How could the Ninth Circuit Court of Appeals--reputed to be the nation's most liberal federal appellate court (1)--reject a constitutional challenge to "separate but equal" housing of blacks and whites (2) in prison reception centers? "Common-sense," replied the circuit court in Johnson v. California. (3) It did not matter that the ruling invited comparison to Plessy v. Ferguson, (4) which upheld the Jim Crow laws of the post-Reconstruction South. (5)
When considering Johnson v. California, the Ninth Circuit had before it the most "illiberal" practice: the California Department of Corrections ("CDC") employed race as the determinative classification criterion in assigning inmates to the double-occupancy cells of its reception centers. (6) New male inmates as well as males transferred within the CDC prison system resided there for some sixty days. (7) Segregation by race invariably resulted; (8) to do otherwise would invite interracial violence, particularly among inmates affiliated with rival gangs--or so the defendants asserted. (9) Though corrections officials proffered no empirical evidence of racial violence in the reception centers to substantiate their fears, (10) the court of appeals ruled in their favor. (11) In Johnson, the Ninth Circuit concluded that "common-sense" dictated that the races be separated to abate possible violence. (12)
Common sense may have its virtues, but not when adjudicating equal protection claims. The Ninth Circuit's reliance on common sense in its means-ends scrutiny resulted in a decision influenced by "everyday maxims, beliefs and ideas about race" (13)--the normative basis for common sense racism.
The Supreme Court in its 2004 Term overturned the Ninth Circuit's ruling in Johnson v. California. (14) Justice O'Connor's majority opinion in Johnson brings to mind F. Scott Fitzgerald's reprise in The Great Gatsby: "So we beat on, boats against the current, borne back ceaselessly into the past." (15) On the one hand, the Court departed from its longstanding policy of deferring to "the reasonable judgments of [prison] officials." (16) On the other hand, the Court crafted a "tamed" version of Brown v. Board of Education (17) that cannot undo the de facto racial segregation pervading the prison community, including its inmate subculture. Like the ruling of the Ninth Circuit, the Johnson Court will be haunted by the ghost of Homer Plessy.
Part I of this Article addresses "location, location, location." This mantra for defining prime real estate also applies to racially identified space--that is, space that comes to symbolize the stereotypical features of a racial group. Currently, the prison is the nation's most racialized type of real estate. This is the context in which we--and in this instance I am especially referring to white people like me--must understand why the Ninth Circuit's ruling in Johnson reminds one of Plessy v. Ferguson. The prison confining petitioner-inmate Garrison Johnson, much like the segregated railroad that would have transported Homer Plessy, is a large-scale institution that brings the races into physical proximity of one another, while impeding their social interaction through the race-based division of confined space.
Part II examines the contemporary origins of common sense as a juridical tool, its propensity to embrace common sense racism, and the likeness of common sense racism in the cultural portrait of incarcerated black men drawn by the Ninth Circuit in Johnson. I believe that a majority of the Ninth Circuit judges failed to recognize that "[c]ommon sense ... is what the mind filled with presuppositions concludes," (18) and thus for white judges comes replete with race inequality norms. Common sense adjudication thereby invites application of common sense racism. Because white people often lack a conscious racial identity, common sense racism is largely invisible to white judges.
In Part III, the Article returns to the adjudication of the CDC's "separate but equal" housing scheme before the Supreme Court. The Johnson Court swept aside the Ninth's Circuit's "factless" jurisprudence in favor of strict scrutiny of the CDC's "express racial classification." (19) While the Court's ruling in Johnson reinvigorates judicial scrutiny of express race-based prison policies, it will not end the widespread de facto racial segregation in American prisons. As long as inmates can exercise "freedom-of-choice" in selecting cellmates, there will likely be a "separate but equal" outcome. Moreover, the Johnson decision will not purge common sense racism from the adjudication of penal policies that side-step express racial classifications or are themselves the product of "background ideas of race," (20) which rarely evince discriminatory intent.
Part IV argues that empathy for the likes of Homer Plessy and Garrison Johnson is a value implicit in the equal protection model advanced by the Carolene Products' famous footnote four (21) and should be incorporated into the Court's multi-tiered equal protection test. Because empathy teaches equal concern and respect, courts must presume purposeful discrimination against empathy-deprived groups when they are subject to a cellmate-selection procedure that does not ensure racial integration. Finally, Part V inquiries what a youthful, imprisoned namesake of Homer Plessy would tell us about "doing time" in the new "peculiar institution," the prison of the twenty-first century. This is an institution immersed in common sense racism.
FOLLOWING THE COLOR LINE: THE RAILROAD CAR THAT BECAME A PRISON
"SEPARATE BUT EQUAL" IN THE CDC
It is not outside the realm of common sense to speculate that inmate Garrison Johnson's great-great-grandfather left the Reconstruction South for the North. If so, he might have traveled by railroad car on June 7, 1892, the day that Homer Plessy had run afoul of Louisiana's Jim Crow legislation. (22) Homer Plessy's challenge to racially segregated passenger coaches (23) finds an unlikely parallel in Garrison Johnson's contesting a prison policy that ensured "separate but equal" multiple-occupancy cells. (24)
Prisons, like railroads of Homer Plessy's America, have historically been afflicted by racism and the separation of the races. The "separate but equal" doctrine applied with full force to the housing of inmates in the pre-Brown South. (25) Moreover, Northern prisons typically segregated inmates. (26) Not until 1968 did the Supreme Court in Lee v. Washington (27) find the practice unconstitutional. In Lee, Alabama law mandated racial segregation in prison cellblocks. (28) The Court's per curiam decision did no more than affirm the district court's order for "complete and total desegregation." (29) Justice Black's concurring opinion, on the other hand, would frame the contemporary debate over the deference due prison staff. Arguably premised on the belief that integration would bring discord and violence rather than mutual respect and empathy, he called for an exception to "complete" and permanent desegregation: "that prison authorities have the right, acting in good faith and in particularized circumstances, to take into account racial tensions in maintaining security, discipline, and good order in prisons and jails." (30) In its subsequent ruling in Cruz v. Beto, (31) the Court embraced Justice Black's assertion that "the necessities of prison security and discipline" permitted temporary racial segregation. (32) What constitutes "particularized circumstances" has been a question repeatedly before lower federal courts. (33)
Nonetheless, contemporary inmates live in racially divided institutions. In many prisons, informal race-based rules govern the relations among inmates much like the Jim Crow laws. (34) "Racism," wrote a particularly astute prisoner, "still determines where you go, how you go, who you go with, what you do when you arrive, who you arrive with, and what you say when finally there." (35) The commonplace aspects of confinement include racially segregated housing, (36) with racial homogeneity in cell assignments the statistical norm. (37) Racial balkanization extends into the prison yard, cafeteria, and other public places. (38) Prison administrators often acquiesce to this apartheid-like arrangement, (39) sometimes with the expectation of exploiting racial divisions. (40)
Just as Jim Crow laws strengthened racial identities, (41) so too has de facto racial segregation in the contemporary prison. Prior to their incarceration, white inmates had been oblivious to their whiteness and the privileges it brings. (42) The onset of their imprisonment often spurs a racial awakening. One inmate observed:
During my first years of lockup, I could not escape the fact that, in other prisoners' eyes, I was white. The black prisoners reminded me daily, almost hourly, how white I was. The white prisoners reminded me how black the black prisoners were. The racial lines were continually drawn and handed to the new fish. (43) In preparing new inmates for the prison environment, the CDC, like Homer Plessy's South, embraced "racial essentialism"--the notion that race and ethnicity matter most in assigning one's place in the social order. (44) Just as railroad workers had designated the light-skinned Homer Plessy a "colored person," the CDC assigned Garrison Johnson a racial identity-that of a black man--to determine where he would reside in the reception center. (45) Thereafter, he would be permitted to select a cellmate of any race. (46) Such a choice, on a national level, will only infrequently match a black inmate with his white counterpart because a mere thirty percent of the nation's multiple-occupancy prison cells--the concrete cages inmates call "home"--are racially integrated. (47)
"COMMON SENSE" ON THE NINTH CIRCUIT
Like Homer Plessy, Garrison Johnson challenged the use of race as a classification criterion for determining where he would temporarily reside. (48) No...