Amicus Curiae Brief — Johnson v. California
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No. 03-636
IN THE
Supreme Court of the United States
GARRISON S. JOHNSON,
Petitioner,
Vv.
STATE OF CALIFORNIA, et al.,
Respondents.
On Writ of Certiorari to the United States
Court of Appeals for the Ninth Circuit
BRIEF OF THE NATIONAL ASSOCIATION OF
BLACK LAW ENFORCEMENT OFFICERS, INC. AS
AMICUS CURIAE IN SUPPORT OF RESPONDENTS
DAVID T. GOLDBERG
Counsel of Record
99 Hudson Street, 8th Fi.
New York, NY 10013
(212) 334-8813
Attorney for Amicus Curiae
TABLE OF CONTENTS
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ARGUMENT
A. Upholding The Policy Does Not Require
Departure From Washington ................2245. 4
B. Strict Scrutiny Would Not Invalidate The Policy .... 11
’ 1. Defendants Have A Compelling Interest
In Protecting Inmates From Race-Based
Violence During The Evaluation Process ....... 12
2. The Record Establishes That No Improper
Purposes Or Assumptions Are Is Operative ..... 17
3. The Policy’s Supposed “Overinclusiveness” Has
No Bearing On The Equal Protection Question .. 27
a ae a 30
TABLE OF AUTHORITIES
Cases
Adarand Constructors, Inc. v. Pefia,
SiS U.S. FACIE cc cececocecsetesen eee 11,22
Benton v. Maryland, 395 U.S. 784 (1969) ............. 16
Black v. Lane, 824 F.2d 56 (7th Cir. 1987) ............ 21
Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954) ...... 23
Board of Educ. of Kiryas Joel Village School Dist.
v. Grommet, S12 U.S. GBT (IFRS) oo oc cccccccscccscuesens 6
Brewer v. W. Irondequoit Cent. Sch. Dist.,
212 F.36 738 C26 Cis. FESR) co ccccvccscccosssosest 21,24
Brown v. City of Oneonta, 195 F.3d 111 (2d Cir. 1999) .. 20
Califano v. Webster, .
430 U.S. 313 (1977) (per curiam) ..........0 ee eeees 19
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah,
$08 U.S. TAOIST) «cc ccccccccecsccussosnannnee 18
City of Cleburne v. Cleburne Living Ctr., Inc.,
473 U.S. 452 (IGES) . oc cccccoccsscccesuauunueueen 5,6
Coleman v. Aycock, 304 F. Supp. 132 (N.D. Miss. 1969) . 8
Comfort ex rel. Neumyer v. Lynn School Comm,
283 F. Supp. 2d 328 (D. Mass. 2003) .......... 20, 24, 25
Cortes-Quinones v. Jimenez-Nettleship,
i nce cccsceseeseececccece 12
Craig v. Boren, 429 U.S. 190 (1976) ............045. 21
David K. v. Lane, 839 F.2d 1265 (7th Cir. 1988) .... 14,29
Dawson v. Delaware, 503 U.S. 159 (1992) ...... 15, 16, 24
Edwards v. Sard, 250 F. Supp. 977 (D. D.C. 1966) ..... 10
Ehrlich v. Town of Glastonbury, 348 F.3d 48
CC SCter eee eehbeceececcccoccececceces 5
Escalera v. Terhune, 2004 WL 238763
i ccc ccececcacessecccccccecs 6
Falls v. Nesbitt, 966 F.2d 375 (8th Cir. 1992) .......... 12
Farmer v. Brennan, 511 U.S. 825 (1994) ............. 12
Gates v. Collier, 501 F.2d 1291 (Sth Cir. 1974) ...... 8, 21
Grutter v. Bollinger, 539 U.S. 306 (2003) .......... passim
Harper v. Wall, 85 F. Supp. 783 (D. N.J. 1949) ......... 8
Hampton v. Jefferson Cty. Bd. of Educ.,
102 F. Supp. 2d 358 (W.D. Ky.2000). .... 2... 6... e 24
Harris v. Greer, 750 F.2d 617, 619 (7th Cir.1984) 14, 19, 24
J.E.B. v. T.B., S11 U.S. 127 (1994) 2... ccc cece 6
Jacobson v. Cincinnati Bd. of Educ.,
SES Fie SEDO GENSED ccccdccccascecagescesss 23
Jensen v. Clarke, 94 F.3d 1191 (8th Cir. 1996) ...... 13, 17
Johnson v. California, 321 F.3d 794 (9th Cir.),
reh'g and reh’g en banc denied,
SOB RDS BETS OG SI oc ccccccccsescccecns passim
Jones v. Bertnard, 2003 WL 22301219
(10th Cir. 2003) (unpublished) ..............000000- 13
Kromnick v. School Dist., 739 F.2d 894 (3d Cir.1984) .. 23
Ladue v. Gilleo, 512 U.S. 43 (1994) ...... 6.6.0 c ce uee 18
City of Littleton v. Z.J. Gifts, 124 S.Ct. 2219 (2004) ..... 26
Korematsu v. United States, 323 U.S. 214 (1944) ...... 22
Loving v. Virginia, 388 U.S. 1 (1967) .............. 7, 23
McClelland v. Sigler, 456 F.2d 1266
(8th Cir. 1972) (per curiam) (1967) ...... 6.2.6.6 2605 21
M’Culloch v. Maryland, 17 U.S. 316 (1819) ......... _ 17
McLaughlin v. Florida, 379 U.S. 184 (1964) ....... 9, 22
Mooring v. San Francisco Sheriff's Dept.,
289 F. Supp. 2d 1110, (N.D. Cal. 2003) ...........-. 18
Morrison v. Garraghty,
239 F.3d 648 (4th Cir. 2001) .. 2... 2. ee eee ee ee ee eee 6
iv
Nguyen v. United States, 533 U.S. 53 (2001) .......... 19
Palmer v. Thompson, 391 F.2d 324 (Sth Cir. 1967),
Se a ee nb ivediscuseseccenaséoauces 8
Pargo v. Elliott, 69 F.3d 280
Tree 7,21
Petit v. City of Chicago, 352 F.3d 1111 (7th Cir. 2003) ... 1
Pitts v. Thornburgh, 866 F.24 1450
Gee Gs SEED coccdncccessunasevessasences 7, 19, 30
Plessy v. Ferguson, 163 U.S. 537 (1896) ........... 8, 23
Plyler v. Doe, 457 U.S. 202 (1982)... 22... eee ee eee 22
Powers v. Ohio, 499 U.S. 400 (1991) ..........2.. 22,25
Raso v. Lago, 135 F.3d 11 (Ist Cir. 1998) ............ 20
Reed v. Reed, 404 U.S. 71 (1971) ...........0000 0 eee 6
Republican Party of Minn. v. White,
Se CEP GEE ov Se ceccccnswoccesosesccessucs 18
Rojas v. Cambra 1997 WL 294409 (N.D. Cal.1997) .... 19
City of Richmond v. J.A. Croson Co.,
Se ee SEED cove cccececccsesccccecsseses 11,18
Robinson v. Prunty, 249 F.3d 862 (9th Cir. 2001) ....... 14
Romer v. Evans, 517 U.S. 620 (1996) ............6.5. 10
Vv
County of Sacramento v. Lewis, 523 U.S. 833 (1998) .... 7
Saucier v. Katz, 533 U.S. 194(2001) ..........-.-445. 5
Shaw v. Murphy, 532 U.S. 223 (2001) ......... 6. 0-00 5
Spain v. Procunier, 600 F.2d 194 (9th Cir. 1979) ........ 5
Stefanow v. McFadden, 103 F.3d 1466 (9th Cir.1996) ... 14
Stockwell v. Phelps, 20 F.3d 187 (Sth Cir. 1994) ....... 21
Swain v. Alabama, 380 U.S. 202 (1965) ............... 4
Sweeney v. Woodall, 344 U.S. 86 (1952) ...........+-+- 8
Tahoe-Sierra Preservation Council, Inc
v. Tahoe Regional Planning Ag’y, 535 U.S. 302 (2002) .26, 27
Thornburgh v. Abbott, 490 U.S. 401 (1989) ........... 19
Tillery v. Owens, 907 F.2d 418 (3d Cir. 1990) ...... 13, 14
Turner v. Saffley, 482 U.S. 90 (1987) .........-..++-. 6,7
United States v Bailey, 444 U.S. 394 (1980) ........... 14
United States v. Coonan, 938 F.2d 1553 (2d Cir. 1991) .. 15
United States v. Carolene Products Co.,
304 U.S. 144 (1938) ... 2... ccc ccc cece cece cccees 22
United States v. Fordice, 50S U.S. 717 (1992) ......... 29
United States. v. Shryock, 342 F.3d 948
DEY dondddddénddexitudeccbedccheendéa 15, 16
United States v. Virginia, 518 U.S. 515 (1996) .... 6, 17,22
Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) ........... 28
Virginia v. Black, 538 U.S. 343 (2003) ............ 23, 25
Washington v. Harper, 494 U.S. 210(1990) ........... 7
Walsh v. Mellas, 837 F.2d 789 (7th Cir.1988) ....... 15, 17
Washington v. Lee, 263 F. Supp. 327 (M.D. Al. 1966),
aff'd sub nom. Lee v. Washington,
390 U.S. 333 (1968) (per curiam) ............... passim
Wessmann v. Gittens, 160 F.3d 790 (1st Cir.1998) ... 17, 18
White v. Morris, 832 F. Supp. 1129 (S.D. Ohio 1993) .. 26
Whitley v. Albers, 475 U.S. 312 (1986) ..... parry 7
Wilson v. Seiter, 501 U.S. 294 (1991) ..............2.. 7
Wisconsin v. Mitchell, 508 U.S. 476 (1993) ........... 16
Wood v. Vaughan, 209 F. Supp. 106 (W.D. Va. 1962) ... 8
Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) 12, 30
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ............ 23
Zadvydas v. Davis 533 U.S. 678 (2001) .............. 26
vii
Statutes
Prison Rape Elimination Act of 2003, Pub. L 108-79 . 13,14
45 ALA. CODE §§ 4, 52, 121, 122, 123, 172, 183 (1958) .. 7
Other Authoriti
ANTI-DEFAMATION LEAGUE, DANGEROUS
CONVICTIONS: EXTREMIST RECRUITMENT
IN AMERICA’S PRISONS (2002) ..........0 ccc eeeeees 14
J. DITULIO, GOVERNING PRISONS: A COMPARATIVE
STUDY OF CORRECTIONAL MANAGEMENT (1987) ...... 16
ENCYCLOPEDIA OF AMERICAN PRISONS
(M. MCSHANE & F. WILLIAMS, EDS., 1996) ........... 12
HUMAN RIGHTS WATCH, No ESCAPE:
MALE RAPE IN U.S. PRISONS (2001) ................. 15
Indictment, United States v. Barry Byron Mills
GRE GE CU REED cbccnccpcecsscsvsces 15, 16, 24
J. JACOBS, NEW PERSPECTIVES
ON PRISONS AND IMPRISONMENT (1983) .............. 19
M. Klarman, An Interpretive History of
Modern Equal Protection, 90 MICH. L. REV.213 (1991) .. 9
Y. Mastin, Rico Conspiracy: Dismantles
the Mexican Mafia & Disables Procedural Due Process,
2001 WILLIAM MITCHELL L. REV. 2295 ...........-.--. 15
D. OSHINSKY, WORSE THAN SLAVERY:
PARCHMAN FARM AND THE ORDEAL OF
JIM CROW JUSTICE (1997) ............0055.
See J. Robertson, The Constitution in Protective
Custody: An Analysis of the Rights of Protective
Custody Inmates, 56 U. CIN. L. REV. 91 (1987)
W. Rideau & B. Sinclair,
Prisoner Litigation: How it Began in Louisiana,
45 LA. L. REV. 1061 (1985) ..............4..
J. Rubenfeld, Affirmative Action,
BGT VARBL5. GST IGRI) ccccccccccccccces
M. Schlanger, Beyond the Hero Judge:
Institutional Reform Litigation as Litigation,
97 MICH. L. REV. 1994 (1999) ..............
U.S. DEP’T. OF JUSTICE, PRISON GANGS:
THEIR EXTENT, NATURE AND IMPACT
SD ciuccducdcassoeedenees
Interest of Amicus Curiae’
The National Association of Black Law Enforcement
Officers, Inc. (““NABLEO”) is comprised of more than 1,500
individual members in 40 chapters, including many who serve
as corrections officers in our Nation’s prisons and jails.
NABLEO members know first hand the serious problems of
racial discrimination that continue to plague the administration
of criminal justice, and it is a central aim of our organization to
build a system that more fully lives up to constitutional ideals of
fairness and equality. NABLEO and its chapters have played a
leading role in reforming police practices that breed distrust of
law enforcement in minority communities. NABLEO members
are also acquainted with the harsh realities of prison life and the
salient role that race and race-based violence play in many
institutions.
Our experience as law enforcement professionals strongly
confirms what recent decisions of this Court and others have
recognized: that accomplishment of important objectives —
including basic public safety responsibilities — will sometimes
require the adoption of policies that take race into account. See,
e.g., Grutter v. Bollinger, 539 U.S. 306 (2003); Petit v. Chicago,
352 F.3d 1111 (7th Cir. 2003) (acknowledging“compelling need
for diversity in a large metropolitan police force charged with
protecting a racially and ethnically divided major American city
like Chicago”).
In agreement with those decisions, we do not believe that
sustaining such necessary policies is in any way incompatible
with vigilance in rooting out invidious discrimination. There is,
we believe, a fundamental difference between such policies and
those predicated on racial bias and stereotypical thinking — one
which federal Equal Protection review can — and must — take
account of.
“No counsel for any party authored this brief in whole or in part, and no
person or entity made a monetary contribution for its preparation or
submission. Both parties have consented to its filing. Sup. Ct. R. 37.3, 37.6.
2
Summary of Argument
California prison officials, under a constitutional obligation
to protect inmates from the predations of racially motivated
prison gangs — and mindful of the special difficulty of protecting
inmates within their cells — have adopted a two-stage process for
assigning inmates to double cells. Permanent assignments are
made on an individualized (non-racial) basis, with substantial
weight given to the preferences of individual inmates. There is
thus no bar to inmates of different racial and ethnic backgrounds
sharing a cell on a permanent basis.
conducted, however, Defendants take a different approach. In
addition to separating inmates based on incompatibility that is
known or immediately evident (e.g., age, physical size, prior
testimony, or known gang membership), Defendants assign
inmates to reception center cells based on characteristics, both
racial and non-racial, that correlate with prison gang fault-lines.
Thus, there is a “[p]retty close to zero percent” chance, see 321
F.3d at 794, that a white and African-American inmate will be
placed in the same cell during the intake process — or that
Mexican-American inmates from Northern and Southern
California will be. See 321 F.3d at 800 n.9 (describing violent
hostility between “Northern” and “Southern” Mexican-
American prison gangs). It is undisputed that the common
areas, where surveillance and protection (while still difficult) are
more practicable than inside cells, are racially integrated. Nor
is it alleged that Petitioner was treated unfairly on account of
race during the assessment process — or that the housing policy
in any way singles out any racial or ethnic group for more (or
less) favorable treatment.
We believe that the court of appeals was correct to reject
Petitioner’s claim that consideration of race during the
evaluation phase of the assignment process was a denial of
Equal Protection. But we do not agree that the standard of
review is “paramount” or that, as the court appeared to assume
3
— and Petitioner argues — sustaining Defendants’ policy entails
turning away from Lee v. Washington. As we show, recognizing
that Washington was rightly decided — or treating it as having
applied the full range of strict scrutiny principles articulated in
subsequent decisions — would not condemn California’s policy.
In addition to emphasizing the importance of context, the
Court’s recent Equal Protection cases instruct that the ultimate
object of heightened scrutiny is to differentiate government
policies, such as the one condemned in Washington, which are
predicated on illegitimate racial considerations, from practices
— such as the ones here at issue — which consider race only in
order to accomplish compelling — and genuinely non-invidious
— public aims.
The undisputed facts about the operation of Defendants’
practices establish that both aspects of the strict scrutiny test are
satisfied, i.e., that the objective pursued is “important enough”
to warrant use of racial classification and that there is “little or
no possibility” that any invidious motive or stereotypical
assumption is at work. Grutter, 539 U.S. at 339 (quoting City
of Richmond v. J.A. Croson Co.,488 U.S. 469 (1989)).
Defendants’ avowed objective — protecting individuals (of all
races) against cellmate violence, during the limited time needed
to make an informed, individualized assessment of their
dangerousness and vulnerability — is plainly a compelling one.
Equally important, it is manifest that this objective — and no
constitutionally illegitimate consideration — actually and fully
accounts for Defendants’ actions. Not only do numerous aspects
of the policy attest to a special concern with preventing violence
— and gang-motivated violence, especially — within cells, but the
fact that Defendants make permanent assignments on an
individualized basis — and readily authorize assignment of
inmates of different races to the same double cells — answers any
concern that reception center housing policy is animated by
stereotypical assumptions about racial inferiority or race-based
differences —- or even a generalized belief that inmates of
4
different races cannot be housed together. Indeed, Petitioner’s
Equal Protection claim derives almost all its plausibility from a
highly questionable premise: that Defendants maintain two
distinct policies — a temporary one, which “segregates” inmates
at reception centers, and a “second,” policy, which fully
complies with their Equal Protection duty, by permanently
assigning those same individuals to cells on a non-racial basis,
based on information developed during the evaluation stage.
Finally, to the extent that Petitioner asserts that the policy
should be adjudged unconstitutional — in the absence of any
illegitimate racial considerations — based on its supposed
“overinclusiveness,” e.g, because of its application to transferee
inmates, as well as those entirely new to the California system,
or because safety objectives might be achievable by a reception
center housing policy that gave less “weight” to the race
“factor,” such a ruling would be neither constitutionally
warranted nor appropriate.
These objections are doubtful on their merits, and they do
not sound in Equal Protection. Even outside the prison setting,
this Court’s precedents would not require a court (or entitle a §
1983 plaintiff) to demand a detailed demonstration of a policy’s
superior efficacy, after the defendant established that no
plausible Equal Protection danger was lurking, and it requires no
surrender of the principles of Lee or Grutter to see why such an
inquiry would be especially ill-advised here. Not only do the
questions raised implicate the core expertise of the Defendant
officials, but they arise in a context in which the Equal
Protection duty of individualized consideration is not the only
(or even the most important) constitutional duty operating.
ARGUMENT
A. Upholding The Policy Does Not Require Departure
From Washington
The Court of Appeals treated the “standard of review [a]s
paramount,” 321 F.3d at 798, implying that Defendants’ policy
5
could be upheld only by rejecting Lee v. Washington, 390 U.S.
333 (1968) (per curiam), and imposing a “‘heavy burden’” on
inmate racial discrimination claims of every sort. 321 F.3d at
799 (quoting Shaw v. Murphy, 532 U.S. 223, 229 (2001)).
Petitioner and Amici in turn describe the decision as announcing
a rule that “racial segregation” within prison walls is entitled to
an essentially irrebuttable presumption of constitutionality,
Pet.Br.10, one which threatens to render the Equal Protection
Clause “‘a nullity in precisely the context where it is most
necessary,’” id. at 29 (quoting Spain v. Procunier, 600 F.2d 189,
194 (9th Cir. 1979)).
We believe that these arguments — and the panel decision
below — drastically overstate the extent of “diverge[nce]”
between thé available standards of judicial review, 321 F.3d at
799. See City of Cleburne v. Cleburne Living Ctr., Inc.,473 U.S.
432, 478 (1985) (Marshall, J., concurring in the judgment in part
and dissenting in part) (cautioning against attaching undue
importance to “[t}he formal label under which an equal
protection claim is reviewed”). The “level of scrutiny” was not
likely “outcome-determinative” in Washington — nor, as we
show, would it be in this case: considering the policy under
strict scrutiny standards would not call the judgment into
question. Cf. 336 F.3d at 1121 (Ferguson J., dissenting from
denial of en banc rehearing) (recognizing that it is “possible,
even likely, that prison officials could show that the current
policy meets the [strict scrutiny] test”).'
As the Court of Appeals acknowledged, it is doubtful that
the statutes and practices under consideration in Washington
‘Because the judgment on appeal granted individual Defendants
qualified immunity from § 1983 damages liability, affirmance is required
even if the Court concluded that a different standard is applicable, unless it
were further determined that the decision is compelled by clearly established
law. See Saucier v. Katz, 533 U.S. 194, 200 (2001); cf Ehrlich v. Town of
Glastonbury, 348 F.3d 48, 60 (2d Cir. 2003) (Saucier does not entirely
foreclose appellate court's affirming judgment on immunity grounds).
6
could survive meaningful judicial scrutiny under any
formulation. See 321 F.3d at 798; Cleburne, 473 U.S. at 452
(1985) (Stevens, J.) (noting many governmental actions for
which courts do not need “a special standard, or to apply ‘strict
scrutiny,’ or even ‘heightened scrutiny,” to invalidate); Reed v.
Reed, 404 U.S. 71, 75-77 (1971) (invalidating gender
classification on rational basis review); see also Morrison v.
Garraghty, 239 F.3d 648, 652, 655 (4th Cir. 2001) (applying
Turner and finding Equal Protection violation); compare also
ACLU Br.24 (arguing that Turner standard would validate race-
based lockdown) with Escalera v. Terhune, 2004 WL 238763
(Cal. App. Feb. 10, 2004) (unpublished) (invalidating that policy
under Turner).
?Although we share concern that review be sufficiently rigorous, the
United States overstates matters in suggesting that the decision below would
result in all prison classifications’ being subject to the same — “rational basis”
— review. U.S.Br.18. At outset, when a government policy relies on
classifications that trigger heightened review, courts focus on actual, rather
than “conceivable” justifications for the policy. See United States v.
Virginia, 518 U.S. 515, 533 (1996) (“The justification must be genuine, not
hypothesized or invented post hoc in response to litigation”).
Nor do the arguments of Petitioner and Amici offer escape from
doctrinal difficulty. If they were accepted, prison policies that treated
inmates differently based on religion would warrant drastically lower
“rational basis” review, but see Board of Educ. of Kiryas Joel Village School
Dist. v. Grumet, 512 U.S. 687, 715 (1994) (O’Connor, J., concurring)
(“Absent the most unusual circumstances, one’s religion ought not affect
one’s legal rights or duties or benefits”), and federal courts would either have
to entertain claims of gender discrimination from every inmate incarcerated
in a single-sex institution or relegate the right to free from discrimination on
that ground to the rational basis category. See J.E.B. v. T.B., 511 U.S. 127,
152 (1994) (Kennedy, J., concurring in judgment) (noting “strong
presumption that gender classifications are invalid”).
That the “Court has acknowledged that there is a continuum of
constitutional rights, some of which are more compatible with the exigencies
of imprisonment than others,” ACLU Br.16 (emphasis supplied), does not
argue for a discontinuous, “all or nothing” approach to judicial review — let
alone for making such decisions at a high level of generality, based on the
Amendment the prisoner invokes, rather than the concrete nature of the claim
7
Plaintiffs in Washington challenged a series of laws adopted
by the State of Alabama mandating that inmates throughout the
State be permanently and strictly segregated according to race.
See 45 ALA. CODE §§ 4, 52, 121, 122, 123, 172 &183 (1958).
Both the context from which the statutes arose and their
operation betrayed their true purpose: “invidious racial
discrimination.” Loving v. Virginia, 388 U.S. 1, 11(1967). As
a matter of law and logic, the statutes could not be understood
in isolation from the State’s many other “measures designed to
maintain White Supremacy,” id. & n.11, i.e, laws that forbade
racial integration, “on the ground that colored citizens are so
inferior and degraded that they cannot be allowed to [public
asserted and specific interests advanced by the parties. Compare Pitts v.
Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989) (holding that Turner standard
did not affect review of Equal Protection claim involving) “general
budgetary and policy choices,” but implying that more deference would apply
if security interests were implicated); Pargo v. Elliott, 69 F.3d 280 (8th Cir.
1995) (per curiam) (determining first that there was no invidious gender
discrimination, then that there was “substantial similar[{ity]” between
“differences were rationally related to legitimate penological interests”).
Thus, while Judge Ferguson asserted that the Equal Protection Clause,
like the bar on Cruel and Unusual Punishments, is “complementary” to
prisons’ mission, 336 F.3d at 1122. he did so the course of a decision that
recognized that the challenged government actions could be constitutional,
on a stronger evidentiary “showing” by Defendants. And although claims
under the Cruel Punishments Clause may be unqualified by “Turner,” they
are not adjudicated under an unvarying unitary standard. Compare Wilson
v. Seiter, 501 U.S. 294 (1991), with Whitley v. Albers, 475 U.S. 312 (1986);
cf. County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998) (requisite level
of fault for Due Process liability dependent on circumstances). The other
suggested Amendment-based distinctions do no better: although the Equal
Protection right is surely important, all prisoners’ constitutional claims
against States, assert rights that, by definition, are “fundamental,” Pet.Br.29,
see Benton v. Maryland, 395 U.S. 784, 794 (1969), and the distinction
between rights “enjoyed” and “exercised,” not only does a poor job of
explaining the Court’s cases, see Washington v. Harper, 494 U.S. 210
(1990), but would surely result in sustaining some of the least justifiable
infringements while striking down some of the most reasonable ones.
8
facilities with] * * * white citizens.” Plessy v. Ferguson, 163
U.S. 537, 560 (1896) (Harlan, J., dissenting).
Unsurprisingly, the Alabama regime drew no distinction
between violent and non-violent offenders. It sought to
maximize the extent of racial separation, and, of course, would
have operated as an absolute bar to a (hypothetical) request by
a African-American and a white inmate to be housed together —
even though such freely-chosen arrangements could be expected
to minimize the risk of in-cell violence.
And as was almost invariably the case wherever these
invidious motives and assumptions were at work, the regime did
not evince the slightest interest in providing equal — albeit
“separate,” treatment. See, e.g., Gates v. Collier, 501 F.2d 1291,
1299 (Sth Cir. 1974) (“The practice at Parchman has been and
is to maintain a system of prison facilities segregated by race
through which black inmates are subjected to disparate and
unequal treatment”). On the contrary, in Alabama (and
elsewhere), the treatment of segregated African-American
prisoners not only was vastly worse than that accorded whites,
but was starkly redolent of the conditions of Antebellum slavery.
See, e.g., Harper v. Wall, 85 F. Supp. 783, 785-87 (D. N.J.
1949) (granting relief to African-American prisoner who
escaped from Alabama prison); Sweeney v. Woodall, 344 U.S.
86, 92-93 (1952) (Douglas, J., dissenting) (noting African-
American petitioner’s allegations that he had “been beaten by
guards to the point of death [on Alabama chain gang] and will,
if returned, be subjected to the same treatment’); see also D.
*Thus, in a number of jurisdictions, prison and jail policies were
challenged - and overturned - in cases broadly attacking segregation in
public facilities. See, e.g., Coleman v. Aycock, 304 F. Supp. 132 (N.D. Miss.
1969) (requiring desegregation of county jail, in lawsuit “encompass[ing)
practically all public facilities operated by the county and city”), Wood v.
Vaughan, 209 F. Supp. 106 (W.D. Va. 1962); cf. Palmer v. Thompson, 391
F.2d 324 (Sth Cir. 1967) (non-inmates lacked standing to challenge jail
segregation in omnibus public facilities desegregation suit), aff'd on other
grounds, 403 U.S. 217 (1971).
9
OSHINSKY, WORSE THAN SLAVERY: PARCHMAN FARM AND THE
ORDEAL OF JIM CROW JUSTICE (1997); M. Schlanger, Beyond
the Hero Judge: Institutional Reform Litigation as Litigation, 97
MICH. L. REV. 1994, 2027 (1999) (describing “prison systems of
the former Confederate states * * *[that] were run for many
years on a ‘plantation’ model [and] * * * were direct heirs to the
slave plantation and the near-slavery systems of labor peonage
and convict-leasing that succeeded the end of Reconstruction in
the South”).
Unsurprisingly, neither this Court’s opinion in Washington
nor that of the three-judge district court addressed or applied a
particular standard of review. Cf. U.S.Br.4 (asserting that
appeals court decision “refused to apply Lee’s presumption of
unconstitutionality to the racial classification at issue in this
case,”); Pet.Br.28 (“Lee was decided under the rule of strict
scrutiny applied in Brown and its progeny”).* This Court’s one-
paragraph per curiam opinion simply declared “without merit,”
390 U.S. at 333, Alabama’s arguments that its statutes were not-
unconstitutional, and rejected as a misreading of the district
court’s decree the State’s claim that it had made “no allowance
for the necessities of prison security and discipline,” id. at 334.
For its part, the district court opinion had rebuffed what it
described as Alabama’s “only defense” (essentially a rule of
nonjusticiability): “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.” Washington v. Lee, 263 F. Supp. 327,
331 (MLD. Al. 1966).
“Commentators have observed that neither Brown nor numerous civil
rights cases decided in the ensuing decade articulated or explicitly applied
“strict scrutiny.” See M. Klarman, An Interpretive History of Modern Equal
Protection, 90 MICH. L. REV. 213, 255 (1991) (describing McLaughlin v.
Florida, 379 U.S. 184 (1964), as the first case in which the Court “both
articulated and applied a more rigorous review standard to racial
classifications” and noting that approach was discarded, temporarily, the next
Term in Swain v. Alabama, 380 U.S. 202 (1965)).
10
The opinion identified the regime’s sweep and permanence
as fatal defects, explaining that the court could “conceive of no
consideration of prison security or discipline which will sustain
the constitutionality of state statutes that on their face require
complete and permanent segregation of the races in all the
Alabama penal facilities,” id. at 331 (emphasis added). While
so ruling, the decision “recognize[d] that there is merit in the
contention that in some isolated instances" prison security and
discipline necessitates segregation of the races for a limited
period,” 263 F. Supp. at 331 (emphasis added), but explained
that “recognition of such instances does nothing to bolster the
Statutes or the general practice that requires or permits prison or
jail officials to separate the races arbitrarily,”id. Cf. Romer v.
Evans, 517 U.S. 620, 632 (1996) (invalidating law under
rational basis standard, because, inter alia, its “sheer breadth
[was] discontinuous with the reasons offered for it’).
Indeed, notwithstanding the undeniable invidiousness of
Alabama’s practices and the unequal treatment to which the
State’s African-American inmates were subjected, the three-
judge court declined to order immediate desegregation of the
State’s maximum security prisons, instead stating an
“expectation” that this would be accomplished within one year.
Writing for the court, Judge Johnson explained:
The operation of penal institutions, whether it be on a state-
wide or local level, is a highly specialized endeavor, and the
sober judgment of experienced correctional personnel * *
* deserves the most careful consideration of this Court. In
this connection, it is recognized 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
*The court’s footnote identified “the ‘tank’ used in the City of
Birmingham and other large municipal jails where intoxicated persons are
placed upon their initial incarceration and kept until they become sober,” id.
at 332 n.6 as one “isolated instance[]” where segregation could continue.
11
beings.” * * *
263 F. Supp. at 332 (quoting Edwards v. Sard, 250 F. Supp. 977
(D. D.C. 1966)).
B. Strict Scrutiny Would Not Invalidate The Policy
To the extent Washington is read -— somewhat
anachronistically — as having relied on the various “strict
scrutiny” principles associated with this Court’s later Equal
Protection decisions, its application does not support
invalidating the policy.
This Court has recently affirmed that because “[nJot every
decision influenced by race is equally objectionable,” Grutter,
539 U.S. at 327, strict scrutiny is not a rule of per se invalidity,
but rather a means for “distinguishing legitimate from
illegitimate uses of race in governmental decisionmaking,”
Adarand Constructors, Inc. v. Pefia, 515 U.S. 200, 238 (1995)
— “a framework for carefully examining the importance and the
sincerity of the reasons advanced by the governmental
decisionmaker for the use of race in [the] particular context.”
Grutter, 539 U.S. at 327; see also id. (“[cjontext matters when
reviewing race-based governmental action under the Equal
Protection Clause’’).
Notwithstanding Petitioner’s demand for a different, more
through evidentiary showing, see Pet.Br.33 (faulting
Defendants’ “unquantitative” evidence), the record in this case
supplies a sufficient basis on which the two constitutionally
dispositive determinations can be made: (1) that Defendants are
“pursuing a goal important enough to warrant use “of a highly
suspect tool” and (2) “that there is little or no possibility that the
motive for the classification [in this case] was illegitimate racial
prejudice[,] stereotype,” or any other objectionable
considerations. Croson, 488 U.S. at 493. Indeed, contrary
arguments rely on isolating Defendants’ reception center
housing policy from the context in which it operates: a broader
assignment policy that comports fully with what Petitioner
12
identifies as the central mandate of Equal Protection: to treat
inmates as individuals, rather than as members of racial groups.
1. Defendants Have A Compelling Interest In
Protecting Inmates From Race-Based Violence
During The Evaluation Process
This is not acase where the importance of the governmental
objective is open to serious debate. Compare, e.g., Wygant v.
Jackson Bd. of Educ., 476 U.S. 267, 276 (1986) (Powell, J.)
(questioning “role model” justification). As this Court has
recognized, Defendants have both a compelling interest and a
constitutional duty to protect individuals in their custody from
violence at the hands of fellow inmates. See Farmer v.
Brennan, 511 U.S. 825 (1994).
Having incarcerated persons [with] demonstrated
proclivit[ies] for antisocial criminal, and often violent,
conduct, having stripped them of virtually every means of
self-protection and foreclosed their access to outside aid,
the government and its officials are not free to let the state
of nature take its course.
Id. at 833 (quoting Cortes-Quinones v. Jimenez-Nettleship, 842
F.2d 556, 558 (1st Cir.1988)) (quotation marks removed).
Nor is this a case where the defense of the governmental
policy depends on amorphous “problems of prison
administration,” or potential “ripple effect[s].” Turner, 482 U.S.
at 90. The dangers against which the policy is directed are
grave and real. Although it is a commonplace that “prisons are
dangerous places,” see, e.g. Falls v. Nesbitt, 966 F.2d 375, 380
(8th Cir. 1992), such truisms cannot convey the staggering level
of serious violence that pervades many institutions. Thus,
Statistical measurements are notoriously difficult, it has been
estimated that as many as 70% of inmates are physically
assaulted by other inmates each year, ENCYCLOPEDIA OF
AMERICAN PRISONS (M. MCSHANE & F. WILLIAMS, EDS., 1996)
at 379, and Congress recently found that “[t]he total number of
13
inmates who have been sexually assaulted in the past 20 years
likely exceeds 1,000,000,” Prison Rape Elimination Act of
2003, Pub. L 108-79 § 2(1), codified at 42 U.S.C. § 16501(1).
Violence between cellmates poses an especially serious
problem. As Defendants witnesses explained, the kind of
surveillance that is (theoretically) possible in common areas
cannot be achieved within cells. See 321 F.3d at 794 (noting
testimony that “[s]taff cannot see into the cells without going up
to them, and inmates are capable of placing coverings over the
windows so that staff cannot see in them at all”); see also
Jensen v. Clarke, 94 F.3d 1191, 1198 (8th Cir. 1996) (sustaining
findings that “tensions [inside institution’s double cells} are
increased by the cell size, lack of privacy, the ineffective
surveillance system, deterrents to reporting, * * * and the
excessive amount of time spent on lockdown status”); Jones v.
Bertnard, 2003 WL 22301219 (10th Cir. 2003) (unpublished)
(distinguishing “risk of harm * * * from a prisoner’s cellmate,
with whom he might be locked up in close quarters” from that
“in the exercise yard [where] numerous other inmates [are]
present”); Tillery v. Owens, 907 F.2d 418, 424-25 (3d Cir. 1990)
(citing examples of violent attacks resulting from inappropriate
cellmate assignments ).
These dangers are especially acute at the reception stage,
when facts bearing on any individual inmate’s dangerousness
and vulnerability are not yet known — indeed, the entire purpose
of this temporary confinement stage is to assess the individual,
with an eye toward a permanent assignment that is safe and
appropriate.
The initial period is critical in other respects. Although the
evaluation process might be expected to provide incentive to
demonstrate good behavior, a strong countervailing force exists:
new arrivals have an interest in promptly convincing other
inmates of their readiness to use violent force. See J. Robertson,
The Constitution in Protective Custody: An Analysis of the
Rights of Protective Custody Inmates, 56 U. CIN. L. REV. 91, 92
14
n.9 (1987) (noting that “a reputation for violence” is “a deterrent
against victimization”). At the same time,“new inmates are
usually tested by predators to determine if they will resist
exploitation,” id.; see also 42 U.S.C. § 15601(4) (congressional
finding that “Young first-time offenders are at increased risk of
sexual victimization. * * * — often within the first 48 hours of
incarceration”); accord United States v Bailey, 444 U.S. 394,
421 (1980) (Blackmun, J., dissenting); Tillery, 907 F.2d at 424
(noting problems when “inmates are * * * double-celled before
they are evaluated”).
As decisions of this Court and others attest, prison violence
is an area in which race very much “still matters,” Grutter, 539
U.S. at 333. Not only is interracial violence widespread, see 42
U.S.C. § 15601(6) (noting “frequently interracial character of
prison sexual assaults”), but it is frequently perpetrated by gangs
organized largely (though not exclusively) on racial lines, Harris
v. Greer, 750 F.2d 617, 619 (7th Cir. 1984), and supported by an
ideology of racial hatred. See ANTI-DEFAMATION LEAGUE,
DANGEROUS CONVICTIONS: EXTREMIST RECRUITMENT IN
AMERICA’S PRISONS (2002) at 5 (“gangs, long a part of prison
life, tend to form along racial or ethnic lines and use racism to
recruit and fuel their activities, often indoctrinating new
members with violent bigoted rhetoric and a strong animosity
toward other races’); Stefanow v. McFadden, 103 F.3d 1466,
1472 (9th Cir. 1996) (“Anyone familiar with prisons understands
the seriousness of the problems caused by prison gangs that are
fueled by actively virulent racism and religious bigotry”);
Robinson v. Prunty, 249 F.3d 862, 866 (9th Cir. 2001) (noting
that “it is widely understood that members of different gangs or
races would attempt to kill each other solely on the basis of gang
membership or race”); U.S. DEP’T. OF JUSTICE, PRISON GANGS:
THEIR EXTENT, NATURE AND IMPACT ON PRISONS (1985) 46
(finding that prison gangs accounted for 88% of all criminal
incidents in California institutions); David K. v. Lane, 839 F.2d
1265, 1267 (7th Cir. 1988) (noting testimony that 75% to 99.5%
15
of facility’s inmates were gang affiliated); Walsh v. Mellas, 837
F.2d 789, 796 (7th Cir. 1988) (noting findings that “violence was
rampant * * * and that gang influence pervaded the institution”);
Dawson v. Delaware, 503 U.S. 159, 172 & n.1 (1992) (Thomas,
J., dissenting) (collecting evidence of prison gang dangers).°
These gangs are dangerous because, as outside of prison,
organized criminal activity poses a far greater danger than
isolated antisocial behavior. See United States v. Coonan, 938
F.2d 1553 (2d Cir. 1991); United States v. Barry Byron Mills
(N.D. Cal. Feb. 5, 2002) (“Mills Indictment”) (criminal RICO
and murder indictment of Aryan Brotherhood leadership); id.
Yi11l-12 (describing gang’s structure); Y. Mastin, Rico
Conspiracy: Dismantles the Mexican Mafia & Disables
Procedural Due Process, 2001 WILLIAM MITCHELL L. REV.
2295, 2299 (quoting “constitution” of Mexican Mafia).
Organized enterprises have additional motives for taking violent
action and far more effective means of doing so — and of
avoiding detection and punishment. Mills Indictment 6
(alleging that Aryan Brotherhood “uses murder and the threat of
murder to maintain a position of power within the California and
federal prison systems. Inmates and others who do not follow
[gang’s] orders * * * are subject to being murdered,” as are
“inmates who cooperate with authorities”); id. [8 (“members are
required, when ordered, to kill without hesitation. They are also
required to give false testimony in court on behalf of other
members”); United States. v. Shryock, 342 F.3d 948, 969 (9th
Cir. 2003) (describing operation of Mexican Mafia and
°As the recent report of an international human rights group explains:
In the prison context, * * * the racial tensions that pervade U.S. society
are significantly magnified * * * [RJacial divisions are one of the
dominant features of inmate life. Prisoners’ social relationships are
largely determined by race; their gang affiliation, if they have one, is
racially defined; and whatever racist beliefs they may have held prior
to their imprisonment are likely to be significantly strengthened over the
course of their stay in prison.
HUMAN RIGHTS WATCH, NO ESCAPE: MALE RAPE IN U.S. PRISONS (2001).
16
sustaining conviction of its California leaders).
And as this Court’s non-prison cases have also recognized,
there are strong reasons — in addition to abstract notions of
blameworthiness, see Barclay v. Florida, 463 U.S. 963 (1983)
— why racially-motivated violence triggers special concern. See
generally Wisconsin v. Mitchell, 508 U.S. 476, 488 (1993);
Violence animated by group hatred is, by definition, nearly
impossible to explain (or prevent) with reference to facts
particular to the individuals involved; it is often more brutal than
violence carried out for other reasons; and almost always more
likely to provoke (group-based) retaliation, see, e.g., 321 F.3d at
801 n.9 (noting that three days after incident in which white
supremacists attacked Northern Hispanic inmates, “a riot
involving 39 inmates occurred when Northern Hispanics
attacked white inmates”); Mills Indictment FJ 249-308
(describing Aryan Brotherhood “Race War With \Black
Inmates,” including, {261 , “order” directed to all white i
in federal prison “that any black inmate who used viglence
against a white inmate was to be murdered”); cf. Dawson, 503
U.S. at 166 (acknowledging likely relevance of “membership in
an organization that endorses the killing of any identifiable
group” to “future dangerousness” inquiry).’
For these reasons, an institution’s failure to take \into
"Far from constituting an exception to these patterns, the California
system is widely acknowledged to be at their epicenter. As court opinions
attest, the best-organized and most-feared national gangs began inside
California prisons, see Dawson, 503 U.S. at 162 (stipulation that “the
Brotherhood [is] a white racist prison gang that began in the 1960's in
California”); Shryock, 342 F.3d at 961 (noting Mexican Mafia’s origins in
California prison); PRISON GANGS at 91-116 (same for Black Guerilla Family
and Nuestra Familia) and (despite aggressive efforts of prison and law
enforcement agencies), these and newer gangs continue to play a central,
pernicious role in the State’s prisons. See, e.g., Mills Indictment; see also J.
DiIULIO, GOVERNING PRISONS: A COMPARATIVE STUDY OF CORRECTIONAL
MANAGEMENT 129 (1987) (describing prison gangs as “the chief operational
fact of life inside California prisons”).
17
account dangers of racial and gang violence can give rise to a
claim of unconstitutional deliberate indifference. See Robinson,
249 F.3d at 866 (inmate alleged that defendants were
“deliberately indifferent to the substantial risk that he would be
seriously injured when he was placed in the prison yard with
Mexican-American inmates”); Walsh, 837 F.2d at 799 (noting
that, despite defendant officials’ awareness of the “real and
significant” risk of gang-related assaults, “they failed to institute
procedures and safeguards in an attempt to determine whether
an inmate to be housed with a gang member is targeted by that
gang”); Jansen, 96 F.3d at 1200 (random assignment policy
amounted to deliberate indifference).
2. The Record Establishes That No Improper
Purposes Or Assumptions Are Operative
The evidence about the operation of Defendants’ policy
establishes that these important objectives actually — and fully
—explain it. See Grutter, 539 U.S. at 328 (“reasons advanced by
the governmental decisionmaker for the use of race in that
particular context” must be “sincerfe,J” as well as
“importan([t]”); Virginia, 518 U.S. at 533 (“justification must be
genuine”); PLF Br.16 (careful judicial scrutiny ensures that
government’s explanations are not “‘pretext[s] * * * for the
accomplishment of objects not intrusted to the government’”)
(quoting .M’Culloch v. Maryland, 17 U.S. 316, 423 (1819)); see
also Wessmann v. Gittens, 160 F.3d 790, 797-98, 802 (lst
Cir. 1998) (stressing that the necessity of a race-conscious policy
is a “fact-sensitive inquiry” and that the “devil is in the details”).
First, Defei dants’ cell assignment policies are narrowly and
consistently focused on the danger of intra-cell violence. There
is no effort to separate inmates in areas of reception centers in
which behavior can be more readily monitored. See 321 F.3d at
797 & n.5 (“Inmates of all races work together, eat together, and
use the yard together”). Indeed, the permanent policy — which
generally gives effect to inmate choice — reflects the same
concern: two inmates who seek to be housed with one another
18
are assumed to have determined that the chosen cellmate
(whatever his racial background) poses a low threat of attack.
Moreover, the reception assignment policy gives
comparable consideration to other, non-racial factors known to
be correlated with gang membership and violence. Compare
Wessmann, 160 F.3d at 798 (noting policy’s narrow focus on
racial diversity was incompatible with professed goal of “true
diversity,” ie., a “broad{] array of qualifications and
characteristics of which racial or ethnic origin is but a single
though important element’); Republican Party of Minn. v.
White, 536 U.S. 765, 780 (2002) (stressing that
““*underinclusiveness impairs the credibility of the government's
rationale for speech restriction’”) (quoting City of Ladue v.
Gilleo, 512 U.S. 43 (1994)); Church of the Lukumi Babalu Aye,
Inc. v. City of Hialeah, 508 U.S. 520, 579 (1993); cf. Croson,
488 U.S. at 506 (noting “random inclusion” of Eskimo- and
Aleut-owned businesses in MBE program and observing that the
“gross overinclusiveness of Richmond’s racial preference
strongly impugns the city's claim of remedial motivation”).
Mexican-American inmates from Southern and Northern
California, known members of rival African-American gangs,
and inmates whose size, criminal history, or known personal
animosity raises the possibility of violent interaction are also
kept apart. See 321 F.3d at 794; see also Mooring v. San
Francisco Sheriff's Dept., 289 F. Supp. 2d 1110, 1112 (N.D.
Cal. 2003) (noting acknowledgment “that Nortefio [Northern
California] gang members should not be celled with Soreno [sic]
gang members”). Thus, even if “the chances of an inmate being
assigned a cell mate of another race [are] ‘[p]retty close’ to zero
percent,”” that does not establish that race was the “dominant
factor” — only that it was one of a number of factors (some non-
racial; some group-based; and some specific to particular inmate
combinations) deemed relevant enough to keep inmates apart
during the time that an individualized evaluation is being
performed.
— _— —_—
19
Evidence concerning the Policy’s operation likewise
establishes the extreme implausibility that any impermissible
consideration is at work. See J. Rubenfeld, Affirmative Action,
107 YALEL.J.427, 439 (1997) (strict scrutiny “serves to test the
government’s claim that a permissible state interest fully
explains the law at issue”) (emphasis added); Pitts v.
Thornburgh, 866 F.2d 1450, 1455 (D.C. Cir. 1989) (heightened
scrutiny assures “that the [Equal Protection] dangers posed [by
classification] are not dangers in fact”); 321 F.3d at 800
(concluding that under policy, race is considered “‘solely on the
basis of [its] potential implications for prison security’”)
(quoting Thornburgh v. Abbott, 490 U.S. 401, 415 (1989) ); see
also Harris, 750 F.2d at 619 (discussing hypothetical policy of
separating inmates in prison “where gang activity [was]
rampant” and explaining that “[r]acial separation brought about
by policies founded exclusively on a bona fide, colorblind
concern for the safety of prisoners in our nation’s dangerous
prisons does not violate the equal protection clause”). cf.
Califano v. Webster 430 U.S. 313, 317 (1977) (per curiam)
(sustaining classification after determining that it was not
predicated on “archaic and overbroad generalizations about
women,” and that “the only discernible purpose of more
favorable treatment was [a constitutionally] permissible one”);
Nguyen v. United States, 533 U.S. 53, 73 (2001) (concluding
that challenged “distinction * * * is not marked by
misconception and prejudice, nor does it show disrespect for
either class’’).
Significantly, the setting is not one where race can be said
to be irrelevant. Compare Grutter, 539 U.S. at 326 (racial
classifications are suspect because race has “long [been]
recognized as in most circumstances irrelevant”). As explained
above, “racial conflict, including extreme violence and riots, is
the reality of institutional life in prisons [in California and]
around the country.” J. JACOBS, NEW PERSPECTIVES ON PRISONS
AND IMPRISONMENT (1983) at 81; see also Rojas v. Cambra,
20
1997 WL 294409, *6 n.13 (N.D. Cal.1997) (noting that
“[e]stablishing discriminatory intent in the way prison officials
handle prison gang activity is no easy task because many prison
gangs are organized along racial lines and therefore require that
prison officials take race into account”).
In fact, Petitioner and Amici do not seriously contend that
race is irrelevant — or that Equal Protection requires a race-blind
policy under these circumstances. On the contrary, Johnson
stresses that “the question presented here is not whether race
must be disregarded entirely,” in reception cell assignments, Pet.
Br.36 (emphasis added), “but whether it is constitutional for the
state to effectively ignore or subordinate all other factors in
favor of a single-minded consideration of race as the
predominant factor,” id. And his Amicus cites as an exemplar
an Oklahoma policy that, while eschewing a complete bar on
“integrated cell assignments” for arriving inmates, provides that
“(flor reasons of safety and security, newly received inmates are
not generally assigned randomly to racially integrated cells. This
is because the specific information needed to assess and inmates
criminal and victimization history [is] not available until after
the initial classification processing has been completed.” Br.
Former State Corrections Officials 10 (emphasis added).
That a governmental policy arises in a setting where race
cannot practically or responsibly be ignored is a factor which
must necessarily inform Equal Protection scrutiny. See Raso v.
Lago, 135 F.3d 11, 16(ist Cir. 1998) (“Every antidiscrimination
statute aimed at racial discrimination, and every enforcement
measure taken under such a statute, reflect a concern with race.
That does not make such enactments or actions unlawful or
automatically ‘suspect’ under the Equal Protection Clause”); see
also Brown v. City of Oneonta, 195 F.3d 111 (2d Cir. 1999)
(police manhunt based on victim’s racial identification of
perpetrator did not trigger strict scrutiny); Comfort ex rel.
Neumyer v. Lynn School Comm, 283 F. Supp. 2d 328, 376 (D.
Mass. 2003) (“When a government’s ends are fundamentally
21
concerned with race — and those ends are recognized as
compelling — it is natural that race-conscious means provide the
“snuggest fit’ to those ends”); Brewer v. W. Irondequoit Cent.
Sch. Dist., 212 F.3d 738, 752 (2d Cir. 2000); cf. Craig v.
Boren, 429 U.S. 190, 220 (1976) (Rehnquist, J., dissenting)
(classification should not be treated “as a talisman which —
without regard to the rights involved or the persons affected —
calls into effect a heavier burden of judicial review’’).
Moreover, there is no allegation that under the policy the
inmates are treated differently on account of race. Compare
McClelland v. Sigler, 456 F.2d 1266, 1267 (8th Cir. 1972) (per
curiam) (noting that “living quarters at [whites-only] [c]ell
[hjouse are better than” integrated part of prison); Stockwell v.
Phelps, 20 F.3d 187, 190 (Sth Cir. 1994) (“white prisoners in
two-man cells received preferential treatment over the cells
occupied by black prisoners”); Gates, 501 F.2d at 1299 (finding
“disparate and unequal treatment”); cf Pargo, 69 F.3d at 281
(rejecting female inmates’ Equal Protection claim, based on
absence of “invidious discrimination” and findings of
“substantial similari[ty]” of “programs and services available to
women and men inmates as a whole’”’).®
*The allegations in Black v. Lane, 824 F.2d 561, 562 (7th Cir. 1987)
illustrate facts, if sustained, would seem inexplicable on any ground other
than invidious discrimination:
[When Black was hired as a laundryman’s helper in the protective
custody unit, he was assigned to assist the head laundryman who was
white. As head laundryman, the white inmate was allowed outside of his
cell for thirteen hours a day, seven days a week. Black, who was only
the helper, was confined to his cell after 2:00 p.m. on weekdays and
throughout the weekend. After the head laundryman resigned * * *,
Black became the head laundryman and was given a white helper. Black
might have thought that he had been promoted until he learned that the
privileges associated with the two positions had changed. The head
laundryman's helper was permitted outside his cell for thirteen hours a
day and during weekends. The new head laundryman, Black, was still
confined to his cell after 2:00 p.m. and on weekends.
22
Petitioner and Amici are obviously correct that facial even-
handedness is not constitutionally dispositive, see McLaughlin,
379 U.S. at 191 (“Judicial inquiry under the Equal Protection
Clause * * * does not end with a showing of equal application
among the members of the class defined by the legislation”); see
also Powers v. Ohio, 499 U.S. 400, 410 (1991) (“racial
classifications do not become legitimate on the assumption that
all persons suffer them in equal degree”).
But it does not follow that the absence of disparate
treatment is constitutionally inconsequential. See Grutter 539
U.S. at 327 (“fundamental purpose” of strict scrutiny is to take
‘relevant differences’ into account”) (quoting Adarand, 515 U.S.
at 228). This Court’s cases have consistently identified unequal,
group-based disabilities as a central concern of Equal Protection.
See, e.g., Adarand, 515 U.S. at 228 (careful scrutiny required
“before permitting unequal treatment based on race to
proceed”); Plyler v. Doe, 457 U.S. 202, 217 n.14 (1982)
(“legislation imposing special disabilities upon groups
disfavored by virtue of circumstances beyond their control
suggests the kind of ‘class or caste’ treatment that the Fourteenth
Amendment was designed to abolish”) (citation omitted); see
also United States v. Carolene Products Co., 304 U.S. 144, 152-
53 n.4 (1938) (suggesting “narrower scope for operation of the
presumption of constitutionality when legislation [is motivated
by] * * * prejudice against discrete and insular minorities”);
Korematsu v. United States, 323 U.S. 214, 216 (1944) (“[A]ll
legal restrictions which curtail the civil rights of a single racial
group are immediately suspect”).’
Departures from even-handedness obviously indicate that
*As Justice Scalia recently emphasized,“the famous [Carolene
Products} footnote” — “the genesis of heightened standards of judicial
review,” Virginia 518 U.S. at 576 (Scalia, J., dissenting) — indicated that
“searching” scrutiny would be limited to legislation whose impact is felt by
a “‘discrete and insular minorit[y}"” that is unable to employ the “‘political
processes ordinarily to be relied upon,’” id. (quoting 304 U.S. at 153 n.4).
23
a governmental actor’s professed non-racial objectives are
disingenuous and that impermissible considerations are likely at
work. See Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886)
(Equal Protection does not permit law that is “impartial in
appearance, yet * * * applied and administered * * * with an evil
eye and an unequal hand”); 321 F.3d at 799 n.7 (“If * * *whites
were treated more favorably in cell locations or privileges than
blacks, the would likely be struck down under Turner’)."°
Nor should the reason the cited decisions gave for looking
beyond facial even-handedness be disregarded: because such
evidence alone did not negate the possibility that an especially
pernicious purposes was at work. Thus, Justice Harlan’s
Plessy dissent observed that “[t)he thin disguise of ‘equal’
accommodations,” see 163 U.S. at 562, “[could] not mislead any
one,” because “[e]very one knows that [Louisiana’s segregation
Statute] had * * * the purpose, not so much to exclude white
persons from railroad cars occupied by blacks, as to exclude
colored people from coaches occupied by or assigned to white
persons;” accord Loving, 388 U.S. at 11 (observing that the true
purpose of anti-miscegenation laws was “to maintain White
Supremacy”); see also Brown v. Bd. of Educ., 347 U.S. 483, 494
(1954) (“the policy of separating the races is usually interpreted
as denoting the inferiority of the [NJegro group”); Virginia v.
Black, 538 U.S. 343, 388 (2003) (Thomas, J., dissenting)
(discussing Ku Klux Klan terror and observing that “‘a page of
history is worth a volume of logic’”) (quoting New York Trust
Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.)).""
"Notably, each one of the disturbing examples of racial discrimination
ont et Ge et ,« —p a ial discrimination.”
presented in the Amicus Brief of the ACLU relates to unequal treatment on
account of race. See, e.g., ACLU Br.11 (summarizing extent of agreement
that “blacks are treated more harshly than whites in the criminal justice
system”). But this case does not involve such claims.
''Numerous recent decisions have highlighted the Equal Protection
significance of the fact that a race-conscious policy is “non-preferential,” with
some treating that feature as bearing on the level of scrutiny to be applied,
24
Although Petitioner and Amici half-heartedly suggest that,
like the laws in Plessy and Brown, Defendants’ policy should be
“interpreted as a badge of inferiority stamped upon minority
prisoners” — rather than an expression of “bona fide, colorblind
concern for the safety of [all] prisoners,” Harris, 750 F.2d at 619
— the evidence about Defendants’ actual practices cannot bear
that understanding. First, where prison gangs and racial
violence are concerned, there is no “victim” or aggressor race.
As noted above and in the opinions of this Court, Caucasian
prison gangs in California are as deeply entrenched, as violent,
and as deeply committed to racial hatred, as those comprised of
other ethnic groups, see Dawson 503 U.S. at 172 n.1 (Thomas,
J., dissenting) (collecting sources documenting Aryan
Brotherhood’s “hostility to black inmates,” and record of
violence and extremism); Mills Indictment, supra, and
Defendants’ policy shows precisely the same concern for
assigning Mexican-American inmates from Northern and
Southern California to different cells — an action that betrays no
ethnic stereotype, but which is entirely consistent with a concern
for preventing gang-inspired violence. And Defendants make
no effort to separate inmates outside of cells. See W. Rideau &
B. Sinclair, Prisoner Litigation: How it Began in Louisiana, 45
La. L. REV. 1061, 1068 (1985) (white and black inmates “ate in
the same dining hall, [but] a wooden partition ran down the
center of the huge facility, separating their respective eating
areas”); Washington, 261 F. Supp. at 331 (laws required
“complete” segregation).
Most important, any assertion that the policy signals
Jacobson v. Cincinnati Bd. of Educ., 961 F.2d 100 (6th Cir.1992); Kromnick
v. School Dist., 739 F.2d 894 (3d Cir.1984), and others treating it as relevant
to the performance of strict scrutiny analysis. See Brewer, 212 F.3d at 752;
Comfort, 283 F. Supp. 2d at 363 (noting arguments for “intermediate
scrutiny” ofpolicies that are race-conscious but do not * * * prefer members
of one race over another,” but holding that policy survived strict scrutiny);
see also Hampton v. Jefferson Cty. Bd. of Educ., 102 F. Supp. 2d 358, 380
(W.D. Ky.2000).
25
“second class citizenship” or even that it reflects an even-handed
belief that “persons of different races cannot safely be housed
together,” U.S.Br.25, cannot be reconciled with Defendants’
permanent assignment policies, which interpose no barrier to
inmates of differing races sharing a cell and promote integration
in dormitories.’
It should go without saying that both content of these
policies and the objectives they advance — allowing African-
American and white inmates to live together permanently by
choice and affirmatively seeking integration in dormitories —
would have been anathema to the officials in Brown, Plessy, and
Washington to whom Petitioner and Amici casually analogize
Defendants. See also Black, 538 U.S. at 393-94 & n.2 (Thomas,
J., dissenting) (“It strains credulity to suggest that a state
legislature that adopted a litany of segregationist laws
self-contradictorily intended to squelch the segregationist
message * * * *It is simply beyond belief that, in passing the
Statute now under review, the Virginia Legislature was
concerned with anything but penalizing conduct [intimidating
cross-burning] it must have viewed as particularly vicious”); cf.
Comfort, 283 F. Supp. 2d at 378 (“Even if it were reasonable to
conclude (and I find it highly doubtful) that students in Lynn
come away from school registration with the mistaken belief
that the district means to remind them of racial difference,
everything about the Lynn experience is directed at clarifying
and correcting this misapprehension”).
The rejoinder, that “[t)he evils of state racial segregation
do not dissipate merely because it is doled out only in successive
"Nor can Defendants fairly be accused of using inmates’ race as a
“proxy” for their proclivity to racial hatred or interracial violence, see
Powers, 499 U.S. at 410. As the context in which it operates makes clear,
Defendants reception housing policy is not reflective of an assumption that
an individual inmate is racist or violent — but rather an indication that his
proclivities, while being actively investigated, are not yet known.
26
60-day intervals, or because the inmate is not locked in a
segregated cell for 24 hours a day,” Pet.Br.40, misses the point.
First, the distinction between “temporary” and permanent
restrictions is not nearly as alien to constitutional law as this
sound-bite argument supposes. See Tahoe-Sierra Preserv.
Council, Inc. v. Tahoe Regional Planning Ag’y, 535 U.S. 302
(2002) (temporary development moratorium not per se Taking);
City of Littleton v. Z.J. Gifts, 124 S.Ct. 2219, (2004) (adult
business licensing regime does not offend First Amendment, so
long as bookstore owner may promptly seek judicial review of
application denial); cf. Zadvydas v. Davis 533 U.S. 678, 692
(2001) — and Washington is not easily read as holding that the
temporal dimension is irrelevant. See 263 F. Supp. at 331
(describing practice of “complete and permanent segregation”
and recognizing instances where separation for a “limited
period” might be warranted); see also White v. Morris, 832 F.
Supp. 1129, 1134(S.D. Ohio 1993) (temporary separation, after
inmate records were destroyed, was consistent with consent
decree because “the purpose of the * * * Decree was to ensure
[prison’s] safe integration”) (emphasis in original).
But it is not the policy’s limited duration in itself that is of
pivotal constitutional relevance. Rather, it is the function that
temporary reception center confinement undeniably serves:
enabling Defendants to obtain accurate information on which
inmates’ permanent cell assignments can be determined. There
is thus nothing mysterious, let alone constitutionally suspect,
about “why cell assignments that are deemed safe on day 61 are
presumptively unsafe on day 59 (or day 30, or day 10),” Pet.
Br.37. The former are made after a process of individualized
evaluation is complete, based on the information obtained.
Accord White, 832 F. Supp. at 1133 (“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”); Br.
Former State Officials 10 n.10 (quoting policy that suspends
27
race-neutral assignments “until after the initial classification
processing has been completed”); cf. Tahoe-Sierra, 535 U.S. at
340 (highlighting“interest in protecting the decisional process”).
Indeed, what Petitioner and Amici identify as the central
mandate of Equal Protection well describes the operation and
evident object of Defendants’ cell assignment practices: “‘to
ensure that each [inmate] is evaluated as an individual” — not in
“a way that makes [his] race or ethnicity the defining feature of
his [placement)].” Grutter, 536 U.S. at 309."
3. The Policy’s Supposed “Overinclusiveness” Has No
Bearing On The Equal Protection Question
To the extent that Petitioner urges that the policy be
invalidated — notwithstanding the absence of any suspected
invidious predicate — on “narrow tailoring” grounds, i.e., based
on the asserted insufficiency of evidence that Defendants’ safety
objectives would be frustrated by a policy that exempted
transferee inmates or gave less “weight” to the race factor, the
Equal Protection principles invoked do not support such aclaim.
Most fundamentally, strict scrutiny cases do not establish
“fit” between means and end as a free-stranding constitutional
mandate, but rather describe that inquiry primarily as a tool for
determining whether improper considerations were operative:
“heightened scrutiny of a racial classification permits a court to
conclude, in effect, ‘If the state were really interested in
race-neutral purpose x, it would not have done what it did,’” J.
Rubenfeld, 107 YALE L.J. at 437. Once the list of possible
Equal Protection “dangers” has been exhausted, the basis for
dema: jing more or different evidence about a policy’s
comparative efficacy is at an end.
'’Nor is there any contradiction whatsoever, let alone a constitutionally
fatal one, between Defendants’ consideration of race at the reception stage
and their practice of encouraging racial integration “to minimize * * *
violence in prison dormitories.” U.S.Br.9. Each is fully consistent with
taking a protective approach until the individual characteristics bearing on an
inmate’s dangerousness and vulnerability are reliably known.
28
Nor, in any event, is it right that narrow tailoring would
require Defendants to disprove the feasibility of a “more
flexible” consideration of race, i.e., one that makes race one of
a number of “factors” considered in assigning inmates to
reception cells. As a threshold matter, (and as explained above)
Defendants’ reception center housing policy does treat race as
“one of several factors” — in the respect that is most
constitutionally meaningful. See p. 18, supra (explaining that
policy is not suspiciously underinclusive).
At least as important, the reasons that make such an inquiry
constitutionally significant in other settings are simply not
implicated here. See Grutter, 539 U.S. at 334 (narrow tailoring
test must be “calibrated to fit the distinct issues raised by the use
of race” in particular context). In higher admissions cases,
multi-factored consideration serves to ease the impact on those
disadvantaged by a racial“plus” factor and to vindicate
applicants’ entitlement to individualized consideration. See
Regents, Univ. of Cal. v. Bakke, 438 U.S. 265, 318 (1978)
(Powell, J.) (Harvard approach assured that disappointed
nonminority applicant's qualifications were “weighed fairly and
competitively,” leaving him “no basis to complain of unequal
treatment under the Fourteenth Amendinent’”). But the policy
challenged here does not “burden” the members of any group,
see Bakke, 438 U.S. at 301 n.39, and the “benefit” with which
the policy is ultimately concerned — (permanent) prison housing
—is allocated on an individualized, entirely non-racial basis.
The legal regime urged by Petitioner and Amici would be
fundamentally unadministrable, as well as constitutionally
superfluous. The same “principle” cited as requiring Defendants
to adduce objective, empirical support for making race a full
disqualifying factor in cell assignment decisions would also
require judicial determination of claims that a different policy
gave “too much weight” to the race variable — or that prison
administrators were in practice giving greater weight than
prescribed in a stated policy. Such elaborate evidentiary
29
showings might be appropriate in a case where the government
actor’s actual motives are in doubt (or when a class is excluded
from participating in a governmental benefit), see, e.g., Croson,
but such minute, fact-intensive scrutiny would be extraordinary
(and quite probably counter-productive) in a case of a prison
policy developed for non-invidious reasons. Cf. United States
v. Fordice, 505 U.S. 717, 762 (1992) (Scalia, J., concurring in
judgment in part, dissenting in part).'*
Nor, to the extent the issue was preserved below, is the
policy’s application to transferee inmates, and not just truly new
arrivals, the Equal Protection “smoking gun” it is suggested to
be. There is no indication what particular illegitimate or racial
purpose Defendants’ treatment of transferees actually reveals —
and while it may be true that transferred inmates and brand new
arrivals are not identically situated, in the sense that more
information is known about the former, such concerns speak
“The skepticism advocated by Petitioner’ s Amici is not readily cabined.
Thus, the United States explains that the federal Bureau of Prisons does
“consider race as one of many demographic factors, such as age, nationality,
religion, and gang affiliation, to promote integrated and diverse institutions
and housing units,” U.S.Br.26, and that it “monitors the racial composition
of its institutions and may consider race in overseeing the population of an
insutution as necessary to ensure that the institution does not become de facto
segregated,” /d.
Assuming that the stated interest in “diversity” and avoiding “de facto
segregation” is security-based — i.e., reflective of a (reasonable) judgment
that housing inmates together can dampen racial tension — and not rooted in
the First Amendment, cf David K., 839 F.2d at 1278 (Easterbrook, J.,
concurring) (“prison gangs [do not] meet every month to discuss * * * debate
how Stanley Tigerman’s buildings differ from those of the Bauhaus school”),
the principles advanced in the Amicus Brief would require federal corrections
officials to demonstrate these benefits at the institutional level and to show
that the “amount” of consideration given race was not inordinate. As
suggested above, similar showings could be required to sustain single-sex
policies, which are far more likely than the policy here to rest (at least in part)
on consutuuonally troublesome thinking and entail far more serious claims
of disparate treatment. See R. Herbert, Women's Prisons: An Equal
Protection Evaluation, 94 YALE L. J. 1182 (1985).
30
more to the (relative) length of transferees’ stay in the reception
stage than to whether the policy should apply during that stage.
In fact, some of the rationales underlying Defendants’ policy are
plainly applicable to transferees: because a reputation for
“toughness” can be protective, see supra, transferred inmates
have reasons to behave differently — more violently — on arrival
at a new institution than they may have at the previous facility
(and some transfers reflect a determination by the sending
institution that the inmate’s prior placement was inappropriate,
e.g., that he was more violent or trouble-prone than an initial
evaluation had predicted). But accepting that transferees are, in
fact, held for 60 days (a point on which there appears to be some
uncertainty), a claim that transferees — of all races — are held for
60 days, rather than 14, if it sounds in Equal Protection at all, is
a long way from the core concerns that animated Washington.
Finally, it would require no betrayal of strict scrutiny
principles to see that this case is an extraordinary candidate for
adopting the exceedingly demanding and rigid conception of
“narrow tailoring” for which Petitioner argues. As Grutter
teaches, even in — perhaps especially in — strict scrutiny analysis,
“context matters,” 539 U.S. at 334. See also Pitts, 866 F.2d at
1455 (“acknowledgment of the difficulties inherent in the prison
context does not reduce or eviscerate heightened scrutiny, but it
does recognize that those difficulties do not disappear once a
party raises a discrimination claim”). And here, as in Grutter,
the Equal Protection Clause is not the only constitutional
provision requiring consideration. The policy implicates not
only Defendants’ professional expertise, but their constitutional
duty to protect the lives and safety of those within their custody.
Cf. Wygant, 476 U.S. at 291 (O’Connor, J., concurring).
Conclusion
The judgment of the Court of Appeals should be affirmed.
Respectfully submitted,
DAVID T. GOLDBERG
Counsel of Record
99 Hudson Street, 8" FI.
New York, NY 10013
(212) 334-8813
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