Johnson v. California

v. CALIFORNIA al. et JOHNSON 23, 2005 February 2, 2004 Decided November Argued No. 03-636. O’Connor, J., Court, Kennedy, opinion delivered the of the in which Souter, JJ., Ginsburg, Breyer, Ginsburg, J., joined. filed a con- JJ., Breyer, opinion, in which curring joined, post, Souter p. 516. Stevens, J., Thomas, J., dissenting filed a opinion, post, p. 517. filed SCALIA, J., REHNQUIST, dissenting opinion, joined, post, in which p. 524. J.,C. took no in the decision of the part case.

Bert H. Deixler the cause for With argued petitioner. Thompson, Sims, briefs were Charles Lois D. S. him on the Tanya L. Forsheit. and

Acting Clement Solicitor General the cause for argued the United States as amicus curiae reversal. With urging Olson, were former Solicitor General As- him on the brief Attorney sistant Acosta, Salmons, General David B. David Flynn, K. and Tovah R. Calderon. Grander,

Frances T Assistant Senior of General Attorney California, the cause for With her on argued respondents. Lockyer, Bill M. Manuel the brief General, were Attorney Medeiros, Robert R. Anderson, Chief As General, Solicitor Turner, Sara sistant General, and Attorney Supervising General.* Deputy Attorney

* Briefs of urging amici curiae reversal were filed for the American Alexander, Civil by Fathi, Liberties Union et al. Elizabeth David C. Ste Budd, Schlosser, ven R. Shapiro, Jordan C. Alan and Mark D. Rosen- baum; by and for Former Officials State Corrections Michael C. Small. Briefs urging of amici curiae affirmance were filed for the State Utah by Utah, et al. Mark Shurtleff, Attorney L. General of and C. Gene Schaerr, by Attorneys for respective General their States as fol- Alabama, Troy King lows: Gregg Alaska, D. Brady Renkes of M. Jane Delaware, Idaho, Nevada, Lawrence G. Wasden of Brian Sandoval of Kelly Ayotte A. of New Hampshire, Wayne Stenehjem of North Da-

Justice O’Connor delivered the of the Court. opinion (CDC) Department The California of Corrections has an racially segregating prisoners unwritten in double reception up days they cells centers for each time facility. enter a new correctional We whether consider scrutiny proper equal strict for an standard review protection challengе policy. to that

I A CDC institutions house all new male inmates and all male reception inmates from transferred other state facilities up days upon During centers for to 60 their arrival. time, officials evaluate to determine their placement. assignments recep- ultimate in the Double-cell predominantly tion centers are of factors, based on a number fact, race. CDC has admitted that the chances of being assigned an inmate “ a cellmate of another race are ” ‘[p]retty percent. App. close’ to zero to Pet. Cert. 3a. prisoners The CDC further within racial subdivides each group. Japanese-Americans separately Thus, are housed Hispanics from northern Chinese-Americans, California separated Hispanics. from southern California practice The CDC’s asserted that it is rationale for this necessary prevent gangs. violence caused Brief Respondents for 1-6. It cites numerous incidents of major prison violence in CDC facilities and identifies five gangs Familia, Mafia, in the Nuestra Black State: Mexican Family, Aryan Brotherhood, Nazi Low Riders. Guerilla prison-gang culture is Id., at 2. The also notes that CDC An tes- Id., violent and associate warden murderous. 3. kota; Officers, and for the National of Black Law Enforcement Association Goldberg. David T. Inc., by as ami- Findley H.

John Legal the Pacific Foundation filed a brief for cus curiae. if

tified that race not considered in initial were hous- making she is certain there would be racial conflict ing assignments, in the cells and 215a. yard. Other offi- App. prison cials also their belief that violence and conflict expressed g., id., e. would result if were not See, prisoners segregated. 305a-306a. CDC claims that it must therefore segre- all while it inmates determines whether gate they pose to others. See Brief for 29. danger Respondents With the the double cells exception areas, reception the rest of the statе areas, dining yards, facilities — and cells—are After the initial fully integrated. 60-day pe- are allowed to choose their own prisoners cellmates. riod^ The CDC inmate usually housed to- grants requests unless there are gether, reasons them. security denying

B Garrison Johnson is an African-American inmate in the of the CDC. He has been custody incarcerated since 1987 and, time, has been housed at a during number Cali- fornia facilities. Fourth Amended Rec- Complaint ord, Doc. No. 78. his arrival at Folsom Upon and each time he was to a thereafter, transferred new facility Johnson was double-celled with another African-American inmate. See ibid. pro in se

Johnson filed a the United Dis- complaint States trict Court for the Central District of on California February 24, 1995, the CDC’s alleging reception-center housing his violated policy under the right equal protection Four- teenth Amendment him cellmates on the basis assigning of his that, race. He to 1991, from 1987 former alleged CDC Director James Rowland instituted and an enforced unconsti- tutional housing to race. Second according Amended 2-4, Record, Doc. 21. Complaint No. Johnson made the same former Director allegations against James Gomez for the from 1991 until period of his com- filing Ibid. The District plaint. Court his dismissed complaint 504 Appeals for the The Court of

for failure to state claim. holding remanded, and that Johnson Ninth Circuit reversed for in violation of had stated a claim racial discrimination Equal Clause of the Fourteenth Amendment. the Protection (2000). 655 F. 3d Johnson California, granted appointed and remand, On Johnson was counsel July 5, complaint. 2000, he filed his leave amend his On Complaint. Record, No. 81. John- Fourth Doc. Amended racially segregating policy of all son that the claimed CDC’s rights reception-center his under cells violated inmates in damages, sought al- Equal Clause. Johnson Protection leging Gomez, Rowland that former CDC Directors rights capacities, violated his constitutional their individual housing policy. by formulаting implementing the CDC’s against sought injunctive former CDC Direc- He relief also Stephen tor Cambra. challenged, consistently has con- and the CDC

Johnson has sistently policy it relates to as a whole—as defended, the facili- from transferred other both new inmates and. new inmate segregated in 1987 as a was ties. Johnson first he facility at Folsom. Since when he entered CDC segregated transferred to a he has been has been each time policy facility. subject to Thus, the CDC’s new he has been from one as inmate transferred both as a new inmate and an facility to another. parties summary judgment. discovery,

After moved granted summary judgment to the de The District Court qualified they im grounds entitled on were fendants clearly munity unconstitu their conduct was not because Appeals affirmed. Court of for the Ninth Circuit tional. The (2003). constitutionality 3d It held that the F. policy the deferential under should reviewed CDC’s Safley, we in Turner v. standard articulated (1987) Apply scrutiny. at 798-799. 3d, F. strict — not ing of refut Turner, had burden it held that Johnson ing between the “common-sense connection” 3d, 321 it violence. F. 802. believed this Though id., “close case,” 798, was a Court concluded Appeals that survived standard, Turner’s deferential 321 policy 3d, F. at 807. Johnson’s Court denied for rehear- Appeals petition en banc. others, three dis-

ing Judge Ferguson, joined by sented on that grounds decision panel’s “[t]he ignore[d] Court’s Supreme repeated unequivocal command all racial classifications must be an- government imposed by a court alyzed under strict by reviewing scrutiny, fail[ed] Turner recognize [the] analysis inapplicable cases, such as this one, in which the is not asserted right inconsistent with legitimate 336 penological objectives.” (internal (2003) F. 3d 1117 marks and citations quotation omitted). We certiorari to decide which standard granted (2004). of review 540 U. S. 1217 applies.

II A We have held that “all racial classifications [imposed by . must government] . . a court analyzed by reviewing Constructors, under strict scrutiny.” Peña, Adarand Inc. (1995) 200, added). U. S. Under (emphasis strict has the scrutiny, burden of that ra- government proving cial classifications “are tailored measures that fur- narrowly ther interests.” Ibid. have We compelling governmental insisted on strict context, even for scrutiny so-called every classifications, racial such as race-conscious univer- “benign” admissions see sity Grutter policies, 539 U. S. Bollinger, 306, (2003), race-based con- preferences government Adarand, tracts, see at 226, and race-based supra, districting intended to see improve minority Shaw v. representation, (1993). Reno, 509 U. S.

The reasons for strict are familiar. Racial classi- scrutiny fications raise fears that are motivated an they special by invidious Thus, we have time and admonished purpose. “[ajbsent into that, justi judicial inquiry

again searching no there is measures, way for such race-based simply fication in fact what motivated ... classifications determining racial or inferiority notions by simple illegitimate Co., A. Croson Richmond v. J. politics.” strict scru We therefore (plurality opinion). apply “‘smoke out’ to all racial illegitimate classifications tiny pursuing uses race [government] goal assuring tool.” use of suspect warrant highly important enough Ibid.1 from our its should be exempt

The CDC claims that is, it “neither because it is “neutral” —that rule categorical more than any benefits burdens one or individual nor group In 16. Respondents other or Brief individual.” group all not because words, other strict should apply scrutiny are CDC’s argument prisoners “equally” segregated. re- that “racial classifications our command ignores repeated be said to burden ceive even when may close scrutiny they Indeed, Shaw, 651. or benefit the races equally.” supra, ever be we the notion that can equal rejected separate —or Education, in Board Brown v. “neutral” —50 years ago (1954), it and refuse to resurrect today. 347 U. S. 483 we (1991) Ohio, (rejecting also Powers S.U. race-based were challenges that per- аrgument peremptory black to white and ju- missible because they applied equally that and that is axiomatic racial classifica- “[i]t rors holding that all do become on the assumption tions legitimate suffer them in equal degree”). persons of re- a standard We have applied heightened previously in Lee prisons. view in racial evaluating segregation in racial classifications hands-off approach 1 Justice Thomas takes a needed to overcome [is] that prisons, “compelling showing suggesting Post, (dissenting at 543 prison the deference we owe to administrators.” equal our at odds with opinion). fundamentally But such deference demon actors to on state protection jurisprudence. putWe burden policies justified. strate that their race-based curiam), 390 U. S. 333 we Washington, (per upheld court’s down decision Alabama’s striking three-judge Id., in its at 333-334. Alabama had segregation prisons. that would undermine argued desegregation prison security id., and but we contention. discipline, rejected Three Justices concurred make “to explicit something is left to be from the Court’s only by gathered implication authorities have opinion” right, acting —“that circumstances, faith and in particularized good to take into account tensions maintaining security, discipline, Ibid, order good prisons jails.” (emphasis added). The Justices concurring were emphasized they to assume that state or local authorities “unwilling an such might mistakenly regard explicit pronouncement as dilution of this firm Court’s evincing commitment to the Fourteenth Amendment’s of racial prohibition discrimina- Ibid. tion.”

The need for strict is no less here, scrutiny important where officials cite racial as the violence reason for their As we have in the policy. racial clas- recognized past, “threaten sifications individuals reason of stigmatize their in a racial to incite racial hos- membership group Shaw, supra, Co., J. A. Croson at tility.” supra, (citing added). at 493 (plurality opinion); emphasis Indeed, in- by that inmates sisting be housed with only other inmates of is race, same it that officials will possible breed prison further and hostility ‍​‌‌‌​‌​‌‌‌​​‌‌‌​‌​​​​‌​‌‌‌​​‌​​​​​​​‌‌‌‌‌‌‌​‌‌‌‌‍reinforce racial among prisoners and ethnic divisions. the notion that By race mat- perpetuating ters racial most, of inmates exacerbate segregation “may of it patterns [violence that said to very is] counteract.” Shaw, supra, 648; at see also Trulson & The Marquart, Pot: Toward of Caged an Melting the Conse- Understanding of in quences Prisons, 36 Law & Soc. Desegregation 743, Rev. (in a of study desegregation, finding “over the rate of between years] [10 violence inmates segre- race in double cells gated by rate those surpassed among for Former Cor- See also Brief State racially integrated”). Amici Curiae rections Officials as of former cor- (opinion rections officials from six States “racial integration cells tends to racial tensions and diminish inter- diffuse thus racial violence” “a of racial and that blanket policy segrega- tion of is to sound contrary management”). is CBC’s unwritten. California Although oral follow a sim claimed at that two other States argument was 30-31, ilar Tr. of Oral this assertion see policy, Arg. we or unsubstantiated, deny are unable confirm its States and the Federal all other accuracy.2 Virtually Government their without reliance systems manage Ami as on racial for United States Brief segregation. cus Curiae 24. Federal the Federal regulations governing (BOP) Bureau of Prisons prohibit segrega expressly (2004) (“[BOP] § tion. staff not discrim- 28 CFR 551.90 shall post, 12, out, 544-545, Though, n. points as see Justice Thomas generally “‘are reception inmates in centers in and Texas not Oklahoma it assigned racially integrated cells,’” is also the case that randomly integrated assignments,” inmates are cell precluded “these from Corrections, Procedures, Operations Oklahoma Mem Dept, Policies and OP-030102, 16, 2004), orandum аvailable Housing (Sept. No. Inmate (as 2005, 21, http://www.doc.state.ok.us/docs/policies.htm visited Jan. Justice, file); Dept, available in of Court’s of Criminal Clerk case Texas SM-01.28, Population Security Assignment No. General Memorandum (June 2002). Two-Person for Former State Cor Cells See also Brief (“To Officials as Amici Curiae is race rections the extent n. Oklahoma, appears in it to be one assignment considered calculus in result, given many, and consideration among factor as a individualized inmates”). whether, practice, way knowing all We have no therefore California, Texas, to no like have close inmates Oklahoma and those a chance, 3a, of differ person celled with being to Pet. Cert. App. as Amici Brief Corrections Officials ent race. See also for Former State (“[W]e Curiae 19-20 than California that as of no other aware state along every incoming prisoner incapable getting sumes that of no state other than cell mate of a race. And we are aware different an inflexible assumption adopting an California that acted on such has reception of double cells policy segregation and absolute of racial centers”). against religion,

inate on of race, the basis national origin, disability, political sex, or belief. This includes the making providing of administrative decisions and to access housing programs”). work, and The contends United States integration actually that racial “leads to less violence in prepares re-entry BOP’s institutions and better inmates for society.” into Brief for United States as Amicus Curiae 25. argues, Indeed, experience the United States based on its possible with the BOP, that it is to address “concerns prison security through individualized consideration without segregation, the use of racial unless warranted as a neces- sary temporary response to a race riot or other serious threat of racе-related Id., violence.” As 24. to transfer- particular, already ees, whom the has CDC evaluated why least it is clear once, individualized more determina- possible. tions are not express policy

Because the is an classification, CDC’s “immediately suspect.” Shaw, it is U. atS., 642;see also Washington v. Seattle School Dist. No.

(1982). Appeals We therefore hold Court erred apply scrutiny policy when it failed to strict to the CDC’s require policy narrowly the CDC to demonstrate that its compelling tailored to serve a state interest.

B invites exception CDC us to make an the rule scrutiny applies strict classifications, all racial and instead apply the deferential standard review articulated in (1987), Safley, Turner v. 482 U. segregation S. 78 its because only applies in the context. decline the We Turner, invitation. we considered a claim Missouri prisoners regulations restricting marriages inmate correspondence inmate-to-inmate were unconstitutional. rejected prisoners’ argument Id., at 81. We that the regulations subject scrutiny, asking should be to strict in- . regulation prisoners’ stead whether the that burdened the 510 to was related” “reasonably “legitimate

fundamental rights Id., interests.” 89. penological Turner to classifications. never racial We have applied Turner itself did not involve classification, it cast no doubt on Lee. We think this unsurprising, as we only to Turner’s have test applied reasonable-relationship incarceration.” that are “inconsistent with rights proper Pell Bazzetta, Overton v. 131 see also 126, (2003); 539 U. S. Procunier, (1974) (“[A] 822 inmate 817, v. 417 U. S. that are not incon retains those First Amendment rights sistent with his status as or prisoner legitimate is This of the system”). corrections objectives penological must necessarily because certain privileges rights v. Estate context. See O’Lone Sha limited in the prison of bazz, (“ ‘[Ljawful (1987) incarceration 342, 482 U. S. 348 of many withdrawal or limitation necessary about the brings the considera a retraction justified by privileges rights, ” Price v. John our system’ tiоns underlying penal (quoting ston, (1948))). we have for 266, 285 Thus, 334 S. example, U. Turner on First Amendment challenges relied addressing freedom restrictions on including prison regulations, supra; Overton, on inmate association, correspond limits Murphy, ence, Shaw v. 223 restrictions on (2001); 532 U. S. Casey, 518 Lewis 343 v. U. S. courts, inmates’ access on (1996); subscription publications, restrictions receipt Thornburgh Abbott, rules (1989); and work v. Shabazz, services, at religious attendance limiting prisoners’ Turner to some due supra. process We have also applied ill claims, mentally prison as medication involuntary such Washington Harper, restric (1990); and S. 210 v. U. ers, supra. Turner, tions on the right marry, on one’s based not to be discriminated against right of Turner. It race is not susceptible logic the sake of be compromised that need right necessarily the contrary, compliance administration. On proper prison discrimina- ban on racial with the Fourteenth Amendment’s administration, is not consistent with tion only proper of the criminal but also bolsters the entire justice legitimacy Race discrimination is in the system. “especially pernicious Mitchell, Rose administration justice.” (1979). And for our system public respect justice undermined when the discriminates based on race. system (“[Pjublic Cf. Batson 476 U. re Kentucky, S. for our criminal and the rule of law will system spect justice if we that no citizen is ensure strengthened disqualified race”). from service because of his When jury government as a officials to use race mem permitted proxy gang violence without bership demonstrating compelling interest and that their means are nar government proving as a whole rea tailored, suffers. For similar rowly society we have not used Turner to evaluate Amend sons, Eighth ment claims of cruel and unusual We punishment prison. violations of that Amendment under the “deliberate judge Turner’s “reasonably standard, indifference” rather than re Pelzer, 730, lated” standard. See v. Hope “ whether officials ‘deliberate (asking prison displayed indifference’ to the inmates’ health or where an in safety” mate claimed that violated his under the they rights Eighth McMillian, Hudson Amendment v. U. S. (quoting (1992))). This is the of the criminal because integrity justice on full Amend system depends compliance Eighth (CA9 Procunier, 189, 193-194 ment. 600 F. 2d Spain See 1979) J.) (“[T]he full protections eighth (Kennedy, remain in force The amendment most [in certainly prison]. is to convicted whole of the amendment persons protect point of crimes. . . deference to the state . Mechanical findings would in the context amendment officials eighth the context reduce to a provision nullity precisely where it is most necessary”). is at context, when the power government’s review of racial we think that judicial

its searching apex, dis- invidious to classifications necessary guard against crimination. CDC an from rule Granting exemption all strict racial classifications would scrutiny applies undermine our to eradicate racial efforts “unceasing preju- dice from our criminal justice system.” McCleskey Kemp, (1987) (internal omitted). marks quotation “[djeference CDC to the exper- argues particular tise of officials in the difficult daily task managing a more of re- relaxed standard prison operations” requires view for its Brief for 18. segregation policy. Respondents But we have to state officials’ refused to defer on judgments race in other officials exer- areas where those traditionally that, cise substantial discretion. For we have held example, the broad discretion when despite given prosecutors they use their those peremptory using challenges challenges, strike on of their race is the basis jurors impermissible. Batson, in the con- at 89-96. Similarly, redistricting supra, text, the traditional deference when States despite given districts, their electoral we have redis- they design subjected to strict when States draw district tricting plans scrutiny lines based on race. generally predominantly Compare (2004) 267 Jubelirer, Vieth v. (partisan gerryman- (1993) (racial Reno, 630 Shaw dering), gerrymandering). for racial classifi

We did not relax the standard of review to do so Lee, in in we refuse today. cations and in we held Lee: Rather, we reaffirm what implicitly explicitly S., 390 U. The “necessities of prison security discipline,” interest justifying only are a government compelling those that are tailored to address those uses of race narrowly con Grutter, S., J., at 353 necessities. See 539 U. (Thomas, Lee for the in in dissenting part) (citing curring part from violence that might jus prisoners principle “protecting discrimination”); A. Croson J. tailored racial tify narrowly in Co., S., J., judgment) at 521 488 U. concurring (Scalia, a social emergency Lee for the that “only (citing proposition life and limb —for to of imminent danger to the level rising riot, race temporary segregation requiring example, an to the embod- principle of inmates —can exception justify Constitution Amendment ‘[o]ur in the ied Fourteenth classes knows tolerates color-blind, neither nor among ” Plessy Ferguson, 163 U. S. citizens’ (quoting Pell, S., at 823 also U. J., see (Harlan, dissenting))); is the (“[C]entral institutional other corrections all goals fa- within the corrections internal consideration of security themselves”). cilities would race-based subject policies pris-

. Justice Thomas because, ons to Turner’s review deferential standard of view, about race-based his whether policies judgments left in first the officials “are instance necessary better Post, at 542. But Turner our who run Nation’s prisons.” race. to ferret out invidious uses of is too lenient a standard Turner requires only related” that the policy “reasonably S., at 89. interests.” U. “legitimate penological Turner would officials to use race-based policies allow prison when are race-neutral means even there accomplish does not in and even when race-based same goal, policy g., See, e. (case 3d, 321 F. at 803 advance that practiсe goal. Turner, below) that, under the Court of Appeals (reasoning did “not have to that the advances actually agree policy interest, but CDC’s ‘defendants legitimate only might [that] would its have advance reasonably thought supra, Turner, interests’”). also (warning (internal Turner alternative a “least restrictive test” omitted)). marks quotation world,

For officials example, Thomas’ Justice could areas on the that racial mix- segregate visiting ground unrest in the atmos- would racially charged prison cause ing Turner, Under would have to “[t]he phere. prisoner prove not is that there [i]t would certainly ‘plau- riot[.] [But] that such could our as well as our sible’ a riot ensue: society, contains racists that almost interracial prisons, enough any at 3d, F. interaction could lead to conflict.” 336 potentially (case below) J., from denial of re- (Ferguson, dissenting banc). Indeed, view, en under hearing Justice Thomas’ there is no obvious limit to in pris- permissible segregation if in ons. It is why, sot readily apparent segregation recep- halls, tion in the centers justified, dining segregation is not also areas yards, permissible. general housing of these areas could site of racial vio- be the Any potential lence. If were carry day, approach Justice Thomas’ in Lee even the blanket struck down segregation policy of survival if officials stand a chance simply might, asserted We it was necessary prison management. classifications therefore the Turner standard for racial reject in it make discrimination too because would prisons rank to defend. easy will

The CDC strict handcuff protests scrutiny to address administrators and render them unable legitimate of race-based violence in See also prisons. post, problems so. 531-532, J., Not Strict 546-547 dissenting). (Thomas, Adarand, in is not “strict but fatal in fact.” scrutiny theory, (internal Grutter, S., omitted); U. marks quotation uses of S., at 326-327 all U. (“Although governmental invalidated race are to strict not all are scrutiny, subjеct it”). does not Strict ability scrutiny preclude interest in officials to address the prison safety. compelling have to demonstrate administrators, Prison will however, tailored to that race-based policies narrowly (“When action is id., necessary end. at 327 race-based action interest, such to further compelling governmental of equal pro- does not violate the constitutional guarantee is also tection as the requirement so narrow-tailoring long satisfied”).3 one, see as a “limited” policy the CDC’s Justice Thomas characterizes It sweeping application.. in its CDC’s fact

post, at but the centers, in reception cells housed double applies prisoners to all facility to another. from one newly admitted or transferred whether considers the CDC Moreover, suggestion that despite Thomas’ Justice the CDC itself housing placements, determining other nonracial factors The fact that strict about scrutiny “says nothing applies law; the ultimate determina validity any particular Ada tion is the court strict job applying scrutiny.” supra, rand, no such juncture, 229-230. At this determi remand, nation has been made. the CDC will have the On burden of that its is tailored narrowly demonstrating policy with to new as well as transferees. Prisons regard and the circumstances dangerous places, special they in racial classifications some present contexts. may justify Such can circumstances be considered in strict scru applying which is to take relevant into differences tiny, designed account.

Ill doWe not decide whether the CDC’s violates the Protection Clause. We hold that strict Equal only scrutiny is the standard of review and remand the proper case allow the for the Circuit, Court Ninth or Dis Appeals it in the first instance. See Consoli Court, trict apply Corporation Gottshall, dated Rail 532, v. 557-558 (1994) for the lower court to (reversing remanding apply Lucas in instance); correct standard the first legal South Carоlina Council, Coastal S. 1031-1032 U. (1992) (same). The of the Court of is re judgment Appeals versed, and the is case remanded for further proceedings consistent with this opinion.

It is so ordered. The Chief Justice took no in the decision of this part case. “ ” that, practice, ‘[p'lretty

has admitted there ais close’ percent zero chance that an inmate will be housed person a different race. App. 517-518, to Pet. for Cert. also generally post, 3a. See and n. 1 (Stevens, J., Thus, dissenting). despite size, an inmate's “age, physical health, needs, mental post, medical history,” [and] criminal at 536 (Thomas, J., dissenting), the fact categorically precludes that he black him being from celled with a white explain, inmate. As we see this infra page, we do not decide whether the threat of violence prisons California justify sufficient to such a policy. broad Ginsburg,

Justice with whom Justice and Jus- Souter Breyer tice join, concurring.

I ex- the Court’s the reservation join opinion, subject Bollinger, Grutter 539 U. S. 344-346 pressed J., (Ginsburg, concurring).

The reaffirms the that Court today resoundingly principle cannot, racial state-imposed segregation highly suspect “ ‘all on the that suffer sepa [the ground persons justified Ante, Powers v. at 506 equal degree.’” (quoting ration] Ohio, (1991)). that 400, 499 410 While I declara join tion without I to reservation, again write separately express conviction the same standard of review ought my control of classification. official race judicial inspection every Bollinger, in Gratz v. 244, I most As stated recently (2003) to burden 301 “Actions opinion): designed (dissenting are not denied full stature groups long citizenship sensibly when ranked with to hasten the en measures taken day extir trenched its aftereffects have been discrimination and Grutter, at S., (Ginsburg, also U. 344-346 pated.” See Peña, Constructors, Adarand Inc. 515 U. J., S. concurring); 200, (Ginsburg, J., 271-276 dissenting). however, here,

There is no the California pretense (CDC) of its segregation Corrections installed Department Wechsler, The Nation- to “correct policy inequalities.” to Tex. Rights, alization Civil Liberties Civil Supp. (1968). and in federal other 10, 23 States Q. Experience post, ante, (Stevens, J., 508-509; see 519-520 prisons, assign- that CDC’s race-based dissenting), strongly suggests con- transferees, administratively ment of new safe manage- it to the be, as is not may necessary venient ment of a institution. penal with the that “strict scrutiny” properly Court

Disagreeing ante, at 505- see classifications, and all any applies clas- stereotypical 511-513, ‍​‌‌‌​‌​‌‌‌​​‌‌‌​‌​​​​‌​‌‌‌​​‌​​​​​​​‌‌‌‌‌‌‌​‌‌‌‌‍but agreeing I join scrutiny, sification at hand warrants rigorous Court’s opinion. Stevens,

Justice dissenting. my judgment policy segregating prisoners by a state during days race first of their incarceration, as well days facility as the first after their transfer from one Equal another, violates Protection Clause the Four- Department teenth Amendment. The California Correc- (CDC) ample justify opportunity pol- tions has had an its icy during litigation, utterly the course of this but has failed scrutiny judged to do so whether strict or under the more Safley, deferential standard set out in Turner U. S. 78 (1987). proceedings had no incentive in the CDC below supporting policy; to withhold evidence its nor has the CDC proof suggest made offer that a remand for fur- development ther any purpose factual would serve other postpone agree than to the inevitable. I therefore with the of the submission United as States amicus curiae that the Court should hold the on unconstitutional the current record. segregation policy1

The is a CDC’s based on conclusive presumption housing together that of inmates different races unacceptable creates an of risk racial violence. Under the policy’s logic, proxy gang an is a inmate’s race for member- ship, gang membership proxy and is a for The violence.

1The CDC which operates prisons, 7 of house All reception centers. new all transferring inmates and prisons inmates between are funneled through one these reception they permanently оf centers before are centers, placed. dormitories, At the inmates are housed either in double (of few). cells, or which single segrega cells there are Under the CDC’s policy, tion is a race determinative factor in inmates in placing double cells, regardless of other factors considered in such decisions. While years experience corrections official with 24 of that an exception testified to policy this once granted Hispanic was to a inmate who had been “raised 184a, Crips,” with App. suggestion the CDC’s is policy its therefore flexible, see for Respondents credulity. Brief strains There is no evi dence CDC routinely allows inmates to of opt segregation, out much less evidence that the supposed right CDC informs inmates of their to do so. however, or ex-

CDC, scant evidence has offered empirical this a minimal use of race under even pert opinion justify level of constitutional The scrutiny. presumption underly- has overbroad. CDC ing undoubtedly policy effort to of new or transferred made no what fraction prove inmates of nor has it shown are members race-based gangs, more that interracial violence disproportionately generally Proclivity than intraracial violence in its prisons. greater from toward racial violence varies inmate unquestionably all new its inmate, blunderbuss CDC yet applies double cells regardless transferred housed or incarceration. criminal histories records of their previous two car thieves CDC’s for Under policy, example, whom history races —neither of has gang different involvement, violence, or that matter —would housed their first two barred from during being together from the in- months of This result derives CDC’s prison. flexible that such conditions integrated living judgment too This Court has never countenanced dangerous. simply such racial prophylaxis. violence,

To a link cells and establish between integrated the CDC the views of two state corrections officials. relies on members attested their belief that double-celling They this violence different races would lead to violence officials, these would out into the One of prison yards. spill warden, as follows: an associate testified have the Asian the control sergeants population, “[W]ith Blacks, Whites, to be more careful than do they because, cannot house you for example, Hispanics You cannot. inmate with a Chinese inmate. Japanese won’t even will each other. tell you kill They They Laotians, will it. The same with about it. do They just have to Vietnamese, Cambodians, You Filipinos. Asians other careful about other very housing 189a. It’s culturally heavy.” App. Asians. very Such Indeed, little confidence. this inspire com- musings ment that the is based on racial supports suspicion policy and outmoded fears about the of racial stereotypes dangers This Court should no integration. credence to such give g., e. Palmore reflexive conclusions cynical, See, about race. Sidoti, (1984) ac- (“Classifying persons to their race is more to reflect racial

cording likely prejudice than concerns; race, not legitimate public dic- person, Memphis, Watson tates the category”); in (rejecting city’s plea delay desegregating facilities when “neither public the asserted fears of violence and tumult nor the asserted inability preserve peace was demonstrated at trial to be more than anything personal officials”). or speculations vague disquietudes city risk,that The (whether real very conscious or prejudice not) underlies the in partly CDC’s counsels favor of policy the usual deference we to corrections officials relaxing pay in these matters. We should evidence, instead insist on hard especially California’s is an when given policy outlier to nationwide compared Federal Bureau of practice. Prisons administers 104 institutions; no similar is policy ap- in of them. Countless state plied institutions are penal An amici brief filed operated without such a six policy. former state corrections officials with an of over aggregate years experience Wiscon- managing prison systems sin, Kansas, Oklahoma, Alaska, and Georgia, Washington makes clear that a blanket of even temporary segrega- tion runs counter to the great weight professional opinion on sound Brief for Former State management. Amici Curiae 19. Corrections Officials as Tellingly, CDC can States, to two other Texas and Okla- only point homa, that use racial status assigning areas. It is doubtful from the record that these reception States’ have the same broad and policies inflexible as sweep California’s, this beside the What ultimately point. is that vast the Federal Government and the important of of interracial violence

majority States address the threat without to the prisons resorting expedient segregation. of its the offers evidence CDC support poignant policy, that its infested are with violent race-based prisons gangs. The most of this involves a of riots evidence series striking took between 1998 2001 at Pelican State Bay place Prison. houses of the violent That some State’s most criminal who offenders, “validated” members including gang have been in- transferred from other The riots prisons. both volved interracial and intraracial violence. In the most inmates, His- incident, serious 250-300 “Southern involving inmates, at- members, some white panic” joined by gang tacked number of black inmates. however, that we role,

Our scratch below judicial requires evidence, the surface the sheer of a threat of this lest gravity be allowed in its name. to authorize justified any policy hoc, evidence the CDC’s inspection, Upon post generalized related to violence is its segregation gang only tenuously cited a the CDC has not Significantly, single specific policy. less incident interracial violence between cellmates —much violence —that the adoption such pattern prompted its there indication Nor is any unique ago. policy years in the more cellmates role between any antagonism played And CDC’s recent riots' mentions. the despite CDC will on and its such gangs focus suggestion gangs racial violence recruit new into during committing has centers, CDC in the their 60-day reception stays nor has it identified recruitment, no cited evidence of such vio- new inmates committed in which instances areas, such common new inmates in the lence other against evidence CDC’s as the or the cafeteria. Perhaps yard Bay that at Pelican a basis for might provide arguing some riots, similar have other facilities that experienced if tailored. properly measures race-conscious justified (1968) (Black, J., 333, 334 Lee v. Washington, CDC, cited if incidents But even concurring). which occurred were rele- general prison population, vant to the conditions in the centers, reception they provide no for the decision CDC’s its support apply segregation to all centers, its without policy reception for each regard center’s level or of racial security violence. Nor do history the incidents for a provide any support policy applicable only to cellmates, while the common areas of the in which the disturbances occurred remain fully integrated. the

Given inherent and its shame- indignity segregation ful historical connotations, one assume that the might CDC came to its as a last policy only resort. this Distressingly, is not There so: is no evidence that the ever ex- CDC has with, considered, or even perimented carefully race-neutral methods of its That achieving goals. is unwritten reflects, I think, the evident lack of deliberation that pre- ceded its creation. the CDC has to

Specifically, failed it could explain why not, as an alternative to automatic on an segregation, rely individualized assessment of each inmate’s risk of violence when him a cell in a assigning center. The reception Fed- eral Bureau of Prisons and other state do so without systems any For apparent difficulty. who are trans- being ferred from one to another —who facility represent approxi- 85% those mately subject the segregation policy—the CDC can examine their records simply to determine if have known affiliations if they any or have gang ever they in or threatened racial violence. engaged For example, CDC has had an opportunity observe for al- petitioner most 20 years; the CDC could have determined surely his without him placement to a subjecting period segrega- tion.2 For inmates, new can be assignments based on their

2In explaining inmates, it why prescreen cannot new the CDC’s brief all but concedes segregating unnecessary. transferred inmates is (“If Brief for Respondents 42 all of necessary officials had informa tion to assess the potential arrived, inmates’ violence when the inmates perhaps practice different could be used. But unlike system, the federal of- about information

presentence reports, contain which history personal record, conduct, fense criminal —includ- gang affiliations. ing about available information trans- county probation requires officer fact, law state along an report inmate’s presentence to the CDC mit a § 1203c papers. Ann. Code See Cal. Penal commitment Cases) (Criminal 4.411(d) (West 2004); of Court Cal. Rule 2004). (West Supp. records, in these

Despite information available the rich assigning rarely in- only records these CDC considers primary reception The CDC’s centers. in the mates to cells inefficiency rec- explanation administrative for this is —the coun- says, simply in time. CDC’s not arrive do ords, it reports рresentence argument conceded oral sel that, “in stated she information,” but “have a fair amount always accom- presentence report not does the California, some frequently It follows not. pany and does inmate the Arg. 33. county.” Tr. of Oral period the later from of time contrary, requirement counsel the Despite to the state-law preparing the that the are Court counties the informed Similarly, timely reports Ibid. presentenee “in a fashion.” that their regard transferees, counsel to stated in time to reception centers at the do not arrive records Even if such inefficien- assignments. Id., at 28. make cell they expedient cases, in some temporary might explain a cies policy. State’s systemwide When the surely justify do not a against pitted the is convenience interest in administrative segregation, the lat- ban on Amendment’s Fourteenth good “serious, no prevail. has been When there ter must that alternatives race-neutral of workable faith consideration Bollinger, 539 goal],” [desired Grutter will the achieve they the moment custody from federal are in generally where the they are convicted custody until county arrested, in state inmates are are CDC”). the custody of transferred to the later (2003), “obvious, and when alternatives” easy Turner, S., are the conclusion that available, U. CDC’s unconstitutional policy inescapable regardless the of review that the Court standard chooses apply.3 the CDC’s failure to demand fact, presentence timely the of its con- sincerity records undercuts reports cern the for inmate Race security reception during process. is an unreliable underinclusive necessarily predictor Without the violence. information found in inmate-specific the records, will, there is a risk that corrections officials for house inmates of the race who same example, together nevertheless members of rival such as Bloods gangs, and Crips.4 while I a remand is

Accordingly, agree appropriate resolution of issue of I qualified immunity, respectfully dissent from the Court’s refusal decide, on the basis record us, before the CDC’s is unconstitutional. policy Turner factors test, Because to a and I tailoring boil down conclude “ ” is, best, that the ‘exaggerated CDC’s an response’ its as Safley, see Turner concerns, 78, 90 (1987), serted security I find unnecessary factors, it specifically to address other such as whether new and transferred inmates have “alternative exercising means” of their id., right during period equal protection segregation, their housing Indeed, at 89. case again this demonstrates once a court de- “[h]ow scribes regulation infringes its standard review when funda- mental rights constitutional has far less consequence[s] often for the in- mates than the actual that the court of the showing demands State Id., J., (Stevens, order to uphold regulation.” at 100 concurring part and dissenting part). 4 may The CDC’s be policy counterproductive ways. in For exam other ple, may an of segregation official initiate new arrivals into a corro sive culture of racial segregation, lending to the credence view that members of other races are to be feared and that racial alliances neces sary. While integrated encourage gain cells inmates to valuable cross- experiences, may racial segregated cells well the facilitate formation of race-based gangs. See Brief for State Former Corrections Officials as Amici Curiae 19 (citing experience evidence and that the racial suggesting violence). integration of cells on balance interracial decreases 524 Scalia joins, whom Justice with Thomas,

Justice dissenting. require to resolve us questions presented in case this hand, as the the one precedent. conflicting of On lines

two “ classifi- ‘all raсial said that has this Court stresses, Court must Equal Clause Protection reviewable under cations Bollinger, 539 S. strictly U. Gratz scrutinized.’” Peña, Constructors, Inc. v. (quoting Adarand added). (1995); other, this emphasis On U. S. [relaxed] stand- categorically said “the less has no Court Safley, [v. adopted in Turner we ard of review needs (1987),] which the applies all circumstances rights." implicate constitutional prison administration (1990) (emphasis Harper, 210, 224 Washington S. 494 U. added). majority re- cases, the line of

Emphasizing the former , disagree. scrutiny. I of strict in favor conflict solves the always within less demanded has The Constitution with consti- again, when faced even walls. Time right to be than rights “fundamental” no less tutional de- discrimination, we have state-sponsored racial free from experienced of officials judgments ferred to reasonable good prisons. There is reason running this Nation’s roughly oversees case. California in this such deference breeding ground prisons have been 160,000 gangs in America—all the most violent for some atmosphere, along lines. organized of them inmates, in a portion its racially segregates California days, up until periods prisons, for brief part its majority housing. The permanent arrange can the State stigma of indignity and sparing inmates with concerned is con- California 507-508. Ante, racial discrimination. respect- I lives. saving their safety and their cerned fully dissent.

I To understandthis case, one just must understand how limited requires at issue is. That factual more background than opinion provides. Court’s Petitioner Garrison Johnson is a black inmate in the Depart- California (CDC), ment of currently Corrections serving his sentence robbery, murder, and assault deadly with a weapon. App. 255a-256a, began 259a. serving Johnson his sentence in June 1987 at the California Institution for Men Chino, Id., California. 79a, 264a. Since that time he has been transferred a number of other facilities within the CDC. Id., at 79a-82a.

When an inmate like Johnson is admitted into the Cali- - prison system fornia or transferred between the CDC’s institutiоns, he initially is housed for a period usually brief — days no more than 60 one prison of California’s re- —in ception centers for Id., men. Depart- 303a-305a. CDC, Operations (2004) (hereinafter §61010.3 ment Manual CDC Operations Manual), available at http://www.corr.ca.gov/ (all RegulationsPolicies/PDF/DOM/00_dept_ops_maunal.pdf Internet materials as visited Feb. available in file). Clerk Court’s case processed 2003, the centers more newly than 40,000 admitted inmates, almost 72,000in- mates parole, returned from over 14,000inmates admitted for other portion reasons, and some 254,000 who were transferred from one to another. CDC, (2003). Population Movement of Prison reception At the center, officials have limited infor- mation about an “particularly inmate, if he has never been housed in facility.” App. CDC 303a. The inmate there- fore is classified so that place officialscan the inmate appropriate permanent housing. During process, this CDC evaluates “physical, the inmate’s mental and emotional health.” Ibid. The CDC also reviews the inmate’s criminal security jail needs and

history his record in to assess Finally, investi- Id., the CBC level. at 304a. classification prison. any in Ibid. gates inmate has enemies whether the place- housing process ultimate inmate’s This determines the nothing to do with race. ment and has underway, in process houses the the CDC While the is dormitory. two-person one-person cell, or a cell, a mate in a reception single cen Id., 305a. cells available at at The few security present special reserved who ters are for inmates especially heinous problems, including convicted of those e.g., custody. protective See, crimes or those need of §61010.11.3. Operations other end of At the CDC Manual assigned spectrum, to dormitor are lower risk inmates single App. cell or a in either a ies. 189a-190a. Placement except dormitory nothing race, to do with has attempt within each dor officials to mаintain a racial balance mitory. single placed in or dor Id., at cells 250a. Inmates fully integrated does not distin mitories lead lives: The CBC guish on at when it comes based race of its facilities yard jobs, time, vocational and meals, and recreation or assignments. Ibid. educational require prisoners, Johnson, like neither con-

Yet some safely single may in a nor housed a dor- finement cell mitory. prisoners in double cells The CBC houses these during 60-day pairing in- period. cellmates, race is disputably predominant Id., 305a, factor. 309a. Cali- by simple: prisons Its violent fornia’s reason is are dominated largest gangs. Respondents as the Brief for And 1-5. gangs’ Aryan Brotherhood, the Black names indicate—the Family, Riders, Mafia, the Nazi Low the Mexican Guerrilla they organized along La Nuestra Familia— II-B, lines. See Part infra. housing

According in double cells State, to the only prison discipline, regard not without to race threatens App. safety physical of inmates staff. but also the double cells are es- 305a-306a, That is because 310a-311a. public pecially dangerous. The risk of racial violence private tightly con- prisons high, confined, and the areas of staff can- more violence. Prison ditions of cells hazard even up going them, cells without and inmates into the see prevent ‍​‌‌‌​‌​‌‌‌​​‌‌‌​‌​​​​‌​‌‌‌​​‌​​​​​​​‌‌‌‌‌‌‌​‌‌‌‌‍seeing in- the staff from can cover the windows to caused Id., at 306a. The risk of violence side the cells. privacy grave, are confined to their cells this for inmates day. Ibid.; id., 187a-188a. for much of the predominant pair- factor in Nevertheless, while race is the dividing ing hardly only cellmates, it is one. After this race, on the CDC further divides subset of inmates based origin. geographic them on or national As an exam- based ple, Hispanics from northern and southern are not California together reception they housed centers because often be- long gangs to rival Nuestra Familia and the Mexican —La respectively. Id., at Mafia, Likewise, 185a. Chinese and Japanese together, inmates are not housed nor are Cambodi- Filipinos, ans, Laotians, Id., or at In Vietnamese. 189a. geographic origin, prison addition to and national officials including age, consider a host of other inmates’ men- factors, history, gang tal health, needs, medical criminal affilia- Id., 304a, instance, tion. at 309a. For when Johnson was Crips, admitted in 1987, he was member a black ineligible gang. Id., street He was therefore to be at 93a. Id., 183a; inmates. at Brief for housed with nonblack Re- spondents n. 9. 12, assigning prison

Moreover, while officialsconsider race cells, inmates to double the record shows that inmates are necessarily housed with other inmates of race the same 60-day Hispanic during period. inmate affili- When a reception Crips ated with the at the cen- asked to be housed prison example, ter inmate, with a black administrators granted request. App. requests 183a-184a, his 199a. Such routinely 60-day period, prison granted after the when complete process officials and transfer an classification 528

inmate from the center to a reception permanent placement Id., or at that another one.1 311a-312a.

II federal courts involved themselves rarely Traditionally, the administration of state broad “adopting] prisons, hands-off toward administra- attitude problems (1974). Martinez, tion.”2 Procunier v. 404 396, 416 U. S. citizens For most of this Nation’s history, only law-abiding conviction could claim the cover Constitution: Upon incarceration, constitutional defendants forfeited their those that the State only instead rights possessed rights e. Shaw Murphy, See, chose to extend them. g., Commonwealth, 790, 223, (2001); Va. Ruffin (1871). decades, however, this has decided recent Court admittance, during his initial nor requested 1 Johnson has never —not transfers, nor he be housed subsequent present his his incarceration —that 106a, 112a-113a, According person App. with a of a different race. 175a. Johnson, how request; he considered the a barrier to such ever, grievance has also testified that he never filed a Johnson Id., 112a-113a, Nei segregation policy. officials 124a-125a. about whether has exhausted parties majority ther the nor the Johnson discusses 1979, 1983, § § required his action under Rev. Stat. U. S. C. as amended, 1321-66, as Litigation Prison Reform Act of 110 Stat. (2001). § 1997e(a). Churner, S. U. S. C. Booth v. 532 U. is not statutorily juris mandated exhaustion majority thus assumes that dictional, failing to raise it. by and that has waived the issue California (CA2 Goord, 2003); See, 431, Perez v. 347 F. 3d 433-434 g., e. Richardson 1999). (CA7 532, Corrections, v. Wisconsin 182 F. 3d 536 Dept. of 2 I my to as “hands-off” one because majority approach The refers a of the State’s officials. judgments would the accord deference to ante, The “hands- historically 1. inaccurate. n. Its label courts, which prior off” that taken to the 1960’s federal approach was See, g., claims. e. prisoners’ the merits generally declined consider Evolving Fliter, Court Standards Supreme J. Rights: Prisoners’ (2001); Rubin, Policy Making Feeley M. & E. Judicial Decency 64-65 (2000); Branham, L. Cases and & and the Modern State 30-34 S. Krantz Rights Prisoners’ Sentencing, on the Law of Corrections and Materials (4th 1991). 264-265 ed. prisoners of all constitu not divest that incarceration does g., McDonnell, 418 U. S. protections. See, e. v. tional Wolff (the (1974) process); right Beto, Cruz v. due 539, 555-556 curiam) (the (1972) right (per free exer 319, 322 405 U. S. religion).3 cise recognized quickly the time, this Court

At the same prison walls behind of the demands extension Constitution’s prison administration. the needs of had to accommodate Safley, in Turner v. reached that accommodation This Court (1987), unitary, “adopted deferential a which U. S. prisoners’ claims,” reviewing constitutional standard govern supra, That standard should Johm Shaw, at 229. governed chal- a of other claims claims, son’s as it has host restricting the lenging even when confinement, conditions of rights scru- have occasioned strict at issue would otherwise passes tiny. standard, the Turner CDC’s Under reasonably to le- muster because it is rеlated constitutional gitimate penological interests.

A experi recognized that Turner, this Court Well before judges, best and not prison administrators, enced daily operations prisons supervise position across country. g., North Prisoners' See, e. Jones v. Carolina this (courts give must Union, Inc., 119, 125 433 S. Labor U. prison administra “appropriate the decisions of deference to (“[C]ourts tors”); equipped are ill supra, Procunier, at 405 problems increasingly urgent ad- to deal with the at the rights his constitutional may entirely A surrender prisoner v. North (1979); Jones Wolfish, 441 U. S. gates, Bell v. Union, 119, 129 (1977), Inc., but cer Labor Carolina Prisoners’ makes When prisoner him. his liberties behind tainly he leaves some of claim, prisoner whether the question initial should be constitutional has prisoner all, or instead whether right at issue possesses and confinement. of his conviction right of the as a condition been divested (2003) (Thomas, J., concurring Bazzetta, 126, 140 See Overton 1944). (CA6 Reichard, 443, 445 143 F. 2d judgment); Coffin 530 reform”).

ministration and that a Turner made clear defer- apply ential standard of review across the board to would prison challenges policies. inmates’ constitutional constitutionality pair issue in At Turner was the prison regulations limiting Missouri inmate-to-inmate corre- analysis spondence marriages. pro- and inmate The Court’s recognized pris- steps. First, ceeded two that Court entirely rights. oners are not without constitutional As proof, pris- rights it certain retained listed constitutional including right “protected against invidious oners, to be Washington, , discrimination . . . Lee 390 U. 333 v. S. (1968).” Turner, 482 con- S., Second, U. at 84. Court prison that cluded “ administrators rather than courts to judgments concerning oper- ‘make the difficult institutional 128), supra, (quoting id., Jones, ations,”’ at 89 courts uphold regulations impinge should on those con- reasonably legitimate pe- rights they if stitutional relate to nological S., did the interests, 482 U. at 89. Nowhere Court suggest right that Lee's to be free from racial discrimination was from Turner’s standard of review. immune deferential contrary, “[w]e quite To the clear that standard made adopted applies review we in Turner to all circumstances implicate which constitu- the needs of administration added). Harper, (emphasis rights.” 224 S., tional U. applied understanding, this Court has Consistent by pris- to a claims Turner’s standard host of constitutional apply regardless oners, of the standard of review would And has adhered outside walls.4 this Court (the Overton, See, g., e. under the supra, right at 132 to association 223, Amendments); 228- Murphy, Shaw v. 532 U. S. First Fourteenth (2001) (the under the First with fellow inmates right communicate (the Casey, 518 U. Amendment); 343, right Lewis v. of access S. Clauses); Wash Protection to the courts under the Due Process and Equal (1990) (the forced ington Harper, right to refuse 223-225 Abbott, Clause); Thornburgh under the Due medication Process (1989) (the correspondence under right 413-414 to receive urged adopt of being, different standards despite to Turner provision at issue. See on the constitutional review based (Turner's “applies] of Harper, supra, standard review at prison regula prisoner asserts that a in which a in all cases just in which the. Constitution, not those tion violates the added)); (emphasis prisoner the First Amendment” invokes (1987) (“We Shabazz, 342, 353 482 U. S. v. Estate O’Lone opportunity refusal, reaffirm our even where this to take Amendment, substitute the First to claims are made under judgment and sensitive matters of institu on difficult our ... charged for the of those administration determinations tional (internal quo running prison” task of with the formidable added)). emphasis omitted; and citation Our tation marks If is our accommo makes sense: Turner steadfast adherence prison ad demands to those of dation of the Constitution’s uniformly supra, apply see we should it ministration, challenges prisoners’ conditions of confinement. to to their claims, even more than other claims all, After Johnson’s implicate applied test, Turner’s Turner’s to which we have repeating, passage In in a that bears fact, rationale. why judg- explained precisely to deference Turner Court necessary: prison ments of officials California’s day-to-day prison “Subjecting judgments officials analysis seriously scrutiny would inflexible strict an security ability anticipate problems hamper their problems adopt innovative solutions to the intractable The rule would also distort administration. every decisionmaking process, administrative possibility judgment subject that some would be to the would conclude that it had a less re- court somewhere way solving problem hand. Courts strictive inevitably primary of what would become the arbiters every administrative constitutes the best solution Amendment); Shabazz, v. Estate 349-350 First O’Lone Amendment). (1987) (the religion to free exercise of under the First right

problem, thereby unnecessarily perpetuating the in volvement of the federal courts affairs of (internal quotation administration.” 482 at 89 S.,U. omitted). marks and alteration majority’s inexplicable, failure to heed that advice is es- pecially recognized since “growing problem Turner itself gangs.” Id., fact, at 91. there is no more problem” prisons “intractable inside America’s than racial vi- olence, prison gangs. which is driven See, race-based g., e. Dawson Delaware, 159, 172-173, and n. dissenting); J., McFadden, (Thomas, Stefanow (CA9 1996) (“Anyone 1466, F. 3d pris- familiar with ons problems understands the seriousness of the caused prison gangs by actively that are fueled virulent racism and religious bigotry”).

B majority The addressing decides this without case problems poses guards, racial violence for wardens, and throughout inmates prison systems. the federal and state justification But the core policy: of California’s for its racially It separate that, maintains if it does not new cell- together during mates thrown in close confines their initial erupt. admission or transfer, violence will dangers prevent The California seeks to are real. See Brief for National Association of Law Enforcement Black Controlling prison Officers, Inc., as Amicus 12. Curiae gangs challenge facing is the central correctional officers and Evolving Carlson, administrators. Prison Interventions: Strategies Security Groups, to Control Threat 5 Corrections (Winter 2001) (hereinafter Carlson). Mgmt. 10Q. The gangs highly regimented sophisticated organi worst are and drug trafficking ranging zations that commit crimes from Dept. Id., theft and murder. 12; Justice, Cal. Division Organized Law Enforcement, Crime California Annual Report p. Legislature 15, the California available fact, http://caag.state.ca.us/publications/org_crime.pdf. prison gangs, just an extension gangs often street ” “ Ibid.; Widens, Struc- the outside. on soldiers’ their ‘foot Exigencies American Prison of War: ture, Content Am. L. Rev. Twenty-Five 1962-1987,37 U. Years After Law (1987). membership gang rise, on the And 41, 55-56 prison gangs more prisoners affiliated with percentage of in the 1990’s.5 than doubled unique gangs California,6 is not problem of history are at least like no other. There ahas

but California Aryan country Brotherhood, major gangs in this five —the Family, Mafia, La Nuestra the Mexican Black Guerrilla Syndicate originated in of which Texas Familia, and the —all Unsurprisingly, has prisons.7 then, California California’s gang-related correc- largest number of country, including system the Federal Govern- tional in the 16. ment. Carlson Aryan suggest, prison gangs very like the

As their names Family organize them- Black Brotherhood and the Guerrilla gangs perpetuate along hate these lines, selves murders and as- Interracial 184. violence. Irwin Center, A National Assessment Gang Crime Research See National (STGs) Institu in Adult Correctional Security Groups Threat Gangs and 5, http://www. Survey, p. Corrections of the 1999 Adult tions: Results ngcrc.com/ngcrc/page7.htm. 6 (CA3 2002) (describ Terhune, 506, 512-513 Fraise v. See, F. g., e. 283 3d Nation, Five Percent by prison gang, a black ing single violence caused Dingle, No. Civ. Conroy v. facilities); Jersey in various New correctional 2002) (D. 11, 31357055, Minn., (RHK/RLE), *1-*2 Oct. 2002 WL 01-1626 facility, Moose Lake a medium at Minnesota’s (describing gangs rival racial security prison). 7 Offenders Needs Gangs, Special Prison Orlando-Morningstar, See D. (Oct. 1997); Irwin, Prisons also J. Bulletin, 4 see Federal Judicial Center Irwin) (1980) (hereinafter the establishment (describing 'in Turmoil 189 first the Mexican system, the California gangs and rise of inside Brotherhood, Familia, Aryan Mafia, by followed La Nuestra (CA9 948, 961 Shryock, F. 3d United States v. 342 Family); Black Guerrilla 2003) system). the California Mafia inside (detailing rise of Mexican

534 among

saults perpetrated by inmates gangs these are com- again, brutality mon.8 And, particularly is severe in prisons. g., California’s e. See, Gomez, Walker v. 370 3dF. (CA9 2004) 969, (describing “history significant tension Calipatria Prison); and violence” at State id., at 979- (Rymer, (same); (describ- dissenting) J., App. 297a-299a ing 2-year span Bay at Pelican during Prison, which there were no major fewer than nine riots that left least one wounded). inmate dead many more

C against It is backdrop pervasive this racial violence that racially segregates California reception inmates in the cen- ters’ double periods cells, for up days, brief to 60 until such time as the assign permanent State can housing. Viewed in light that context and in of the four factors enunciated in Turner, California’s pol- is constitutional: The CDC’s icy reasonably is legitimate penological related interest; alternative exercising means of right the restricted remain open to racially inmates; integrating might nega- double cells tively impact prison inmates, staff, and administrators; and easy there are obvious, no policy. alternatives to the CDC’s policy reasonably First, legitimate peno related ato logical supra, protection Turner, interest. at 89. The undeniably and staff legitimate penological in (1979). terest. See Bell v. Wolfish, 520, 546-547 id., 8 See, g., e. (describing 962-969 a host of attempted murders and murders by a handful of members); Mexican Mafia States v. United Silver stein, (CA7 1984) 1338, 1341-1342 732 F. 2d (describing murder of a black inmate Kell, members of the Aryan Brotherhood); State 61 P. 3d (Utah 2002) 1024-1025 (describing stabbing fatal of a black inmate by two Farmer, supremacists); white State 569, 570-571, Ariz. (1980) (en banc) P. 2d 522-523 (describing murder of a black inmate Brotherhood). members recruits of and the Aryan The evidence shows, and Johnson has never contested, that objective policy of California’s reducing violence among the against inmates and the staff. No desig cells are special nated for, nor are privileges afforded to, racial group. App. prison 188a,305a. Because administrators use race as a factor in making housing initial assignments “solely [its] on potential implications basis prison secu rity,” assignment practice cell CDC’s is neutral. Thorn burgh (1989); Abbott, Turner, 482 S.,U. at 90. policy

California’s bears a valid, rational connection to this component interest. prison impos- violence is sible for ignore. administrators to Johnson himself testified that he is afraid of solely violence—based on the color of his combating skin.9 In an violence, inmate’s arrival or transfer into a new setting is a critical time for inmate and staff policy protects alike. The an inmate prisoners, from they other him, from while offi- gather cials more including gang information, his affiliation, compatibility about his App. other inmates. 249a. This connection between racial violence and the makes “arbitrary it far from supra, or Turner, irrational.” 89-90.

Indeed, Johnson perfectly concedes that it would be consti- tutional for California to take part account of race “as of an analysis proclivity overall upon violence based a series existing of facts prison.” in Arg. Tr. of Oral 15. But precisely that is what California does. It takes into account a host of factors geographic addition to race: or national

9Specifically, Johnson testified:

“I was incarcerated at Calipatria before the major riot broke out there with Mexican black inmates.... If I stayed there, have would I would have been you involved that because have four each there and facilities facility went on major riot and a lot people got and injured hurt just your based on skin color. black, I’m if I was there I would have added). been hurt.” 102a App. (emphasis

536 needs, crim- health, medical size, mental physical

origin, age, Supra, at 527. gang affiliation. history, course, and, of inal in cells to double assign simply inmates does not California separates intra- also on race—it reception based centers Hispanies or (for southern from racially example, northern offenders). from nonviolent violent exercising restricted means Second, alternative supra, Turner, Johnson. like open inmates to right remain contest, not does and Johnson submits, The CDC at 90. voca- integrated: work, fully prison life are all other facets dining exer- halls; and assignments; educational tional, and And after App. 250a. facilities. yards recreational cise may center, inmates reception period at a brief detention absence regardless of race own cellmates their select Simply Id., at 311a-312a. security overriding concerns. spend, vast to continue spent, will put, has Johnson the race on limitation from free of his sentence bulk his cellmate. the accommodation to establish fails

Third, Johnson re- without cells to double assigning inmates e., he seeks —i person- impact significantly gard race—would to prison resources. allocation and the inmates, other nel, Prison supra, 90. at Turner, 226-227; Harper, S., at 494 U. up going to cells without the double see into cannot staff cannot staff so the windows cover can inmates them, and lim- of the Because App. 306a. all. cells at inside the see many cells, it “would oversee of staff number ited needed were the staff if very to assist difficult gang at- Coordinated Ibid. places one time.” several prison officials leave could cellmates nongang against tacks diverting any event, effectively. respond unable elsewhere. disrupts services cells monitor resources Then, too, fights the cells are likely over spill to the exercise yards and common Ibid.; see also id., areas. 187a. As Turner made clear: “When accommodation of an asserted will right have a significant effect’ on ‘ripple fellow inmates or on prison staff, courts should be def- particularly erential to the informed discretion of corrections officials.” S.,U. at 90; see also White v. Morris, 832 F. Supp. (SD 1993) Ohio (racially integrated double-celling con- tributed to a race riot in which people murdered). were California prison officials are united in the view that racially double integrating cells in the reception centers would ‍​‌‌‌​‌​‌‌‌​​‌‌‌​‌​​​​‌​‌‌‌​​‌​​​​​​​‌‌‌‌‌‌‌​‌‌‌‌‍lead to serious violence.10 This is precisely the sort of testimony that the Court found persuasive in Turner itself. 482 U. S., at 92.

Finally, Johnson has not shown that there are “obvious, easy alternatives” to the CDC’s Id., policy. 90. Johnson contends that, for newly admitted inmates, prison officials need only look to the information available the presen- tence report that must accompany convict to prison. See Cal. Penal Code 1203(c) (West §Ann. 2004); Cal. Rules of Ct., Crim., 4.411(d) (West Rule 2004). Supp. But prison officials already do this to the extent they can. Indeed, gang affiliation, not is the race, first factor in determining initial housing assignments. App. 315a. Race becomes the pre- dominant factor only because gang affiliation is often not known, especially with regard newly admitted inmates. theAs Court of Appeals pointed out: is “There little chance id., (Cambra See declaration) (“If 245a-246a race were to be disre garded entirely, however, I certain, am based upon my experience with CDC prisoners, that... there will be fights in the cells and the problems will emanate onto yards”); id., the (Schulteis at 250a-251a declara tion) (“At CSP-Lancaster, if we were to disregard the initial housing place ment [according race], then I am certain there would be serious violence among inmates. I have worked five different CDC institutions and this them”), would be true all for epi- past violent forthcoming their about will be

that inmates accuratе provide an activity as to so gang or criminal sodes 791, 806 F. 3d inmate.” picture of dependable had if the CDC Even App. 185a, 189a. (CA9 2003); also see than more prescreen resources manpower and pre- through leafing yearly, it receives 40,000 new they what officials tell not reports would sentence dissenting). J., ante, at 521-523 to know. need (Stevens, segrega- regard to the with case closer presents a Johnson facilities. between transfers CDC prisoners whom tion of segregate need less has California it, I understand As (since deal great already knows it whom prisoners about process and classification initial undergone the they have time). does this However, period of some housed been in- integrating transferred racially inevitably mean not For easy, alternative. a true obvious while mates, gang since awith may affiliated have inmate instance, an vio- past lack or his assessment, official last CDC’s confinement of close absence due to may been have lence , policy does CDC’s races. of other members a leader neglect; California or laziness from appear to arise (“The Carlson gathering. See intelligence in institutional verify- and gathering intelligence staff CDC devotes on prisons and both information,” ing inmate-related is to transfers streets). the applying short, the aside set we that requiring irrational,” “arbitrary or not administrators. contrary of judgment the considered supra, at 89-90. Turner,

Ill applicable scrutiny strict majority claims The its and precedents this Court’s on based of review standard wrong on It is classifications. racial skepticism general scores. both

A S. Washington, U. Lee before, Only once constitu- considered curiam), this Court has (per tionality of prisons. majority classifications in applied claims that Lee heightened “a standard of review.” Ante, at 506. But Lee did not applicable address stand- ard of review. And even if it bore on the standard of reviеw, support Lee would the State here.

In Lee, three-judge District Court ordered Alabama to desegregate prisons its under Brown v. Board Education, (1954). 347 U. Washington S. 483 Lee, Supp. F. (MD 1966). 331-332 doing, Ala. In so the District re- Court jected any notion “consideration^] security or discipline” justified “complete permanent segrega- tion the races in all the penal Alabama facilities.” Id., at 331. However, the District Court noted “that in some iso- lated security instances discipline necessitates segregation Ibid, (foot- of the races period.” for a limited omitted). note provided only It example one ‘tank’ —“the large used . municipal jails . . persons where intoxicated placed upon their initial kept incarceration and they until become sober,” id., n. 6—and the court left unmen- why tioned it necessary would have-been separate drunk whites from Birmingham blacks on a Saturday night. per

This Court, in opinion, curiam, one-paragraph af- firmed the District Court’s order. It found “unexception- only able” general District Court’s rule that whole- segregation penal sale facilities was unconstitutional, but also District Court’s “allowance for the necessities of prison security discipline.” Lee, 390 S.,U. at 334. In- deed, Black, Justices Harlan, and Stewart concurred explicit

“to make something gathered left to only by implication opinion. from the Court’s This is that right, authorities have acting good the in faith particularized and in circumstances, to take into account racial in maintaining tensions security, disci- pline, good and prisons jails.” order in and Ibid. “ex- an such that “unwilling to assume” were Justices Those this of evinc[e] dilution [would] pronouncement plicit Amendment’s Fourteenth to the commitment firm Court’s Ibid. discrimination.” of racial prohibition review, of applicable standard nothing the about Lee said segre wholesale Surely Alabama’s was no need. there for under even unconstitutional was prisons gation its pris review, applies within that stаndard deferential more simply in Lee opinion per curiam brief, Court’s This ons. places majority interpretation the weight or bear the cannot Part Mall v. Bonner Mortgage Co. Bancorp See U.S. on it. skep customary (1994)(noting “our nership, U. S. reasoned lack dispositions that per curiam toward ticism Jordan, Edelman opinion”); full of a consideration (1974). 651, 670-671 heightened standard Lee announced if had even Yet also Lee race, pertain to policies that review pol- California’s exception to the standard an out carved ex- concurrence Lee satisfy. theAs certainly icy would “the ne- exception for Court’s objection, the plained without “prison discipline” meant security and cessities of partic- in good and acting right, háve the authorities faith tensions account into circumstances, to take ularized prisons good order security, and discipline, maintaining and Harlan, Black, (opinion of S., at jails.” 390 U. added). (emphasis concurring) JJ., Stewart, wholesale cry from a far California’s —which Lee’s within squarely fall in Lee—would segregation at issue pol- California’s argued that never has exception. Johnson protect a desire than anything other icy motivated of the nature “particularized” And staff. inmates trans- only new applies It policy is evident: cells, and only double prisons, handful only in a fers, months. two than more no period of only for a then majority create, Lee did following test name opts demanding for a more standard of.review than Lee's language arguably supports. even majority heavily The relies on this Court’s statement that “ ‘all [imposed by government]... classifications must analyzed by be reviewing scrutiny.’” court under strict deleted) Ante, (emphasis at 505 (quoting Adarand Constrc 227). tors, Inc., 515 S.,U. Adamnd nothing has to do with this case. Adamnd's statement that “all racial classi subject fications” are scrutiny to strict addréssed the conten tion that favoring classifications rather than disfаvoring exempt. blacks are Id., at 226-227; accord, Grutter v. Bol linger, (2003) U. (Thomas, S. 306, 353 concurring J., part and dissenting part). None of these statements overruled, sub silentio, progeny, Turner and its especially since repeatedly the Court has held that constitutional de mands unique diminished prisons. context of See, g., e. Harper, 494 S.,U. at 224; Abbott, 490 S.,U. at 407; Turner, 482 S.,U. at 85; see also Webster v. Fall, 266 U. S. (“Questions merely which lurk in the record, brought neither to the attention of the court nor upon, ruled are not to be having considered as been so decided as to precedents”). constitute

B majority The offers various other reasons for applying scrutiny. strict persuasive. None is majority’s The main “Turner’s, reason is that reasonable-relationship [applies] test only rights that are ‘inconsistent proper with incarcera Ante, tion.’” (quoting at 510 Overton v. Bazzetta, (2003)). 126, According majority, question thus right whether a necessarily “need compromised proper the sake of prison administration.” Ante, at 510. This inconsistency-with-proper-prison-administration test begs question at the heart of this case. For a court to know particular whether right is inconsistent with proper prison administration, it implicit must have some no tion proper prison what a ought to look like and how it supra, at 139 (Thomas, Overton, be administered. ought case in this issue very But in judgment). concurring J., is permissible. second-guessing such is whether Inquiring Turner. eviscerates majority’s test prison ad “proper right given is consistent whether that judgments precisely the sort for calls ministration” In none equipped to make. ill were said courts Turner judgments the to deferred Court which the the cases whether it examine did Turner under prison officials greater permitted discipline security and “proper” prison (Abbott, supra; Shaw, rights speech or associational the courts expanded access supra); Overton, and 223; (1996)); from freedom broader (Lewis Casey, S. U. exercise free supra); (Harper, or additional bodily rеstraint steadfastly 342). has (O’Lone, The Court S. 482 U. rights in standard-of-review threshold undertake refused today majority resur settled, and quiry that Turner these out, pointed Turner good reason: As And rects. officials to the instance the first left in judgments are better its judges who run to the prisons, not run our Nation’s who courts. gives majority deference, usual place Court’s of the In “proper” guesswork about own to its force conclusive hypothesizes that California’s It administration. Ante, hostility.11 diminish, than might incite, rather study of is a speculation for its support empirical sole majority’s 11 The in ra higher of violence the rate found desegregation Texas Mar- & (citing Trulson Ante, 507-508 at cells. double cially segregated Conse of the Understanding an Toward Pot: Caged Melting The quart, (2002)). 743, 774 Rev. Prisons, & Soc. Law Desegregation quences Califor Texas —like note specifically However, authors study’s “transfer its or facilities” diagnostic “initial its integrate nia —does nothing about says study Thus the id., 753, n. 13. facilities.” thrown are when cells integrating result from likely to violence study What transfer. or admittance during periods for brief together inmate-related gather time had the that, has once Texas say is does racially inte- assignments, housing permanent more make information majority's speculations at 506-508. implausible. The strong New promptly arrivals have a convincing interest in willingness other inmates of their to use violent force. See Brief for National Association of Black Law Enforcement Of ficers, Inc., as (citing commentary Amicus Curiae 13-14 congressional findings); Santiago, cf. States v. United (CA9 1995) 3d (describing F. 885, Hispanic one inmate's join Mafia); murder of another in order to the Mexican (CA7 1984) United States v. Silverstein, 1338, 1341 732 F. 2d (prospective Aryan members of the must “make Brotherhood bones,” eligible or commit a membership). murder, majority’s guesswork event, the falls far short of the compelling showing needed to overcome the deference we owe to administrators. majority “[has] contends that the put Court thе bur-

den on state actors to poli- demonstrate that their race-based justified,” cies are ante, “[has] n. refused to defer to judgments state officials’ on race in other areas traditionally where those officials exercise substantial discre- tion,” ante, 512. ago, at Yet upholding two Terms the University Michigan Law pro- School’saffirmative-action gram, this judgment by Court deferred to the the law faculty school’s and administrators diversity on their need for (“The body. in the supra, student Grutter, See at 328 Law judgment School’s educational diversity that... is essential defer”). to its educational mission is one to which we Defer- ence would seem all the prison more warranted in the con- text, for whatever the administering Court knows of educa- tional institutions, it knows much less administering about penal potential consequences ones. The second-guessing judgments prison the administrators are also much more (SD severe. Supp. See White v. Morris, F. 1129, 1130 1993) (racially integrated Ohio double-celling that resulted grated may cells the preferred be option. But open California leaves door: Inmates generally free to room with they like on whomever a permanent basis. the worst decree was factor from federal consent importantly, history). I have ex- as in Ohio More riot exacting typically recognized plained, that the the Court has rights applies must restrictions on fundamental review it g.,Harper, prisons. unique See, e. in the context of be relaxed Turner, S., 482 U. S., 407; at S., 224; Abbott, at 490 U. 494 U. majority on the Constitution’s The cannot fall back 85. always been have those demands demands, usual because supra, at 529. walls. inside the lessened may policy majority also mentions that California’s The only virtually all other one of its as States kind, systems manage without their Federal Government racially segregating Ante, 508-509. This is inmates. is irrelevant because both irrelevant and doubtful. It lead mat- California’s number of States that have followed (the only issue аpplicable of review ters not to the standard decides), today satisfies whether California the Court but to majority applies, question leaves whatever standard uniqueness of words, other be addressed on remand. policy might is reason- whether the show California’s apply deciding narrowly whether to able or tailored —but depend scrutiny must in the first instance Turner or strict inconsistency-with- majority’s something else, on like of Cal- proper-prison-administration test. The commonness strict housing policy irrelevant because is further ifornia’s scrutiny applies discrimination of racial now to all claims challenged being policies prisons, regardless of whether the are unusual. two because at least majority’s doubtful, assertion newly in- policies apply admitted

other similar States assign California, Texas, and like mates. Both Oklahoma segregated racially in their newly cells admitted inmates to similarity surprising: is not prison reception centers.12 The Procedures, Oper Corrections, Policies and Dept, See Oklahoma 2004) (Sept. OP-030102, Housing Inmate No. ations Memorandum reasons of [f]or ... reception center and (“Upon arrival at the assessment historically had the and Texas have like California States prison gangs. problems However, even most severe with problems policies like maintain States less severe necessary to deal with race-related California’s Utah, Alabama, AJaska, violence. See Brief for States of Hampshire Dakota Delaware, Idaho, Nevada, New and North Relatedly, 16. 10.3% of all wardens as Amici Curiae security report maximum States facilities the United racially segregated apr assigned their inmates are to cells— parently permanent Henderson, Cullen, Car on a basis. Feinberg, Rights, A roll, Race, and Order Prison: Na & Survey Integration of Prison tional of Wardens on Racial 2000). survey, (Sept. Cells, 295, 304 80 Prison In the same J. report that their have an official 4.3% of the wardens States racially policy against integrating Id., inmates in cells. male Presumably, prisons at 302. for the remainder of in which racially assigned segregated to cells, inmates are discretionary is the decisions wardens rather result any event, than of the on officialstate directives. Ibid. way going racial violence in debate about the best to reduce prisons by judicial should not be resolved decree: It job “of to make courts, administrators ... and judgments concerning operations.” the difficult institutional Jones, S., 433 U. at 128. majority already also observes that we have carved exception Eighth

out an to Turner for Amendment claims of punishment prison. Hope Pelzer, cruel and unusual safety assigned are not security, newly generally and received inmates cells”) (available racially randomly integrated http://www.doc.state. Justice, Security Memo- ok.us/docs/policies.htm); Dept, Texas of Criminal SM-01.28, Population Two-Person Assignment randum No. General 2002) (June 15, reception diagnostic arrival at a (“Upon Cells newly-received offenders safety security, center . . . reasons of [f]or racially cells due to the assigned randomly integrated are not generally criminal an offender’s specific fact that information needed assess history diagnostic processing available victimization is not until after completed”). has been

546 (2002). 730, context, In that we have held that

“[a] prison official’s indifference’ to a substan ‘deliberate Eighth tial harm to an inmate violates the risk of serious Brennan, Farmer v. U. S. Amendment.” (1994). challenging inmates’ Setting claims aside whether cognizable under the conditions of confinement should be Eighth McMillian, all, see Hudson Amendment dissenting), the “deliberate 1, 18-19 (Thomas, J., majority’s ar indifference” standard does bolster gument. anything, to standard is more deferential If judgments prison than Turner's administrators subjects reasonable-relationship prison officialsto lia It test: subjectively bility only they to aware of risk when they reasonable measures inmatе, fail to take certainly supra, at It does Farmer, 847. abate the risk. exception imposes of an not demonstrate the wisdom , prison heightened on the actions of review standard officials. subjects prison majority’s officials decision

Moreover, the conflicting competing perhaps case, In this demands. uniformly ran- averred that officials have California poses risk of serious harm double-celling a substantial dom If App. 251a. California 245a-246a, to the celled inmates. regard race, assigned cells without to double inmates might seem result, that would knowing full well violence Robinson very indifference. definition of deliberate 2001) (CA9 (prisoner al- Prunty, 3d 864-865 249 F. administra- Eighth violation because leged Amendment an releasing into race when tors had to consider failed (CA8 1191, 1201, yards); Clarke, 3d 94 F. Jensen v. 1996) (court by prison double-celling offi- held that random in- affirmed an indifference, and deliberate cials constituted officials). against the attorney’s junction awarded fees prove that inmate need would a victimized Nor particular attack; it would anticipated any officials had dangerous condi- ignored officialshad sufficient that housing ongoing interracial chronic and was tion that —like prisons dominated ra- quarters within closely confined supra, Farmer, 843-844. Under gangs. Farmer, cial to take account of ordered prison have been officials could they may to turn a blind very now have thing to which the eye: inmates’ race. parade de presents of horribles

Finally, majority a the applying the Turner standard would signed to that show segregate in grant prison discretion to officials unbounded prisons. ante, 513-514. But we throughout at See mates prison check to offi Turner as a blank treated have never long contrary, had “confi has this Court cials. to the Quite standard is not toothless.” a reasonableness dence that ... omitted). (internal quotation marks S., at 414 Abbott, 490 U. only segregate cells, be double officials Cаlifornia only particularly to monitor— difficult those cells cause housing yards, general “dining areas.” halls, unlike policy . the narrow, not so Ante, at 514 Were California’s disposal its ca might race-neutral means at well have State sacrificing rights accommodating prisoners’ without pable of majority safety. at 90-91. Turner, S.,U. their See ably polices say why all other standard Turner’s does not just In discrimination. infirmities, not racial constitutional apply first time it is not the refusal event, —for that in the context of review standard ever—a strict jurispru “fundamentally odds” with our constitutional at majority’s re it is the Instead, 1. Ante, n. dence. expert judg defer to the the first time ever—to fusal—for prison officials. ment of

IV analysis, possible, even scrutiny “it is Even under strict pol- the current likely, could show officials 2003) (CA9 (Fer- 1117, 1121 icy 336 F. 3d meets the test.” Pregerson, Reinhardt, joined by guson, Nelson, and J., banc). rehearing As en dissenting denial of from JJ., compelling interest concedes, have all States Johnson security prisons. within their maintaining and internal order Procunier, 416 also Reply 18; for Petitioner see Brief question will be whether on 404. Thus remand S.,U. narrowly serve California’s tailored CDC’s the absence compelling remand, on And Ibid. the District Court.14 mand before rea- alleged only “is not again that the CDC’s Johnson the legitimate penological of sonably interests related to the 23). (Fourth ¶ Complaint App. 51a Amended CBC.” immunity to granted qualified After the District Court again appealed. defendants, once the Johnson some of Appeals, assumed of Johnson the his brief before Court 13 offi prison judgments of account, deference to the majority's On the to ac presumably warranted scrutiny application of cials the strict ante, at 515. present,” prisons] special [that “the count for circumstances (2003). disagree Although I Bollinger, U. S. 328 See Grutter v. 539 classifica scrutinizing racial when normally appropriate that deference because this case majority’s qualification tiоns, logic some the there is in the been diminished always have demands the Constitution’s 407; Abbott, S., U. at 224; 490 S., 494 U. g., Harper, e. See, context. (1987). 78, 85 Safley, Turner Washington, Lee Turner and cited both Appeals of Court constitu curiam), that certain proposition for the (per U. S. ra state-sponsored against protection among them protections, tional However, Court setting. discrimination, extend to cial review, it at did nor standard applicable not discuss the Appeals did majority Lee Turner and between tension to resolve the tempt finds.

both applied, arguing Lee Turner without that there was any tension between them; indeed, nowhere in his brief did Johnson even scrutiny.” mention the words “strict Brief for Appellant (CA9), in No. pp. 01-56436 20, 26, 2001 WL Perhaps 34091249. as Appeals result, the Court of did not scrutiny discuss strict in its second' decision, the cur one rently before this Appeals Court. The Court of did ten find sion between Lee Turner; however, it resolved ten this sion in Turner’s favor. 3d, 321 F. at 799. Yet the Court of Appeals accepted Lee’s may test at face Prison value: officials “ only make good racial classifications ‘in particu faith and in larized circumstances.’” 321 3d, F. at 797. The ‍​‌‌‌​‌​‌‌‌​​‌‌‌​‌​​​​‌​‌‌‌​​‌​​​​​​​‌‌‌‌‌‌‌​‌‌‌‌‍Court Appeals, like equate Johnson, did not Lee’s test with strict scrutiny, and in fact it scrutiny mentioned strict only when quoted portion it rejects of Turner scrutiny strict proper as the standard of review in the context. 321 F. 3d, at 798. Even leap Johnson did not equating make the Lee scrutiny with requested strict when he that the Court Appeals Appellant’s rehear his case. Petition for Panel Rehearing Suggestion Rehearing En Banc in (CA9), pp. No. 01-56436 leap 4-5. That was first made judges who dissented from Appeals’ the Court of denial rehearing en banc. 336 (Ferguson, 3d, F. joined J., by Pregerson, Nelson, dissenting Reinhardt, JJ., from banc). rehearing denial of en

Thus, California is now, after discovery, the close of sub- ject stringent to a more standard it than had reason to anticipate from pleadings, Johnson’s Appeals’ the Court of initial dеcision, or even the Appeals’ Court of decision below. In such pre- circumstances, California be should allowed to sent tailoring, evidence narrow evidence it was obli- never gated present appearance in either before the District Court. See Lucas v. South Coastal Council, Carolina (remanding 1031-1032 for consideration standard); legal under the correct id., at 1033 J., (Kennedy, concurring judgment) (“Although we a establish frame- [constitu- the ultimate decide remand,... we do not work for necessary to the [t]he deter- [because] question tional] facts record”). developed not been have mination ^{[*] [*] [*]} permanent, challenges but Johnson Petitioner Garrison pris- only portion California’s temporary, segregation a incarcerated, Califor- years has been Johnson ons. theOf more for no race assigned same a cellmate nia him has months); (and year probably Johnson more like four than a years, during but the other black cellmates has had if Nothing in record demonstrates his own choice. (or requested housed prisoner) other Johnson (though be denied John- it person race, would of a different way). might Crips his stand gang affiliation with son’s prisons ra- California’s concedes that Moreover, Johnson being at- in fear cially places, he lives and that violent Perhaps the CDC’s on remand his race. because of tacked it scrutiny, in the event but policy will strict survive victory. Pyrrhic may well have won not, does Johnson notes The other dissent interest.13 (opinion of question, ante, at 518-621 see of evidence on that J.), hardly fault. but that is California’s Stevens, alleged, terms has himself outset, Johnson . From “not related policy is Turner, taken from CDC’s legitimate penological Johnson California, interest.” curiam) (CA9 2000) (discussing (per John- 207 F. 3d reinstating Complaint). Johnson’s Third Amended son’s dis- following Court’s protection District equal claim allegation, Appeals repeated Johnson’s missal, the Court scrutiny apply on re- indicating should that strict without

Case Details

Case Name: Johnson v. California

Court Name: Supreme Court of the United States

Date Published: Feb 23, 2005

Citation: 543 U.S. 499

Docket Number: 03-636

Court Abbreviation: SCOTUS