Legality of Segregating Prisoners by Race

Ed Gordon explores legal issues surrounding segregating prisoners by race to prevent violence with Ramona Ripston, executive director of the ACLU of Southern California, and Paul Butler, a law professor at George Washington University.

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ED GORDON, host:

That was NPR's Farai Chideya. As you heard the American Civil Liberties Union is monitoring the situation. Ramona Ripston is the executive director of the ACLU of Southern California. She joins us via phone. We're also joined by Paul Butler, law professor at George Washington University. He joins us via phone from Miami today.

Ms. Ripston, let me start with you. We heard the sheriff suggest that there is a partnership of such between the ACLU and the prison system there. He also said though that life is important, and by inference, suggested that that should supercede the civil rights of these inmates for this particular situation. What do you say to that?

Ms. RAMONA RIPSTON (Executive Director, ACLU): Well, I agree with that. We understand that when you have an emergency, it is necessary to separate inmates. But I am very sad to report that we had another death yesterday. The rioting is now a week old, and it's not been brought under control. And African American man died yesterday afternoon. So as this fight continues, we have a very bad situation here in Los Angeles. We have a very outdated facility. We have a very bad ratio, poor ratio of inmates to deputies. We do not have enough deputies. And I think that some of the blame really has to go to the board of supervisors.

I think that more money needs to be appropriated. Working in the sheriff's department has to become more attractive. At the moment, if you want to be a sheriff, you have to spend several years inside the jail system, which is very, very old, outdated, and dangerous. We don't pay as well as other law enforcement agencies. And the situation is very dire.

GORDON: Paul Butler, let me bring you into this conversation. How problematic does this become when you see just last year a ruling about the U.S. Supreme Court that suggested that California just abandon the policy of assigning inmates to racially segregated cells? Now, there are some caveats, but again, you have to weigh the legal side to the practical side.

Mr. PAUL BUTLER (Law Professor, George Washington University): Well, the problem the Supreme Court found with the California policy is that it assumed that all inmates are in a gang, and that all of the gangs are race based. And yet California never offered any evidence about how many inmates are in gangs. So the court said that that segregation program was unconstitutional because it violated the inmates' rights to equal protection.

But one of the concerns, Ed, is that separate is never equal. The Supreme Court said that in Brown v. Board of Education. So we have to be concerned any time, especially prisons are making these kinds of racial classifications. On a certain level, the California policy is just plain silly. It not only separates blacks and whites and Latinos, but it also separates Chinese Americans from Japanese Americans. It even separates Latinos in San Francisco from Latinos from Los Angeles. California is the only nation that finds it necessary to make these kinds of rigid racial classifications. And a lot of prison authorities, Ed, will tell you that that's just not the way to go. It doesn't even work.

GORDON: Ramona Ripston, others will suggest--pick up your point, but other will also suggest what made it more complicated is that the five Justice majority also rejected the state's contention that the court should defer the judgment to correction officers who certainly understand the goings on inside, and if they have to make this policy by virtue of safety for those they house.

Ms. RIPSTON: Well, I do believe that all of us who have been involved in this situation agree that separation at this particular moment is necessary, until the situation is no longer dangerous, but let me make another observation. You know, it is foolish to think that is only Latinos and blacks who are fighting with each other. You know, Latino gangs fight with each other, so even if you're separating by race, you may have two gangs in a facility, and they will fight each other, even though they're both Latinos. When they're out on the street, they fight for turf. They fight to control the drug raid, the drug industry, so that separation is not just enough. You really need to separate the violent, the inmates who will be violent from the inmates who will be not violent.

ED GORDON: Paul, from a legal perspective, we've not seen this kind of problem become a nationwide issue. We do see Texas and Oklahoma having to consider racial assignments, but when you look at the Supreme Court involving itself, you also have to think about, ultimately, this growing and what states will have to do. When you look at these legal battles that may be down the road, what does that mean for a catch-22 that the system may find itself in?

Mr. BUTLER: Well, again, we have to be concerned any time the government starts putting people in categories based on black, white. In California, especially, there's so many people locked up that they don't have the resources to do the kinds of individual assessments of violence that Ramona correctly recommends, so really, Ed, one of the solutions is to start, to stop incarcerating so many people.

In California, there are over 100 people who are serving life sentences for marijuana possession because that was their third offense under the states draconian three strikes and you're out law. So there's this prison-industrial complex. There are people who are making money off so many people in prison, so it's a much broader human rights issue than just this most recent iteration of these race rights at the prison.

Ms. RIPSTON: Well...

GORDON: Ramona, very quickly for me, if you will, save - a large bandage, as the professor just suggested, in the immediate, what do you expect to see?

Ms. RIPSTON: Well, I think that it's quite necessary at the moment to separate people. I do think our facilities are outdated. At the moment, there does not seem to be an ability to stop this. This is one week now. Yesterday, another man died, another black man. It's a very dangerous situation. When the clergy went through the jails this week, they were unable to start it. I do think we need to pull more deputies into that jail.

I think that we're all upset and really not knowing how to stop this situation, even though we are in the jails, three and four, five times a week. There are no programs to keep men busy. Men are living in bunk-style facilities out of the city. We need more facilities. We need many, many more deputies, and we need more attention. There is not the political will, and the public just doesn't care about people in prison or jail.

GORDON: All right. Ramon Ripston, executive director of the ACLU of Southern California and Paul Butler, law professor at George Washington University. I thank you both for joining us today.

Ms. RIPSTON: Thank you.

Mr. BUTLER: It's great to be here, Ed.

GORDON: Coming up on today's roundtable: the former FEMA chief says he's been made a scapegoat for the government's poor Katrina response and Kobe's comeback. Those topics and more coming up on the roundtable.

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