).

12

black defendants for racial reasons, a decision sometimes

expressed as the juror’s desire not to send yet another black

man to jail.” Paul Butler, Racially Based Jury Nullification:

Black Power in the Criminal Justice System, 105 Yale L.J. 677, 679

(1995) (footnotes omitted). Indeed, the article’s author - a

former federal prosecutor - ultimately concludes that “it is the

moral responsibility of black jurors to emancipate some guilty

black outlaws.” Id.

Unfortunately, there is_ample raw material for a

perception that the criminal justice system is not fair to

minorities. Although African-Americans constitute 11.4 % of

the American population aged 18 and over,’ nearly half (46%)

of state and federal prisoners are black. Bureau of Justice

Statistics, Census of State and Federal Correctional Facilities, 2000

3 (rev. 2003). Black and Hispanic prisoners together make up

nearly two-thirds (62%) of the federal and state prison

population. Id. The Bureau of Justice Statistics estimates that

on December 31, 2002, 10.4% of all black males aged 25 to 29

were in prison. Bureau of Justice Statistics, Prisoners in 2002

9 (rev. 2003).

This overrepresentation results in part from the fact

that minorities receive longer sentences than whites. An

American Bar Association report concluded that “[flor all

types of offenses, minorities generally serve more time until

first release than do whites.” American Bar Association, The

State of Criminal Justice 17 (2000). For federal prisoners, the

adoption of the federal sentencing guidelines appears to have

aggravated the disparity. “Whereas the average

imprisonment sentence given to blacks in non-guideline cases

disposed in 1986-88 differed from sentences given to whites

> US. Census Bureau, Population by Race and Hispanic or

Latino Origin, for All Ages and for 18 Years and Over, for the United

States: 2000 (2001), available at

http:/ / www.census.gov/population/cen2000/ phc-t1/tab01.pdf.

13

by only two to four months . . . , the gap had grown to 18

months in guideline cases in 1989, and to 25 months during

the first half of 1990.” Bureau of Justice Statistics, Sentencing

in the Federal Courts: Does Race Matter? The Transition to

Sentencing Guidelines, 1986-90 177 (1993). By 1990, black

federal defendants were receiving sentences an average of

47% longer than white federal defendants. Id. The United

States Sentencing Commission has frankly acknowledged

“the growing disparity between sentences for Black and

White federal defendants.” United States Sentencing

Commission, Special Report to the Congress: Cocaine and Federal

Sentencing Policy 154 (1995), available at

http:/ / www.ussc.gov/crack/chap5-8.pdf.

Moreover, bail amounts for black defendants have

been found to be substantially higher than those for whites,

even when other variables are controlled. See lan Ayres & Joel

Waldfogel, A Market Test for Race Discrimination in Bail Setting,

46 Stan. L. Rev. 987, 991-92 (1994) (after controlling for eleven

variables relating to the severity of the alleged offense, bail

amounts for black male defendants in New Haven were 35%

higher than those set for white males).

It is against this background - substantial

overrepresentation of minorities in prison, and a widespread

perception that the criminal justice system is racially biased -

that an explicit policy of segregating prisoners by race must

be viewed.

Half a century ago, this Court recognized that

“separate but equal” is an oxymoron; “[s]eparate educational

facilities are inherently unequal.” Brown v. Bd. of Educ., 347

U.S. at 495. This is in large part because “the policy of

separating the races is usually interpreted as denoting the

inferiority of the [NJegro group.” Id. at 494. The Court

recognized the inescapable stigma of racial segregation

despite unchallenged findings below “that the Negro and

white schools involved have been equalized, or are being

14

equalized, with respect to buildings, curricula, qualifications

and salaries of teachers, and other ‘tangible’ factors.” Id. at

492; see also Plessy v. Ferguson, 163 U.S. 537,562 (1896) (Harlan,

J., dissenting) (“The arbitrary separation of citizens, on the

basis of race, while they are on a public highway, is a badge

of servitude wholly inconsistent with the civil freedom and

the equality before the law established by the constitution. ...

The thin disguise of ‘equal’ accommodations for passengers

in railroad coaches will not mislead any one, nor atone for the

wrong this day done.”), overruled by Brown v. Bd. of Educ., 347

US. at 494-95.

This Court has acknowledged that public confidence

in the justice system is advanced when citizens are not subject

to differential treatment based on their race. See Batson, 476

US. at 99 (“In view of the heterogeneous population of our

Nation, public respect for our criminal justice system and the

rule of law will be strengthened if we ensure that no citizen is

disqualified from jury service because of his race.”).

Conversely, there can be no doubt that segregation of

prisoners by race, even if all prisoners are provided

comparable conditions of confinement, will be widely

interpreted as a badge of inferiority stamped upon minority

prisoners. It will be seen by many as an explicit

acknowledgment of what has long been suspected: that racial

minorities are second-class citizens in the criminal justice

system.

In light of these considerations, segregation of

prisoners by race must be permitted, if at all, only upon a

showing that it is the least intrusive means necessary to

advance a compelling governmental interest. “’[B]ecause

classifications based on race are potentially so harmful to the

entire body politic, it is especially important that the reasons

for any such classification be clearly identified and

unquestionably legitimate[;] . . . racial classifications are

simply too pernicious to permit any but the most exact

connection between justification and classification.’” Adarand,

15

515 U.S. at 236 (quoting Fullilove v. Klutznick, 448 U.S. 448,

533-35, 537 (1980) (Stevens, J., dissenting) (footnotes omitted)).

Ill. The Court should not apply Turner to racial

segregation claims

A. The rationale for applying Turner does not

apply to racial segregation claims

In Turner v. Safley, 482 U.S. 78 (1987), this Court

reviewed challenges to prison regulations restricting prisoner-

to-prisoner correspondence and prisoners’ ability to marry.

The Court determined that these regulations could be upheld

only if they were reasonably related to a legitimate

penological interest. Id. at 89. The Court identified four

factors relevant to the determination of the reasonableness of

the regulations at issue: whether there is a “valid, rational

connection” between the prison regulation and a legitimate

and neutral governmental interest put forth to sustain it;

whether there are alternative means of exercising the right

that remain open to prisoners; what effect accommodation of

the asserted constitutional right will have on guards and other

prisoners; and whether ready alternatives are available, so

that the challenged policy represents an “exaggerated

response.” Id. at 89-91 (citations and internal quotations

omitted).

The Ninth Circuit, in its decision affirming the grant

of summary judgment in favor of the prison officials in this

case, stated that “the standard of review is paramount” to the

result in this case. Pet. App. 11a. It then concluded that the

standard of review developed in Turner should apply to all

claims of racial discrimination in the prison setting. Pet. App.

11a-12a.*

* The Ninth Circuit conceded that Turner may not apply to

Eighth Amendment challenges. Pet. App. 12a n.6.

16

This conclusion is faulty because, as set forth below,

this Court has applied Turner’s standards only to a specific

subset of constitutional challenges to prison policies and

regulations.

Although the Court has not been explicit in describing

why it has applied Turner to some prisoner claims but not

others, a consideration of the Court's decisions suggests the

principle at work. In Overton v. Bazzetta, 539 U.S. 126 (2003),

the Court set forth the basic rationale for applying the Turner

standards to prisoner constitutional rights, namely when the

right in question is in intrinsic tension with the necessities of

confinement:

Many of the liberties and privileges enjoyed by other

citizens must be surrendered by the prisoner. An

inmate does not retain rights inconsistent with proper

incarceration. And, as our cases have established,

freedom of association is among the rights least

compatible with incarceration. Some curtailment of

that freedom must be expected in the prison context.

539 US. at 131 (citations omitted).

Thus, this Court has acknowledged that there is a

continuum of constitutional rights, some of which are more

compatible with the exigencies of imprisonment than others.

In the cases in which the Court has applied the Turner

standard, the challenged regulation has restricted a prisoner's

active exercise of rights; these cases have involved rights to

free expression, rights to expressive or intimate associations,

rights to refuse medical care, and rights to petition for redress

_of grievances.”

> All of the cases in which the Court has applied Turner involve

either First Amendment or Due Process interests. In Turner itself, the

Court considered regulations involving prisoner-to-prisoner

correspondence and the right to marry. Turner, 482 U.S. at 81. Prisoner

correspondence rights are obviously grounded in the First Amendment,

17

. These applications of Turner reflect the fact that

incarceration necessarily restricts prisoners’ ability to exercise

free will in myriad dimensions: prisoners lose control over

where they will live and with whom; what work they will

perform; when they will eat and sleep; and other aspects of

their lives that ordinarily are matters of private choice. In all

the cases in which this Court has applied Turner, the rights at

stake were ones that are actively exercised, rather than rights

that a person simply enjoys.

In contrast, Eighth Amendment rights are “enjoyed”

rather than “exercised,” they are passive rights that serve only

as limits on the power of the government:

see Procunier v. Martinez, 416 U.S. 396, 413-14 (1974), overruled in part by

Thornburgh v. Abbott, 490 U.S. 401 (1989), while the right to marry is

based on the Due Process Clause, Zablocki v. Redhail, 434 U.S. 374, 384

(1978). In Overton v. Bazzetta, 539 U.S. 126 (2003), as noted infra p. 19,

the Court applied a Turner analysis to a claim that prison regulations

limiting visitation infringed on prisoners’ associational rights.

Associational rights have both First Amendment and Due Process

components. Roberts v. United States Jaycees, 468 U:S. 609, 618-20 (1984)

(citing both Due Process and First Amendment cases in recognizing a

right of intimate association).

As noted infra note 6, the Due Process interest at stake in

Washington v. Harper, 494 U.S. 210 (1990), was the right to freedom from

bodily restraint. In Lewis v. Casey, 518 U.S. 343 (1996), the Court

considered a challenge to prisoners’ right of access to courts, a right

— on both the First Amendment and the Due Process Clause. Id.

at .

All of the remaining cases have involved only First

Amendment claims. In O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987),

the Court considered a challenge to a prison policy that barred Muslim

prisoners from attending weekly religious services. Id. at 345. In

Thornburgh v. Abbott, 490 U.S. 401 (1989), the Court considered a First

Amendment challenge to restrictions on prisoners’ receipt of

publications. Id. at 403. In Shaw v. Murphy, 532 U.S. 223 (2001), the

Court applied a First Amendment analysis to a prisoner's asserted right

to provide legal assistance to other prisoners. Id. at 231.

18

In its prohibition of “cruel and unusual punishments,”

the Eighth Amendment places restraints on prison

officials, who may not, for example, use excessive

physical force against prisoners. The Amendment

also imposes duties on these officials, who must

provide humane conditions of confinement; prison

officials must ensure that inmates receive adequate

food, clothing, shelter and medical care, and must

“take reasonable measures to guarantee the safety of

the inmates.”

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (citations omitted).

Similarly, restrictions on the government's ability to punish

arbitrarily, restrictions founded in the Due Process Clause,

also act as restraints on governmental power rather than as

protections for individual volitional interests. See, e.g., Wolff

v. McDonnell, 418 U.S. 539, 558 (1974) (“The touchstone of due

process is the protection of the individual against arbitrary

action of government.”). These rights are violated regardless

of a person’s expressed objection to exercise of governmental

power. For example, it would not be constitutional for the

government to execute someone for the crime of shoplifting,

even if that person did not object.

It is difficult to apply the Turner standard to passive

rights such as the right to be free from cruel and unusual

punishment. As noted, one of the four prongs of the Turner

standard involves consideration of “whether there are

alternative means of exercising the right that remain open to

prison inmates.” Turner, 482 U.S. at 90. Eighth Amendment

rights are either recognized or denied; it is as difficult to

imagine an alternative way to exercise one’s Eighth

Amendment rights as it is to imagine how to be a little bit

pregnant.

These considerations help to explain why the Court

has never applied its four-pronged test to cases in which

prisoners have challenged policies that implicate only the

19

limits of governmental power to punish prisoners. See Hope

v. Pelzer, 536 U.S. 730 (2002) (analyzing under the Eighth

Amendment, without reference to Turner standards, a

challenge to a prison regulation that allowed disciplining a

prisoner by shackling him to a rail); Sandin v. Conner, 515 U.S.

472 (1995) (analyzing under the Due Process Clause, without

reference to Turner standards, a challenge to a prison

disciplinary hearing); Farmer v. Brennan, 511 U.S. 825 (1994)

(analyzing under the Eighth Amendment, without reference

to Turner standards, a prisoner claim that authorities failed to

provide necessary safety); Helling v. McKinney, 509 U.S. 25

(1993) (analyzing under the Eighth Amendment, without

reference to Turner standards, a prisoner challenge to

exposure to second-hand smoke); Hudson v. McMillian, 503

US. 1 (1992) (analyzing under the Eighth Amendment,

without reference to Turner standards, a prisoner challenge to

use of force); Wilson v. Seiter, 501 U.S. 294 (1991) (analyzing

under the Eighth Amendment, without reference to Turner

standards, a prisoner challenge to a variety of conditions of

confinement).

It is true that the distinction between rights that one

“exercises” and rights that one “enjoys” blurs on the margins,

but the Court has resolved this blurriness by looking at the

way the prisoner frames the issue. Thus in Overton v. Bazzetta,

539 U.S. 126 (2003), the Court analyzed a regulation allowing

a potentially permanent ban on prisoner visitation under the

Eighth Amendment without reference to Turner standards. At

the same time, the Court separately applied a Turner analysis

to the claim that this regulation, as well as other regulations

limitinz prisoners’ visits with family members and friends,

infringed on the prisoners’ associational rights. Overton, 539

US. at 130-36.

Similarly, in Washington v. Harper, 494 U.S. 210 (1990),

cited by the court below as the rationale for applying Turner

analysis to all prisoner regulations, see Pet. App. 12a, the

prisoner framed his claim as a right to refuse psychotropic

20

medications, which is an aspect of freedom from bodily

restraint protected by the Due Process Clause, ° and the Court

applied Turner standards in determining the result. Id. at 223-

26. By contrast, although the prisoner’s claim regarding a

prison policy of handcuffing prisoners to a rail in Hope v.

Pelzer could have been characterized as an issue of freedom

from bodily restraint, the prisoner invoked the Eighth

Amendment, and the Court did not apply Turner. Hope, 536

US. at 733.

While the line between rights one “exercises” and

rights one “enjoys” may not always be clear, the right not to

be subjected to governmental classifications on the basis of

race is unambiguously a right that is “enjoyed,” like the right

not to be subjected to arbitrary or cruel and unusual

punishment. Moreover, freedom from segregation on the

basis of race is not in tension with the necessities of

confinement, and is completely “compatible with

incarceration,” Overton, 539 U.S. at 131; racial segregation is

not necessary to any penological purpose. Further, as is the

case with Eighth Amendment claims, it is difficult to

conceptualize how the entire Turner standard can be applied

in a meaningful way to racial segregation claims. A prisoner

subjected to racial segregation, for as long as that segregation

lasts, is entirely deprived of the right not to be classified by

race at the hands of the government. Like prisoners who are

currently being subjected to cruel and unusual punishment,

prisoners segregated by race are not provided with an

* Washington v. Harper cites Youngberg v. Romeo, 457 U.S. 307

(1982), for the proposition that avoiding the administration of

psychotropic medication implicates a constitutional right. Harper, 494

US. at 221-22. At the point cited, Youngberg characterizes the

constitutional claim as “a right to freedom from bodily restraint.” 457

US. at 316.

21

alternative means of exercising their rights by the prospect

that the infringement will end at some future point.’

Indeed, a clear marker that the Fourteenth

Amendment's Equal Protection clause operates asa restriction

on the powers of the government is that the constitutionality

of racial segregation by governmental command does not

depend on the agreement or disagreement of those affected

by the governmental action. Brown v. Bd. of Educ., 349 U.S. at

300 (“But it should go without saying that the vitality of these

constitutional principles [regarding elimination of racial

segregation in schools] cannot be allowed to yield simply

because of disagreement with them.”). The rationale for the

Turner standard, developed in a context in which the

limitations on constitutional rights are necessitated by

imprisonment, does not justify its application to Equal

Protection challenges to racial segregation.

B. The Turner standard would give too little

weight to the interest in eliminating racial

discrimination

In Lee v. Washington, 390 U.S. 333 (1968), this Court

issued a per curiam affirmance of a three-judge court order

declaring unconstitutional Alabama statutes requiring racial

segregation in prisons and jails. Indeed, the Court

characterized the argument that such statutes were

constitutional as “without merit.” Id. As a result of Lee,

prisons and jails across the country were desegregated.

Notably, the rationales of California prison

administrators for imposing racial segregation in classification

cannot be distinguished from those of the prison

” Cf. Blevins v. Brew, 593 F. Supp. 245, 247 (W.D. Wis. 1984)

(awarding damages to a prisoner subjected to racial segregation in

housing during his initial classification, even though the prisoner was

allowed to participate in daily program activities with other prisoners

on a non-racial basis when he was out of his cell).

22

administrators a generation ago who claimed that ending

enforced racial segregation in prisons and jails would lead to

violence. See, e.g., Sockwell v. Phelps, 20 F.3d 187, 190-91 (5"

Cir. 1994) (prison officials testified that racial segregation in

two-man cells at the Louisiana State Penitentiary at Angola

was “motivated by security concerns and the past incidents of

violence between black and white prisoners;” prison guards

were unable to monitor visually the two-man cells at all hours

of the night; prisoners in Angola are “the worst of the worst;”

two instances occurred in which black and white prisoners

housed together became violent; racial supremacy groups

existed within the prison ranks; and interracial conflicts may

have triggered more generalized racial violence); United States

v. Wyandotte County, Kan., 480 F.2d 969, 971 (10 Cir. 1973) (per

curiam) (jail administration attempted to justify policy of

assigning prisoners to the “tanks” on the basis of race because

those placed in tanks were “hardened criminals” with a

propensity for violence); Blevins v. Brew, 593 F. Supp. 245, 246-

49 (W.D. Wis. 1984) (incoming prisoners at FCI-Oxford were

segregated by race when double-celled; ordinarily staff did

not have an opportunity to review the central files of

incoming prisoners before they arrived, or to interview them

before their first housing assignment; on the day following

admission, prisoners could request adjustment of their

housing assignment, and the prison did not consider race in

making such adjustments; prison official testified that he was

aware of growing prominence within prisons of groups

advocating racial hatred, and that he believed that he would

be subjecting prisoners to a substantial risk of injury if he

placed two prisoners of different races in the same cell);

McClelland v. Sigler, 327 F. Supp. 829, 830 (D. Neb. 1971), affd,

456 F.2d 1266 (8" Cir. 1972) (white prisoners were housed in

West Cell Hall if they objected to living with black prisoners;

East Cell Hall housed prisoners of all races; prison warden

testified that putting blacks in the West Cell Hall would cause

“uncontrollable trouble” between the races, that following

sexual assault by black prisoner on white prisoner there was

23

a sit-down strike in the mess hall, that a small percentage of

black prisoners has a tendency to prey on young, weak white

men, and that racial tension resulting in an assault on a guard

had been the subject of legislative hearings); cf. Rentfrow v.

Carter, 296 F. Supp. 301, 302-03 (N.D. Ga. 1968) (ten prisoners

at the Georgia State Prison, five white and five black, asked

court to stop racial desegregation of penal institutions ordered

by federal court on the ground that violence would result

from order and that prisoners from both races would violently

resist racial desegregation; the prisoners alleged that

“frequent and violent killings” occurred in the prisons and

that there was an “acute shortage of custodial officers”).

If, in the cases discussed above, the courts had allowed

prison officials’ mere assertions of potential racial violence

permanently to defeat Equal Protection claims, it is highly

likely that a large segment of the nation’s prisons would not

have been desegregated, and our prisons and jails would have

become the one set of public institutions in the country in

which racial segregation retained official sanction. It is even

likely that many prisons and jails would remain racially

segregated to this day, a living fossil of the racial caste system

that disgraced our country.

Applying the Turner standard to claims of racial

segregation would make it too easy to conceal racial animus

under the cloak of deference to correctional officials.’ If the

Court were to apply a Turner standard to claims of racial

segregation, courts would be forced to apply the same

deferential standard to claims of outright racial

discrimination. Indeed, as recently as 2002, California’s

prison system subjected “Southern Hispanics” to a lockdown

* Not even Congress is entitled to deference when courts

review race-based policies. See, e.g., Adarand, 515 U.S. at 235 (overruling

Fullilove v. Klutznick, 448 U.S. 448 (1980) to the extent that it required

anything less than strict scrutiny for federal racial classifications).

24

lasting over a year solely on the basis of their perceived ethnic

identification. Pet. App. 16a n.9. Assigning prisoners to the

severely restricted conditions of “lockdown” confinement for

over a year solely on the basis of ethnicity or race should not

carry a presumption of constitutionality, as application of the

Turner standard would require.’ This standard would make

rank discrimination too easy to defend.”

Cc. The Turner standard is too blunt a tool for

application to racial segregation claims

The court below reasoned that, under Turner, it did

“not have to agree that the policy actually advances the

[California Department of Corrections’ ] legitimate interest but

only ‘whether the defendants might reasonably have thought

that the policy would advance its interests.” Pet. App. 22a.

Given the substantial public interest in avoiding racial

segregation, the Turner standard fails to allow the careful

balancing of countervailing public interests that should

inform judicial review of racial classifications.

In particular, the Turner standard allows courts to

ignore substantial evidence that policies of racial

discrimination actually promote violence. See, e.g., Chad

Trulson, The Caged Melting Pot: Toward an Understanding of the

Consequences of Desegregation in Prison, 37 Law & Soc’y Rev.

* See, e.g, Overton, 539 US. at 132.

” The dissent from the denial of rehearing en banc provides a

hypothetical policy that would be protected from serious scrutiny under

the standard followed in the court below: prison officials could decide

that prisoners could be barred from visitation with spouses and

children if they appeared to be of a different race, on the ground that

such visits would lead to unrest in the racially charged atmosphere of

a prison. “The prisoner would have to prove that there would not be a

riot. ... It is certainly ‘plausible’ that such a riot could ensue: our

society, as well as our prisons, contains enough racists that almost any

interracial interaction could potentially lead toconflict.” Pet. App. 43a-

44a (citation omitted).

25

743, 774 (2002) (a study of ten years of data from the Texas

Department of Criminal Justice in the aftermath of

desegregation of double cells indicates that, over the long

term, the rate of violence between prisoners segregated by

race in double cells surpassed the rate among those racially

integrated).

The Ninth Circuit, in approving the California prison

system's policy of deliberate racial segregation, relied on

testimony of an Associate Warden that, if race were not

considered in making initial housing assignments, “she is

certain that there would be racially based conflict in the cells

and in the yard.” Pet. App. 4a. In fact, the prison officials’

own evidence supports the hypothesis that violence results

from the prevalence of gangs rather than from racial tensions.

The court of appeals described seven specific incidents, all of

which involved gang-related violence. In one of these

incidents, the gang-affiliated white prisoners attacked white

prisoners not affiliated with gangs. Pet. App. 16a-17a n.9.

While gang membership may be a good surrogate for ethnic

identification, the more important questions are whether

ethnic identification is similarly a good surrogate for gang

membership, or for a proclivity for interracial violence. The

court below, however, does not address these issues.

Moreover, the seven incidents cited by the court below

involve a total of perhaps 700 prisoners. Given that the

population of the California prison system exceeds 164,000,

this record is lacking a critical link between the global policy

of racial segregation and the asserted justification.

Aside from the serious question of the extent to which

the evidence cited by the court of appeals demonstrates a

pervasive level of racial tension in the California prison

system, the evidence cited also raises the question of whether

segregation by race or ethnicity even curbs racial violence.

Segregation of incoming prisoners sends a powerful signal

that prisoners of other races are so dangerous that safety lies

in sticking with one’s “own kind.” As a result, segregation of

26

new prisoners by race during the initial classification process

facilitates the recruitment of new gang members. Moreover,

the poor fit between racial identification and membership in

a particular gang is underlined by the notorious rivalry

between the Crips and the Bloods, two African-American

gangs. See, e.g., Alan Elsner, Gates of Injustice: The Crisis in

America’s Prisons 39 (2004) (noting that Crips and Bloods

members in prison “continue to wage endless war” against

each other). Putting a Crip and a Blood together in a cell is

at least as dangerous as putting members of two different

ethnic groups in the same cell. Accordingly, segregating new

prisoners by race is both extraordinarily overinclusive and

underinclusive as a technique to prevent prison violence.

Given the strong public interest in avoiding official

racial segregation, evidence that such segregation is

unnecessary and even harmful is critically important.

Because application of the Turner standard would cause

courts to discount such evidence, the Court should reject

Turner's application here.

D. The Turner standard is unnecessary to protect the

interest in maintaining prison safety and security

In Lee v. Washington, this Court noted that it read the

order from the lower court as making “allowance for the

necessities of prison security and discipline.” 390 U.S. at 333-

" Gangs of one ethnic group will fight with gangs whose

membership has the same ethnic profile while allying with gangs of

different ethnic backgrounds. “The Aryan Brotherhood has a working

relationship with the Mexican Mafia and the Dirty White Boys, an

Anglo offshoot of the Texas Syndicate. It also uses Nazi Low Riders, a

mixed White-Hispanic gang to do some of its dirty work. The Black

Guerrilla Family has an active working relationship with La Nuestra

Familia but wages war against the Aryan Brotherhood and the Mexican

Mafia.” Elsner, supra, at 41-42. Thus, noting that a prisoner has a given

ethnic identity does not necessarily identify from whom that prisoner

is at risk.

27

34. In a concurring opinion, Justice Black stated 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,” while carefully noting that this

qualification did not dilute the prohibition against racial

discrimination. Id. at 334 (Black, J., concurring).

In the district court decision in Lee itself, the three-

judge court had noted that “the association between men in

correctional institutions is closer and more fraught with

physical danger and psychological pressures than is almost

any other kind of association between human beings.”

Washington v. Lee, 263 F. Supp. at 332 (internal citation

omitted). The result of that consideration was not, however,

to allow the constitutional principle to be compromised, but

rather to design an order giving the responsible officials a

reasonable period of time to plan a phased-in desegregation

plan. Id.

In cases subsequent to Lee, when there has been real

evidence that the goal of elimination of racial segregation was

in significant tension with the maintenance of security and

control, the federal courts have required that the responsible

officials take the necessary steps to assure both reasonable

safety and fidelity to constitutional principles. Thus, in

Mickens v. Winston, 462 F. Supp. 910 (E.D. Va. 1978), jail

officials claimed that their policy of using portions of the

facility to house black detainees, while other sections held

detainees of all races, was necessary to maintain racial balance

in integrated housing units. The jail’s housing units included

large dormitory-style units, in addition to tiers of individual

cells, and only one guard was on duty per shift. Id. at 911-12.

Although the court noted that, under those circumstances, jail

officials faced a “ difficult, if not impossible, task of affording

appropriate supervision,” id. at 912, the court concluded that

the solution lay in proper supervision of all the prisoners;

eo

28

providing enough personnel to protect the physical security

of all prisoners would also allow racial integration. Id. at 913.

Similarly, in White v. Morris, 832 F. Supp. 1129 (S.D.

Ohio 1993), racial tensions were one significant factor in

producing a riot at the Southern Ohio Correctional Facility

that resulted in ten deaths. Moreover, prisoner security

records had been destroyed in the riot. As a result, following

the riot, officials began assigning prisoners to cells on the

basis of race. The officials also requested modification of a

consent decree requiring that cell assignments be made

without regard to race. Under these particularized

circumstances, the court appropriately granted a temporary

modification of the consent decree to allow the

implementation of a plan that would allow the prison to

return to full integration while still providing reasonable

safety:

Without records necessary to accurately classify

prisoners’ security status, in the midst of an

investigation into the riot by law enforcement

agencies, and in the face of high post-riot racial

tensions, we conclude that forcing the Defendants to

comply with the terms of the Consent Decree could

lead to a renewed state of emergency.

.. Thus, the Defendants must be first given a

reasonable time to reconstruct the records which were

destroyed during the riot. Without the crucial

information lost in those records, attempting

integration could be dangerous to both staff and

prisoners, and thus, random celling cannot proceed

according to the consent decree.

. . » Evidence developed at the hearing

established that a great percentage of the inmates at

29

SOCF are from urban areas, and a majority of whom

are African-American. Conversely, ninety per cent of

the staff at SOCF is white, from rural areas, with little

or no experience in relating to minorities from urban

environments.

... With a time table and clearly defined goals

[for a return to completely integrated housing

assignments over a defined period of time], along

with the sensitivity training for the staff mandated by

the Court, we find the modification satisfactory, as

well as unavoidable.

Id. at 1133-34. Significantly, however, the modification

approved by the court envisioned a return to non-racial

operation. While particularized circumstances may require a

temporary suspension of full racial integration, California's

policy is unconstitutional because it contemplates permanent

racial segregation within the system. Every temporary

suspension of the prohibition against racial segregation

should envision an end date.

Nothing in Lee v. Washington requires a court to ignore

security concerns. Indeed, as a result of Lee, the nation’s jails

and prisons were successfully integrated. There is no need for

the federal courts to apply a Turner standard to have the tools

they need to assure that legitimate security needs are

recognized.

CONCLUSION

The decision of the court below to apply the Turner

standard rather than “strict scrutiny” was outcome-

determinative, as the court below acknowledged. Under an

appropriate application of the “strict scrutiny” standard,

California has failed to justify its policy, which it has followed

for twenty-five years, of segregating incoming prisoners by

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race during the classification process. For the above reasons,

the judgment of the Ninth Circuit should be reversed.

Respectfully submitted,

ELIZABETH ALEXANDER

Counsel of Record

CRAIG A. COWIE

DAVID C. FATHI

National Prison Project of the

American Civil Liberties Union

Foundation

June 2004