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
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
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
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
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
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
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
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
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
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
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