The U.S. Supreme Court recently decided that if California officials want to segregate prisoners by race, they have to justify it by the same legal standard as segregating non-prisoners by race: that such segregation is necessary to achieve a “compelling state interest.” The Ninth Circuit Court of Appeals had used an easier standard: that such segregation is “reasonably related to a legitimate penological interest.”
The interest we’re talking about is safety, including safety of life and limb. The practice in question is the housing of new prisoners in two-man cells. For their first 60 days only, men new to a prison are not put in with men of other races. Certain ethnic groups, including Japanese and Chinese, are not mixed. The reason, the state says, is that so many prisoners are associated with racial gangs such as Nuestra Familia, the Black Guerrilla Family and the Aryan Brotherhood. California says its policy reduces violence.
The Court did not rule whether California could do this, but it set a difficult-to-achieve standard for judging it. I wouldn’t have, for this reason: these are prisoners. Their rights have been taken away. The state tells them when they can eat, when they can exercise, and otherwise puts them in steel cages. Surely the state can take race into account in an effort to protect them from violence.
But if the practice has to meet the higher standard, I’d say it meets that standard. The Court has said the need for racial diversity on university campuses meets the “compelling state interest” standard. Is this not at least as compelling as that? (A lot more, I think.)
Washington does not separate prisoners by race, said the acting secretary of corrections, Eldon Vail, last week. “We don’t do that,” he said. “We try and focus on behavior.” He said the policy seemed to work all right, but allowed that Washington’s policy was “perhaps riskier” than California’s.
Respond to Bruce.