Part II Constitutional Law of Corrections

Chapter 13 – Fourteenth Amendment: Equal Protection – Female Offenders and Others Introduction: Chapter looks at what may be described as the “non-discrimination” requirement of the Constitution

Chapter Outline Female Offenders Pargo v. Elliott Noncitizens (Foreign Offenders) Other Equal Protection Cases Racial Discrimination

Female Offenders 11.5% of the population in state and federal adult correctional agencies Most states only have one correctional facility for women The difference in number between men and women inmates led to many of the complaints about disparate treatment for women --One early reference to the constitutional requirement of comparable treatment for women was Bounds v. Smith, discussed in Chapter 6. As part of its ruling on inmate law libraries, the appeals court required the state to modify its plan for law libraries to ensure that female inmates had access to legal facilities similar to men. The Supreme Court approved the state plan (without a specific discussion of the availability of law books to female inmates).

Female Offenders: cont’d In Bukhari v. Hutto (1980), the district court had complaints from female inmates that they were being treated differently - and more poorly - than men Virginia had just one facility, and fewer programs for women

Female Offenders: cont’d District court held: The state would have to justify its reasons for treating women inmates separately and differently from men Equal protection clause requires parity of treatment for women, not identical treatment

Female Offenders: cont’d In Batton v. State Government of North Carolina (1980), female inmates claimed they were being sent from all over the state to one prison Claims made to the district court included

Female Offenders: cont’d They were being sent farther from their homes than were male inmates No classification of female offenders according to their ages, seriousness of offenses, and custody requirements Fewer opportunities for programs and activities Fewer work release placements Less vocational training Lower wages for prison work Less access to medical and psychiatric care Less adequate law library

Female Offenders: cont’d District court noted women were only 4% of 15,000 state inmates at the time To evaluate the women’s constitutional claims of disparate treatment, the court took the standard from the Supreme Court decision in Craig v. Boren (1976), a non-prison case To withstand constitutional challenge, classifications by gender must be justified by important government objectives and be substantially related to achieving those objectives --Craig was a Supreme Court case reviewing an Oklahoma statute, which barred the sale of 3.2 percent beer to males under 21 and to females under 18. Court held that state had not shown different treatment was necessary to further the legitimate objective of the statute, which was traffic safety.

Female Offenders: cont’d District court in Batton accepted the state’s justification for disparate treatment in some areas (medical and psychiatric care, disparate wages, and law library) Required development of further evidence in other areas (parole, work release and vocational training opportunities, education, recreation, classification, and housing of offenders) to determine if there was a substantial relationship between the reasons for those female programs and the achievement of legitimate government objectives

Female Offenders: cont’d In Glover v. Johnson (1979), a federal court held that educational and vocational programs in Michigan were markedly poorer for female inmates, denying them equal protection Ordered that a substantially equivalent program be established --The district court ordered that an evaluation and report be made of the educational and vocational interests and capabilities of the female inmates, prior to the state establishment of a program for female offenders that was substantially equivalent to the one offered throughout the state to male inmates.

Female Offenders: cont’d In Park v. Thompson (1973), a federal court held it was unconstitutional for Hawaii not to have any long-term facilities for women Held it was an equal protection violation to have such facilities in the state for men, but not for women --One would need to speculate whether this ruling would have been different if it had occurred after the Supreme Court’s decision in Olim v. Wakinekona (see Chapter 12). There, the Court, based on a due process analysis, found no constitutional violation in the transfer of inmates to facilities in other states. The Court in Olim did not have before it the equal protection concerns of Park.

Female Offenders: cont’d In Pitts v. Thornburgh (1989), a court of appeals affirmed a lower court ruling that there was no violation of constitutional rights by transferring female inmates out of the District of Columbia, while allowing men to stay closer to home

Female Offenders: cont’d Trial court held transfers caused no violation of constitutional rights because there was no showing that facilities or programs at the female facility were of lower quality than those for males in D.C. Appeals court affirmed, finding transfer was based on an important governmental objective: relieve severe overcrowding in D.C. prisons --This governmental objective led the court to find no “invidious discrimination” or violation of equal protection rights.

Female Offenders: cont’d In Jackson v. Thornburgh (1990), the issue was the D.C. Good Time Credits Act, and its provision for early release to reduce overcrowding in D.C. prisons Female inmates sent to a federal prison outside D.C. sued, as the transfer made them ineligible for the Act’s provisions

Female Offenders: cont’d Challenge was made on equal protections grounds, claiming in part, unlawful gender discrimination Appeals court denied the claim, holding the Act’s distinction was not based on gender, either overtly or covertly

Female Offenders: cont’d In Molar v. Gates (1979), a county jail provided minimum security status and facilities for male inmates, but not for females All females were treated alike – but this meant no minimum security privileges for women One example of impact – male inmates could have contact visits, female inmates could not Lower court found this to be unconstitutional – violating the equal protection clauses of both state and federal constitutions

Female Offenders: cont’d But in Morrow v. Harwell (1985), the federal appeals court upheld a county jail’s visiting program that allowed more visitation time for male than female inmates Appeals court held this was justified as jail had many more male than female inmates – found no violation of equal protection --More than 90% of the inmates were male. The additional time set aside for male inmates on visiting days was one hour overall. However, no inmate, because of the large number of inmates, was allowed more than 15 minutes for a visit.

Pargo v. Elliott (1995) In Pargo, female inmates at the Iowa Correctional Institution for Women filed a Section 1983 action, claiming a violation of their equal protection rights, that their prison programs and services were substantially different from those provided to male inmates

Pargo v. Elliott: cont’d Appeals court affirmed district court finding that the programs for male and female inmates were substantially similar, that differences were rationally related to legitimate penological interests --This case has an involved history in the courts. In its first opinion in Pargo, the appeals court found that its 1994 ruling in Klinger v. Department of Corrections, relied on by the district court in Pargo, did not stand for the proposition that male and female inmates can never be similarly situated. The Pargo appeals court, in its first ruling, held there were not enough facts in the record to allow for a determination to be made on whether the men and women inmates in Iowa were similarly situated. The case was remanded back to the district court with respect to making detailed findings and conclusions on the similar or dissimilar situation of the Iowa inmates. --On remand of the case, the district court findings spelled out the custody levels Iowa used for classifying men and women and the programs that were available, in each custody level, to women compared to men. The district court found no evidence of invidious discrimination, that the programs and services to men and women, taken as a whole or compared by custody levels, were substantially similar, with any differences justified by state officials. --A major focus left in this case was whether female inmates who were classified as “minimum live out” were disparately and unconstitutionally treated, compared to their male counterparts. These female inmates claimed that they lived in more confined housing with fewer furloughs, fewer off-grounds work opportunities, less library and yard time, different substance abuse programs, and more restrictive settings for their visits. The courts found no “invidious discrimination.” Female inmates in other security status complained that compared to men in the same security status, that they, the females, had fewer yard and library privileges, fewer legal assistance programs, less work release time, and fewer therapy programs. The lower courts found that differences in these programs were rationally related to legitimate penological interests, such as security and rehabilitation.

Pargo v. Elliott: cont’d In Archer v. Reno (1995), 13 female inmates involved with the prison dental program or lab at a federal medical center, filed a Bivens action to prevent their transfer Institution was being converted to a male prison Transfer would prevent completion of dental training program and the women becoming certified dental technicians

Pargo v. Elliott: cont’d Federal district court held female inmates had no right to specific educational or vocational programs, or to be assigned to a particular job, or to remain in a particular institution District court found that the Bureau of Prisons had presented justification for its decision That this was related to legitimate security and penological interests --The Federal Bureau of Prisons was converting the institution to a male facility because of population pressures and consideration of the types of facilities that were available for men and women. The Bureau was opening a new medical facility in Texas, and this would be for female inmates with medical needs, including medical training needs.

Noncitizens (Foreign Offenders) Fourteenth Amendment says it protects “persons,” not just citizens There are court rulings, however, that have held that persons entering U.S. illegally are not protected by some constitutional provisions They are considered “excludable aliens” – considered not to have entered the country, and so not entitled to the rights of persons who are legally within U.S. jurisdiction and coverage of Constitution --On January 1, 2002, 45 adult correctional agencies reported that they held more than 86,841 non-U.S. citizens. The largest number of offenses were for drug trafficking (over 34%) and immigration violation (over 51%).

Noncitizens (Foreign Offenders): cont’d Some courts have given protections to non-citizen, foreign-born inmates For example, the prison mail case discussed in Chapter 7, where the government was required to make the effort to find translators who could review mail written in Lao, since translations were being made for mail written in Spanish Religion cases could be another example --The referenced case is Thongvanh.

Other Equal Protection Cases Male inmates may also raise equal protection claims In Hill v. Estelle (1976), 6 Texas male inmates brought a § 1983 action claiming violation of their equal protection rights In part, male inmates objected to female inmates being allowed to have long hair, while males could not

Other Equal Protection Cases: cont’d Females could call families, males could not; females, unlike males, were allowed to decorate their cells Appeals court conceded disparate treatment but held there were no constitutional violations – that disparity was not of an unreasonable or egregious level

Other Equal Protection Cases: cont’d Main point: in order to justify different treatment, there must be a substantial government (correctional) reason

Racial Discrimination Supreme Court has not yet addressed equal protection rights for inmates, except in the case of racial discrimination Court, in Lee v. Washington (1968), upheld the lower court opinion that, in isolated instances, the temporary segregation of races might be okay for a limited time, but that complete and permanent segregation of races in all of the state’s prisons was unconstitutional --Officials in the state system had claimed segregation was necessary to protect institutional security. --As this book was being published, the United States Supreme Court had scheduled arguments in the case of Johnson v. Gomez. The question before the Court: “Is a state’s practice of routine racial segregation of state prisoners for at least a 60-day period subject to the same strict scrutiny generally applicable to all other challenges to intentional racial segregation, or is it excused from such scrutiny and subject only to the more relaxed review afforded under Turner v. Safley?” A second question concerned whether the state of California’s practice of routine racial segregation of state prisoners for at least a 60-day period violates the equal protection clause. The lower court’s ruling (Johnson v. State of California, 321 F.3d 791 (9th Cir. 2003)) is covered in the Instructor’s Manual. The appeals court held for the state, applying Turner.