The Courts, the California prison experiment and the Y Chromosome (February 28, 2005)

California has tried with courage and innovation to do something about the problem of prison violence in its state prisons.  The Ninth Circuit said they did an acceptable job.  The Supreme Court recently dissented.

The state of California established a practice of providing a short-term delay before integrating a new or newly transferred inmate into the prison population.  The practice was not motivated by malice toward anyone and was undertaken with as much charity toward all as possible.  The practice was undertaken to protect the prisoner.

Mr. R. P. McMurphy, the philosopher and sports enthusiast in “One Flew Over The Cuckoo’s Nest,” observed that males really want to do two things in life – fight and write poetry.  This is known among well meaning social scientists and cultural anthropologists as the “F & F passions” or “F2 Passions.”  Cage a bunch of misfits and rascals and cattle rustlers and others who lacked an older, strong male influence in their youth and you will find that males revert to their atavistic pursuits.

California tried to abate the pastimes in the American prison system that make the Skull & Bones antics at abu Ghraib prison look like a Sunday school camping trip.  Republican jurispruds seek to outlaw consensual anal sex among males and also impose it on unconsenting males; those who violate the Republican prohibition will be sent to prison immediately.  Reducing the violence in America’s prison is problematic, but it is a problem that requires much more public attention.

The United States Court of Appeals for the Ninth Circuit, the “Wild West Circuit” or the “Niners,” is the largest (case load, population, geography, lattes and lassoes) and most entertaining of the federal courts of appeals.  The circuit encompasses the state-nation of California and other blue states (Washington, Oregon, Hawaii) that are part of the Western Province of the Blue Nation.  Some red states are members (Alaska, Arizona, Idaho, Montana, Nevada); the bottom half of the class makes the top half possible.  Decisions of the Niners are appealed to the Big Court, the Supreme Court, the “Supremes.”  The Niners and the Supremes have a running institutional hissy fit.  At times, there has been more talent and insight and understanding on the Niners than on the Supremes.  Even per capita.  However, the Supremes have the last say.

The thing involves Race, so things got dicey.  America is still desperately and frantically trying to figure out what to do with the R issue.  When matters involving R arise, all logic and clear thinking often goes to hell.

The forces of light (O’Connor, Ginsburg, Souter, Breyer and Kennedy) wrote the majority but flawed opinion for the Supremes.  Two years earlier, some of these justices were willing to grant deference to a graduate school of law (the University of Michigan Law School) but this year not to a graduate school of crime (the California criminal justice system).  The California criminal justice system is one of the affiliates of the criminal American justice system.  The majority stated that “[i]n the prison context, when the government’s power is at its apex, we think that searching judicial review of racial classifications is necessary to guard against invidious discrimination.”  In the prison context, the government’s power, however, is at its nadir.  The government does deny an individual his liberty interest.  However, the prisoners run the prison.  Commentators have remarked recently that the number of former convicts on the Supremes who could share their insights is at an all time low.

Justice Stevens reacted rather than reflecting by proposing a wooden rule.  The Dynamic Duo (Thomas and Scalia) contended that “[t]he Constitution has always demanded less within the prison walls.”  The Constitution must demand more within the prison walls.  The Constitution does not preclude the efforts and innovation undertaken by the California system.

The case has been shipped back to the Niners.  They should do the legal dance and allow lengthy briefing and conduct a protracted and windy oral argument.  After taking the matter under advisement and waiting long enough to raise the excitement to a crescendo, they should issue a lengthy treatise with enough footnotes to make it look like a completed crossword puzzle.  The decision should find that “gang violence and rape in prisons are bad; gang violent and rape in prisons should be abated; California’s practice of short-term delayed integration into the prison population has been strictly scrutinized; California’s practice advances the goal of abating gang violence and rape and therefore passes searching strict judicial scrutiny.”  Despite all the institutional and individual impediments, clear thinking may prevail.

Johnson v. California, No. 03-636.

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