Racial segregation in prisons

Last week the US Supreme Court ruled that a California Department of Corrections policy that temporarily segregates inmates by race should be subject to same strict scrutiny as any other government program that uses racial classification. (Johnson v. California et al.)

Elsewhere in the blogosphere, criminologist Mark Kleiman lays out a pragmatic justification for the temporary segregation policy in a post provocatively entitled Liberal Justices for Prison Rape. Kleiman expects the incidence of violence to increase as a result of the decision because the CDC is unlikely to replace the old policy with a more expensive color-blind alternative.

As Majikthise readers know, I'm a utilitarian. It's an empirical question whether temporary cell segregation reduces violence or improves race relations in prison. If it could be shown that the CDC's policy significantly reduces violence, I might reluctantly concede that the practice morally acceptable (absent some feasible alternative).

So far, very little has been said about how the average California inmate regarded the policy. Garrison S. Johnson, the prisoner who launched the Supreme Court challenge, describes how humiliating segregation was for him. If other inmates felt the same way, the policy may have done more harm than good. Sixty days of racially-charged humiliation might be a great gang recruiting mechanism. Since the policy applied to only cells and not to common areas, it is unlikely that segregation did much to curtail the power of racial gangs in the prison system as a whole.

Overall, I'm sympathetic to the Majority's ruling. The consequences of giving prisons a special dispensation for racial discrimination would likely be much worse than the consequences of ending this particular policy. Inmates have the right to be safe from victimization in prison. If these rights aren't being respected, then other legal remedies must be pursued.

In lieu of a conclusion, I'd like to pose some questions for discussion. Would it make a constitutional difference the CDC allowed new prisoners to opt into temporary segregation? Or to estimate whether segregation would enhance their own safety? I suspect that the inmates themselves are likely to have the most clear-eyed and pragmatic perspective on this difficult issue.

Comments

[paperwight]

I actually heard a radio interview with someone who works with prisoners and a former prisoner. They both signed on to the initial racial segregation, based on the existing racial polarization inside prisons, which avoiding the initial segregation will obviously not change.

[Alan Bostick]

Despite Mark Kleiman's playing the rape card, I'm inclined against the 60-day segregation policy. No other state prison system has such a policy. California's Department of Corrections is notoriously badly run. My knee-jerk assumption is that if the CDOC is doing something no other state prison system does, it's a mistake.

You're quite right, though: what's missing from the discussion is the views of prisoners.

[NTodd]

The confusion I have, which admittedly is at least partially because I'm a drunk utilitarian who is distracted by pragmatic considerations of earning a living, is whether prison is the place to practice social engineering. I mean, I get desegregation in the armed forces, but isn't prison a punitive situ by defintion? Should we really care about humilitian of prisoners who already have to endure incarceration, bending over to pick up the soap, etc?

I guess at this point I just need somebody to show me that I should sully my beautiful mind with such considerations as race relations in prison.

[Herbert Browne]

It may be a moot point, in a short while, if there's no draft, and recruitment (& reup) rates continue to nosedive. We'll likely see a return to days of olde, when a 60 or 90 day observation period sufficed to determine if you might be suitable cannon fodder. A lot of these guys might end up integrated into an invading force in Syria, Iran, or "who knows"? That would give the armed forces time to "refine" the training needs for the Regular Army occupation cadres...
Yes- ask the prisoners; and then Listen. In "worst-case" scenarios, "separate but equal" may have a place... ^..^

[rob loftis]

Yeah that's the problem we utilitarians face: to make a moral decision we need a lot of empirical data. Can the policy be shown to reduce violence? Can we get a reliable survey of prisoner opinion?

I think deontologists have it easy.

Off topic: I confessed to being a utilitarian to a european collegue the other day, and I swear he looked at me like I just said "I am a crass American who talks too loud and has no appreciation for real value." But maybe I was just projecting my own insecurities.

[Josh Narins]

Prison was born not out of a need to punish, but to segregate from society, and provide some contemplative time. (Eastern State Penn.)

Violence in prisons is like violence in the streets. The answer might be more cops(guards), more laws(rules), or more civic education for citizens(prison orientation).

Or, come to think of it, less overcrowding. 1 per cell.

[jkd]

"It's an empirical question whether temporary cell segregation reduces violence or improves race relations in prison. If it could be shown that the CDC's policy significantly reduces violence, I might reluctantly concede that the practice morally acceptable (absent some feasible alternative)."

I think one thing you're overlooking here is the possible impacts that segregation in prisons might have on prisoners post-incarceration, specifically RE: the racial attitudes that time spent in a segregated atmosphere may foster. If you're considering data in making your decision on this, this is another piece that needs to be considered.

[Gareth]

One important point here is that the majority said that the California policy has to be subject to "strict scrutiny." In other words, there will be a utilitarian balnacing, but a thumb will be placed heavily against segregation.

A second point is that the racial segregation is not applied to dormitories, or single-occupant cells (of course). Why aren't all prisoners put in one or other of these in order to reduce rape and other forms of violence?

[Thad]

A second point is that the racial segregation is not applied to dormitories, or single-occupant cells (of course). Why aren't all prisoners put in one or other of these in order to reduce rape and other forms of violence?

Because there isn't room, Gareth.

[Roots]

The only problem I have with CA's policy is my distrust of bureaucrats. If CA has carefully thought through this issue and chose to use race because they honestly believed that it was the only practical way to reduce racial violence during the initial intake period, then who am I, or for that matter, who is the Supreme Court, to tell them they're wrong? I would love to give the CDOC that deference. Unfortunately, I worry that prison administrators probably don't get to where they are by thoroughly thinking things through.

I think that Stevens' opinion is probably closer to the truth. A little more information would definitely be helpful.

I think there is a little too much race hysteria in this nation, though. I think separate can be equal. In this case, the detention only lasts for two months. No one is alleging that the treatment that minorities receive under the policy is unequal. There is a specific purpose for the segregation that no one can argue with (reducing violence). And yet the majority dismisses the argument that the rule is neutral simply by name-dropping the Brown v. Board precedent. None of the circumstances motivating the Brown opinion are present here. I think the State's argument that the policy is neutral deserves more consideration.

At some point (but maybe not just yet), our country needs to wake up and deal with race issues without assuming that rampant discrimination lurks around every corner. Even if discrimination does lurk behind every corner, at some point we need to become sophisticated enough to recognize when it is affecting the policy and when it is not affecting the policy without blindly assuming that it is there.

[V]

I think the people who oppose the CDC's policy of racial segregation are forgetting the corrections officers who know first hand how to manage the prison population they oversee. The policy developed as a response to the racial lines drawn by prison gangs. This method has worked for personnel who may know little about new inmates' history and prejudices. It's a precautionary measure against deliberate indifference. After inmates are assessed they are allowed to choose their cellmates which reduces tension. Since officers can't constantly monitor what occurs inside the cells it is wise to allow segregation temporarily. Once they assess inmate history they can assign them to the apporpiate location within the prison to ensure they are not a threat or are placed appropiately based on their classification level and behavior.
The lower courts now have to decide under Strict Srutiny if the CDC's policy is constitutional. I have no doubt that they will find that the CDC is not applying the policy based on stereotypes of racial inferiority.