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Jewish World Review April 16, 2003 / 14 Nisan, 5763

Jonathan Turley

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End Apartheid in the State Prisons | The coming year will mark the 50th anniversary of the U.S. Supreme Court's landmark decision in Brown vs. Board of Education, in which it struck down the infamous "separate but equal" doctrine that justified our long history of racial segregation.

Ironically, the court may at the same time hear a case that would revive the doctrine in a new context. Last month, the U.S. Court of Appeals in San Francisco upheld a policy of the California prisons to segregate prisoners according to their race or ethnicity when they enter the system.

It appears that many prisoners do not approve of racial or ethnic intermingling, and California prison officials have decided to keep the peace by giving in to their demands. In this way, the state has rediscovered the dubious social value of racial apartheid as a means of achieving racial harmony.

The state separates Latino prisoners into groups from Northern and Southern California. Likewise, Japanese prisoners are never housed with Chinese prisoners.

A prisoner is housed with his own "kind" for the first 60 days, and then he or she is allowed to pick a cellmate. Because of the initial state-enforced segregation, however, the pressure to remain within a group not only is imposed by inmates, it remains sanctioned by the state.

Prison officials clearly are not segregationists at heart, just in practice.

California prisons are rife with race-based gangs, which periodically erupt into open warfare -- sometimes involving hundreds of prisoners. In the past, the state has used mass transfers to effectively give rival gangs their own prisons, according to the court, thus curiously ending turf wars by yielding to them.

The solution to racial violence is not to embrace the scourge of racial division. Segregation reinforces the existing gang structures and encourages new prisoners to seek protection among their own race. The costs are not just felt in the prison, where gang structures are reinforced. Affiliations formed in prison are likely to continue on the outside, adding to California's already raging gang crisis.

Modern prison policy is based on a concept of re-creating a microcosm of a healthy, albeit controlled, society in a prison. An inmate must be compelled to comply with the standards dictated by society if there is to be any hope of breaking the common cycle of recidivism.

Segregation policies may reduce racial violence, but only by accommodating racist tastes -- a dangerous form of appeasement.

If it is true, as one California prison official testified, that you "cannot house a Japanese inmate with a Chinese inmate [because] they will kill each other," then it is time that they are forced to live according to a new code. It would certainly be better that they meet in a controlled prison environment than on a crowded street.

The public has a right to expect more from a state agency that employs in excess of 49,000 people -- more correctional officers than any other state.

The court recognized there may be many ways for prisons to reduce racial violence other than segregation. However, the court put the burden on advocates of desegregation to show that "the accommodation of the inmates' rights would not affect inmate or staff safety." But this demands proof of the unprovable: Though other states use better monitoring and screening to deter racial violence, it is impossible to prove beforehand that desegregation would have no negative effects.

The court stressed that, though separated, the races are treated equally. This is the same rationale used in the 1960s for separate areas in public buildings, education and accommodations. It was argued then that racial mixing had produced tension and violence. Yet society ultimately refused to yield to the alleged conveniences of racial segregation.

The solution is not easy, but we must regain control of the prisons and compel prisoners to live according to our core values. It is always tempting to avoid racial tension by yielding to racial separation. However, although there may be costs to desegregation, we have learned that the costs of embracing the conveniences of racial segregation are much higher.

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JWR contributor Jonathan Turley is a law professor at George Washington University. . Comment by clicking here.

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© 2002, Jonathan Turley