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California’s policy of temporarily segregating incoming and transferred prison inmates by race appeared doomed before the Supreme Court on Tuesday. During an hour of oral argument in the case of Johnson v. California, most justices appeared skeptical of the state’s argument that the 25-year-old policy was needed to cope with gang-related violence in California prisons. Describing California prisons as “ground zero” for race-based gang violence, California Senior Assistant Attorney General Frances Grunder said, “The level of interracial violence is high and cannot be discounted.” But justices wanted hard evidence that the segregation policy is needed or effective, with several noting that California’s policy is unique among the nation’s prison systems. Justices doubted whether, if gang activity is the target of the policy, race is the proper criterion to use in pairing inmates. Among the majority of prisons nationwide where inmates are not segregated, said Justice David Souter at one point, “there is no evidence of explosive incidents.” Souter added, “We’ve got to have more” than the judgment of California prison officials to justify segregation, even when temporary. Grunder replied that other states do not have the same problem of gang violence that California faces, but justices appeared unconvinced. Racial discrimination in any setting, Justice Stephen Breyer said, is “a terrible symbol.” Justice John Paul Stevens even asked what he described as a “stupid question”: If California wanted new inmates not to join gangs inside prisons, why wouldn’t the best policy be to house them with someone of a different race, not the same? For the second day in a row, Chief Justice William Rehnquist was not on the bench Tuesday. A statement released Monday indicated he was home recuperating from surgery for thyroid cancer and undergoing chemotherapy and radiation treatments. The Court, as is its usual practice, sat on Election Day and will hold a session Wednesday as well. The prison segregation case was first brought in 1995 by Garrison Johnson, a convicted murderer who was assigned to a “black cell” when he first entered the prison system at the California Institution for Men in Chino in 1987. He has since been transferred four times, each time assigned to segregated cells at the outset. Filing suit in the U.S. District Court for the Central District of California, Johnson claimed the policy violated his equal protection rights under the 14th Amendment. His complaint was dismissed, but last year, after several intermediary steps, a panel of the U.S. Court of Appeals for the 9th Circuit upheld the policy. Invoking the 1987 Supreme Court decision in Turner v. Safley, which gives deference to prison officials in assessing inmates’ constitutional claims, Judge Diarmuid O’Scannlain wrote, “If this policy were implemented beyond the prison walls, undoubtedly, we would strike it down as unconstitutional. The prison system, however, is inherently different.” Johnson, he wrote, had not offered sufficient evidence to rebut the presumption of constitutionality that the policy is given. As it came to the Supreme Court, the posture of the case made for unusual opposing camps. Inmate Johnson won support from the Bush administration, while on the other side, Democratic Attorney General Bill Lockyer forcefully defended the policy. Acting U.S. Solicitor General Paul Clement urged the Court to use the “strict scrutiny” standard that applies to government policies that discriminate on the basis of race, but under questioning, he said the California prison policy was invalid even under the more deferential Turner standard. Clement cited the nation’s “uniquely pernicious history” of segregation in prisons, which the high court struck down in most instances in the 1968 case of Lee v. Washington. Even the temporary nature of the California segregation offends the Constitution, Clement said, noting that the federal prison system does not segregate inmates at any point. Johnson’s lawyer Bert Deixler of Proskauer Rose in Los Angeles also attacked the state policy as “rooted in racial stereotypes.” Justice Antonin Scalia, the only justice overtly sympathetic to the policy, countered by asking what is “sacrosanct” about the right not to be stereotyped. Referring to inmates, Scalia added, “There are a lot of rights they give up when they go to prison.”

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