THE BASICS: Prison officials cannot treat you differently because of your race, religion, or gender and the prison can’t segregate prisoners by race or religion except in very limited circumstances. However, proving discrimination is hard.

THE RULE: Any claim for discrimination must show that the regulation has both a discriminatory effect and intent. If there is discriminatory effect and intent, the court will use strict, intermediate, or rational-basis scrutiny to decide if the practice is constitutional. Which test it uses depends on whether you are complaining about race, religion, gender or some other form of discrimination.

The Fourteenth Amendment to the Constitution guarantees everyone “equal protection of the law.” Equal Protection means that a prison cannot treat some prisoners differently than it treats others without a reason. How good a reason the prison needs varies depending on what kind of discrimination is at issue. The courts are much more critical of laws that discriminate against people based on “suspect classifications.” The most important suspect classification is race. For that reason, courts are very strict in reviewing laws that treat people of one race differently than another. Such laws are subjected to a type of review called “strict scrutiny” and are frequently struck down.

Other suspect classifications include ethnicity and religion. Suspect classifications target groups that are (1) a “discrete or insular minority,” (2) have a trait they cannot change, also called an “immutable trait,” (3) have been historically discriminated against, and (4) cannot protect themselves through the political process. The Supreme Court discussed each of these factors in a case called City of Cleburne v. Cleburne Living Center, 473 U.S. 432 (1985). In that case, the Supreme Court decided that people with developmental disabilities are not entitled to suspect classification status.

The Court has also created a category called “quasi-suspect classification” for groups who they felt need more protection than usual, but not quite as much as the most suspect classifications. Gender is a “quasi-suspect” classification.

Level of Scrutiny Government Interest or Objective Relation to Government Interest
Strict (racial discrimination) Compelling Narrowly tailored
Intermediate (gender-based) Important Substantially related
Rational (other) Legitimate Rationally related

In a case called Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court struck down as unconstitutional a Colorado state law that prohibited regulations protecting gay people from discrimination, but the court did so without deciding that sexual orientation is a suspect classification.

1. Freedom from Racial Discrimination

Racial discrimination and segregation by prison authorities are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Washington v. Lee, 263 F. Supp. 327 (M.D. Ala. 1966). For example, prisons cannot prevent black prisoners from subscribing to magazines and newspapers aimed at a black audience. Jackson v. Godwin, 400 F.2d 529 (5th Cir. 1968). Nor can they segregate prisoners by race in their cells. Sockwell v. Phelps, 20 F.3d 187 (5th Cir. 1994). The Supreme Court stated that racial segregation in prison cannot be used as a proxy (a stand-in) for gang membership or violence without passing “strict scrutiny” – which is defined several paragraphs below and in the chart on the previous page.

The easiest type of equal protection claim to bring is a challenge to a policy that is explicitly race-based, for example, if a prison has a written policy of segregating prisoners by race. It is rare to come across written policies of that nature these days. More likely, you will be challenging a policy or practice that doesn’t actually say anything about race, but has the effect of treating black prisoners different than white prisoners, for example. For this type of claim there are two essential points to prove: (1) the prison rule had the effect of discriminating against you and (2) discriminatory purpose or intent was at least part of the reason for the rule. David K. v. Lane, 839 F.2d 1265 (7th Cir. 1988).

The first part is usually easier to prove: in a challenge to an unwritten segregation policy, for example, you could show that all the prisoners on your unit are African-American.

Proving intent to discriminate is harder, because prison officials will often come up with various excuses to explain away what looks like discrimination. You will need to show that you are being treated differently because of your race. If you have direct proof of discriminatory intent – like the warden who decides which unit prisoners go to has made racist comments – you will include that in your complaint. However, if you don’t have any direct proof of discriminatory intent, you can argue that discrimination is the only plausible reason for the treatment you are experiencing. For example, a federal court in Alabama decided that the Constitution had been violated because it could not find any non-discriminatory reason for the fact that African-Americans consistently made up a greater proportion of those detained in Alabama’s segregation unit than those detained in Alabama’s prisons generally. McCray v. Bennett, 467 F. Supp. 187 (M.D. Ala. 1978).

However, proving a case like this is not easy, and will probably require expert witnesses and statistical analysis. One great example is Santiago v. Miles, 774 F. Supp. 775 (W.D.N.Y. 1991). In that case, the prisoners showed through statistical data that the prison was made up of mostly African-American and Latino men, but white prisoners received better housing and job assignments and had better disciplinary hearing outcomes for similar infractions. The Court decided that discriminatory intent was the only possible explanation for what was going on in the prison. On the other hand, in Betts v. McCaughtry, 827 F. Supp. 1400 (W.D. Wisc. 1993) a different court held that prison officials did not violate the Constitution when they censored certain cassettes, most of which were African-American rap music, because there was not enough evidence that they intended to discriminate against African-Americans.

Even if you successfully prove discriminatory effect and intent, courts may allow racial segregation or discrimination if prison officials can show that it passes “strict scrutiny.” Strict scrutiny is another two-step process where the prison officials will have to show that the segregation or discrimination is being done to advance a “compelling government interest” and the way the prison is achieving that interest is “narrowly tailored.” Johnson v. California, 543 U.S. 499 (2005). This means that the prison must have a very good reason for the rule and the rule directly fixes the problem at issue.

Johnson is an important case to read if you are considering a segregation claim. In Johnson, the Supreme Court considered a California policy that segregated inmates by race for the first 60 days of any transfer.

The Court decided in Johnson that the prison’s concern about gang violence was a compelling government interest. (Courts often find “gang violence” to be a very good reason for rules.) However, the Court said that California’s rule did not address the problem of gangs and violence in a way that was narrowly tailored because segregating prisoners without looking at their disciplinary history or gang connections affected all the prisoners, not just those who were in gangs or who were violent. The Court stated the prison should have made a case-by-case decision about who to segregate. The Court also said that not all gangs or violence happen because people of different races are housed together, so it was not narrowly tailored to have a rule based on race.

  • Note: The California policy in Johnson is one of the rare policies described earlier that is explicitly based on race.

A vague fear of racial violence is not a sufficient justification for a broad policy of racial segregation. For example, in Sockwell v. Phelps, 20 F.3d 187 (5th Cir. 1994), the court did not accept the argument that there might be an increase in violence if people of different races shared two-person cells, since the rest of the prison was integrated. However, some courts have held that a brief period of racial segregation, like during a lockdown or another emergency where the safety of members of one racial group is an issue, is OK. Fischer v. Ellegood, 238 Fed.Appx. 428 (11th Cir. 2007) (unpublished).

Most courts have held that racial discrimination in the form of occasional verbal abuse does not violate the Constitution.

2. Freedom from Gender Discrimination

THE BASICS: Women have a right to programs that are as good as the programs in prisons for men, but this right is very hard to enforce.
A gender-based prison rule must be substantially related to important governmental interests,
A gender-neutral rule that treats women who are similarly situated to men differently must be rationally related to legitimate government interests.

The Equal Protection clause of the Fourteenth Amendment also prohibits discrimination based on gender. While it protects both men and women from discrimination, gender discrimination is a bigger problem for women.

In addition to the sexism toward women that exists outside prison, women prisoners often experience discrimination because they are a minority population in prison. While the population of women prisoners has grown much larger over the past few years, women still are at risk for being lumped together in one prison with other prisoners from all levels of security classification because there are fewer women’s prisons. They will sometimes be sent much farther away from their homes than men because there are no women’s prisons nearby. States that provide treatment and educational programs for male prisoners usually provide fewer programs for women, because it is very expensive to provide so many programs for so few women.

Faced with these inequalities, women prisoners in some states have brought successful suits against state prison officials using an Equal Protection argument. For example, in a landmark class action case in Michigan, Glover v. Johnson, 478 F. Supp. 1075 (E.D. Mich. 1979), female prisoners challenged the educational opportunities, vocational training, prison industry and work pass programs, wage rates, and library facilities they were provided as compared to those male prisoners were provided. Although prison officials tried to argue that it was impractical and too expensive to provide the smaller population of women the same level of services that they provided to men, the court ruled in favor of the women. The judge ordered the prison to undertake a series of reforms, and the court oversaw these reform efforts for close to twenty years, often stepping in to enforce its decision when it became clear that the prison was not following the Glover court’s orders.

While women in some states have effectively challenged gender discrimination under the Equal Protection clause, relatively few cases have succeeded. Like other cases involving constitutional rights of prisoners, the courts like to leave the decisions to prison officials. There are a number of things a court takes into account when deciding a gender discrimination case, and each raises its own obstacles for female prisoners trying to bring an Equal Protection action. The following section addresses these considerations and the challenges they create.

a. The “similarly situated” argument
To make an Equal Protection claim, you must first show that the male and female prisoners you wish to compare are “similarly situated” for the purposes of the claim you are bringing. “Similarly situated” means that there are no differences between male and female prisoners that could explain the different treatment they receive. While it is unconstitutional to treat prisoners who are in the same situation differently, it is acceptable to treat prisoners in different situations differently. Courts will look at several factors to decide whether male and female prisoners are “similarly situated,” including number of prisoners, average sentence, security classification, and special characteristics such as violent tendencies or experiences of abuse. Unfortunately, courts very often decide on the basis of these factors that male and female prisoners are not similarly situated. Keevan v. Smith, 100 F.3d 644 (8th Cir. 1996); Klinger v. Dept. of Corrections, 31 F.3d 727 (8th Cir. 1994).

b. The Equal Protection test for gender discrimination
If you successfully show that male and female prisoners are “similarly situated” for the purposes of the challenge you are making, you must then show that prison officials discriminated between the groups on the basis of gender, and not for a different, legitimate reason. Courts will use a different test for this depending on whether the action you are challenging is “gender-based” or “gender-neutral.” These two terms are explained below.

  • Gender-based classifications: A rule or practice is “gender-based” if it states one thing for men, and another for women. For example, a policy that says all women will be sent to child care training and all men will be sent to vocational training is “gender-based.” Judges look very carefully at gender-based rules. The government must show that the distinction between men and women is “substantially related to important governmental objectives.” Mississippi University for Women v. Hogan, 458 U.S. 718, 724 (1982); Jackson v. Thornburgh, 907 F.2d 194 (D.C. Cir. 1990). This is known as “intermediate scrutiny.” Note that this is a less strict standard than “strict scrutiny” which is used for racial discrimination, described in Part 1 of this Section.
  • Gender-neutral classifications: A “gender-neutral” classification may still have the effect of discriminating against women in practice, but it does not actually say anything about gender. One example is a prison system that has a rule that only prisons with 2000 prisoners or more get college programs, and all the women’s prisons are too small to qualify. If the action challenged is “gender-neutral” then the courts use a less strict standard of review. The court asks whether the rule is “rationally related to legitimate government interests” (the Turner test) or whether, instead, it shows an intent to discriminate on the basis of gender. Jackson v. Thornburgh, 907 F.2d 194 (D.C. Cir. 1990).

There are two important considerations to keep in mind about these tests.

First, any type of government interest – whether it’s “important” or “legitimate” – cannot be based on stereotypes or outdated ideas about gender. Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989). For example, the court will not accept a government interest of protecting one gender because it is “inherently weaker” than the other gender. Glover v. Johnson, 478 F. Supp 1075 (E.D. Mich. 1979).

Second, it is not always obvious whether a prison’s action is gender-based or gender-neutral, and courts disagree on how to read regulations or policies. Often, there will be two regulations at play. The first regulation assigns men and women to specific prisons on the basis of their gender. Courts have rarely held that this kind of segregation is discrimination. The second regulation assigns certain programs or facilities to prisons on the basis of such factors as size, security level, or average length of prisoner sentence. These second types of regulations do not appear to be gender-based; they seem to be based on characteristics of the prisons alone. However, they often result in different treatment of male and female prisoners.

Some courts rarely decide that any rule is gender-based. These courts state that when a statute or policy does not explicitly distinguish between men and women in how the prison facility is run, it is gender-neutral. Klinger v. Dept. of Corrections, 31 F.3d 727 (8th Cir. 1994); Jackson v. Thornburgh, 907 F.2d 194 (D.C. Cir. 1990). Other courts, however, have read the requirement more favorably to prisoners. They see that in reality, gender-neutral regulations about programming interact with gender-based assignment of prisoners to specific prisons, which makes the regulations gender-based. (“Programming” means how a prison is run by officials.) One example of this is Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989).

3. Freedom from Other Forms of Discrimination

If you believe you are being unfairly singled out for mistreatment, but it is not based on your race, ethnicity, gender, or some other suspect or quasi-suspect factor, you can still make an equal protection claim. However, that claim will be very hard to win.

To win your case, you will need to show that you are being treated differently than other prisoners and that your treatment is not rationally related to a legitimate governmental purpose. One good example of a successful case is Doe v. Sparks, 73 F. Supp. 227 (W.D. Pa. 1990). In that case, the court held that it was irrational for a prison to ban same-sex boyfriends and girlfriends from non-contact prison visits.

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