A civil rights victory for prisoners.

Prisoners rarely win in the Rehnquist Court. (1) Time and again, when prisoners have claimed that a government action deprived them of a fundamental right, the Court has applied a rational-basis analysis, holding that the government should prevail as long as the action was "reasonably related to a legitimate penological interest." (2) The Court frequently has proclaimed the need to defer to prison officials in deciding what is necessary to maintain order and discipline within prisons. (3)

In this context, the Court's recent decision in Johnson v. California is remarkable. The Court held that the routine racial segregation of prisoners in California must meet strict scrutiny. (4) Although Johnson concerns a specific claim, racial segregation, it does offer hope to lawyers bringing other civil rights claims on behalf of prisoners.

In California, when a male prisoner enters an institution--whether at the start of a sentence or after being transferred from a different prison--the inmate is placed in a reception center for up to 60 days. During this time, prison officials evaluate the prisoner to determine his long-term placement.

At the reception centers, two inmates are often housed together in one cell. Prison officials consider several factors, including race, when assigning these temporary cell mates and conceded in Johnson that there is virtually a "zero percent" chance that inmates of different races will be housed together during this period. (5)

To determine these cell mates, prison officials separate inmates into four major groups: whites, African-Americans, Latinos, and Asians. They occasionally use subgroups. For instance, Northern California Latinos are housed separately from Southern California Latinos because of a history of gang violence between inmates from these two regions. Likewise, Japanese-Americans are housed separately from Chinese-Americans.

Prison gangs organized along racial lines are endemic in California, and prison officials expressed their belief that violence and conflict would result if prisoners were not segregated. (6) The California Department of Corrections (CDC) argued to the Court that it is necessary to segregate all inmates while it determines whether they pose a danger to others. (7)

An African-American prisoner incarcerated in California since 1987, Garrison Johnson filed a pro se lawsuit claiming that every time he was transferred to a new prison, he was placed in a racially segregated cell. He argued that this violated his Fourteenth Amendment right to equal protection. The federal district court judge ruled in favor of prison officials, and the Ninth Circuit affirmed, (8) concluding that the routine racial segregation was constitutional because it was rationally related to a legitimate penological interest: preventing violence in prisons.

Applying strict scrutiny

In a 5-3 decision, the Supreme Court reversed. (9) Writing for the Court, Justice Sandra Day O'Connor stressed that "all racial classifications [imposed by government] ... must be analyzed by a reviewing court under strict scrutiny"--that is, they will be upheld only if the government can prove that its action is necessary to achieve a compelling state purpose. (10) The CDC claimed that segregation of prisoners did not constitute discrimination because all prisoners were treated the same way: Every prisoner, regardless of race, was placed in a cell with an inmate of the same race.

But the Court noted that it had rejected that argument 50 years ago in Brown v. Board of Education, which held that segregation based on race constitutes a racial classification and must meet strict scrutiny. (11) O'Connor was emphatic on this point: "Because the CDC's policy is an express racial classification, it is 'immediately suspect.' We therefore hold that the court of appeals erred when it failed to apply strict scrutiny to the CDC's policy and to require the CDC to demonstrate that its policy is narrowly tailored to serve a compelling state interest." (12)

The CDC had argued for application of the deferential standard articulated in Turner v. Safley, which said that actions by prison officials should be upheld as long as they are rationally related to a legitimate government purpose. (13) But, the Court stated, "we have never applied Turner to racial classifications. Turner itself did not involve any racial classification.... [W]e have applied Turner's reasonable-relationship test only to rights that are 'inconsistent with proper incarceration.'" (14)

Rather than follow Turner, O'Connor expressly rejected the rational-basis test and insisted on strict scrutiny for racial classifications in prisons:

   The right not to be discriminated against
   based on one's race is not susceptible to the
   logic of Turner. It is not a right that need
   necessarily be compromised for the sake of
   proper prison administration. On the contrary,
   compliance with the Fourteenth
   Amendment's ban on racial discrimination
   is not only consistent with proper prison administration,
   but also bolsters the legitimacy
   of the entire criminal justice system.
   Race discrimination is "especially pernicious
   in the administration of justice." And
   public respect for our system of justice is
   undermined when the system discriminates
   based on race. (15)

The Court acknowledged the importance of preventing violence in prisons but said that routine racial segregation is based on, and reinforces, racial stereotypes. The Court also said that strict scrutiny was essential to ensure that the government's actions were necessary and not based on convenience or impermissible generalizations:

   In the prison context, when the government's
   power is at its apex, we think that
   searching judicial review of racial classifications
   is necessary to guard
   against invidious discrimination.
   Granting the CDC an exemption
   from the rule that strict scrutiny
   applies to all racial classifications
   would undermine our "unceasing
   efforts to eradicate racial
   prejudice from our criminal justice
   system." (16)

But the Court did not declare California's policy of segregating prisoners unconstitutional. Rather, it remanded the case for the application of strict scrutiny. Still, O'Connor's opinion suggests that routine racial segregation of all prisoners is unconstitutional, allowed only when prison officials can demonstrate a compelling need for it in a particular case. Indeed, the Court stressed that strict scrutiny need not be "fatal in fact," while emphasizing the desirability of individualized determinations rather than ones based on race alone. (17)

A victory for prisoners in the Rehnquist Court is rare and notable, and by any measure Johnson is a huge victory. At the very least, it means that claims of race discrimination by prisoners must always meet strict scrutiny. This could allow lawyers to argue successfully that other government violations of prisoners' rights must also meet strict scrutiny.

The Court drew a crucial distinction between actions by prison officials that are needed to facilitate incarceration and those that are not. Rational-basis review is used for the former, but not for the latter. This should open the door for attorneys to argue that some actions are not required to facilitate incarceration and thus must meet strict scrutiny.

Whether Johnson will have any impact outside of its limited facts is uncertain. But lawyers bringing civil rights claims for prisoners at least have more reason now to believe that their clients can prevail.

Notes

(1.) See, e.g., Overton v. Bazzetta, 539 U.S. 126 (2003) (no violation of prisoners' rights in restrictions on visitation); Shaw v. Murphy, 532 U.S. 223 (2001) (no violation of prisoners' First Amendment rights in confiscation of mail); Sandin v. Connor, 515 U.S. 472 (1995) (restricting due process claims by prisoners).

(2.) This standard was articulated in Turner v. Safley, 482 U.S. 78, 89 (1987). See also Overton, 539 U.S. 126, 132; Shaw, 532 U.S. 223, 225; Lewis v. Casey, 518 U.S. 343, 361 (1996); Washington v. Harper, 494 U.S. 210, 223 (1990).

(3.) See, e.g., Overton, 539 U.S. 126, 136; O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987).

(4.) 125 S. Ct. 1141 (2005).

(5.) Id. at 1144.

(6.) Id. at 1145.

(7.) Id.

(8.) 321 F.3d 791 (9th Cir. 2003).

(9.) Chief Justice William Rehnquist did not participate.

(10.) 125 S. Ct. 1141, 1146 (emphasis in original).

(11.) 347 U.S. 483 (1954).

(12.) 125 S. Ct. 1141, 1148 (quoting Shaw v. Reno, 509 U.S. 630, 642 (1993)).

(13.) 482 U.S. 78, 89.

(14.) 125 S. Ct. 1141, 1149 (emphasis in original) (quoting Overton, 539 U.S. 126, 131)).

(15.) Id. (quoting Rose v. Mitchell, 443 U.S. 545, 555 (1979)).

(16.) Id. at 1150 (quoting McCleskey v. Kemp, 481 U.S. 279, 309 (1987)).

(17.) Id. at 1151.

ERWIN CHEMERINSKY is Alston & Bird Professor of Law at Duke University School of Law.