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California DOC Settles Racially Determinative Housing Suit

by John E. Dannenberg

Upon remand from the U.S. Supreme Court (Johnson v. California, 125 S.Ct. 1141 (2005)), the California Department of Corrections and Rehabilitation (CDCR) entered into a settlement agreement with plaintiff prisoner Garrison Johnson wherein CDCR agreed to end using race as the sole determinative criterion in double-celling newly arrived prisoners.

Johnson had sued CDCR for injunctive relief prohibiting automatic double-celling based upon race for prisoners newly received at a prison. Johnson, who is Black, was frequently transferred among Californias 34 prisons, and objected to always being initially double-celled with only another Black upon his arrival. Although the Ninth Circuit had sided with CDCRs legitimate penological interest argument alleging safety concerns (Johnson v. California, 321 F.3d 791 (9th Cir. 2003); PLN, Apr. 2004, p.40), the U.S. Supreme Court reversed, holding that it is unconstitutional to use race as the determinative predicate for deciding whom to put in double cells. The high court remanded the case to the Ninth Circuit to determine what combination of selection factors might remedy the constitutional violation. Under the Ninth Circuits tutelage, the parties settled in November 2005.

The agreement declares CDCRs goal to treat all prisoners without subjection to any form of racial segregation. To this end, CDCR will create a housing protocol for assigning cellmates in reception centers using multiple criteria. Any decision shall be based on prior data bases, including the court abstract of judgment, probation or pre-sentencing report, prior incarceration records or any other documents. CDCR will develop a violence tracking system within reception centers with a special eye for violence that is racially motivated, as part its Confidential Draft Organizational Plan.

CDCR further agreed to endeavor to eventually assign cells in general population housing, using a protocol that minimizes the impact on prisoner and staff safety, modeled on the lessons learned in the reception center precedent.

Further details are found in CDCRs October 25, 2005 draft In-Cell Racial Integration Plan (ICRIP). CDCR will update its data base system (DDPS) to record housing eligibility/restrictions coded as follows: RR (racially restricted to own race); RE (racially eligible to live with any race); RW (restricted white); RB (restricted Black); RH (restricted Hispanic); RO (restricted Other) -- all of the last four only for rational and objective reasons. Determination of these needs will be done in a visually and aurally confidential interview area.

The ICRIP contemplates three phases. Phase I (March 2006) projects completion of the DDPS modifications, Reception Center incoming offender coding, and pilot Behavioral Management Units (BMU) (for individuals failing integration). Phase I will begin at Deuel Vocational Institution (DVI), with all reception centers expected to be in compliance by March 2007.

Importantly, Phase I only involves coding; housing protocols will remain unchanged. Phase II, which begins tentatively in March 2007, projects implementation of the program in protective custody and minimum security facilities. Phase III anticipates integrated housing in all facilities through attrition and new arrivals. It is anticipated to begin in March 2008.

The ICRIP also goes into definitions of racial motivation as applied to disputes in housing. When discipline is required, Form 115 Rules Violation Reports will be issued, and offenders may be relegated to a BMU for an as yet unspecified program.

Additionally, the agreement provides a payment of $12,000 to Johnson, in exchange for a dismissal of this action with prejudice. Attorney fees were remanded to the U.S. District Court (C.D. Cal.) for determination. See: Johnson v. California, No. 01-56436 (9th Cir. 2005), Settlement And Release Agreement. The settlement is available on PLNs website.

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Related legal case

Johnson v. California