SAN FRANCISCO (October 11, 2013) – Morrison & Foerster, the Equal Justice Society (EJS) and other organizations this week filed an amicus brief in federal court opposing the race-based lockdown policy used in California prisons, saying the practice is unconstitutional because it uses race as a proxy for gang affiliation.
Morrison & Foerster Los Angeles partners Benjamin Fox and Miriam Vogel, along with Los Angeles associate Hanna Abrams submitted the brief on behalf of the amici, which included (in addition to EJS): Asian American Legal Defense and Education Fund; Asian Americans Advancing Justice – Asian Law Caucus; Asian Americans Advancing Justice – Los Angeles; Asian Prisoner Support Committee; Chinese for Affirmative Action; Equal Rights Advocates; Impact Fund; LatinoJustice PRLDEF; Lawyers’ Committee for Civil Rights of the SF Bay Area; Lifelines to Healing Campaign (of PICO National Network); NAACP Bakersfield; and the National Center for Lesbian Rights.
Robert Mitchell, a California inmate, filed the lawsuit in 2008 to stop the Department of Corrections from locking down prisoners based on race. The department uses lengthy race-based lockdowns purportedly to control violence in overpopulated prisons – the only corrections system in the county that employs this method. Current and former prison administrators from other states find California’s race-based lockdowns “astounding” and “reprehensible.”
“Using race-based lockdowns is just another form of racial control in prisons,” said EJS President Eva Paterson. “The practice perpetuates racial stereotypes and biases that spread beyond the prison walls and infect all aspects of our criminal justice system.”
In the brief, the amici state that the lockdown policy fails the “strict scrutiny” test for race-based policies as set forth in Grutter v. Bollinger. The corrections department has not suggested it ever considered race-neutral approaches to protecting prisoners or prison employees from prison violence. The racial stereotyping used in prison lockdowns not only fails as a method of controlling violent incidents, the practice damages the legitimacy and integrity of the criminal justice system.
The plaintiffs challenge the lockdown practice under the 14th Amendment on the grounds that it is discriminatory to assume a person is dangerous – and to lock him down – just because of his racial or ethnic heritage. The plaintiffs also challenge the practice under the 8th Amendment, because the prisons regularly keep lockdowns in place for months and even years, during which time the prisoners of the targeted racial group never leave their cells except for showers or, if they are ill, priority medical appointments. The prisoners are typically denied any visits or calls with families, religious services, education, jobs, and library access.
Every year, California imposes more than 200 prison lockdowns on racial groups. California’s basic policy is to use race as a proxy for gang membership in its men’s prisons, so when an incident involves prisoners of a given race, the prison locks down the entire racial group. They impose race-based lockdowns to control gang violence even though their own experts estimate that at least 30 to 50 percent of prisoners (roughly 40,000 to 60,000 men) are not influenced by the gangs. Given the disproportionate minority confinement, the practice of race-based lockdowns has disproportionate impact on people of color. Last year there were 82 race-based lockdowns affecting black prisoners, 167 affecting Latino prisoners and 55 affecting white prisoners.
The brief (http://bit.ly/MitchellAmicus2013) was filed on Oct. 9 with the U.S. District Court, Eastern District of California, in Mitchell v. Felker, supporting the plaintiffs’ motion for a preliminary injunction against the California Department of Corrections and Rehabilitation. The judge has not yet scheduled a hearing on the plaintiffs’ motion for a preliminary injunction.