- The Washington Times - Tuesday, November 2, 2004


The Supreme Court took up a racial-segregation case yesterday that asks whether black California inmates are being unconstitutionally bunked together for months at a time, in the name of keeping prisons safe.

The Bush administration has sided with a black convicted killer who claims he has been humiliated by forced prison segregation.

Fifty years after the Supreme Court declared racial segregation unconstitutional in public schools, said acting Solicitor General Paul Clement, the court must make clear that governments cannot separate people based on skin color in other places without the strongest of reasons.

Mr. Clement reminded the court of America’s “uniquely pernicious history” of racial discrimination in prisons, evoking images of chain gangs and prison farms in the Deep South.

While the court barred the blanket segregation of prisons in 1968, the justices also have given prison officials a generally free hand in managing their facilities, to control violence and protect inmates and those who guard them.

“California is ground zero for race-based prison and street gangs,” Frances Grunder, the state’s senior assistant attorney general, told the court as she defended temporary segregation of inmates.

At issue is an unwritten California policy, dating back more than 25 years, requiring officials to assign newly arrived black prisoners to bunk only with other black prisoners for two months or more. Inmates are separated again by race when they transfer to a new facility.

Miss Grunder said California has more than 165,000 inmates and violence can erupt if white and black gang members are mixed, she said.

The inmate who challenged the practice is Garrison Johnson, who has been in prison since 1987 for murder, robbery and assault. He contends the policy violates his constitutional right to equal treatment.

Johnson’s attorney, Bert Deixler of Los Angeles, told justices the Supreme Court has helped “march this country away from the road of segregation, and there should be no turning back.”

Johnson, who is not a gang member, has been forced into segregation with each transfer — five so far and a sixth coming soon, the attorney said.

The high court’s only black member, Clarence Thomas, was silent during the argument, in keeping with his usual practice. Chief Justice William H. Rehnquist is expected to vote although he missed the argument because he is receiving radiation and chemotherapy for thyroid cancer.

The other justices had a lively debate about the Crips, Bloods and the Aryan Brotherhood.

Justice Antonin Scalia said prison officials are smart not to put white and black tattooed gang members in the same cell until officials have had time to assess how dangerous they are.

Prisoners lose many rights, Justice Scalia said. “That’s one of the consequences of committing a crime and being sent to prison.”

But Justice Stephen G. Breyer, echoing concerns raised by opponents of prison segregation, said, “With racial discrimination, it’s a terrible symbol … divisive to the whole society.”

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