THOMAS, J., DISSENTING
JOHNSON V. CALIFORNIA
543 U. S. ____ (2005)
SUPREME COURT OF THE UNITED STATES
NO. 03-636
GARRISON S. JOHNSON, PETITIONER
v.
CALIFORNIA et al.
on writ of certiorari to the united states court of
appeals for the ninth circuit
[February 23, 2005]
Justice Thomas, with whom Justice
Scalia joins, dissenting.
The questions presented in this
case require us to resolve two conflicting lines of precedent. On
the one hand, as the Court stresses, this Court has said that
“ ‘
all racial classifications reviewable under the
Equal Protection Clause must be strictly scrutinized.’ ”
Gratz v.
Bollinger, 539 U. S. 244, 270
(2003) (emphasis added) (quoting
Adarand Constructors,
Inc. v.
Peńa, 515 U. S. 200, 224
(1995)). On the other, this Court has no less categorically said
that “the [relaxed] standard of review we adopted in
Turner [v.
Safley, 482 U.
S. 78 (1987),] applies to
all circumstances in which
the needs of prison administration implicate constitutional
rights.”
Washington v.
Harper, 494 U. S. 210, 224 (1990) (emphasis
added).
Emphasizing the former line of cases, the
majority resolves the conflict in favor of strict scrutiny. I
disagree. The Constitution has always demanded less within the
prison walls. Time and again, even when faced with constitutional
rights no less “fundamental” than the right to be free from
state-sponsored racial discrimination, we have deferred to the
reasonable judgments of officials experienced in running this
Nation’s prisons. There is good reason for such deference in this
case. California oversees roughly 160,000 inmates, in prisons that
have been a breeding ground for some of the most violent prison
gangs in America—all of them organized along racial lines. In that
atmosphere, California racially segregates a portion of its
inmates, in a part of its prisons, for brief periods of up to 60
days, until the State can arrange permanent housing. The majority
is concerned with sparing inmates the indignity and stigma of
racial discrimination.
Ante, at 6–7. California is
concerned with their safety and saving their lives. I respectfully
dissent.
I
To understand this case, one must
understand just how limited the policy at issue is. That requires
more factual background than the Court’s opinion provides.
Petitioner Garrison Johnson is a black inmate in the California
Department of Corrections (CDC), currently serving his sentence for
murder, robbery, and assault with a deadly weapon. App. 255a–256a,
259a. Johnson began serving his sentence in June 1987 at the
California Institution for Men in Chino, California.
Id.,
at 79a, 264a. Since that time he has been transferred to a number
of other facilities within the CDC.
Id., at 79a–82a.
When an inmate like Johnson is
admitted into the California prison system or transferred between
the CDC’s institutions, he is housed initially for a brief
period—usually no more than 60 days—in one of California’s prison
reception centers for men.
Id., at 303a–305a. CDC,
Department Operations Manual §61010.3 (2004) (hereinafter CDC
Operations Manual), available at http://www.corr.ca.gov/
RegulationsPolicies/PDF/DOM/00_dept_ops_manual.pdf (all Internet
materials as visited Feb. 18, 2005, and available in the Clerk of
Court’s case file). In 2003, the centers processed more than 40,000
newly admitted inmates, almost 72,000 inmates returned from parole,
over 14,000 inmates admitted for other reasons, and some portion of
the 254,000 inmates who were transferred from one prison to
another. California Dept. of Corrections, Movement of Prison
Population 3 (2003) (hereinafter Movement of Prison
Population).
At the reception center, prison officials have
limited information about an inmate, “particularly if he has never
been housed in any CDC facility.” App. 303a. The inmate therefore
is classified so that prison officials can place the inmate in
appropriate permanent housing. During this process, the CDC
evaluates the inmate’s “physical, mental and emotional health.”
Ibid. The CDC also reviews the inmate’s criminal history
and record in jail to assess his security needs and classification
level.
Id., at 304a. Finally, the CDC investigates whether
the inmate has any enemies in prison.
Ibid. This process
determines the inmate’s ultimate housing placement and has nothing
to do with race.
While the process is underway, the CDC houses
the inmate in a one-person cell, a two-person cell, or a dormitory.
Id., at 305a. The few single cells available at reception
centers are reserved for inmates who present special security
problems, including those convicted of especially heinous crimes or
those in need of protective custody. See,
e.g., CDC
Operations Manual §61010.11.3. At the other end of the spectrum,
lower risk inmates are assigned to dormitories. App. 189a–190a.
Placement in either a single cell or a dormitory has nothing to do
with race, except that prison officials attempt to maintain a
racial balance within each dormitory.
Id., at 250a.
Inmates placed in single cells or dormitories lead fully integrated
lives: The CDC does not distinguish based on race at any of its
facilities when it comes to jobs, meals, yard and recreation time,
or vocational and educational assignments.
Ibid.
Yet some prisoners, like Johnson, neither
require confinement in a single cell nor may be safely housed in a
dormitory. The CDC houses these prisoners in double cells during
the 60-day period. In pairing cellmates, race is indisputably the
predominant factor.
Id., at 305a, 309a. California’s
reason is simple: Its prisons are dominated by violent gangs. Brief
for Respondents 1–5. And as the largest gangs’ names indicate—the
Aryan Brotherhood, the Black Guerrilla Family, the Mexican Mafia,
the Nazi Low Riders, and La Nuestra Familia—they are organized
along racial lines. See Part II–B,
infra.
According to the State, housing inmates in
double cells without regard to race threatens not only prison
discipline, but also the physical safety of inmates and staff. App.
305a–306a, 310a–311a. That is because double cells are especially
dangerous. The risk of racial violence in public areas of prisons
is high, and the tightly confined, private conditions of cells
hazard even more violence. Prison staff cannot see into the cells
without going up to them, and inmates can cover the windows to
prevent the staff from seeing inside the cells.
Id., at
306a. The risk of violence caused by this privacy is grave, for
inmates are confined to their cells for much of the day.
Ibid.; id., at 187a–188a.
Nevertheless, while race is the predominant
factor in pairing cellmates, it is hardly the only one. After
dividing this subset of inmates based on race, the CDC further
divides them based on geographic or national origin. As an example,
Hispanics from Northern and Southern California are not housed
together in reception centers, because they often belong to rival
gangs—La Nuestra Familia and the Mexican Mafia, respectively.
Id., at 185a. Likewise, Chinese and Japanese inmates are
not housed together, nor are Cambodians, Filipinos, Laotians, or
Vietnamese.
Id., at 189a. In addition to geographic and
national origin, prison officials consider a host of other factors,
including inmates’ age, mental health, medical needs, criminal
history, and gang affiliation.
Id., at 304a, 309a. For
instance, when Johnson was admitted in 1987, he was a member of the
Crips, a black street gang.
Id., at 93a. He was therefore
ineligible to be housed with nonblack inmates.
Id., at
183a; Brief for Respondents 12, n. 9.
Moreover, while prison officials consider race
in assigning inmates to double cells, the record shows that inmates
are not necessarily housed with other inmates of the same race
during that 60-day period. When a Hispanic inmate affiliated with
the Crips asked to be housed at the reception center with a black
inmate, for example, prison administrators granted his request.
App. at 183a–184a, 199a. Such requests are routinely granted after
the 60-day period, when prison officials complete the
classification process and transfer an inmate from the reception
center to a permanent placement at that prison or another
one.[
Footnote 1]
Id.,
at 311a–312a.
II
Traditionally, federal courts
rarely involved themselves in the administration of state prisons,
“adopt[ing] a broad hands-off attitude toward problems of prison
administration.”[
Footnote 2]
Procunier v.
Martinez, 416 U. S. 396, 404
(1974). For most of this Nation’s history, only law-abiding
citizens could claim the cover of the Constitution: Upon conviction
and incarceration, defendants forfeited their constitutional rights
and possessed instead only those rights that the State chose to
extend them. See,
e.g.,
Shaw v.
Murphy,
532
U. S. 223, 228 (2001);
Ruffin v.
Commonwealth, 62 Va. 790, 796 (1871). In recent decades,
however, this Court has decided that incarceration does not divest
prisoners of all constitutional protections. See,
e.g.,
Wolff v.
McDonnell, 418 U. S. 539, 555–556
(1974) (the right to due process);
Cruz v.
Beto,
405 U. S. 319,
322 (1972)
(per curiam) (the right to free exercise of
religion).[
Footnote 3]
At the same time, this Court
quickly recognized that the extension of the Constitution’s demands
behind prison walls had to accommodate the needs of prison
administration. This Court reached that accommodation in
Turner v.
Safley, 482 U.
S. 78 (1987), which “adopted a unitary, deferential standard
for reviewing prisoners’ constitutional claims,”
Shaw,
supra, at 229. That standard should govern Johnson’s
claims, as it has governed a host of other claims challenging
conditions of confinement, even when restricting the rights at
issue would otherwise have occasioned strict scrutiny. Under the
Turner standard, the CDC’s policy passes constitutional
muster, because it is reasonably related to legitimate penological
interests.
A
Well before
Turner, this
Court recognized that experienced prison administrators, and not
judges, are in the best position to supervise the daily operations
of prisons across this country. See,
e.g.,
Jones
v.
North Carolina Prisoners’ Labor Union, Inc., 433 U. S. 119, 125 (1977) (courts must
give “appropriate deference to the decisions of prison
administrators”);
Procunier, supra, at 405
(“[C]ourts are ill equipped to deal with the increasingly urgent
problems of prison administration and reform”).
Turner
made clear that a deferential standard of review would apply
across-the-board to inmates’ constitutional challenges to prison
policies.
At issue in
Turner was
the constitutionality of a pair of Missouri prison regulations
limiting inmate-to-inmate correspondence and inmate marriages. The
Court’s analysis proceeded in two steps. First, the Court
recognized that prisoners are not entirely without constitutional
rights. As proof, it listed certain constitutional rights retained
by prisoners, including the right to be “protected against
invidious racial discrimination . . . ,
Lee v.
Washington, 390 U. S. 333 (1968).”
Turner, 482 U. S., at 84. Second, the Court concluded that
for prison administrators rather than courts to “ ‘make the
difficult judgments concerning institutional operations,’ ”
id., at 89 (quoting
Jones,
supra, at
128), courts should uphold prison regulations that impinge on those
constitutional rights if they reasonably relate to legitimate
penological interests, 482 U. S., at 89. Nowhere did the Court
suggest that
Lee’s right to be free from racial
discrimination was immune from
Turner’s deferential
standard of review. To the contrary, “[w]e made quite clear that
the standard of review we adopted in
Turner applies to
all circumstances in which the needs of prison
administration implicate constitutional rights.”
Harper,
494 U. S., at 224 (emphasis added).
Consistent with that understanding, this Court
has applied
Turner’s standard to a host of constitutional
claims by prisoners, regardless of the standard of review that
would apply outside prison walls.[
Footnote 4] And this Court has adhered to
Turner
despite being urged to adopt different standards of review based on
the constitutional provision at issue. See
Harper,
supra, at 224 (
Turner’s standard of review
“appl[ies] in all cases in which a prisoner asserts that a prison
regulation violates the Constitution,
not just those in which
the prisoner invokes the First Amendment” (emphasis added));
O’Lone v.
Estate of Shabazz,
482
U. S. 342, 353 (1987) (“We take this opportunity to reaffirm
our refusal,
even where claims are made under the First
Amendment, to substitute our judgment on . . . difficult and
sensitive matters of institutional administration for the
determinations of those charged with the formidable task of running
a prison” (internal quotation marks and citation omitted; emphasis
added)). Our steadfast adherence makes sense: If
Turner is
our accommodation of the Constitution’s demands to those of prison
administration, see
supra, at 7, we should apply it
uniformly to prisoners’ challenges to their conditions of
confinement.
After all, Johnson’s claims, even more than
other claims to which we have applied
Turner’s test,
implicate
Turner’s rationale. In fact, in a passage that
bears repeating, the
Turner Court explained precisely why
deference to the judgments of California’s prison officials is
necessary:
“Subjecting the day-to-day judgments of prison
officials to an inflexible strict scrutiny analysis would seriously
hamper their ability to anticipate security problems and to adopt
innovative solutions to the intractable problems of prison
administration. The rule would also distort the decisionmaking
process, for every administrative judgment would be subject to the
possibility that some court somewhere would conclude that it had a
less restrictive way of solving the problem at hand. Courts
inevitably would become the primary arbiters of what constitutes
the best solution to every administrative problem, thereby
unnecessarily perpetuating the involvement of the federal courts in
affairs of prison administration.” 482 U. S., at 89 (internal
quotation marks and alteration omitted).
The majority’s failure to heed that advice is
inexplicable, especially since
Turner itself recognized
the “growing problem with prison gangs.”
Id., at 91. In
fact, there is no more “intractable problem” inside America’s
prisons than racial violence, which is driven by race-based prison
gangs. See,
e.g.,
Dawson v.
Delaware,
503 U. S. 159, 172–173, and n. 1 (1992)
(Thomas, J., dissenting);
Stefanow v.
McFadden,
103 F. 3d 1466, 1472 (CA9 1996) (“Anyone familiar with prisons
understands the seriousness of the problems caused by prison gangs
that are fueled by actively virulent racism and religious
bigotry”).
B
The majority decides this case
without addressing the problems that racial violence poses for
wardens, guards, and inmates throughout the federal and state
prison systems. But that is the core of California’s justification
for its policy: It maintains that, if it does not racially separate
new cellmates thrown together in close confines during their
initial admission or transfer, violence will erupt.
The dangers California seeks to
prevent are real. See Brief for National Association of Black Law
Enforcement Officers, Inc. as
Amicus Curiae 12.
Controlling prison gangs is the central challenge facing
correctional offi- cers and administrators. Carlson, Prison
Interventions: Evolving Strategies to Control Security Threat
Groups, 5 Corrections Mgmt. Q. 10 (Winter 2001) (hereinafter
Carlson). The worst gangs are highly regimented and sophisticated
organizations that commit crimes rang- ing from drug trafficking to
theft and murder.
Id., at 12; California Dept. of Justice,
Division of Law En- forcement, Organized Crime in California Annual
Report to the California Legislature 2003, p. 15, available at
http://caag.state.ca.us/publications/org_crime.pdf. In fact, street
gangs are often just an extension of prison gangs, their “foot
soldiers” on the outside.
Ibid.; Willens, Structure,
Content and the Exigencies of War: American Prison Law After
Twenty-Five Years 1962–1987, 37 Am. U. L. Rev. 41, 55–56
(1987). And with gang membership on the rise, the percentage of
prisoners affiliated with prison gangs more than doubled in the
1990’s.[
Footnote 5]
The problem of prison gangs is not unique to
California,[
Footnote 6] but
California has a history like no other. There are at least five
major gangs in this country—the Aryan Brotherhood, the Black
Guerrilla Family, the Mexican Mafia, La Nuestra Familia, and the
Texas Syndicate—all of which originated in California’s
prisons.[
Footnote 7]
Unsurprisingly, then, California has the largest number of
gang-related inmates of any correctional system in the country,
including the Federal Government. Carlson 16.
As their very names suggest, prison gangs like
the Aryan Brotherhood and the Black Guerrilla Family organize
themselves along racial lines, and these gangs perpetuate hate and
violence. Irwin 182, 184. Interracial murders and assaults among
inmates perpetrated by these gangs are common.[
Footnote 8] And, again, that brutality is
particularly severe in California’s prisons. See,
e.g.,
Walker v.
Gomez, 370 F. 3d 969, 971 (CA9
2004) (describing “history of significant racial tension and
violence” at Calipatria State Prison);
id., at 979–980
(Rymer, J., dissenting) (same); App. 297a–299a (describing 2-year
span at Pelican Bay Prison, during which there were no fewer than
nine major riots that left at least one inmate dead and many more
wounded).
C
It is against this backdrop of
pervasive racial violence that California racially segregates
inmates in the reception centers’ double cells, for brief periods
of up to 60 days, until such time as the State can assign permanent
housing. Viewed in that context and in light of the four factors
enunciated in
Turner, California’s policy is
constitutional: The CDC’s policy is reasonably related to a
legitimate penological interest; alternative means of exercising
the restricted right remain open to inmates; racially integrating
double cells might negatively impact prison inmates, staff, and
administrators; and there are no obvious, easy alternatives to the
CDC’s policy.
1
First, the policy is reasonably
related to a legitimate penological interest.
Turner, 482
U. S., at 89. The protection of inmates and staff is undeniably a
legitimate penological interest. See
Bell v.
Wolfish,
441 U. S. 520, 546–547 (1979). The
evidence shows, and Johnson has never contested, that the objective
of California’s policy is reducing violence among the inmates and
against the staff. No cells are designated for, nor are special
privileges afforded to, any racial group. App. 188a, 305a. Because
prison administrators use race as a factor in making initial
housing assignments “solely on the basis of [its] potential
implications for prison security,” the CDC’s cell assignment
practice is neutral.
Thornburgh v.
Abbott,
490 U. S. 401, 415 (1989);
Turner,
supra, at 90.
California’s policy bears a
valid, rational connection to this interest. The racial component
to prison violence is impossible for prison administrators to
ignore. Johnson himself testified that he is afraid of
violence—based solely on the color of his skin.[
Footnote 9] In combating that violence, an
inmate’s arrival or transfer into a new prison setting is a
critical time for inmate and staff alike. The policy protects an
inmate from other prisoners, and they from him, while prison
officials gather more information, including his gang affiliation,
about his compatibility with other inmates. App. 249a. This
connection between racial violence and the policy makes it far from
“arbitrary or irrational.”
Turner,
supra, at
89–90.
Indeed, Johnson concedes that it would be
perfectly constitutional for California to take account of race “as
part of an overall analysis of proclivity to violence based upon a
series of facts existing in that prison.” Tr. of Oral Arg. 15. But
that is precisely what California does. It takes into account a
host of factors in addition to race: geographic or national origin,
age, physical size, mental health, medical needs, criminal history,
and, of course, gang affiliation.
Supra, at 4. California
does not simply assign inmates to double cells in the reception
centers based on race—it also separates
intraracially (for
example, northern from southern Hispanics or violent from
nonviolent offenders).
2
Second, alternative means of
exercising the restricted right remain open to inmates like
Johnson.
Turner,
supra, at 90. The CDC submits,
and Johnson does not contest, that all other facets of prison life
are fully integrated: work, vocational, and educational
assignments; dining halls; and exercise yards and recreational
facilities. App. 250a. And after a brief detention period at the
reception center, inmates may select their own cellmates regardless
of race in the absence of overriding security concerns.
Id., at 311a–312a. Simply put, Johnson has spent, and will
continue to spend, the vast bulk of his sentence free from any
limitation on the race of his cellmate.
3
Third, Johnson fails to establish
that the accommodation he seeks—
i.e., assigning inmates to
double cells without regard to race—would not significantly impact
prison personnel, other inmates, and the allocation of prison
resources.
Harper, 494 U. S., at 226–227;
Turner,
supra, at 90. Prison staff cannot see into the double
cells without going up to them, and inmates can cover the windows
so that staff cannot see inside the cells at all. App. 306a.
Because of the limited number of staff to oversee the many cells,
it “would be very difficult to assist inmates if the staff were
needed in several places at one time.”
Ibid. Coordinated
gang attacks against nongang cellmates could leave prison officials
unable to respond effectively. In any event, diverting prison
resources to monitor cells disrupts services elsewhere.
Then, too, fights in the cells
are likely to spill over to the exercise yards and common areas.
Ibid.; see also
id., at 187a. As
Turner
made clear: “When accommodation of an asserted right will have a
significant ‘ripple effect’ on fellow inmates or on prison staff,
courts should be particularly deferential to the informed
discretion of corrections officials.” 482 U. S., at 90; see also
White v.
Morris, 832 F. Supp. 1129, 1130 (SD
Ohio 1993) (racially integrated double celling contributed to a
race riot in which 10 people were murdered). California prison
officials are united in the view that racially integrating double
cells in the reception centers would lead to serious
violence.[
Footnote 10] This
is precisely the sort of testimony that the Court found persuasive
in
Turner itself.
Turner,
supra, at
92.
4
Finally, Johnson has not shown
that there are “obvious, easy alternatives” to the CDC’s policy.
Turner,
supra, at 90. Johnson contends that, for
newly admitted inmates, prison officials need only look to the
information available in the presentence report that must accompany
a convict to prison. See Cal. Penal Code Ann. §1203(c) (West 2004);
Cal. Rules of Court, Criminal Cases, Rule 4.411(d) (West 2004). But
prison officials already do this to the extent that they can.
Indeed, gang affiliation, not race, is the first factor in
determining initial housing assignments. App. 315a. Race becomes
the predominant factor only because gang affiliation is often not
known, especially with regard to newly admitted inmates. As the
Court of Appeals pointed out: “There is little chance that inmates
will be forthcoming about their past violent episodes or criminal
gang activity so as to provide an accurate and dependable picture
of the inmate.” 321 F. 3d 791, 806 (CA9 2003); see also App.
185a, 189a. Even if the CDC had the manpower and resources to
prescreen the more than 40,000 new inmates it receives yearly,
leafing through presentence reports would not tell prison officials
what they need to know. See
ante, at 6–7 (Stevens, J.,
dissenting).
Johnson presents a closer case
with regard to the segregation of prisoners whom the CDC transfers
between facilities. As I understand it, California has less need to
segregate prisoners about whom it already knows a great deal (since
they have undergone the initial classification process and been
housed for some period of time). However, this does not inevitably
mean that racially integrating transferred inmates, while obvious
and easy, is a true alternative. For instance, an inmate may have
affiliated with a gang since the CDC’s last official assessment, or
his past lack of racial violence may have been due to the absence
of close confinement with members of other races. The CDC’s policy
does not appear to arise from laziness or neglect; California is a
leader in institutional intelligence-gathering. See Carlson 16
(“The CDC devotes 75 intelligence staff to gathering and verifying
inmate-related information,” both in prisons and on the streets).
In short, applying the policy to transfers is not “arbitrary or
irrational,” requiring that we set aside the considered contrary
judgment of prison administrators.
Turner,
supra,
at 89–90.
III
The majority claims that strict
scrutiny is the applicable standard of review based on this Court’s
precedents and its general skepticism of racial classifications. It
is wrong on both scores.
A
Only once before, in
Lee
v.
Washington, 390 U. S. 333 (1968)
(per
curiam), has this Court considered the constitutionality of
racial classifications in prisons. The majority claims that
Lee applied “a heightened standard of review.”
Ante, at 6. But
Lee did not address the
applicable standard of review. And even if it bore on the standard
of review,
Lee would support the State here.
In
Lee, a three-judge
District Court ordered Alabama to desegregate its prisons under
Brown v.
Board of Education, 347 U. S. 483 (1954).
Washington v.
Lee, 263 F. Supp. 327, 331–332
(MD Ala. 1966). In so doing, the District Court rejected any notion
that “consideration[s] of prison security or discipline” justified
the “complete and permanent segregation of the races in all the
Alabama penal facilities.”
Id., at 331. However, the
District Court noted “that in some isolated instances prison
security and discipline necessitates segregation of the races for a
limited period.”
Ibid. (footnote omitted). It provided
only one example—“the ‘tank’ used in … large municipal jails where
intoxicated persons are placed upon their initial incarceration and
kept until they become sober,”
id., at 331, n. 6—and
the court left unmentioned why it would have been necessary to
separate drunk whites from blacks on a Birmingham Saturday
night.
This Court, in a
per curiam,
one-paragraph opinion, affirmed the District Court’s order. It
found “unexceptionable” not only the District Court’s general rule
that wholesale segregation of penal facilities was
unconstitutional, but also the District Court’s “allowance for the
necessities of prison security and discipline.”
Lee, 390
U. S., at 334. Indeed, Justices Black, Harlan, and Stewart
concurred
“to make explicit something that is left to be
gathered only by implication from the Court’s opinion. This is 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.” Ibid. (emphasis added).
Those Justices were “unwilling to assume” that such
an “explicit pronouncement [would] evinc[e] any dilution of this
Court’s firm commitment to the Fourteenth Amendment’s prohibition
of racial discrimination.”
Ibid.
Lee said nothing about the applicable
standard of review, for there was no need. Surely Alabama’s
wholesale segregation of its prisons was unconstitutional even
under the more deferential standard of review that applies within
prisons. This Court’s brief,
per curiam opinion in
Lee simply cannot bear the weight or interpretation the
majority places on it. See
U. S. Bancorp Mortgage Co. v.
Bonner Mall Partnership, 513 U. S. 18, 24 (1994)
(noting “our customary skepticism toward
per curiam
dispositions that lack the reasoned consideration of a full
opinion”);
Edelman v.
Jordan, 415 U. S. 651, 670–671
(1974).
Yet even if
Lee had announced a
heightened standard of review for prison policies that pertain to
race,
Lee also carved out an exception to the standard
that California’s policy would certainly satisfy. As the
Lee concurrence explained without objection, the Court’s
exception for “the necessities of prison security and discipline”
meant 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.”
Lee,
supra,
at 334 (opinion of Black, Harlan, and Stewart, JJ., concurring)
(emphasis added).
California’s policy—which is a far cry from
the wholesale segregation at issue in
Lee—would fall
squarely within
Lee’s exception. Johnson has never argued
that California’s policy is motivated by anything other than a
desire to protect inmates and staff. And the “particularized”
nature of the policy is evident: It applies only to new inmates and
transfers, only in a handful of prisons, only to double cells, and
only then for a period of no more than two months. In the name of
following a test that
Lee did not create, the majority
opts for a more demanding standard of review than
Lee’s
language even arguably supports.
The majority heavily relies on this Court’s
statement that “ ‘all racial classifications [imposed by
government] … must be analyzed by a reviewing court under strict
scrutiny.’ ”
Ante, at 4 (quoting
Adarand
Constructors, Inc., 515 U. S., at 227).
Adarand has
nothing to do with this case.
Adarand’s statement that
“all racial classifications” are subject to strict scrutiny
addressed the contention that classifications favoring rather than
disfavoring blacks are exempt.
Id., at 226–227; accord,
Grutter v.
Bollinger,
539 U. S. 306, 353 (2003) (Thomas, J.,
concurring in part and dissenting in part). None of these
statements overruled,
sub silentio,
Turner and
its progeny, especially since the Court has repeatedly held that
constitutional demands are diminished in the unique context of
prisons. See,
e.g.,
Harper, 494 U. S., at 224;
Abbott, 490 U. S., at 407;
Turner, 482 U. S., at
85; see also
Webster v.
Fall, 266 U. S. 507, 511
(1925) (“Questions which merely lurk in the record, neither brought
to the attention of the court nor ruled upon, are not to be
considered as having been so decided as to constitute
precedents”).
B
The majority offers various other
reasons for applying strict scrutiny. None is persuasive. The
majority’s main reason is that “
Turner’s
reasonable-relationship test [applies]
only to rights that
are ‘inconsistent with proper incarceration.’ ”
Ante,
at 8–9 (quoting
Overton v.
Bazzetta,
539 U. S. 126, 131 (2003)). According
to the majority, the question is thus whether a right “need
necessarily be compromised for the sake of proper prison
administration.”
Ante, at 9. This
inconsistency-with-proper-prison-administration test begs the
question at the heart of this case. For a court to know whether any
particular right is inconsistent with proper prison administration,
it must have some implicit notion of what a proper prison ought to
look like and how it ought to be administered.
Overton,
supra, at 139 (Thomas, J., concurring in judgment). But
the very issue in this case is whether such second-guessing is
permissible.
The majority’s test eviscerates
Turner. Inquiring whether a given right is consistent with
“proper prison administration” calls for precisely the sort of
judgments that
Turner said courts were ill equipped to
make. In none of the cases in which the Court deferred to the
judgments of prison officials under
Turner did it examine
whether “proper” prison security and discipline permitted greater
speech or associational rights (
Abbott,
supra;
Shaw,
532
U. S. 223; and
Overton, supra); expanded access to the
courts (
Lewis v.
Casey,
518 U. S. 343 (1996)); broader freedom
from bodily restraint (
Harper,
supra); or
additional free exercise rights (
O’Lone,
482
U. S. 342). The Court has steadfastly refused to undertake the
threshold standard-of-review inquiry that
Turner settled,
and that the majority today resurrects. And with good reason: As
Turner pointed out, these judgments are better left in the
first instance to the officials who run our Nation’s prisons, not
to the judges who run its courts.
In place of the Court’s usual deference, the
majority gives conclusive force to its own guesswork about “proper”
prison administration. It hypothesizes that California’s policy
might incite, rather than diminish, racial hostility.[
Footnote 11]
Ante, at 6–7; see
also
ante, at 5–6, and n. 2 (Stevens, J., dissenting). The
majority’s speculations are implausible. New arrivals have a strong
interest in promptly convincing other inmates of their willingness
to use violent force. See Brief for National Association of Black
Law Enforcement Officers, Inc., as
Amicus Curiae 13–14
(citing commentary and congressional findings); cf.
United
States v.
Santiago, 46 F. 3d 885, 888 (CA9 1995)
(describing one Hispanic inmate’s murder of another in order to
join the Mexican Mafia);
United States v.
Silverstein, 732 F. 2d 1338, 1341 (CA7 1984)
(prospective members of the Aryan Brotherhood must “make bones,” or
commit a murder, to be eligible for membership). In any event, the
majority’s guesswork falls far short of the compelling showing
needed to overcome the deference we owe to prison
administrators.
The majority contends that the Court “[has]
put the burden on state actors to demonstrate that their race-based
policies are justified,”
ante, at 5, n. 1, and “[has]
refused to defer to state officials’ judgments on race in other
areas where those officials traditionally exercise substantial
discretion,”
ante, at 11–12. Yet two Terms ago, in
upholding the University of Michigan Law School’s
affirmative-action program, this Court deferred to the judgment by
the law school’s faculty and administrators on their need for
diversity in the student body. See
Grutter,
supra, at 328 (“The Law School’s educational judgment that
… diversity is essential to its educational mission is one to which
we defer”). Deference would seem all the more warranted in the
prison context, for whatever the Court knows of administering
educational institutions, it knows much less about administering
penal ones. The potential consequences of second-guessing the
judgments of prison administrators are also much more severe. See
White v.
Morris, 832 F. Supp. 1129, 1130 (SD
Ohio 1993) (racially integrated double celling that resulted from
federal consent decree was a factor in the worst prison riot in
Ohio history). More important, as I have explained, the Court has
recognized that the typically exacting review it applies to
restrictions on fundamental rights must be relaxed in the unique
context of prisons. See,
e.g.,
Harper,
supra, at 224;
Abbott, 490 U. S., at 407;
Turner, 482 U. S., at 85. The majority cannot fall back on
the Constitution’s usual demands, because those demands have always
been lessened inside the prison walls. See
supra, at
6–7.
The majority also mentions that California’s
policy may be the only one of its kind, as virtually all other
States and the Federal Government manage their prison systems
without racially segregating inmates.
Ante, at 7. This is
both irrelevant and doubtful. It is irrelevant because the number
of States that have followed California’s lead matters not to the
applicable standard of review (the only issue the Court today
decides), but to whether California satisfies whatever standard
applies, a question the majority leaves to be addressed on remand.
In other words, the uniqueness of California’s policy might show
whether the policy is reasonable or narrowly tailored—but deciding
whether to apply
Turner or strict scrutiny in the first
instance must depend on something else, like the majority’s
inconsistency-with-proper-prison-administration test. The
commonness of California’s housing policy is further irrelevant
because strict scrutiny now applies to all claims of racial
discrimination in prisons, regardless of whether the policies being
challenged are unusual.
The majority’s assertion is doubtful, because
at least two other States apply similar policies to newly admitted
inmates. Both Oklahoma and Texas, like California, assign newly
admitted inmates to racially segregated cells in their prison
reception centers.[
Footnote
12] The similarity is not surprising: States like California
and Texas have historically had the most severe problems with
prison gangs. However, even States with less severe problems
maintain that policies like California’s are necessary to deal with
race-related prison violence. See Brief of the States of Utah,
Alabama, Alaska, Delaware, Idaho, Nevada, New Hampshire and North
Dakota as
Amici Curiae 16. Relatedly, 10.3% of all wardens
at maximum security facilities in the United States report that
their inmates are assigned to racially segregated cells—apparently
on a
permanent basis. M. Henderson, F. Cullen, L. Carroll,
& W. Feinberg, Race, Rights, and Order in Prison: A National
Survey of Wardens on the Racial Integration of Prison Cells, 80
Prison J. 295, 304 (Sept. 2000). In the same survey, 4.3% of the
wardens report that their States have an official policy against
racially integrating male inmates in cells.
Id., at 302.
Presumably, for the remainder of prisons in which inmates are
assigned to racially segregated cells, that policy is the result of
discretionary decisions by wardens rather than of official state
directives.
Ibid. In any event, the ongoing debate about
the best way to reduce racial violence in prisons should not be
resolved by judicial decree: It is the job “of prison
administrators … and not the courts, to make the difficult
judgments concerning institutional operations.”
Jones, 433
U. S., at 128.
The majority also observes that we have
already carved out an exception to
Turner for Eighth
Amendment claims of cruel and unusual punishment in prison. See
Hope v.
Pelzer, 536 U. S. 730, 738
(2002). In that context, we have held that “[a] prison official’s
‘deliberate indifference’ to a substantial risk of serious harm to
an inmate violates the Eighth Amendment.”
Farmer v.
Brennan, 511 U. S. 825, 828
(1994). Setting aside whether claims challenging inmates’
conditions of confinement should be cognizable under the Eighth
Amendment at all, see
Hudson v.
McMillian,
503 U. S. 1, 18–19
(1992) (Thomas, J., dissenting), the “deliberate indifference”
standard does not bolster the majority’s argument. If anything,
that standard is
more deferential to the judgments of
prison administrators than
Turner’s
reasonable-relationship test: It subjects prison officials to
liability only when they are subjectively aware of the risk to the
inmate, and they fail to take reasonable measures to abate the
risk.
Farmer,
supra, at 847. It certainly does
not demonstrate the wisdom of an exception that imposes a
heightened standard of review on the actions of prison
officials.
Moreover, the majority’s decision subjects
prison officials to competing and perhaps conflicting demands. In
this case, California prison officials have uniformly averred that
random double-celling poses a substantial risk of serious harm to
the celled inmates. App. 245a–246a, 251a. If California assigned
inmates to double cells without regard to race, knowing full well
that violence might result, that would seem the very definition of
deliberate indifference. See
Robinson v.
Prunty,
249 F. 3d 862, 864–865 (CA9 2001) (prisoner alleged an Eighth
Amendment violation because administrators had
failed to
consider race when releasing inmates into the yards);
Jensen v.
Clarke, 94 F. 3d 1191, 1201, 1204
(CA8 1996) (court held that random double celling by prison
officials constituted deliberate indifference, and affirmed an
injunction and attorney’s fees awarded against the officials). Nor
would a victimized inmate need to prove that prison officials had
anticipated any particular attack; it would be sufficient that
prison officials had ignored a dangerous condition that was chronic
and ongoing—like interracial housing in closely confined quarters
within prisons dominated by racial gangs.
Farmer,
supra, at 843–844. Under
Farmer, prison officials
could have been ordered to take account of the very thing to which
they may now have to turn a blind eye: inmates’ race.
Finally, the majority presents a parade of
horribles designed to show that applying the
Turner
standard would grant prison officials unbounded discretion to
segregate inmates throughout prisons. See
ante, at 13. But
we have never treated
Turner as a blank check to prison
officials. Quite to the contrary, this Court has long had
“confidence that . . . a reasonableness standard is not toothless.”
Abbott, 490 U. S., at 414 (internal quotation marks
omitted). California prison officials segregate only double cells,
because only those cells are particularly difficult to
monitor—unlike “dining halls, yards, and general housing areas.”
Ante, at 13. Were California’s policy not so narrow, the
State might well have race-neutral means at its disposal capable of
accommodating prisoners’ rights without sacrificing their safety.
See
Turner, 482 U. S., at 90–91. The majority does not say
why
Turner’s standard ably polices all other
constitutional infirmities, just not racial discrimination. In any
event, it is not the refusal to apply—for the first time ever—a
strict standard of review in the prison context that is
“fundamentally at odds” with our constitutional jurisprudence.
Ante, at 5, n. 1. Instead, it is the majority’s
refusal—for the first time ever—to defer to the expert judgment of
prison officials.
IV
Even under strict scrutiny
analysis, “it is possible, even likely, that prison officials could
show that the current policy meets the test.” 336 F. 3d 1117,
1121 (CA9 2003) (Ferguson, J., joined by Pregerson, Nelson, and
Reinhardt, JJ., dissenting from denial of rehearing en banc). As
Johnson concedes, all States have a compelling interest in
maintaining order and internal security within their prisons. See
Reply Brief for Petitioner 18; see also
Procunier, 416 U.
S., at 404. Thus the question on remand will be whether the CDC’s
policy is narrowly tailored to serve California’s compelling
interest.[
Footnote 13] The
other dissent notes the absence of evidence on that question, see
ante, at 3–4 (opinion of Stevens, J.), but that is hardly
California’s fault.
From the outset, Johnson himself
has alleged, in terms taken from
Turner, that the CDC’s
policy is “not related to a legitimate penological interest.”
Johnson v.
California, 207 F. 3d 650, 655
(CA9 2000) (discussing Johnson’s Third Amended Complaint). In
reinstating Johnson’s equal protection claim following the District
Court’s dismissal, the Court of Appeals repeated Johnson’s
allegation, without indicating that strict scrutiny should apply on
remand before the District Court.[
Footnote 14]
Ibid. And on remand, again Johnson
alleged only that the CDC’s policy “is not reasonably related to
the legitimate penological interests of the CDC.” App. 51a (Fourth
Amended Complaint ¶23).
After the District Court granted qualified
immunity to some of the defendants, Johnson once again appealed. In
his brief before the Court of Appeals, Johnson assumed that both
Lee and
Turner applied, without arguing that
there was any tension between them; indeed, nowhere in his brief
did Johnson even mention the words “strict scrutiny.” Brief for
Appellant in No. 01–56436 (CA9), pp. 20, 26; 2001 WL 34091249.
Perhaps as a result, the Court of Appeals did not discuss strict
scrutiny in its second decision, the one currently before this
Court. The Court of Appeals did find tension between
Lee
and
Turner; however, it resolved this tension in
Turner’s favor. 321 F. 3d, at 799. Yet the Court of
Appeals accepted
Lee’s test at face value: Prison
officials may only make racial classifications “ ‘in good
faith and in particularized circumstances.’ ” 321 F. 3d,
at 797. The Court of Appeals, like Johnson, did
not equate
Lee’s test with strict scrutiny, and in fact it mentioned
strict scrutiny only when it quoted the portion of
Turner
that
rejects strict scrutiny as the proper standard of
review in the prison context. 321 F. 3d, at 798. Even Johnson
did not make the leap equating
Lee with strict scrutiny
when he requested that the Court of Appeals rehear his case.
Appellant’s Petition for Panel Rehearing with Suggestion for
Rehearing
En Banc in No. 01–56436 (CA9), pp. 4–5. That
leap was first made by the judges who dissented from the Court of
Appeals’ denial of rehearing en banc. 336 F. 3d, at 1118
(Ferguson, J., joined by Pregerson, Nelson, and Reinhardt, JJ.,
dissenting from denial of rehearing en banc).
Thus, California is now, after the close of
discovery, subject to a more stringent standard than it had any
reason to anticipate from Johnson’s pleadings, the Court of
Appeals’ initial decision, or even the Court of Appeals’ decision
below. In such circumstances, California should be allowed to
present evidence of narrow tailoring, evidence it was never
obligated to present in either appearance before the District
Court. See
Lucas v.
South Carolina Coastal
Council, 505
U. S. 1003, 1031–1032 (1992) (remanding for consideration under
the correct legal standard);
id., at 1033 (Kennedy, J.,
concurring in judgment) (“Although we establish a framework for
remand, … we do not decide the ultimate [constitutional] question
[because] [t]he facts necessary to the determination have not been
developed in the record”).
***
Petitioner Garrison Johnson
challenges not permanent, but temporary, segregation of only a
portion of California’s prisons. Of the 17 years Johnson has been
incarcerated, California has assigned him a cellmate of the same
race for no more than a year (and probably more like four months);
Johnson has had black cellmates during the other 16 years, but by
his own choice. Nothing in the record demonstrates that if Johnson
(or any other prisoner) requested to be housed with a person of a
different race, it would be denied (though Johnson’s gang
affiliation with the Crips might stand in his way). Moreover,
Johnson concedes that California’s prisons are racially violent
places, and that he lives in fear of being attacked because of his
race. Perhaps on remand the CDC’s policy will survive strict
scrutiny, but in the event that it does not, Johnson may well have
won a Pyrrhic victory.
Footnote 1
Johnson has never requested—not during his
initial admittance, nor his subsequent transfers, nor his present
incarceration—that he be housed with a person of a different race.
App. 106a, 112a–113a, 175a. According to Johnson, he considered the
policy a barrier to any such request; however, Johnson has also
testified that he never filed a grievance with prison officials
about the segregation policy.
Id., at 112a–113a,
124a–125a. Neither the parties nor the majority discusses whether
Johnson has exhausted his action under Rev. Stat. §1979, 42 U.
S. C. §1983, as required by the Prison Litigation Reform Act
(PLRA), 110 Stat. 1321, as amended, 42 U. S. C. §1997e(a). See
Booth v.
Churner, 532 U. S. 731, 734
(2001). The majority thus assumes that statutorily mandated
exhaustion is not jurisdictional, and that California has waived
the issue by failing to raise it. See,
e.g.,
Richardson v.
Goord, 347 F. 3d 431, 433–434 (CA2
2003);
Perez v.
Wisconsin Dept. of
Corrections, 182 F. 3d 532, 536 (CA7 1999).
Footnote 2
The majority refers to my approach as a
“hands-off” one, because I would accord deference to the judgments
of the State’s prison officials. See
ante, at 5,
n. 1. Its label is historically inaccurate. The “hands-off”
approach was that taken prior to the 1960’s by federal courts,
which generally declined to consider the merits of prisoners’
claims. See,
e.g., J. Fliter, Prisoners’ Rights: The
Supreme Court and Evolving Standards of Decency 64–65 (2001); M.
Feeley & E. Rubin, Judicial Policy Making and the Modern State
30–34 (2000); S. Krantz & L. Branham, Cases and Materials on
the Law of Sentencing, Corrections and Prisoners’ Rights 264–265
(4th ed. 1991).
Footnote 3
A prisoner may not entirely surrender his
constitutional rights at the prison gates,
Bell v.
Wolfish, 441 U. S. 520, 545 (1979);
Jones v.
North Carolina Prisoners’ Labor Union,
Inc., 433 U. S. 119, 129 (1977), but
certainly he leaves some of his liberties behind him. When a
prisoner makes a constitutional claim, the initial question should
be whether the prisoner possesses the right at issue at all, or
whether instead the prisoner has been divested of the right as a
condition of his conviction and confinement. See
Overton
v.
Bazzetta, 539 U. S. 126, 140 (2003) (Thomas, J.,
concurring in judgment);
Coffin v.
Reichard, 143
F. 2d 443, 445 (CA6 1944).
Footnote 4
See,
e.g.,
Overton,
supra, at 132 (the right to association under the First
and Fourteenth Amendments);
Shaw v.
Murphy,
532
U. S. 223, 228–229 (2001) (the right to communicate with fellow
inmates under the First Amendment);
Lewis v.
Casey, 518 U. S. 343, 361 (1996) (the right
of access to the courts under the Due Process and Equal Protection
Clauses);
Washington v.
Harper, 494 U. S. 210, 223–225 (1990) (the
right to refuse forced medication under the Due Process Clause);
Thornburgh v.
Abbott, 490 U. S. 401, 413–414 (1989) (the
right to receive correspondence under the First Amendment);
O’Lone v.
Estate of Shabazz, 482
U. S. 342, 349–350 (1987) (the right to free exercise of
religion under the First Amendment).
Footnote 5
See National Gang Crime Research Center, A
National Assessment of Gangs and Security Threat Groups (STGs) in
Adult Correctional Institutions: Results of the 1999 Adult
Corrections Survey, p. 5,
http://www.ngcrc.com/ngcrc/page7.htm.
Footnote 6
See,
e.g.,
Fraise v.
Terhune, 283 F. 3d 506, 512–513 (CA3 2002)
(describing violence caused by a single black prison gang, the Five
Percent Nation, in various New Jersey correctional facilities);
Conroy v.
Dingle, No. Civ. 01–1626 (RHK/RLE),
2002 WL 31357055, *1–*2 (D. Minn., Oct. 11, 2002) (describing rival
racial gangs at Minnesota’s Moose Lake facility, a medium security
prison).
Footnote 7
See D. Orlando-Morningstar, Prison Gangs,
Special Needs Offender Bulletin, Federal Judicial Center 4 (Oct.
1997); see also J. Irwin, Prisons in Turmoil 189 (1980)
(hereinafter Irwin) (describing the establishment and rise of gangs
inside the California prison system, first the Mexican Mafia,
followed by La Nuestra Familia, the Aryan Brotherhood, and the
Black Guerrilla Family);
United States v.
Shryock, 342 F. 3d 948, 961 (CA9 2003) (detailing
rise of Mexican Mafia inside the California prison system).
Footnote 8
See,
e.g.,
id., at 962–969
(describing a host of murders and attempted murders by a handful of
Mexican Mafia members);
United States v.
Silverstein, 732 F. 2d 1338, 1341–1342 (CA7 1984)
(describing murder of a black inmate by members of the Aryan
Brotherhood);
State v.
Kell, 61 P. 3d 1019,
1024–1025 (Utah 2002) (describing fatal stabbing of a black inmate
by two white supremacists);
State v.
Farmer, 126
Ariz. 569, 570–571, 617 P. 2d 521, 522–523 (1980) (en banc)
(describ- ing murder of a black inmate by members and recruits of
the Aryan Brotherhood).
Footnote 9
Specifically, Johnson testified:
“I was incarcerated at Calipatria before the major riot broke
out there with Mexican and black inmates. … If I would have stayed
there, I would have been involved in that because you have four
facilities there and
each facility went on a major riot and a
lot of people got hurt and injured just based on your skin
color. I’m black, and if I was there I would have been hurt.”
App. 102a (emphasis added).
Footnote 10
See
id., at 245a–246a (Cambra
declaration) (“If race were to be disregarded entirely, however, I
am certain, based upon my experience with CDC prisoners, that …
there will be fights in the cells and the problems will emanate
onto the prison yards”);
id., at 250a–251a (Schulteis
declaration) (“At CSP-Lancaster, if we were to disregard the
initial housing placement [according to race], then I am certain
there would be serious violence among inmates. I have worked in
five different CDC institutions and this would be true for all of
them”).
Footnote 11
The majority’s sole empirical support for its
speculation is a study of Texas prison desegregation that found the
rate of violence higher in racially segregated double cells.
Ante, at 7 (citing Trulson & Marquart, The Caged
Melting Pot: Toward an Understanding of the Consequences of
Desegregation in Prisons, 36 Law & Soc. Rev. 743, 774 (2002)).
However, the study's authors specifically note that Texas—like
California—does not integrate its “initial diagnostic facilities”
or its “transfer facilities.” See
id., at 753, n. 13.
Thus the study says nothing about the violence likely to result
from integrating cells when inmates are thrown together for brief
periods during admittance or transfer. What the study does say is
that, once Texas has had the time to gather inmate-related
information and make more permanent housing assignments, racially
integrated cells may be the preferred option. But California leaves
open that door: Inmates are generally free to room with whomever
they like on a permanent basis.
Footnote 12
See Oklahoma Dept. of Corrections, Policies
and Procedures, Operations Memorandum No. OP–030102, Inmate Housing
(Sept. 16, 2004) (“Upon arrival at the assessment and reception
center … [f]or reasons of safety and security, newly received
inmates are not generally assigned randomly to racially integrated
cells”) (available at
http://www.doc.state.ok.us/docs/policies.htm); Texas Dept. of
Criminal Justice, Security Memorandum No. SM–01.28, Assignment to
General Population Two-Person Cells (June 15, 2002) (“Upon arrival
at a reception and diagnostic center … [f]or reasons of safety and
security, newly-received offenders are not generally assigned
randomly to racially integrated cells due to the fact that the
specific information needed to assess an offender’s criminal and
victimization history is not available until after diagnostic
processing has been completed”).
Footnote 13
On the majority’s account, deference to the
judgments of prison officials in the application of strict scrutiny
is presumably warranted to account for “the special circumstances
[that prisons] present,”
ante, at 12. See
Grutter
v.
Bollinger, 539 U. S. 306, 328 (2003). Although I
disagree that deference is normally appropriate when scrutinizing
racial classifications, there is some logic to the majority’s
qualification in this case, because the Constitution’s demands have
always been diminished in the prison context. See,
e.g.,
Harper, 494 U. S., at 224;
Abbott, 490 U. S., at
407;
Turner v.
Safley,
482 U.
S. 78, 85 (1987).
Footnote 14
The Court of Appeals cited both
Turner and
Lee v.
Washington, 390 U. S. 339 (1968)
(per curiam). For the proposition that certain
constitutional protections, among them the protection against
state-sponsored racial discrimination, extend to the prison
setting. However, the Court of Appeals did not discuss the
applicable standard of review, nor did it attempt to resolve the
tension between
Turner and
Lee that the majority
finds.
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