In re Morales

The warden of Pelican Bay State Prison (Pelican Bay) appeals from an order granting a writ of habeas corpus, reiterating an order entered some 10 years ago and affirmed by another division of this court in an unpublished decision. (Escalera v. Terhune (Feb. 10, 2004, A101614) [nonpub. opn.] (Escalera).) Both Escalera and the order now before us prohibit preferential treatment of inmates on the basis of ethnicity. The warden defends the prison’s race-based practices as responding “to longstanding and constant hostilities between rival Hispanic prison-gangs and their disruptive-group affiliates, whose repeated efforts to attack each other at every opportunity threatened the safety and security of all the inmates housed there and the staff responsible for them.” He characterizes the challenged order as “prohibiting Pelican Bay . . . from responding to ongoing violence between rival Hispanic prison gangs and their disruptive-group affiliates.” We do not question the magnitude of the problems confronted by prison authorities in dealing with racially motivated violence of prison gangs. But the warden mischaracterizes the terms and effect of the challenged order and provides no…