# Amicus Curiae Brief — Johnson v. California

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0717%3A12

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 543 U.S. 499

## Text

(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

30

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0717%3A12. Public record. Not legal advice.