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Thomas, J., dissenting
In stating that Dawson belonged to a prison gang, the stipulation implied much more than that he shared the gang's abstract racist creed; it indicated that Dawson had engaged in prison gang activities, and that he had the character of a person who engages in these activities.
"One of the distinguishing characteristics of the prison gang is the virtual absence of any non-criminal, non-deviant activities. Gang members engage in some institutional pastimes, weight lifting being one of the more notable, but in general their activities are criminal or deviant in nature. The gang member is completely immersed in being a career prison gangster, leaving little time and less inclination for other than asocial behavior." U. S. Dept. of Justice, supra, at x-xi.
Denying that Dawson's gang membership told the jury anything about his activities, tendencies, and traits—his "character"—ignores reality. What Judge Easterbrook remarked when others attempted to distinguish gang membership from gang activities, someone reading the Court's opinion might say today:
"Who do they think they are fooling? What elements of 'membership'—as opposed to 'activity'—take place [in the prison]? What are prison gangs for, except to engage in forbidden 'activity'? Surely [they] do not believe that prison gangs meet every month to discuss The Critique of Pure Reason and debate how Stanley Tiger-man's buildings differ from those of the Bauhaus school. Gangs affiliate for mutual support, but not the kind contemplated by the National Labor Relations Act." David K. v. Lane, 839 F. 2d 1265, 1278 (CA7 1988) (concurring opinion).
In my view, the stipulation was relevant to Dawson's character because it explained that the Aryan Brotherhood was a prison gang and that Dawson was a member. That evidence, I submit, supports an inference that while in prison,
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