Chain the Constitution

In Johnson v. California, the Court held that it would apply strict scrutiny to racial classifications within prisons.  I'm troubled by this.

Racial equality is one of our highest goals.  Indeed, I'm indignant when my friends not of the Anglo persuasion are treated differently - in my own sight - than I am.  But when it comes to prisons, pragmatism must prevail.

In prison, constitutional values should be subordinated to:

* Protecting guards from prisoners
* Protecting prisoners from guards
* Protecting prisonsers from rape and murder.

Everything else is gravy.  It's more important that a guard not get shanked, or that a prisoner not get raped, than it is for the Constitution to flourish within prison walls.  Some might consider me cruel.  I say -- What value does the Equal Protection Clause or First Amendment have to someone being gang-raped or stabbed?

Prisons are cruel places, where gangs trade human beings for cigarettes and drugs.  Most people have even odds that they'll escape prison rape.  If state officials rationally conclude that segregation will prevent these abonimable practices, then I say, listen to the states.

Justice Jackson famously said that the Constitution is not a suicide pact.  I say that the Constitution is not an enabling charter for prison rapists.

We should make it our first priority to provide prisoners the base of Maslow's pyramid - safety first, then constitutional rights.  Until we stop prisoner abuse, all but the Fourteenth Amendment's affirmative duty requirement should be stayed inside prison walls.

Comments

[JMoore]

I haven't read the opinion, but my first reaction to this post was: you can have strict scrutiny and still provide for safety. Strict scrutiny doesn't mean per se violation. So SCOTUS says strict scrutiny applies...well if the state can show that each individual infringement meets the SS requirements(which it seems that the safety concerns you address most certainly would) then all's well in the kingdom.

[Three Generations]

I agree with your pragmatic concerns. However, I think in Johnson, the court simply said: "racial segregation = strict scrutiny" and the remanded to see if California's policy violates strict scrutiny. The court explicitly refused to rule on whether it violates the EP clause. I think part B of the majority opinion addresses Thomas' dissent which would have applied the deferrential standard of Turner v. Safley. The court basically relies on Adarand and Lee v. Washington. The deferrential standard of Turner is very lax; "whether regulations burdening prisoners' fundamental rights are reasonably related to legitimate penological interests".

I understand there is a compelling need for security in prisons and one of the only ways to provide that may be racial segregation. However, I don't think that warrants reducing the standard of scrutiny.

[Three Generations]

Also, see this L.A. Times article and this post.