Policy Is Under Justices' Scrutiny
By LINDA GREENHOUSE
The New York Times
November 3, 2004
WASHINGTON, Nov. 2 - A California prison
policy of temporarily segregating all new and newly transferred
inmates by race came under attack at the Supreme Court on Tuesday
in a case that pits the justices' tradition of deferring to prison
administrators against their dislike of government policies that
classify people by race.
California defended its policy, which the
federal appeals court in San Francisco upheld, as necessary to
prevent violence in a gang-ridden prison system.
"California is ground zero for race-based
street gangs," Frances T. Grunder, a senior assistant state
attorney general, told the justices. "The animosity between
the gangs is purely race-based, and the racial pressures in prison
are very, very severe."
More than 25 years ago, California adopted
the practice of placing inmates in double cells with cellmates
of the same ethnic background for the first 60 days after their
arrival at a prison, either as newcomers to the system or following
a transfer from another prison. The inmates are evaluated during
that time for propensity to violence, among other things, and
then are assigned permanent quarters on a nonracial basis.
Neither the federal Bureau of Prisons nor
any other state follows such a policy, which the lawyer for a
black inmate who challenged the system described as nothing more
than "routine, blanket racial segregation." The lawyer,
Bert H. Deixler, said it was based on a "needless and dangerous"
stereotype that assumed that all members of a racial or ethnic
group acted and thought alike.
California applied the policy last year
to segregate 40,000 new prison inmates and several hundred thousand
others who were transferred between prisons. On Tuesday, several
justices questioned the rationale for applying the policy to transferred
"What's the justification?" Justice
David H. Souter asked Ms. Grunder, observing that by the time
of a transfer, prison officials had had "plenty of time"
to assess an inmate's potential for violence. Justice Antonin
Scalia was openly skeptical of the policy's application to transfers
despite his apparent willingness to accept it for new inmates.
Justice John Paul Stevens wondered aloud
whether placing inmates of the same race together might have the
effect of increasing gang membership, by facilitating close contact
between potential members of the same gang.
Garrison S. Johnson, the inmate who brought
the lawsuit, is a black man who chose not to join a prison gang.
"There is no record that he has ever been involved in interracial
violence," his lawyer, Mr. Deixler, told the court. In prison
since 1987, Mr. Johnson has been transferred five times, meaning
he has encountered six periods of segregation. "He is in
peril, unable to reach out across racial lines for support,"
Mr. Deixler said.
The Bush administration entered the case
on Mr. Johnson's behalf to argue that segregation by race should
always be regarded as presumptively unconstitutional and subject
to the most exacting level of judicial scrutiny. The question
in the case, Johnson v. California, No. 03-636, is what standard
of judicial review should apply to the policy.
The United States Court of Appeals for
the Ninth Circuit, in upholding it, applied the more deferential
standard that the Supreme Court has developed for evaluating choices
made by prison administrators. Both the inmate's lawyer and the
administration are arguing that when it comes to race, the deferential
stance should not apply.
Instead, they maintain, "strict scrutiny"
should apply to prison policies that classify people by race,
as to any such policies by government in any setting. Under strict
scrutiny, a policy will be upheld only if it is narrowly tailored
to achieve a "compelling" government interest.
"This case provides an opportunity
to reaffirm that all government policies based on race are subject
to strict scrutiny," Paul D. Clement, the acting solicitor
general, told the justices. Mr. Clement said the federal Bureau
of Prisons made housing assignments for prisoners based not on
their race but on an individual evaluation drawn largely from
the presentencing report that is prepared after conviction.
The strict-scrutiny position fits with
the Bush administration's general view that race-conscious policies
like affirmative action are constitutionally impermissible. Mr.
Clement said the California policy would fail even a deferential
standard of review if that standard were properly applied, but
he tried to keep the justices focused on the strict-scrutiny argument.
If the court agrees that strict scrutiny should apply, it will
most likely return the case to the Ninth Circuit with instructions
to re-evaluate the policy under that standard.
Chief Justice William H. Rehnquist, under
treatment for thyroid cancer, was not at the court, but Justice
Stevens announced that the chief justice would take part in deciding
the two cases that were argued on Tuesday. Two years ago, when
the chief justice missed two weeks of argument because of knee
surgery, he voted in all the argued cases after studying the transcripts.