Part II Constitutional Law of Corrections

1. Part II Constitutional Law of Corrections

2. 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

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

4. 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

5. 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

6. 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

7. Female Offenders: cont’d • In Batton v. StateGovernment 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

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

28. 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