PROTECTING 'DIVERSITY' PRISONERS WIN EQUAL RIGHT TO BE MURDERED.

Byline: CHRIS WEINKOPF

FOR the majority of the U.S. Supreme Court, California prisoners' right to fully integrated prisons apparently supersedes their right to live.

Judicial imperialism is, if nothing else, bizarre.

On Wednesday, the Court ruled in Johnson v. California that the state's Department of Corrections must go before a lower court to justify, under the terms of ``strict scrutiny,'' its policy of racially segregating certain inmates. That means the California Department of Corrections gets one last chance to defend a policy that has nothing to do with discrimination and everything to do with saving lives - a policy that the activists on the court seem committed to abolishing.

For no more than two months after inmates arrive at a California prison, they stay in racially segregated two-man cells. The idea is to determine if they belong to violent, racist gangs before putting them in close quarters with other prisoners they may try to maim or kill. The CDC also won't initially bunk Northern California Latinos with Southland Latinos, as they're likely to belong to rival gangs. Nor will it put Asians of different nationalities in the same cell until confident that doing so won't result in ethnic violence.

The policy is based on common-sense safety measures, with not even a hint of bigotry. Though separated, the inmates are treated entirely equally, and when it's determined that they can be safely integrated, they are. No one claims that inmates of some races receive better treatment than others. Inmates of all races benefit from the policy, as they're removed from harm's way.

The state argued, and lower courts agreed, that the policy was constitutionally sound under the more lax terms of the 1987 case of Turner v. Safley. In that ruling, the Supreme Court acknowledged that, in the interest of order and safety, prisoners' constitutional rights can sometimes be restricted. The Turner ruling also held that it's up to prison officials who do the day-to-day work of safeguarding their facilities - and not judges, who lack any such expertise - to determine which rights need be curtailed, provided that doing so is ``reasonably related'' to legitimate penal interests.

By that standard, California's policy clearly stands up to constitutional muster.

But the ``strict scrutiny'' standard called for in Johnson v. California is another matter entirely. Now the CDC must demonstrate a ``compelling state interest'' for its policy, and it must show that the rule is ``narrowly tailored.'' While the compelling state interest - thwarting racial gang violence - would seem to go without saying, the ``narrowly tailored'' provision is tricky. It enables judges to prohibit the policy if they believe the same goals could be achieved in some other way.

In other words, Johnson v. California usurps the authority the court extended to prison officials in Turner, allowing judges to micromanage the nation's penitentiaries - a job for which they're manifestly unqualified. But after decades of judges' pretending to be legislators, we shouldn't be surprised that they now fancy themselves prison wardens, too.

If Justice Sandra Day O'Connor's language in the majority opinion in Johnson is any indication, these would-be wardens seem determined to bring their own racial vision to the state's prison system. Under that vision, members of the system's five largest gangs - the Aryan Brotherhood, the Black Guerrilla Family, the Nazi Low Riders, La Nuestra Familia and the Mexican Mafia - will all live happily side by side, assuming they're not too busy slitting each other's throats.

In O'Connor's ruling - joined by all the court's usual liberal stalwarts, save Justice John Paul Stevens, who held out for even more - the court goes to great lengths to disparage the policy that has helped to keep the peace in California prisons for 25 years. ``By insisting that inmates be housed only with other inmates of the same race,'' O'Connor opines, ``it is possible that prison officials will breed further hostility among prisoners and reinforce racial and ethic divisions.''

Well, sure, it's possible, just as it's possible that a little one-on-one time with a minority inmate might turn a hardened member of the Aryan Brotherhood into a born-again civil-rights crusader. But that's not what the officials who actually run the prisons have found. And who's better suited to decide which policies will most likely lead to smooth prison operation: those who have spent their careers operating prisons, or eight unelected justices sitting 3,000 miles away?

Silly question. The justices consider themselves masters of all trades.

O'Connor even lectures the CDC for ``perpetuating the notion that race matters most.'' That's ironic, seeing that it was O'Connor who, two years ago, wrote in the court's Grutter v. Bollinger decision that racial discrimination is permissible in college admissions. Her reasoning then was precisely that race does matter most, so much so that a public university's commitment to ``diversity'' can trump its obligation to treat people equally, regardless of skin color.

Now diversity in California's two-man prison-transfer cells also trumps the need to keep prisoners safe. Of course, should the courts ultimately overturn the CDC's policy and prisoners respond by killing each other, this same group of justices will declare that the condition of California prisons constitutes cruel and unusual punishment.

And, for once, they'll be right.

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Photo:

(color) Supreme Court Justice Sandra Day O'Connor wrote the ruling that may bar California prisons from segregating inmates by race.

Paul J. Richards/AFP/Getty Images