2004 Case -- Johnson v. California, 321 F.3d 791 (9th Cir. 2003).
Strict Scrutiny vs. Judicial Deference: A Clash of Concepts in California’s Prisons
Behold the Lord High Executioner
A personage of noble rank and title –
A dignified and potent officer,
Whose functions are particularly vital!
Defer, defer
To the Lord High Executioner!
Defer, defer
To the Lord High Executioner!1
I. Introduction
In the battleground of prisoners’ rights the level of scrutiny employed by the courts is
considered a hot issue. However, the real question that should be asked is not whether strict
scrutiny should be applied to cases involving prisoners’ constitutional rights. It is instead
whether strict scrutiny can be balanced against the courts’ traditional hands off policy when it
comes to prison administration. 2 And whether, with the level of deference present today, strict
scrutiny would have any teeth.
The latest case waiting to test the scrutiny waters at the Supreme Court is Johnson v.
California.3 Many believe that this case has all of the hallmarks of a landmark case in the
making. But does it really? Part II of this Note reviews the Johnson case as it has progressed
from its first filing in 1995 to its present state awaiting review by the Supreme Court. The
1
WILLIAM S. GILBERT, The Mikado, in THE COMPLETE PLAYS OF GILBERT AND SULLIVAN 304,
297-345 (1976).
2
Shaw v. Murphy, 532 U.S. 223, 229 (2001).
3
321 F.3d 791 (9th Cir. 2003).
1
Analysis begins in Part III which provides a brief history of the areas of strict scrutiny in equal
protection analysis, prisoner’s constitutional rights and their intersection in Lee v. Washington4
and Turner v. Safley.5 Part IV looks at some of the reasons both good and bad behind judicial
deference. Part V reviews the practical impact of the level of scrutiny on the outcome of the case.
Finally this Note concludes that courts are absolutely correct to review prisoners’ constitutional
claims under a lower level of scrutiny. The problems of running a prison and the harsh realities
of prison life merit different measures and judicial deference.6 Under that deference the level of
scrutiny ceases to have much real meaning. The review essentially becomes a question of
whether the administrators’ actions were arbitrary and capricious.
II. Case Recitation
A. Setting the Stage
The California Department of Corrections (“CDC”) separates inmates new to a facility
into double cells for the first 60 days of their stay.7 The double cells (“doubles”) are different
from the regular housing arrangements in the prison.8 Occupants of the doubles can place
4
390 U.S. 333 (1968).
5
482 U.S. 78 (1987).
6
Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 137 (1977) (Burger, C.J.,
concurring) (“Of necessity, rules far different from those imposed on society at large must
prevail within prison walls.”).
7
Johnson, 321 F.3d at 793. This is true for new inmates and inmates transferred from another
facility. Id.
8
Id. at 794.
2
coverings on the windows making it almost impossible for staff to observe them.9 Since the
doubles are so isolated and new prisoners are left in their cells a fair amount of time during their
first 60 days, violence between cellmates is a real fear.10
A great many factors go into the choice of cellmates for doubles including age, gender,
gang affiliation and race.11 While race is only one of these factors, it is rare that inmates are
assigned to cellmates of a different race.12 Race is considered because in the judgment of the
administrators it plays a large role in anti-social behavior.13 They are first separated on a general
level by whether they are White, Black, Asian or other.14 Then they are split further into sub
categories.15 Chinese are not placed with Japanese.16 Vietnamese cannot be with Laotians,
Cambodians or Filipinos.17 Northern Hispanics are not put with Southern Hispanics.18 These
9
Id.
10
Id. This is based on the level of violence observed in areas that are easily accessible, such as
the exercise yard. Id.
11
Id. The factors include but are not limited to “gender, age, classification score, case concerns,
mental and physical health, enemy situations, gang affiliation, background, history, custody
designation and race.” Id.
12
Id. The chances are almost zero percent. Id.
13
Id.
14
Id. It is interesting to note that although they are later subdivided in Northern and Southern
Hispanics, there is no initial Hispanic category.
15
Id.
16
Id.
17
Id.
3
groups are all known to be at odds with each other.19 During the 60 day period the inmates are
evaluated to determine whether they should be put in a dormitory, another double or a different
institution altogether.20 Assignments to dormitories or permanent doubles are not made on the
basis of race.21 If the inmate stays in a double he is encouraged to choose his own cellmate.22
There are no other assignments made based on race other than the temporary 60 day cell mates.23
B. The Background of This Case.
Garrison Johnson, an African American inmate in the CDC system brought suit pro se on
February 24, 1995 alleging that CDC’s 60 day double cell policy of racial classification violated
his constitutional rights under the Equal Protection Clause of the Fourteenth Amendment.24 In
January 1998 the district court dismissed Johnson’s Third Amended Complaint without leave for
failure to state a claim.25 Johnson appealed to the Ninth Circuit who reversed and remanded
holding that Johnson had enough evidence to support an equal protection claim.26
18
Id. At Pelican Bay State Prison in California the Hispanic population in one of the facilities
was on lockdown for fourteen months due to racial violence between Northern and Southern
Hispanics. Id. at 800 n. 9.
19
Id.
20
Id.
21
Id. Dormitories are for inmates considered to be non-violent. The administration tries to keep
an overall racial balance but occupants are not assigned on the basis of race. Id.
22
Id.
23
Id. Jobs, meals, training, education and all other aspects of the prison are fully integrated. Id.
24
Id. at 793. Johnson is serving time for murder, robbery and assault with a deadly weapon. Id.
25
Id. at 795.
4
Johnson was appointed counsel on remand and filed his Fourth Amended Complaint on
July 5, 2000.27 Both sides filed for summary judgment on the equal protection claims and were
denied.28 After the Supreme Court decision in Saucier v. Katz the administrators moved for
reconsideration of their motion for summary judgment based on its new test and were
successful.29 Following Saucier the district ruled that since there was no “clearly
unconstitutional” act on the part of the former administrators they could therefore claim qualified
immunity.30 Johnson appealed this decision to the Ninth Circuit who affirmed the lower court’s
grant of summary judgment.31
The Ninth Circuit construed Turner to apply to equal protection cases and used the four
part Turner test.32 Under that test the Ninth Circuit found that (1) the classification was a neutral
response to a legitimate penological interest, (2) there were reasonable alternatives for exercising
Johnson’s right to be free from racial discrimination in general, (3) the impact on prison
personnel and other prisoners was significant, and (4) there were no reasonable and ready
alternatives available.33 In so finding the court explained that the presumption was that the
26
Id. (citing Johnson v. California, 207 F.3d 650, 655 (9th Cir. 2000)).
27
Id. Johnson sought monetary damages against two former CDC Directors for making and
enforcing the policies. He also asked for injunctive relief against the current CDC Director. Id.
28
Id.
29
Id. (citing Saucier v. Katz, 533 U.S. 194 (2001)).
30
Id.
31
Id. at 807.
32
Id. at 799.
33
Id. at 799–807.
5
administrators’ actions were constitutional and it was Johnson’s burden to demonstrate
otherwise.34 Johnson applied to the Supreme Court for writ of certiorari and it was granted. 35
III. History of Strict Scrutiny and Prisoners’ Rights
A. Strict Scrutiny and Facially Racial Classifications
Government actions involving racial classifications are reviewed by the court under strict
scrutiny.36 This has come to mean that in order for a racial classification to be legitimate it must
further a compelling governmental interest and the means for achieving it must be narrowly
tailored to the interest itself.37 Of all of the racial classifications subject to strict scrutiny facially
racial classifications are the easiest to identify and do not require the additional analysis to
determine if a seemingly neutral classification is actually a racial classification in practice.38 In
this case the CDC freely admits that it uses race as a factor to determine cell mates so the policy
is automatically suspect and strict scrutiny would seem appropriate.39 But Garrison Johnson is an
34
Id. at 799 (citing Shaw v. Murphy, 532 U.S. 223, 231 (2001) (citing Thornburgh v. Abbot, 490
U.S. 401, 413 (1989)).
35
Id. cert. granted, 72 U.S.L.W. 3551 (U.S. Mar. 1, 2004) (No. 03-636).
36
See, e.g., Grutter v. Bollinger, 539 U.S. 306, 326 (2003); Gratz v. Bollinger, 539 U.S. 244, 270
(2003); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995); Wygant v. Jackson Bd. of
Educ., 476 U.S. 267, 285 (1986).
37
Grutter, 539 U.S. at 327.
38
Johnson, 321 F.3d at 796 n.4.
39
Id.
6
inmate serving a sentence for murder, robbery and assault with a deadly weapon.40 Should he
still have the same rights as you and me?
B. The Special Problem of Prisoner’s Rights
From the formation of this country until the 1960’s prisoners had no personal rights once
they were incarcerated.41 They were property of the state and the state could do with them as it
wished.42 But starting in the late 1960’s the courts began to recognize some basic rights for
prisoners.43 This has all been balanced precariously against the concept that prison
administration necessitates a certain curtailment of those rights enjoyed by regular citizens.44
And as the Ninth Circuit points out in its Johnson opinion “[t]he “particularized circumstances”
40
Id. at 793.
41
Shaw v. Murphy, 532 U.S. 223, 228 (2001) (quoting Jones v. North Carolina Prisoners’ Labor
Union, Inc., 433 U.S. 119, 139 (1977) (Marshall & Brennan, JJ., dissenting) (quoting Ruffin v.
Commonwealth, 62 Va. 790, 796 (1871) (alterations and internal quotation marks omitted)).
42
Id.
43
See, e.g., Turner v. Safley, 482 U.S. 78, 84 (1987) (stating that prison walls are not a barrier
between prisoners and the Constitution); Procunier v. Martinez, 416 U.S. 396, 405 (1974) (ruling
that the courts must hear the valid constitutional claims of inmates); Wolff v. McDonnell, 418
U.S. 539, 555 (1974) (finding the concept of prisoners being totally without the protections of
the Due Process Clause untenable); Lee v. Washington, 390 U.S. 333, 334 (1968) (Black, Harlan
& Stewart, JJJ., concurring) (reiterating the court’s firm commitment to the Equal Protection
Clause of the Fourteenth Amendment).
44
Shaw, 532 U.S. at 229. See also Pell v. Procunier, 417 U.S. 817, 822 (1974) (finding that some
rights are not compatible with the status of a prisoner).
7
or “necessities of prison security and discipline” under which racial discrimination is permissible
have never been defined by the Supreme Court….”45 For now the courts are stuck in a quasi ad
hoc position deciding the parameters of each right a little bit at a time.46 To this end, we are
faced with a series of precedents from which to choose.47 Lee is a short per curium decision that
has been cited as the main equal protection case.48 It involved a court ordered desegregation of
prisons.49 The decision in Lee is most important for its concurrence stating that racial tensions
could be taken into account in “particularized circumstances” to help in “maintaining security,
discipline, and good order in prisons and jails.”50 The concurrence goes on to reiterate the courts
“commitment to the Fourteenth Amendment’s prohibition of racial discrimination.”51 Turner is a
more recent case ostensibly involving First Amendment rights.52 It addresses a prison regulation
that prohibited prisoners from corresponding with other prisons.53 In Turner the court set out a
45
Johnson, 321 F.3d at 797.
46
See supra note 43 (listing the various cases and the specific constitutional right each supports);
But see Washington v. Harper, 494 U.S. 210, 224 (1990) (applying the standard of review in
Turner to all circumstances affecting constitutional rights).
47
Id.
48
Shaw, 532 U.S. at 229.
49
Lee v. Washington, 390 U.S. 333, 333 (1968) (per curium).
50
Id. at 334 (Black, Harlan & Stewart, JJJ., concurring).
51
Id.
52
Turner v. Safley, 482 U.S. 78, 81 (1987).
53
Id.
8
four step test with a deferential unitary standard for reviewing prisoners’ constitutional claims.54
So although it has been described as a First Amendment test, it has also been read to stand for
other rights as well.55
IV. An Examination of Judicial Deference
Each time a court reviews one of these rights it must do a balancing act between allowing
government to commit pernicious acts unchecked and allowing inmates to hijack the prison
system by forcing administrators to explain each and every decision.56
A. To Defer or Not To Defer is Becoming Less of a Question
The trend as evidenced by Turner is towards extreme deference to prison authorities.57
While Martinez shows us that deference has long been the position of the court towards prison
54
Johnson v. California, 321 F.3d 791, 798 (9th Cir. 2003) (citing Washington v. Harper, 494
U.S. 210, 224 (1990)).
55
Compare Shaw v. Murphy, 532 U.S. 223, 230 (2001) (“Turner provides the test for evaluating
prisoners’ First Amendment challenges….”); with Shaw, 532 U.S. at 229 (“[I]n Turner we
adopted a unitary deferential standard for reviewing prisoner’s constitutional claims.”).
56
Compare Brief Amicus Curiae of Pacific Legal Foundation in Support of Neither Party at 12-
19, Johnson v. California, 72 U.S.L.W. 3551 (2004) (No. -3-636) (advocating the position that
strict scrutiny is always the level of scrutiny required for racial classifications regardless of the
status as a prisoner); with Turner, 482 U.S. at 89 (stating that subjecting day to day
administrative decision to strict scrutiny would be adverse to innovative prison administration).
57
See Johnson, 321 F.3d at 798-99 (describing the expansion of allowable types of policies and
the shift of the burden to the prison).
9
authorities, Turner takes the extra step of shifting the presumption in favor of the
administrators.58
1. Administrative Expertise
One of the more common arguments for judicial deference to government administrators
is the idea that an administrator has a certain level of expertise.59 Judges simply do not have the
experience in each subject area to make informed decisions on how a certain power plant,
logging industry custom or prison should be administered.60 Judicial deference has been an
accepted fact in review of administrative agencies since 1984.61 There does seem to be some
common sense to the idea that an administrator in a specific field will be in a better position to
58
Id. (interpreting Turner as shifting the heavy burden of proof to the prisoner); Procunier v.
Martinez, 416 U.S. 396, 405 (1974) (applying a standard that required an important government
interest but also recognizing the need to give deference to prison authorities). But see Overton v.
Bazzetta, 539 U.S. 126, 132 (citing Jones v. North Carolina Prisoners’ Labor Union, Inc., 433
U.S. 119, 128 (1977) decided ten years before Turner as shifting the burden of proof to the
prisoner).
59
See, e.g., Turner, 482 U.S. at 84-85 (“Running a prison is an inordinately difficult undertaking
that requires [the] expertise, planning and … resources … of government”).
60
Chevron v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865 (1984) (“Judges are
not experts in the field”); Pell v. Procunier, 417 U.S. 817, 827 (1974) (commenting that
judgments concerning prison security are the particular province of corrections officials and
courts should defer to their judgment).
61
Chevron, 467 U.S. at 844 (holding that a court may not substitute its interpretation for any
reasonable interpretation made by an agency).
10
understand the intricacies of an issue within his field.62 While prison authorities are not members
of the growing “Fourth Branch” of government, they do seem to be benefiting none the less. 63
The courts have historically maintained a “broad hands-off attitude towards problems of prison
administration.”64 However, the language used by the courts in most of their recent prisoners’
rights decisions sounds hauntingly familiar.65 In Turner the court reiterated it position that “when
a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.”66 For a prisoner to prevail he “must
62
See e.g., Id.
63
See Turner, 482 U.S. at 85 (finding that prison administration is a responsibility of the
legislative and executive branches).
64
Procunier v. Martinez, 416 U.S. 396, 404 (1974).
65
Compare Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (“We must accord substantial
deference to the professional judgment of prison administrators, who bear a significant
responsibility for defining the legitimate goals of a corrections system and for determining the
most appropriate means to accomplish them.”); and Jones v. North Carolina Prisoners’ Labor
Union, Inc, 433 U.S. 119, 137 (1977) (Burger, C.J., concurring) (“The federal courts, as we have
often noted, are not equipped by experience or otherwise to “second guess” the decisions of state
legislatures and administrators in this sensitive area except in the most extraordinary
circumstances.”) with Chevron, 467 U.S. at 866 (“When a challenge … really centers on the
wisdom of the agency’s policy, rather than whether it is a reasonable choice … the challenge
must fail … federal judges … have a duty to respect legitimate policy choices ….”).
66
Turner, 482 U.S. at 89.
11
overcome the presumption that the prison officials acted within their broad discretion.”67 This is
rational basis review in all but name.68
B. Prison Efficiency
Rational basis review allows for efficiency to be a legitimate interest underlying
government action.69 However, using efficiency as a reason to justify using rational basis review
instead of strict scrutiny has a chicken-and-egg like circuitousness. Rigorous review makes
administrators spend their time explaining their actions.70 If administrators are using all of their
time defending against review then they are inefficient. Efficiency is to be desired in prisons.
Therefore the courts should not subject them to rigorous review.71 This reasoning leaves us with
a nice logical fallacy. For less invidious classifications that already merit rational basis review,
efficiency is a perfectly valid concern.72 For racial classifications the entire point is to make the
67
Shaw v. Murphy, 532 U.S. 223, 232 (2001) (citing Thornburgh v. Abbott, 490 U.S. 401, 413).
68
Rational basis review will support a classification that is rationally related to a legitimate state
purpose. City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 446 (1985).
69
See generally New York City Transit Authority v. Beazer, 440 U.S. 568 (1979); Williamson v.
Lee Optical, 348 U.S. 483 (1955); Railway Express Agency v. New York, 336 U.S. 106 (1949).
70
Brief Amicus Curiae of Pacific Legal Foundation in Support of Neither Party at 12-13, Johnson
v. California, 72 U.S.L.W. 3551 (2004) (No. -3-636).
71
For similar circuitous logic, try this one. Logical proof that Ray Charles is God: (1) Ray
Charles is blind. (2) Love is blind. (3) God is love. (4) Ray Charles is God. See
http://vps.arachnoid.com/lutusp/humor.html.
72
See supra note 69.
12
administration account for its actions.73 They deserve the highest level of scrutiny. Efficiency
can never be considered a compelling state interest and is not sufficient reason for judicial
deference.
3. Safeguarding the Public, the Prisoners and the Staff
However, protecting society from the inmates and the inmates from each other should be
a compelling state interest. Incarceration can be viewed as a deterrent, a punishment or simply
enough incapacitation of the criminal for a period of time.74 Making prisons safe and efficient
serves to protect society by keeping criminals out of contact with the public.75 In addition to
guarding the public, the regulation has an interest in the staff. Measures that are taken to make
the prison more secure internally protect the prison staff from attacks by the prisoners.76
Moreover, the administrators have an interest in protecting the inmates from each other.77 Prison
violence is a very real threat and administrators are bound by the Eighth Amendment to the
Constitution to keep their charges safe.78 Any one of these issues of safety would justify judicial
deference to prison administrators.
V. When Deference and Constitutional Rights Collide
73
Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
74
Joan Krause, Of Merciful Justice and Justified Mercy: Commuting the Sentences of Battered
Women Who Kill, 46 FLA. L. REV. 699 (1994).
75
See e.g., Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 137 (1977)
(Burger, C.J., concurring).
76
Johnson v. California, 321 F.3d 791, 804 (9th Cir. 2003).
77
Id. at 802.
78
Id.
13
In many cases judicial deference and the level of scrutiny are compatible. Rational basis
scrutiny was based in deference to the state.79 When, as here, judicial deference runs into a
fundamental right or a racial classification the two do not mesh.
A. Deference at Work in Johnson.
In Johnson the Ninth Circuit applied the four step Turner test to determine if the racial
classification used by the CDC was permissible.80 In the first step the court relied heavily on the
expertise of the administrators.81 The court allowed the administrators to anticipate future
security problems rather than making them wait for violence to happen first before taking
action.82 Johnson must first overcome the presumption of a commonsense connection between
the policy and the prison violence.83 The court found that he failed in this.84 The court went
further saying that the CDC did not have to show that the policy was working, only that they
reasonably believed that it would work.85
79
See generally New York City Transit Authority v. Beazer, 440 U.S. 568 (1979).
80
Johnson, 321 F.3d at 799.
81
Id. at 799-800.
82
Id. at 801 (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) (citing Turner v.
Safley, 482 U.S. 78, 89 (1987)).
83
Id. at 801-02.
84
Id. at 803.
85
Id. (quoting Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999)). This concept of the
administrators only needing to believe that the policy would work is analogous to rational basis
review’s concept that the regulation need only be debatably correct. In rational basis scrutiny
14
In the third prong of the test deference again charges to the fore. The third prong
examines the impact of granting the inmate’s right on the other inmates, the staff and the prison
resources.86 Johnson argued that the administrators had not shown that not using race as a
classification would affect prison resources.87 The court dismissed that argument saying that
Johnson had misconstrued the burden under Turner.88 The burden is not on the administrators.89
Rather Johnson would have to prove that not having the policy would not impact any of those
areas.90 The administrators only needed to argue that they believed that not having the policy
would endanger the inmates and prison staff.91
The fourth and final prong tests whether there are reasonable alternatives to the race
based policy.92 Again the burden is on the prisoner to show that the response is exaggerated and
that reasonable alternatives exist.93 While Johnson suggested some other ways to classify and
assign cellmates, the court found that he had failed to prove that any of them were reasonable.94
post hoc reasoning is perfectly acceptable. See generally Minnesota v. Clover Leaf Creamery
Co., 449 U.S. 456 (1981).
86
Johnson, 321 F.3d at 804.
87
Id.
88
Id.
89
Id.
90
Id.
91
Id.
92
Id. at 805.
93
Id. (citing Mauro v. Arpaio, 188 F.3d 1054, 1062 (9th Cir. 1999)).
94
Id. at 805-06.
15
At each step the court required Johnson to prove that the policy was unreasonable or
exaggerated.95 The administrators never had to prove any of their beliefs as to the outcomes of
their policy.96 This level of deference seems overwhelming. Surely the outcome would have been
different had the level of scrutiny been higher. Or would it?
B. Would Strict Scrutiny Make a Difference?
Many of the Amici argue that strict scrutiny is the appropriate standard for racial
classifications whether the subjects are inmates or not.97 But would raising the level of scrutiny
change the outcome of Johnson? To prevail under strict scrutiny the policy must further a
compelling state interest.98 The stated interest here is to prevent violence caused by racial
tensions.99 How can protecting the lives of its citizens not be considered a compelling state
95
See supra notes 89 & 92.
96
See supra notes 84 & 90.
97
See generally Brief Amicus Curiae of Pacific Legal Foundation in Support of Neither Party,
Johnson v. California, 72 U.S.L.W. 3551 (2004) (No. -3-636) (stating that racial segregation
must be reviewed under strict scrutiny); Brief for the United States as Amicus Curiae Supporting
Petitioner, Johnson v. California, 72 U.S.L.W. 3551 (2004) (No. -3-636) (urging that stateimposed racial segregation be examined under strict scrutiny); Brief of Amici Curiae American
Civil Liberties Union and its Three California Affiliates in Support of Petitioner, Johnson v.
California, 72 U.S.L.W. 3551 (2004) (No. -3-636) (arguing that strict scrutiny is always the
appropriate standard of review for racial classifications regardless of the prisoner status).
98
Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
99
Johnson v. California, 321 F.3d 791, 799 (9th Cir. 2003). “The high level of racial violence in
the CDC is well documented, and the administrators are well within their discretion to attempt to
16
interest? If this is a compelling state interest, then the policy must also use means that are
narrowly tailored to the interest.100 This is the point that would be most in contention. Is
separating potentially volatile groups for a brief period of time to assess where and how they
may be integrated directly related to the prevention of the violence? Some would argue that there
is simply no proof that the policy affects race in the slightest.101 One could ask whether violence
in the yards relates to violence in the doubles. Johnson does not answer this.102 Others would say
that the regulation is not narrowly tailored because it is applied to both new and transferring
inmates.103 A transferring inmate should be a known quantity to the CDC by this time and
shouldn’t need reassessment.104 There are some strong arguments in favoring the policy. It
evaluates all new inmates regardless of race.105 Although there is classification it does not
rectify or to reduce further violence by taking reasonable measures.” Id. at 801 n.9. The Ninth
Circuit lists many incidences of racial violence over the last several years in California prisons.
Among them are riots by Northern versus Southern Hispanics, White Supremacists versus all
other whites, and blacks versus whites. The lockdowns ranged in duration from one month to
two years. There is no question that violence in the CDC is pervasive. Id.
100
Grutter, 539 U.S. at 326.
101
Johnson, 321 F.3d at 804.
102
Id.
103
Brief for the United States as Amicus Curiae Supporting Petitioner at 23, Johnson v.
California, 72 U.S.L.W. 3551 (2004) (No. -3-636).
104
Id.
105
Johnson, 321 F.3d at 794.
17
advantage or disadvantage any group over another.106 Another factor that has been considered
important by the court is the time duration of the policy.107 In this case the classification lasts
only for 60 days after which the inmate is assigned to more permanent housing using raceneutral considerations.108 This shows that “the deviation from the norm of equal treatment of all
racial and ethnic groups is a temporary matter.”109 Justice O’Connor writing for the court in
Grutter tells us that “[c]ontext matters when reviewing race-based governmental action under the
Equal Protection Clause.”110 Strict scrutiny is merely a framework through which to judge the
reasons and sincerity of the administrator.111
The level of deference given to government actors in the equal protection area has been
growing over the last few decades.112 One well known egregious example would be Korematsu
v. United States.113 The Court has even chastised itself for the outcome in that sad case.114 But
106
Id. at 797 n.5.
107
Grutter v. Bollinger, 539 U.S. 306, 326 (2003).
108
Johnson, 321 F.3d at 794.
109
Richmond v. J.A. Croson, 488 U.S. 469, 510 (1989) (plurality opinion).
110
Grutter, 539 U.S. at 327 (citing Gomillion v. Lightfoot, 364 U.S. 339, 343-44 (1960)
(declaring that generalizations must never be applied out of context when reviewing whether a
policy is inclusive or exclusive)).
111
Id.
112
See Johnson, 321 F.3d at 798-99 (counting prison administrators as part of the executive and
legislative branches).
113
323 U.S. 214 (1944).
18
still the erosion of strict scrutiny continues.115 There is a real fear that cases like Grutter and
McConnell v. Federal Election Commission mark the deterioration of strict scrutiny.116 Given
these factors and the trend of the court towards judicial deference even outside the prison setting
it is likely that using strict scrutiny would make little difference in the outcome of these
prisoners’ rights cases. It certainly would not in the Johnson case.
VI. Conclusion
Even given the fact that Johnson is not quite as much of a cliff-hanger as the Ninth
Circuit believed, it may be important for its impact on other prisoners’ equal protection cases. If
the court upholds the ruling and the Turner test is confirmed for equal protection inquiries then
what would have been border-line cases will be acceptable regulations. That is as it should be.
Almost every ruling regarding prisoners’ rights from the Supreme Court in the last few decades
has repeated the maxim that prisoners’ rights are more limited than those held by society at
114
Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 236 (1995) (“Korematsu demonstrates
vividly that even the most rigid scrutiny can sometimes fail to detect an illegitimate racial
classification….”).
115
See e.g., Grutter, 539 U.S. at 306-78.
116
Brief Amicus Curiae of Pacific Legal Foundation in Support of Neither Party at 12, Johnson v.
California, 72 U.S.L.W. 3551 (2004) (No. -3-636) (citing McConnell v. Federal Election
Commission, 124 S. Ct. 619, 734 n.6 (2003) (Thomas & Scalia, JJ., concurring in part and
dissenting in part) (describing the disturbing trend as seen in Grutter towards a complaisant level
of scrutiny)).
19
large.117 Some rights are incompatible with the status of a prisoner or the “legitimate penological
objectives of the corrections system.”118 (Shaw citing Pell) Either way the court goes the bottom
line will be the same. Whether it be through strict scrutiny as it stands today or the Turner test
race-based policies in prisons will be upheld unless they are obviously based in stereotype and
prejudice.
117
See e.g., Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 137 (1977)
(Burger, C.J., concurring).
118
Shaw v. Murphy, 532 U.S. 223, 229 (2001) (quoting Pell v. Procunier, 417 U.S. 817, 822
(1974).
20