Wednesday, February 23, 2005
The Supreme Court handed down a 5-3 ruling today in Johnson v. California holding that the California prison system's policy of racially segregating incoming prisoners for a period of up to 60 days must be analyzed under strict scrutiny. They remanded to the 9th circuit to determine whether or not the California policy could constitutionally survive under that standard of review. I have not had a chance to read all of the opinions, but I would like to discuss some initial views. California had urged the court to apply a so-called Turner exception (Turner asks whether a regulation that burdens prisoners fundamental rights is reasonably related to legitimate penological interests). Justice Thomas' dissent seems convincing because of its reliance upon the factual record. The record showed that California prison gangs were invariably racially segregated and, indeed, formed on that basis. As Thomas indicates, the largest gangs have names such as the Aryan Brotherhood, the Black Guerrilla Family, the Mexican Mafia, the Nazi Low Riders, and La Nuestra Familia. It seems rational that a prison system which undoubtedly receives hundreds of new prisoners a day, and who know little about them individually, might think that the safest way to protect inmates is a trial period of racial segregation in assigning a bunkmate. In fact, this argument seems so compelling that it seems quite possible that such a policy might survive even strict scrutiny. But the question remains, should we tie the hands and make administrators of prison justify under a very strict standard the decisions that they believe to be necessary to the safe and adequate functioning of our prisons.