Thursday,
January 24, 2013
Page
1
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.
Copyright 2013,
Metropolitan News Company
