ASHINGTON,
March 1 — The Supreme Court agreed Monday to hear a challenge to a
California prison system policy that segregates inmates by race during their
first 60 days of incarceration.
The state has defended the policy, and a federal appeals court has upheld
it, as a sensible way to minimize interracial violence at the reception
centers where inmates are housed while being screened for long-term
placement. One purpose of the screening is to assess a new inmate's
potential for violence.
During this 60-day period, inmates are assigned to two-person cells based
on whether they are black, white, Asian or "other." Within those categories,
the authorities also separate some by national or geographic origin. For
example, Japanese and Chinese inmates are not housed together, neither are
Laotians and Vietnamese, or Hispanics from Northern and Southern California.
The segregation policy is also used for the first 60 days after an inmate
is transferred from one prison to another. In all instances, however, areas
of the prison other than the actual cells — the yard, dining hall and work
and recreation areas — are not segregated.
The policy has been in effect for more than 25 years. Garrison S.
Johnson, a black inmate convicted of murder, challenged it in 1997 by filing
a federal lawsuit that he drafted himself. The lower federal courts
dismissed the suit while permitting him to amend it with a lawyer's help.
Proskauer Rose, a New York law firm with an office in Los Angeles, has been
handling the case without charge for the past three years.
In the amended lawsuit, both the Federal District Court in Los Angeles
and the United States Court of Appeals for the Ninth Circuit, in San
Francisco, upheld the policy. In its ruling in February 2003, the Ninth
Circuit said there was "clearly a common-sense connection" between using
race for the initial assignment and reducing racial violence in the prison
system.
"The housing policy does not provide any advantage or disadvantage to any
particular race, and the objective, reducing violence among the inmates and
against the staff, has nothing to do with race, but rather with inmate and
staff safety," Judge Diarmuid F. O'Scannlain wrote for a three-judge panel
of the appeals court.
In the Supreme Court appeal, Johnson v. Gomez, No. 03-636, Mr. Johnson's
lawyers argue that the Ninth Circuit applied the wrong legal standard, and
that a government policy that makes distinctions on the basis of race has to
meet a more searching test than that of common sense or reasonableness. All
such policies are presumptively unconstitutional, they said.
"The decision below undermines a national imperative to eliminate racial
discrimination," the appeal argues. It adds that though segregating inmates
by race might be justified in response to an "extraordinary circumstance
involving prison security," it should not be a routine part of administering
a prison system with 100,000 inmates.
A Supreme Court decision in 1968, Lee v. Washington, prohibited
segregation in the Alabama prison system. Though Mr. Johnson's lawyers
invoked that precedent, the Ninth Circuit disregarded it on the ground that
the court in 1968 was addressing a policy that permanently segregated the
prison population into whites-only and blacks-only cellblocks. The
California policy, by contrast, imposes only short-term segregation and "is
limited to the dangers it seeks to alleviate," the appeals court said.
Rather than the "strict scrutiny" usually applied in race discrimination
cases, the Ninth Circuit applied a more relaxed standard of review derived
from a prison regulation case the Supreme Court decided in 1987. The
decision in that case, Turner v. Safley, said that courts should generally
uphold prison regulations that are "reasonably related to a legitimate
penological interest." The connection between the regulation and the
administrators' goal in issuing it must be a valid and rational one, the
court said in that case.
In a separate development Monday, the court declined to act on the Sierra
Club's motion to disqualify Justice Antonin Scalia from taking part in a
case challenging Vice President Dick Cheney's refusal to disclose
information about his energy task force. The justice and the vice president
took a hunting trip together in January, after the Supreme Court had
accepted the case.
In a brief order today, the court said that "in accordance with its
historic practice, the court refers the motion to recuse in this case to
Justice Scalia." In other words, the court will not tell Justice Scalia what
to do, and he remains free to make up his own mind on whether to participate
in the case, Cheney v. United States District Court, No. 03-475.