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The first available house: desegregation in American prisons and the road to Johnson v. California.

Security officer: Do you think you can share a house with an offender of another race?

Offender:. No way man. Do what you gotta do, man, but I ain't livin' with some dude that ain't one of my people. You can't make me go into that house, man, and expect me to get along 'cause you say so. You put me in that house with that dude and there's gonna be trouble. I'll hurt him if I have to, 'cause of the politics here. I gotta ride with my own kind. I'll go to the SHU [Secure Housing Unit], man, no big deal." (Wasco State Prison-Reception Center, near Delano, Calif., July 2005)

The above conversation between a California correctional officer and a newly admitted offender at a reception center underscores the current state of race relations that exists in many U.S. prisons. Unless forced not to, most inmates self-segregate during meals, while at work and recreation, and on the yard. Virtually all cellblocks and dormitories nationwide are desegregated, but only a few systems have formally established desegregated cells. In these systems, inmates are assigned to the first available and appropriate cell, regardless of race or ethnicity. It is hard to imagine, but cellblocks and cells in some prisons might be the most racially integrated areas of American society. Racial integration in prisons did not happen overnight and was prompted by major legal, political and social shifts in the larger society.

The road to in-cell integration began in 1954 when the U.S. Supreme Court held in Brown v. Board of Education that "separate but equal" policies violated the Constitution because such laws perpetuated a racial caste system that restricted an individual's opportunities and participation in social life. This historic ruling led to the desegregation of public schools "with all deliberate speed." Soon thereafter, the high court banned segregation in such places as beaches (Mayor of Baltimore v. Dawson, 1955), golf courses (Holmes v. City of Atlanta, 1955), public transportation/buses (Gayle v. Browder, 1956), parks (Muir v. Louisville Park Theater Association, 1954), athletic events (State Athletic Commission v. Dorsey, 1959), airport restaurants (Turner v. City of Memphis, 1962), courtroom seating (Johnson v. Virginia, 1963) and public auditoriums (Shiro v. Bynum, 1964).

American schools, parks and other social settings were integrated, and by the 1970s, the separate but equal policies of America's past were history. There is no suggestion here that desegregation was violence and disorder free; the history of public school desegregation was anything but calm (Kluger, 1976). Curiously, many prisons, although public entities, have employed racial segregation well beyond 1970, 1980, 1990 and even into the new millennium. In fact, it was not until 2005 that the Supreme Court finally banned the use of racial segregation in inmate housing assignments. Fifty years after Brown, it now can be said that racial segregation in public facilities, including prisons, has been legally eliminated. However, despite the legal elimination of segregation in prisons, the Supreme Court did not establish guidelines, a timeline or a way to enforce desegregation nationwide. In fact, only Texas and Oklahoma have instituted desegregated cells on a large-scale basis--and now California is devising a similar policy. These states have taken action because of lawsuits brought against their individual systems, prompting changes in their facilities.

This article examines the long road of prison desegregation that lead to the landmark case of Johnson v. California (2005). Also analyzed is the impact of in-cell integration in Texas as a possible window through which to view the upcoming process in California. Texas boasts the most integrated prison system in the country, integrating roughly 65 percent of all double ceils and all dormitory housing areas. In fact, Texas integrates more inmates in cells than the entire prison population of many state systems (Trulson and Marquart, 2002b). The Johnson case is discussed, as are possible remedies and consequences of desegregation in the California prison system. This article concludes with a discussion of judicial decrees in light of organizational realities.

Litigation And Desegregation in Prison

The first inmate segregation cases began to filter into the judicial system in the 1960s. In 1966, an Alabama federal district court ruled in Washington v. Lee (1966) that an Alabama statute requiring racial segregation of inmates was unconstitutional. Two years later in Lee v. Washington (1968), the U.S. Supreme Court affirmed the district court ruling, holding that racial discrimination by public authorities is impermissible, even in prisons. The court held in Lee that racial segregation was prohibited except for "particularized circumstances" where security might require the occasional separation of the races. In Lee, the court never articulated how desegregation was to be accomplished; for example, whether it was to be forced or voluntary. The justices also failed to elaborate on whether double-cell integration was required, or if some broader aspect of desegregation would suffice, such as integrating a cellblock but not cells. Nor did the justices clarify which "particularized circumstances" would justify the racial segregation of inmates. Confusion over remedies meant that prison systems would continue racial segregation under the guise that extreme racial violence and disorder would ensue. According to prison officials, the speculative fear of racial violence and riots was enough to satisfy the "particularized circumstances" requirement to maintain racial segregation. As a result, it was up to the lower federal courts to scrutinize state practices of racial segregation in prisons after Lee and address the main argument of prison authorities that racial integration would result in "blood on the tiers."

From the 1960s through the 1990s, lower federal courts heard nearly 40 cases dealing with racial segregation in prisons. Administrators, correctional officers and even inmates have argued in the lower federal courts for a policy of racial segregation. Some cases dealt with in-cell desegregation, while others dealt with desegregation in larger living areas such as dorms and cellblocks. Some cases involved single facilities, while others involved entire correctional systems. In almost every lower federal court case, the courts held steadfastly to the idea that speculative or vague fears of racial violence did not justify racial separation. Although racial tensions may require separation of the races to prevent violence, such separation should be a temporary expedient. The courts have consistently held blanket policies of racial segregation unconstitutional.

Desegregation and Racial Violence in Texas

As a result of federal court cases, prison systems around the country were forced to integrate their institutions to varying degrees. However, the only empirical evidence to date on what happens following a policy of forced desegregation comes from a series of articles published by Trulson and Marquart (2002a; 2002b; 2002c). These researchers examined the desegregation of Texas prisons in the aftermath of Lamar v. Coffield (1977), a massive class-action suit that forced Texas prison officials to desegregate inmate housing areas, including double cells.

Texas prisons had a history laden with racial segregation prior to Lamar. Until 1965, Texas prisons were completely segregated by race, with separate prison units for white, black and Hispanic inmates. In 1965, the prison director, George J. Beto, desegregated individual prisons by allowing white, black and Hispanic inmates to live in the same prison units. However, all prison housing areas, such as cells, cellblocks and work squads, remained racially segregated. In fact, until 1975, Texas law authorized prison managers to separate inmates by "color" (Trulson and Marquart, 2002b). Although this law was changed in 1975, state prisons remained almost completely segregated.

By 1977, the Texas prison system had entered into a consent decree structured to assign inmates to housing areas, including double cells, without regard to race. But, prison administrators resisted the decree for years. However, in 1991, Texas began compliance with the decree, and by 1999, the prison system had integrated nearly 65 percent of its double cells, making the Texas prison system the most thoroughly integrated system in the nation (Trulson and Marquart, 2002a).

The federal district court required that the Texas prison system implement a special Incident Data Form (IDF) to track all inmate-on-inmate incidents following integration. The IDF tracked whether the incident was interracial, if it involved cell partners, if it was gang related and whether the incident was "racially motivated." For this study, the authors analyzed 10 years of IDF forms (or roughly 39,000 male inmate-on-inmate assaults) from all housing areas, including cells and dormitories, finding that 55 percent of all incidents were intraracial (e.g., black-on-black incident) and 45 percent were interracial (e.g., white-on-black incident) over the decade of the 1990s. (1) More specific to double-cell integration, it was found that only 6,459 incidents were among cell partners. Of those 6,459 cell partner incidents, 3,382 (52 percent) were among integrated cell partners, and 3,077 (48 percent) were among cell partners who remained racially segregated. (2) After calculating the rate of incidents per 1,000 inmates in integrated and segregated double-cell populations, the researchers reported that the rate of violence among integrated cell partners, with the exception of 1991 and 1992, was lower than the rate of violence among racially segregated cell partners. Indeed, as more inmates were integrated during the 1990s, the rate of general interracial and intraracial violence decreased.

One neglected aspect in discussions of interracial inmate violence is the extent to which interracial incidents are motivated by race. Although an interracial assault is necessary for a claim of racial motivation, it is not sufficient. (3) The authors' research revealed a total of 1,691 racially motivated incidents in the 1990s. Of these incidents, only 333 occurred among racially integrated cell partners. Therefore, only about 10 percent of all interracial cell partner incidents were motivated by race--equaling less than one racially motivated attack, per prison unit, per year of the decade of the 1990s in the Texas prison system. This study's findings suggest that desegregation did not result in a racial Armageddon. In short, desegregation was accomplished without the predicted racial violence.

A critical reason that desegregation in Texas was accomplished without large-scale racial violence was the removal by officials of disruptive inmates from the general prison population and a matching of compatible inmates. On the former point, Texas embarked on a prison-building binge in the mid-1990s that created enough space to isolate incorrigible, violent and gang-related inmates in single cells, while allowing the vast majority of "regular" inmates to do their time without significant tension and fear. Texas' desegregation plan also paired inmates according to objective criteria, such as height, weight and age, instead of blind integration without attention to important housing factors. This meant that inmates had a "fighting chance," because Texas administrators were able to "equalize status" within double cells.

Johnson v. California

California prison officials use racial segregation at reception and upon transfer to prevent violence among rival gangs formed along race and ethnicity (Taylor, 2004). Because administrators lack information about inmates at reception (such as gang affiliation, racial animosity, etc.), the belief is that all inmates must be segregated by race so that administrators can have time to observe and evaluate their security needs for proper housing (Harvard Law Review, 2004). Thus, at reception, race functions as a proxy for gang membership, and gang membership functions as a proxy for violence until adequate information about inmates can be collected to confirm otherwise (Johnson v. California, 2005).

In 1995, California prison inmate Garrison Johnson filed a complaint in the U.S. District Court for the Central District of California, challenging the California Department of Corrections' blanket practice of segregating inmates by race in housing assignments. Johnson's handwritten complaint to the court stated that inmates "are housed in a two-man cell based on their ethnicity, which provokes racial tension and riots among different ethnic groups within California's prison systems" (Khoo, 2005). The 9th Circuit U.S. Court of Appeals eventually upheld the DOC's segregation practice (4) (Johnson v. State of California, 2000). Attorneys for Johnson disagreed, and after 10 years of traveling through the federal court system, the case reached the U.S. Supreme Court in 2005.

On Feb. 23, 2005, the U.S. Supreme Court, in a 5-3 decision, ruled that segregation was impermissible unless deemed compelling under a proper strict scrutiny analysis. In a reversal and remand, the court ruled that California's unwritten practice of racially segregating inmates at reception and at transfer must be subject to the strictest of scrutiny to be justified. Justice Sandra Day O'Connor wrote the majority opinion in Johnson v. California (2005) and stated: "As we have recognized in the past, racial classifications threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility. Indeed, by insisting that inmates be housed only with other inmates of the same race, it is possible that prison officials will breed further hostility among prisoners and reinforce racial and ethnic divisions. By perpetuating that race matters most, racial segregation of inmates may exacerbate the very patterns of violence that it is said to counteract."

As a result of Johnson, California prison officials are required to desegregate the cells in their reception centers and likely their long-term prison units. California is currently working on the particulars of how it will be enforced and measured. While race and racial tensions may be used as one factor in determining proper housing of inmates, it may not be used as the sole factor. California and other states' prisons that remain segregated will be required to desegregate their prison cells unless segregation is the only method that will keep the prison operating safe and secure. Even then, racial segregation must be limited to certain circumstances and applied to offending inmates--a blanket policy of segregation without evidence to justify it is unconstitutional.

Crafting a Desegregation Remedy: Two Options

What in-cell desegregation options are available to California prison officials and those systems around the country that segregate their inmates by race? One option for desegregation is to allow "inmate choice" desegregation or voluntary desegregation where inmates may choose or request their cell partner. (5) Such a policy, these authors believe, will not pass judicial review. "Freedom of choice" was the policy in effect in California prior to Johnson and, therefore, is not an option. This is because inmates in California were not required to choose a member of another race with whom to share a cell, and hence, cells remained almost completely segregated by race.

Option two, random ceiling, is based on the Texas solution to prison desegregation, and is the only realistic and legally defensible course of action. In Texas, inmates are randomly assigned to the "first available and appropriate cell" without taking race into account. Such a random ceiling process does not mean that prison authorities fail to consider other factors when assigning inmates to cells, such as "rational objective criteria" to promote security, control and rehabilitation. The criteria used in random housing assignments include but are not limited to the inmate's criminal history, current offense, age and prior incarcerations, violent or passive tendencies, offender enemies, homosexual tendencies, physical characteristics (height and weight), gang affiliation or security threat group affiliation, special safety requirements, and medical, mental and other health-related criteria (Texas Department of Criminal Justice, 2000; see also Section 03, OP-030102 of Oklahoma DOC, 2004).

In Texas, the racial eligibility of new commitments is based on the criteria for random housing, which does not consider race itself. Some inmates are not eligible to be housed with another race for security purposes, and are precluded from an integrated cell. However, the authors' research revealed that Texas racially restricts less than 1 percent of its entire prison population at any given time. Once inmates are determined to be racially eligible or ineligible, including other rational objective criteria, this information is entered onto a "travel card" that accompanies offenders to their long-term prison units. (6) At the final facility, unless racially restricted, they are assigned by classification personnel to the "first available and appropriate cell" without regard to race, with attention paid to rational objective housing criteria on the inmate's travel card.

If the first available cell is not appropriate for rational and objective reasons (e.g., extreme size and weight differences), prison authorities may move down one tier, to another tier, or perhaps to different cellblocks to locate the "next available and appropriate cell." Once all security and health-related rational objective criteria are met with the first (or next) available and appropriate cell, the inmate may then be placed in that cell. Such a process means that the first available and appropriate cell may be a member of the inmate's own race or a member of another race. This process is essentially random with regard to race, thus all racially eligible inmates have an equal chance of being placed in an integrated cell. (7) At this point, California is systematically examining option two and is crafting a plan for implementation.

Policy Change in Prison

Desegregation in prisons has lagged behind the efforts made in the larger society. From the mid-1960s until recently, prison desegregation was a hot bed of controversy and litigation in prison organizations. However, desegregating prisons is not as simple as eliminating race as a factor and placing inmates in cells based on height, weight, age or other rational objective criteria. What works in one system may end up a violent failure in another. Indeed, there are many obstacles to lasting reform or change, such as staff training, racial tensions both within and between staff and inmates, turnover, morale, staff and offender resistance, ongoing institutional litigation, and political conflicts between organizational stakeholders.

Another dozen factors or impediments to prison reform could be listed here. Yet, the Supreme Court will not entertain any "impediments" to Johnson. The reality is that racial discrimination, even in prisons, will be highly scrutinized and likely will not be legally defensible unless done so under necessary, limited and specific circumstances. Noting this reality, the ultimate fate of any desegregation policy may rest on two critical factors. First is the ability of the staff to classify the population accurately into "racially eligible" and "racially ineligible" groups, and then assign both eligible and ineligible inmates to appropriate cells that maximize equal status among cell partners. The Texas prison security force has become quite adept in its classification procedures and, as a result, has been able to equalize status in cells and avoid disproportionate interracial violence. The second factor, which is perhaps most important, is the segregation of violent and disruptive inmates. These inmates are a minority in most prisons, yet they cause the majority of institutional trouble. Controlling their negative impact will reduce tensions and fear among the "regular" inmates who want to do their time and go home. The above factors, among others, had a major impact on the success of desegregation in Texas.

Today, virtually every public space in the United States is racially integrated. Sports venues such as stadiums are integrated, with little choice available in whom one sits near. The same can be said about seating arrangements in restaurants or on public transportation vehicles. Air travelers also have little choice, if traveling alone, about whom they sit next to; seat assignments are virtually random. Indeed, there will come a day in California where the process of assigning inmates to cells will resemble seating assignments on airplanes. Inmates will be assigned a bunk in the first available cell. However, California will have to find the space or alternative means to manage the incorrigibles and known prison gang members. Doing anything less runs the risk of rewarding racist and violent inmates, and is certain to derail any attempt at an in-cell desegregation policy. What will happen in California prisons in the wake of Johnson? The only thing that can be said is, "wait and see." The rest of the country is watching.

REFERENCES

Brown v. Board of Education, 347 U.S. 483 (1954).

Gayle v. Browder, 352 U.S. 903 (1956).

Harvard Law Review. 2004. Ninth circuit holds that cell assignments based on race are permissible. Harvard Law Review, 117(7):2448.

Holmes v. City of Atlanta, 350 U.S. 879 (1955).

Johnson v. State of California, 207 F. 3d 650 (9th Cir. 2000).

Johnson v. California, No. 03-636 U.S. (2005).

Johnson v. Virginia, 373 U.S. 61 (1963).

Khoo, A. 2005. The defiant ones: Johnson v. California. Daily Journal Extra, 14-16. March 28.

Kluger, R. 1976. Simple justice. New York: Alfred A. Knopf.

Lamar v. Coffield, Civil Action No. 72-H-1393 (S.D. Tex. 1977).

Lee v. Washington, 390 U.S. 333 (1968).

Mayor and City Council of Baltimore v. Dawson, 350 U.S. 877 (1955).

Muir v. Louisville Park Theater Association, 347 U.S. 971 (1954).

Oklahoma Department of Corrections. 2004. Inmate Housing, Operations Policy No. 030102.

Shiro v. Bynum, 375 U.S. 395 (1964).

State Athletic Commission v. Dorsey, 359 U.S. 533 (1959).

Taylor, J. 2004. Racial segregation in California prisons. Loyola of Los Angeles Law Review 37(1):139-152.

Texas Department of Criminal Justice. 2000. Administrative Directive: Offender Housing Assignment Criteria and Procedures.

Trulson, C. and J. Marquart. 2002a. The caged melting pot: Toward an understanding of the consequences of desegregation in prisons. Law and Society Review, 36(4):743-782.

Trulson, C. and J. Marquart. 2002b. Inmate racial integration: Achieving racial integration in the Texas prison system. The Prison Journal, 82(4):498-525.

Trulson, C. and J. Marquart. 2002c. Racial desegregation and violence in the Texas prison system. Criminal Justice Review, 27(2):233-255.

Turner v. Safely, 482 U.S. 78 (1987).

Turner v. City of Memphis, 369 U.S. 350 (1962).

United States v. Illinois, Civil Action No. 760-158 (S. D. Ill. 1976).

Washington v. Lee, 263 F. Supp. 327 (Md. Ala. 1966).

ENDNOTES

(1) Less than 3 percent of all incidents in the Texas prison system in the 1990s were described as "gang related," and only 6 percent of those were racially motivated gang incidents. The potential reason for this is that Texas implemented a proactive and preventive policy to identify and segregate confirmed gang members in single cells in 1997. A similar practice was also used prior to 1997 where a gang-related assault would result in single-cell confinement to prevent any future gang motivated incidents until the inmate could prove he or she could co-exist without violence.

(2) It must be noted that some inmates are in segregated cells because Texas uses a random process without regard to race. Therefore, some inmates will end up segregated through this random process, but this segregation does not mean that the inmates are "racially restricted" from sharing an integrated cell. Some inmates are segregated because of racial restrictions, but the overwhelming majority are not. A recent visit with Texas administrators by the authors of this article revealed that the Texas prison system has racially restricted roughly 300 inmates from integration, out of nearly 160,000 inmates systemwide.

(3) This is not a simple face-value determination that is attached to all interracial incidents; rather, it is a relatively rigorous process (see Trulson and Marquart, 2002a).

(4) The DOC's "policy" is instead referred to as a "practice" because the practice of segregating inmates by race, rather than being written, is a customary procedure that has gone on for years.

(5) See, however, United States v. Illinois (1976) where the district court for the Southern District of Illinois ruled that choosing cellmates solely by race was unconstitutional.

(6) Texas and Oklahoma reception centers segregate their inmates by race for a few days so that inmates can be evaluated as to this information. Although inmates are not precluded from an integrated cell at reception, this does not appear to be the typical practice for the first several days. The issue in California, however, was a 60-day segregation period.

(7) Those systems that have desegregated, or those that may be required to desegregate inmates in cells in the future, generally approach in-cell integration by attrition. What this means is that incoming inmates are desegregated by the aforementioned process. This does not mean that existing inmates are taken out of their cells and "mixed up." Eventually, in an attrition process of in-cell desegregation, as inmates come in and as other inmates go, the percentage of desegregated cells will rise.

James W. Marquart, Ph.D., is chair of the Crime and Justice Studies Program at the University of Texas-Dallas. Chad R. Trulson, Ph.D., is an assistant professor in the Department of Criminal Justice at the University of North Texas.
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Title Annotation:Garrison Johnson's case against California.Department of Corrections
Author:Marquart, James W.; Trulson, Chad R.
Publication:Corrections Compendium
Geographic Code:1U9CA
Date:Sep 1, 2006
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