Metropolitan News-Enterprise


Thursday, January 24, 2013


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C.A. Says Racial Segregation in Prison Violates Equal Protection


By JACKIE FUCHS, Staff Writer


Pelican Bay State Prison’s practice of racially segregating certain prisoners and denying them privileges granted to prisoners of other races violates the Equal Protection Clause, the First Appellate District Court of Appeal ruled yesterday.

Div. Three unanimously upheld Del Norte Superior Court Judge Robert Weir’s order directing prison officials “to refrain from affording preferential treatment to inmates on the basis of ethnicity.”

The ruling comes in litigation brought by Jose Morales, a Pelican Bay inmate serving an indeterminate life sentence for first degree murder. When he arrived at the prison in 2008, prison officials classified him as a southern Hispanic, one of the five racial/ethnic classifications used by Pelican Bay officials for its general population inmates.

The others are white, black, northern Hispanic, and “other.” Morales testified that he was never given a choice to decline an ethnic classification, to choose another classification, or to challenge the classification assigned to him.

Classification Score

Under state regulations, all persons entering the penal system are to be given a classification score, which determines an inmate’s security level and which prison officials use to determine program and cell assignments.

In a prior ruling on prison segregation, Johnson v. California (2005) 543 U.S. 499, the court held that government officials are not permitted to use race as a proxy for gang membership and violence without demonstrating a compelling government interest and proving that their means are narrowly tailored to advance that interest.

In 2008, the California Department of Corrections and Rehabilitation began implementing regulations to ensure that an inmate’s race would not be used “as a primary determining factor in housing an institution’s inmate population.” The regulations establish a validation process for identifying an inmate as a member or associate of one of seven designated “prison gangs,” that is, gangs originating in prison and formed along racial lines, or a “disruptive group,” that is, a criminal street gang that did not originate in prison but operates there.

Integrated Housing Policy

The integrated housing policy has not, however, been implemented at Level IV maximum security prisons like Pelican Bay. Instead, Pelican Bay uses the validation process only for prison gang members targeted for sequestration in its security housing unit, commonly referred to as the SHU, a separate complex designed to impose harsher conditions than the prison’s general population housing.

Pelican Bay does not use the validation process for suspected street gang members because, according to prison officials, the process is lengthy they do not have time to conduct the investigations.

Instead, to minimize and control gang violence among the general population of inmates, Pelican Bay utilizes an unwritten classification system in which every general population inmate is assigned to one of the five racial or ethnic groups. Color-coded signs are placed above the cells: white for white, yellow for other (mostly Asians), blue for black, red for southern Hispanic, and green for northern Hispanic.

Such group designation is the primary factor used by prison officials to determine housing assignments, activity levels, and restrictions, including an inmate’s access to programs and activities during periods of unrest when the prison implements partial lockdowns, some of which last for years. Lockdowns can be imposed on the entire prison or on a specific facility within a prison.

A modified program is less restrictive than a lockdown and typically involves suspension of various programs or services for a specific group of inmates and/or in a specific portion of a facility. The specifics of a modified program may change over time depending on evolving threat levels.

Violent Incident

In 2008, shortly before Morales arrived at Pelican Bay, there was an incident in which two inmates classified as northern Hispanics attacked a southern Hispanic inmate. In response, prison officials imposed a modified program on Facility B which remained in effect until July 2011, when terminated by Weir’s order.

During that nearly three-year period, prison officials imposed varying restrictions. During one week, all Hispanic inmates were denied visits, work assignments, phone calls, and canteen privileges, and religious services were limited to in-cell religious study upon request for black, white and Hispanic inmates.

At other times, inmates classified as black, white, and “other” were allowed daily yard recreation, while northern Hispanics were allowed four days of yard access, and southern Hispanics were denied all access and were escorted in restraints outside their cells and denied all visitation, even with family members.

Testimony showed that Pelican Bay made attempts at reintegrating Hispanic inmates over the years, but that such attempts failed. The Mexican Mafia and Nuestra Familia prison gangs were at war throughout the state, and southern Hispanic street gang members, who were associated with the Mexican Mafia and often referred to as Sureños, and northern Hispanic street gang members, who were associated with Nuestra Familia and referred to as Norteños, would attack each other on sight.

Because of such security concerns, only inmates classified as “other” were permitted as the prison work force. Those inmates, mostly Asians, worked double shifts cooking, doing laundry, and handling the garbage, while inmates of other races were denied visitation, exercise, religious services, and other privileges.

The warden defended the practices as a response to long-standing and constant hostilities between rival Hispanic prison gangs and their disruptive group affiliates, saying that the groups’ repeated efforts to attack each other at every opportunity threatened the safety and security of all the inmates housed there and the staff responsible for them.

But Weir ruled that there were more narrowly tailored means of controlling violence than to restrict entire ethnic groups, and ordered the prison to refrain from preferential treatment based on ethnicity. The order specified that the prison could, on a short-term emergency basis, separate inmates on such basis, but only if prison security required it and it was not done preferentially.

On appeal, the warden argued that Pelican Bay’s classification system is based not on race but on gang affiliation, and that even if the group classifications are race-based, they are justified as necessary security measures.

Justice Stuart Pollak, writing for the panel, said that whatever the reasons for Pelican Bay’s practice, it is plainly race-based and, therefore, its constitutionality must be evaluated under the strict scrutiny standard of review set forth in Johnson.

Under that standard, Pollak said, even though the compelling interest in preventing gang violence “is unquestioned,” Weir’s order was correct, because “sweeping restrictions allocating privileges and penalties based on race are far more than is reasonably necessary to prevent gang violence.”

Pelican Bay’s restrictions applied to all members of a racial group for extended and indefinite periods of time, without any attempt to determine whether they had any affiliation with a racial gang or had any responsibility for the incident that triggered the modified program or were likely to engage in future misconduct.

In addition, many of the restrictions, such as the denial of all visitation, appeared primarily punitive in nature, rather than designed to maintain security, especially when imposed on a large group of inmates for an extended period of time, Pollak said.

Presiding Justice William McGuiness and Justice Martin Jenkins concurred in the opinion.

The case is In re Morales; 13 S.O.S. 323.


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