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WASHINGTON –The U.S. Supreme Court on Wednesday looked askance at a California policy that segregates new prisoners by race, ruling that, even in prisons, racial distinctions can survive only by meeting the toughest “strict scrutiny” standard. The 5-3 ruling in Johnson v. California sends the policy back to lower federal courts in California for re-examination under the new standard — a review that could spell the end of the policy. Although other prison systems separate prisoners by race in limited circumstances, no other state replicates the California Department of Corrections’ unwritten policy of segregating new and transferring prisoners in reception centers for 60 days. The Bush administration, noting that the federal Bureau of Prisons prohibits such separation, filed a brief in the case supporting inmate Garrison Johnson, an African-American inmate who challenged the policy. “The state should wake up and smell the coffee,” said Johnson’s lawyer Bert Deixler, partner at Proskauer Rose in Los Angeles. “I am optimistic that the state will read the opinion and, on reflection, decide to join the rest of the United States and abandon this policy.” Deixler said there is “no way” the state could devise justifications for the policy that would meet strict scrutiny. A spokesman for the state Department of Corrections declined comment on the decision. Justice Sandra Day O’Connor’s majority opinion is a broad affirmation of the use of strict scrutiny in evaluating any government policy or law that makes racial distinctions and is challenged on equal protection grounds. “We rejected the notion that separate can ever be equal — or ‘neutral’ — 50 years ago in Brown v. Board of Education,” O’Connor wrote, “and we refuse to resurrect it today.” California, in defending the policy as a way of preventing gang violence, invoked the 1987 Supreme Court precedent set in Turner v. Safley, which gives prison officials substantial leeway to limit inmates’ rights when “penological interests” are implicated. The Ninth Circuit U.S. Court of Appeals ruled in favor of the state two years ago, based on Turner. But O’Connor said Turner has never been used to justify segregation in prisons — and should not be. “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.” But O’Connor stopped short of striking down the policy altogether. Under the strict scrutiny standard, she said, California might be able to demonstrate that the 60-day policy is “narrowly tailored” to advance its “compelling interest in prison safety.” She added, “Prisons are dangerous places, and the special circumstances they present may justify racial classifications in some contexts.” The ruling does not specify exactly what happens next — remanding the case to the appeals court or the district court to apply strict scrutiny “in the first instance.” O’Connor’s ruling drew dissents from opposite directions. Justice John Paul Stevens said the court should have struck down the policy outright with no further scrutiny by lower courts. He wrote that California has “utterly failed” to justify the policy under any standard, strict or lax. Justices Clarence Thomas and Antonin Scalia, for their part, said the Turner standard, not strict scrutiny, should apply. “The Constitution has always demanded less within the prison walls,” wrote Thomas in a 28-page dissent, nearly twice as long as O’Connor’s majority. “The majority is concerned with sparing inmates the indignity and stigma of racial discrimination,” Thomas added. “California is concerned with their safety and saving their lives.” Under the easier-to-meet Turner standard, the California policy passes constitutional muster, Thomas said. O’Connor was unusually disdainful in criticizing the Thomas dissent. “In Justice Thomas’ world, prison officials could segregate visiting areas on the ground that racial mixing would cause unrest in the racially charged prison atmosphere.” Chief Justice William Rehnquist did not participate in the decision. The case was argued in November while Rehnquist was absent from the court and receiving cancer treatments. Tony Mauro is the U.S. Supreme Court correspondent for Legal Times, a Recorder affiliate based in Washington, D.C. His e-mail address is [email protected].

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