National Institute of Corrections

Morris L. Thigpen, Director

Michael A. O’Toole, Chief

Jails Division

Virginia A. Hutchinson, Project Manager
Women in Jail: Legal Issues

by

William C. Collins, J.D.

with

Andrew W. Collins

December 1996
This document was developed through funding from the National Institute of Corrections, U.S. Department

of Justice. Points of view or opinions stated in this document are those of the authors and do not necessarily

represent the official position or policies of the U.S. Department of Justice.
iv / Women in Jail: Legal Issues

Contents

Foreword ...............................................................................................................................................................................iv

1. Overview of the Female Inmate Population...................................................................................................................1

Inmate Backgrounds................................................................................................................................................1

Drug Offenses .........................................................................................................................................................1

Facilities for Female Inmates..................................................................................................................................2

Programs and Services............................................................................................................................................3

Work Programs.......................................................................................................................................................3

Health Services........................................................................................................................................................3

Pregnancy ................................................................................................................................................................4

Vocational Training ................................................................................................................................................4

Family Concerns......................................................................................................................................................4

Sexual Harassment and Abuse................................................................................................................................5

Variations in Sentences...........................................................................................................................................5

2. Legal Issues and the Female Inmate ...............................................................................................................................7

Equality of Programs, Services, and Facilities .......................................................................................................7

Relief in Parity Case is Source for “Parity” Label...........................................................................................9

Parity at the Appellate Court Level ...............................................................................................................10

If Agency Receives Federal Dollars, Statute May Require More Equality Than Parity .......................................... in Some

Cross-Gender Supervision....................................................................................................................................16

BFOQs: Very Hard to Justify—Accommodation of Interests May Come First ...........................................17

Some Inmate Privacy Concerns Continue .....................................................................................................18

Touching and Closer Observation.................................................................................................................18

Strip Searches of Arrestees ...........................................................................................................................19

Medical Care .........................................................................................................................................................20

What is “Deliberate Indifference”? ...............................................................................................................20

When is a Medical Need “Serious”? .............................................................................................................21

Risk of Future Harm ......................................................................................................................................21

Abortion.........................................................................................................................................................22

Prenatal Care..................................................................................................................................................24

Breast Feeding ...............................................................................................................................................24

Abuse of Female Inmates......................................................................................................................................24

Access to the Courts..............................................................................................................................................26

3. Trends...........................................................................................................................................................................28

Endnotes...............................................................................................................................................................................30

Bibliography.........................................................................................................................................................................32

Appendix - An Overview of the Courts and Corrections....................................................................................................33
Women in Jail: Legal Issues / v

Foreword

There are not very many women in jail, compared to the number of men. There are not

very many reported lawsuits regarding women in jail, compared to the number of suits

brought by men.

Yet, the official who ignores problems relating to female inmates on the basis of

comparative numbers, or pushes those problems to a back burner in order to focus on

issues involving male inmates, increases exposure to litigation and liability. It is a serious

mistake to interpret the comparatively small numbers of court decisions about women in

custody as an indication that this group of inmates has no rights or fewer rights than male

inmates.

This report reviews the major legal issues concerning female inmates. Probably the most

significant of those arises under the Equal Protection Clause of the Fourteenth

Amendment and asks officials to explain and justify differences that commonly exist in

housing, privileges, and programming provided for male and female inmates. Unless

sound reasons exist to justify differences, a court may find a constitutional violation and

become involved in overseeing a long remedial process intended to bring programs,

facilities, and privileges for female inmates into “parity” with those provided male inmates.

Medical issues are also important for female inmates. They include not only medical

concerns held in common with men, but also concerns unique to women. The other legal

concern that is probably unique to women as a practical matter relates to sexual

harassment and even physical abuse in the jail. A small number of court decisions deal with

situations where such abuse had become relatively commonplace in the institution. Most

other legal issues of concern to women do not differ significantly from those of male

inmates, although meeting the challenges of those issues may be complicated by the

relatively small number of women in jail.

Reducing the possibility of having to confront serious litigation on behalf of female inmates

can begin in the design and planning of a new jail. It extends into the development of

policies and procedures, into trying to maintain similar levels and quality of programming,

and into the overall management of the jail.

We hope this report will assist jail administrators in addressing housing, service, and

program issues related to female inmates.

Morris L. Thigpen, Director
iv / Women in Jail: Legal Issues

National Institute of Corrections
Women in Jail: Legal Issues / 1

Section 1. Overview of the Female Inmate Population

Although women make up only a small minority of the nation’s jail inmate population,

their numbers have risen dramatically over the past decade. Between 1985 and 1996, the

number of women held in jails rose from 19,077 to 55,700,1 an increase of 192%

(compared to a 93% increase for male inmates over the same period). As of June 1996,

women accounted for 11% of the total adult jail inmate population. By contrast, they

accounted for 6.3% of the total prison population.2

Inmate Backgrounds

As might be expected, most female inmates come from disadvantaged backgrounds, with

education and employment rare and abuse common. A survey of the histories of female

jail inmates found that:

• Most had a poor educational background—half never completed high school.3

• Over 60% were unemployed when arrested and one-third were not looking for

work. Less than one-third of male inmates were similarly unemployed and less

than 12% were not looking for work.4

• More than 44% of women reported that they had been either physically or

sexually abused at some time before entering jail, with over 30% reporting such

abuse before the age of 18. Only 13% of men reported prior abuse.5

• Two thirds of women in prison had children under 18 years of age, and four of

five women had children living with them before incarceration.6

Nearly one-third of female inmates were first-time offenders, as compared to only one-fifth

of male jail inmates.7 This rise in new offenders supports the increasing percentage of

female inmates as described above.

Drug Offenses

One reason the number of female inmates is growing so rapidly may be the nation’s

growing lack of tolerance for drug-related offenses through the last decade. A look at some

numbers relating to drug use and female inmates finds drug-related issues to be a rising

factor in criminal activity among women.

• A drug offense was the most serious offense of more than one-third of female
iv / Women in Jail: Legal Issues

inmates in jail in 1989, compared to only 13% in 1983. This increase in female

drug offenders between the years 1983 and 1989 accounts for nearly half the total

increase of the female jail population.8

• Nearly 40% of female inmates reported they had committed their offense under

the influence of drugs, compared to only one-fourth of male inmates.9

• Forty percent of incoming female inmates reported daily drug use in the month

before their current offense, compared to only 29% of men.10

• Two-thirds of women arrested in 20 major cities in 1993 tested positive for drugs

at the time of booking, according to a U.S. Department of Justice study.11

• Fully 70% of female inmates said they had regularly used drugs at some point in

their lives. Only 57% of men reported prior drug use.12

• In contrast, alcohol abuse problems were substantially less in female inmates than

in male inmates. For instance, just over 20% of women reported being under the

influence of alcohol at the time of their current offense, compared to over 43% of

males.13

Facilities for Female Inmates

Since female inmates have historically constituted such a small percentage of the total

inmate population, many jail facilities are unable to cope with the recent drastic rise in

their numbers. Although over 60% of jails nationwide hold women, only 13 facilities were

reported as “female-only” jails in a December 1992 survey.14 Nine of these were small to

medium jails, holding fewer than 250 inmates. Three women’s jails had a capacity of

between 250-1,000 inmates, and only one was designed to hold more than 1,000 inmates.15

Whether living in large jails or small, female inmates often find themselves without many

of the programs and services available to men. Many factors contribute to female inmates

being “ignored” in this way. In comparison to their male counterparts, the female inmate

population:

• Constitutes only a small minority of the total population in most jails across the

nation;

• Causes fewer security problems (for example, one survey found that in 90% of

local jails, no female inmates had been involved in escapes in the previous 12

months);16

• Experiences less crowding.
Women in Jail: Legal Issues / 3

Together, these factors can result in the female population being given less attention and

a lower priority for resources—an example of the “squeaky wheel” syndrome at work.

Women’s facilities may be seen as “secondary” to men’s. Women are often relegated to

older jails, which may be annexed to newer facilities holding male inmates.17 Others may

be sent to jails located in rural areas, away from major metropolitan areas, which can

further limit the resources available.18 While these observations are based on a study of a

single state, to a large extent they can be generalized.

The practice of solving a problem by sending female inmates somewhere else overcame

a legal challenge in Pitts v. Thornburgh, 866 F.2d 1450 (D.C. Cir. 1989). In this case, a

lack of prison space in the District of Columbia resulted in female offenders from the

District being incarcerated in a federal facility located in remote Alderson, West Virginia.

Plaintiffs argued that this created an unfair burden on female offenders, especially in the

areas of visitation and preparation for their return to the District. However, the Court

found that the District’s policies were “directly and substantially related to the important

government interest in reducing prison overcrowding” and outweighed any arguments of

“invidious discrimination” against female offenders. The crowding of concern to the

District related to male inmates, not female. While D.C. corrections officials were

presumably pleased with the result in Pitts, that same result meant many female prisoners

did their time in a prison located in a small town in the southeastern corner of West

Virginia, hundreds of miles from their families, as a partial cure for a problem related to

male inmates. 

Programs and Services

Because of the limited resources allocated to female inmates, there tend to be fewer

programs and services available to women in jail. This is ironic, since women are more

likely than men to have special conditions imposed as part of their jail sentence, including

drug or alcohol treatment or psychiatric counseling. A “catch-22” situation exists in many

facilities.

• The low number and percentage of female inmates in most jails result in few

programs designated as “women-only.”

• Women are rarely allowed to participate in programs or activities with male

inmates.

• The relatively small number of women in most facilities or systems often results in

security classifications being mixed together, making it difficult to operate

programs requiring less secure environments.

Together, these factors can restrict women from taking advantage of the wider variety of

programs afforded male inmates.
4 / Women in Jail: Legal Issues

Work Programs

Work programs, a staple of most men’s institutions, are much less common for women.

One survey reports that nearly 60% of male inmates had work assignments, compared to

less than 44% of female inmates.19 Work assignments outside the jail went to male inmates

nearly three times as often as female inmates (23.2% vs. 8.1%).20 Since male and female

inmates are kept separated, women do not have access to many of the support service jobs

available in jails, such as food service or laundry. Without such access, female inmates have

difficulty obtaining “trusty” positions—jobs that can increase “good behavior” time

earned.21 Furthermore, women recommended for work release are often incarcerated

instead because work release programs for women are overcrowded or non-existent.22

Health Services

The lack of health services is a frequent issue in lawsuits brought by female inmates. While

general medical services are usually available—80 to 90% of jails offer intake screening

and/or mental health services23—those specific to women are often poor or absent. These

services vary from basic gynecological examinations to pregnancy-related concerns

including obstetric examinations, childbirths, and abortions. Approximately half of all jails

do not offer these services to inmates.24

Pregnancy

Although less than 5% of female inmates are pregnant at the time of intake,25 the pregnant

inmate presents an extremely serious situation for jail officials. Additional medical

concerns arise in the jail setting that might not be immediately apparent. Because of

factors such as poor socioeconomic

conditions and drug use before

incarceration, the pregnancies experienced

by inmates can be much higher risk than

average. This produces a greater demand

for medical care and can require more

extensive medical training for jail staff, who

must be able to recognize when such care is

needed.

Pregnant inmates also present jails with difficult questions. If an inmate wishes to terminate

her pregnancy, must the jail provide or facilitate the abortion? What happens to a child

born of a mother in jail? These questions are often left unaddressed and unanswered until

problems arise—a dangerous situation for inmate and institution alike.

Vocational Training

If an inmate wishes to terminate

her pregnancy, must the jail

provide or facilitate the abortion?

What happens to a child born of a

mother in jail? These questions

are often left unaddressed and

unanswered until problems arise.
Women in Jail: Legal Issues / 5

Vocational training programs are also rarely available to female jail inmates. Those that

do exist tend to limit participants to traditional female roles, such as cosmetology or

secretarial programs, excluding them from more career-oriented training. When added

to the high unemployment rate of incoming female inmates, this lack of adequate training

does little to increase the earning capacity of female inmates upon their release.

Family Concerns

The importance of earning capacity and employability among female inmates is especially

high because of the high percentage of inmate mothers. Fully two-thirds of the women in

jail have children under age 18, and nearly 85% of these women reported they planned

to live with their children after release.26 Since the fathers are often absent (only one-fourth

of these children live with their father while the mother is in jail),27 these women may find

themselves as the primary caretaker and wage-earner of the family.

Other family-related concerns can arise as well, such as the extent of visitation

opportunities a female inmate should have with her young children. Less than 40% of jails

allow mother and child contact visits, and less than 15% allow extended contact visits

between mother and child.28 Since it could be argued that speaking with a two-year-old

child via telephone through a glass partition does little to foster a strong mother-child

relationship, doesn’t this policy inflict emotional damage on both parties? Although most

jail sentences are relatively limited in duration, what seems a short time to an adult can be

an eternity to a young child. Should mothers of infants be allowed to hold, even breast

feed, their children if such contact goes against the jail policy?

The increased level of family concerns for female inmates raises a related concern: access

to legal resources that provide assistance in the area of parental rights.29 Despite a strong

concern about child custody and parental rights issues, current court caselaw does not

require a jail to provide any legal resources in this area, although the jail has constitutional

obligations to provide materials in other areas, Glover v. Johnson, 75 F.3d 264 (6th Cir.,

1996), Bounds v. Smith, 430 U.S. 817 (1977). See p. 28, et seq., for additional discussion

of this topic.

Sexual Harassment and Abuse

Sexual harassment by correctional staff is another potential problem that can confront the

female inmate. One example appears in Women Prisoners v. District of Columbia, 877

F.Supp. 634 (D.D.C. 1994). Women Prisoners was brought by female inmates housed in

various facilities operated by the District of Columbia Department of Corrections. Unlike

the Pitts case, discussed earlier, which dealt with female inmates of the D.C. Department

of Corrections who had been transferred to a federal prison in West Virginia, Women

Prisoners dealt with conditions and practices in facilities actually operated by the D.C.

Department of Corrections.

Among other issues, the plaintiffs claimed that their Eighth Amendment rights had been
6 / Women in Jail: Legal Issues

violated by frequent occurrences of sexual harassment by the staff. As might be expected,

the Court came down hard on officials who showed “deliberate indifference” to the

problems faced by the plaintiffs. The physical assaults, vulgar sexual remarks, and lack of

privacy all contributed to an “unacceptable . . . level of anxiety” marked by “significant

depression, nausea, frequent headaches, insomnia, fatigue, anxiety, irritability,

nervousness, and a loss of self-esteem” and constituted cruel and unusual punishment.

Furthermore, the obvious failure of the defendants to properly train employees in the area

of sexual harassment did not sit well with the Court. Finding the defendants liable under

the Eighth Amendment, the Court ordered a number of specific measures designed to

prevent future instances of such harassment.

On appeal, the court of appeals reversed a portion of the district court’s relief order

pertaining to the appointment of a “special officer” to monitor sexual harassment issues.

The District of Columbia did not appeal other aspects of the decision regarding sexual

harassment, Women Prisoners of the District of Columbia v. District of Columbia, 93 F. 3rd

910 (D.C. Cir., 1996).

The problem of sexual abuse of female inmates might be more widespread than previously

thought. This may be attributed to permitting male officers to work in contact with female

inmates (a result of laws prohibiting sexual discrimination), without strong safeguards to

prevent abuse or respond quickly and aggressively when it does take place.

Variations in Sentences

Although women and men sentenced to jail received similar sentences, some of the factors

noted above can result in women serving longer sentences for the same offenses than men.

The lack of work programs restricts the availability of early release for good behavior. In

addition, since women’s facilities experience less crowding, female inmates are rarely

released early to alleviate crowding, which is a common practice in severely crowded men’s

jails. The result is that, while the sentence received by a male and female offender might

be the same, the man might be released earlier than the woman.

For example, admission to a boot camp program in Virginia resulted in substantial

reductions to the participants’ sentence. The program was open only to male offenders.

A district court found this discrimination violated equal protection, West v. Virginia

Department of Corrections, 847 F.Supp. 402 (W.D. Vir., 1994). 
Women in Jail: Legal Issues / 7

Section 2. Legal Issues and the Female Inmate

The legal principles upon which courts evaluate conditions and practices generally apply

equally to both men and women.* However, relatively little legal attention has been given

to applying these legal principles to female inmates. Part of the reason for this is that the

“jailhouse lawyer,” the inmate who files suits on his own behalf or on behalf of other

inmates, is typically not the fixture in female institutions that it is in male facilities. But,

while lawsuits on behalf of male inmates have captured the lion’s share of public and

judicial attention, some major suits have been brought on behalf of female inmates.

As of the end of 1994, at least 19 major class action lawsuits involving female inmates and

dealing with a wide range of issues were decided, settled, or pending.30 Following is a

sampling of issues taken from the cases that had been decided or settled.

• Wisconsin: A women’s prison operates under a 1988 consent decree imposing a

population cap and addressing programming and medical care.

• Massachusetts: A 1991 consent decree in a state court case improves prenatal

services for women at a state prison.

• Illinois: Programs for women and the construction of a 200-bed minimum

security prison are addressed in a 1990 consent decree.

• Kentucky: An order addresses a number of prison issues, including crowding,

physical plant, sanitation, access to the courts, programming, classification, and

work.

• New York: In 1993, a decree in effect since the mid-1970s dealing with medical

issues at a state prison is expanded regarding gynecological care and medical

staffing. Another case deals with mental health issues at the same facility. The

injunctive portion of the case was closed in 1991 after two years of monitoring a

settlement stipulation. Damages claims in the same case were settled for

$350,000.

Some of the issues in women’s cases differ little from those in men’s cases (e.g., crowding),

 

*The appendix to this report provides a general overview of court involvement in corrections.
8 / Women in Jail: Legal Issues

but others have unique application for women. The most important of these are reviewed

next.

Equality of Programs, Services, and Facilities

The potentially most important area of litigation for female inmates arises under the Equal

Protection Clause of the Fourteenth Amendment. This type of claim, commonly known as

a “parity case,” argues that the programs, services, and/or facilities available to women are

significantly lower in quality and quantity than those available to male inmates in the same

facility or institutional system. These disparities, the claim continues, have no justifiable

basis and therefore violate the Equal Protection Clause.

Although major parity cases have been reported at the district court level for 15 years or

more, there are still relatively few cases in this area. No equal protection issues involving

female inmates have reached the Supreme Court.

Early decisions suggested that the majority of female institutions or sections of facilities

housing both men and women, including almost all jails, were vulnerable to this type of

suit. It appeared that parity cases could become the vehicle of major reform efforts for

female offenders. Several of the major suits listed earlier involve issues of equal protection.

However, very recent caselaw may

check the momentum of this theory of

litigation. Court of appeals decisions in

the mid-1990s raise questions as to how

courts will analyze differences between

men’s and women’s programs. The

final answers to these questions will

determine the eventual effect of parity

claims. To at least some degree, the parity concept may be at a crossroads: the analytical

approach courts generally adopt will have a major impact on the likelihood of the success

or failure of future parity claims.

That there are often substantial differences between what is available for men and for

women in jails is probably more the rule than the exception. The question that the parity

cases try to pose is, “Why do these differences exist?” The answers provided by agencies

may determine if adequate justifications exist to satisfy the requirements of the Equal

Protection Clause.

What does Equal Protection mean? The Equal Protection Clause is part of the Fourteenth

Amendment: “...nor shall any State...deny to any person within its jurisdiction the equal

protection of the laws.”

The Equal Protection Clause does not require that every person or every group be treated

exactly like every other. However, for groups that are generally alike, “similarly situated”

That there are often substantial

differences between what is

available for men and for women

in jails is probably more the rule

than the exception. The question

that the parity cases try to pose is,
Women in Jail: Legal Issues / 9

in legal jargon, the concept of equal protection requires that the government treat such

groups alike or have a sound reason to explain and justify discriminating against one of

the groups.

Depending on the basis of discrimination between groups, courts apply different levels of

scrutiny in evaluating the adequacy of the reasons for discrimination. In other words,

courts will examine some types of discrimination much more closely than others. The level

of scrutiny a court applies in an equal protection case can virtually dictate who wins the

case because it determines the government’s burden to justify the discrimination.

For example, discrimination based on race is subject to what is known as the “strict

scrutiny” test: the government must show discrimination based on race is in furtherance

of a compelling state interest and is the least restrictive means available of furthering that

interest. This is a very difficult burden for the government to meet. By contrast,

discrimination directly based on gender is subject to a slightly less demanding test, known

as the “heightened scrutiny” test. Under this approach, the government has the burden

of showing that classifying groups by gender “has an important purpose and that the

relationship between the purpose and the discrimination is substantial,” Klinger v.

Department of Corrections, 31 F.3d 727, 737 (8th Cir., 1994), McMillian, dissenting. Other

forms of discrimination, not based on race or gender, are examined under an even more

forgiving “rational basis” test.

In early major parity cases, courts found that male and female inmates in an institution or

institutional system were similarly situated for purposes of comparison under equal

protection. The courts then applied the heightened scrutiny test, which, when applied in

this context, asks the government to (1) explain the reasons for treating women differently

than men, (2) show that these reasons further some important interest of the government,

and (3) show a substantial relationship between the governmental objective and the

discrimination.

In most cases that compared men’s and women’s institutions, the court found that women

lived with poorer conditions, facilities, and/or programs and that the reasons offered to

explain those differences did not meet the heightened scrutiny test, Glover v. Johnson, 478

F.Supp. 1075 (E.D.Mich., 1979), Canterino v. Wilson, 546 F.Supp. 174 (W.D.Ky., 1982).

The Glover and Canterino decisions became the model for parity cases, both in how courts

evaluated the question of liability and how they formulated relief once liability was found.

Several other cases have ended in consent decrees, the defendants not admitting liability

but agreeing to a remedial order.31

While intent to discriminate against female inmates probably does not explain the

common differences, the comparatively small numbers of female inmates combined with

traditional notions about women in American society undoubtedly contribute to the

differences. Stereotypes about women in general and women in jail persist. It is easy to

ignore a group comprising barely 11% of the jail population, especially when it presents
10 / Women in Jail: Legal Issues

fewer management and security problems than the majority group.

Add to this the limited budgets and the need to separate men and women in jail, and it is

easy to see where the squeaky wheels are and where the limited amount of grease is likely

to go. The result, common in jails across the country, is that female inmates continue to

receive fewer programs, live in poorer quality quarters, and generally are not treated in

a way substantially equivalent to that afforded male inmates.

The argument that differences are the product of numbers—that it is harder to provide

the array of programs and facilities for 11% of the population (women) than for the

remaining 89% (men)—was generally rejected as justifying poorer treatment of women in

the early parity cases such as Glover and Canterino.

Relief in Parity Case is Source for “Parity” Label

Given a finding that conditions in a women’s institution violate equal protection, how have

courts approached the question of relief? Ever since Brown v. Board of Education, 347

U.S. 483 (1954), the usual court response to an equal protection violation was an order

focused on assuring an identity of treatment between the two groups that were compared

in the lawsuit. “Separate but equal” was a tautology: separate could not be equal.

But “separate” is the rule when dealing with male and female inmates, and no court has

challenged or questioned that male and female inmates cannot be mixed, except in very

limited, controlled settings.* There are also legitimate differences in the programming

needs of male and female inmates, which precise equality of treatment would not

recognize.

The result is that courts have adopted an approach to relief known as “parity” in which

comparable but not necessarily identical levels of programming and care are required. The

expectation several courts have adopted is that programs, facilities, etc. for women should

be “substantially equivalent (to those of men) in substance if not form,” Glover, supra.

Most parity cases have involved prisons, not jails. However, in one jail case, Dawson v.

Kendrick, 527 F.Supp. 1252 (S.D. W. Vir., 1981), the court ordered certain programs be

created for women held in the jail for longer terms. The court recognized that there were

valid reasons to keep male and female inmates apart and that there was no reason to order

programs for women held only a short time in the jail.

At least in theory, a “parity” approach leaves room for program differences, where the

 

*Corrections has seen some experimentation with co-correctional facilities or programs, but these

require very careful screening and supervision of offenders. While allowing some male and female inmates to

participate in programs together may be a partial solution to equal protection problems, it is never going to

be a complete solution.
Women in Jail: Legal Issues / 11

difference can be justified. Despite the potential for accepting differences, some, including

two appellate courts, suggest the more likely effect of parity is identity of programs, a

stifling of innovation and experimentation, and a possible reduction of all programs to a

bare constitutional minimum. This is discussed further in the next section.

Parity at the Appellate Court Level

While plaintiffs have generally prevailed in parity cases at the district court level, equal

protection claims have not fared so well at the court of appeals level. Two recent decisions

from different courts of appeal suggest that the Glover-Canterino approach may be in

error.

Before discussing those cases, a couple of other, earlier decisions warrant comment. In

Pitts v. Thornburgh, supra, the court reviewed and upheld a policy of the District of

Columbia under which all female offenders sentenced to more than one year were

transferred to a federal prison in Alderson, West Virginia. Applying the heightened

scrutiny test, the court found that the District’s reasons for transferring a substantial

number of the women in the Department of Corrections’ custody did further an important

government interest, i.e., reducing crowding in the men’s facilities. Pitts then is an

example of where a sex-based discrimination survived legal attack.

Another case coming out of the District of Columbia arose as a result of the District’s

“Good Time Credits Act.” This law granted early release to persons serving time in D.C.

jails, Jackson v. Thornburgh, 907 F.2d 194, 197 (D.C.Cir., 1990). The problem that led to

the suit was the same as that in the Pitts cases—the practice of transferring all long-term

female inmates out of District facilities to Alderson. These women then were not eligible

to benefit from the good time law because they were not housed in a D.C. jail. Some

women did remain in District facilities and received benefit of the law. A few male inmates

were transferred out of the District and lost the benefits.

Unlike Pitts, the court in Jackson did not apply the heightened scrutiny test. Instead, it

applied a rule developed in other equal protection cases where sexual discrimination does

not appear on the face of a statute or policy, but instead where a gender-neutral policy

creates a negative impact disparately on one group. In such situations, the heightened

scrutiny test does not apply. Instead, the plaintiffs must show first that the gender-neutral

law or policy has a disproportionately adverse effect on them and that the disparate impact

reflects a discriminatory purpose: the defendants actually intended to discriminate against

the women. This rule finds its genesis in Personnel Administrator v. Feeney, 442 U.S. 256

(1979), in which the Supreme Court upheld a public employment veterans’ preference law

despite the fact that 98% of the potential beneficiaries were men.

Under the Feeney test, the burden on the government to justify the adverse impact drops

from the difficult-to-meet heightened scrutiny test to a much less demanding “rational

relation” test: is the denial of benefits to one group (in Jackson, the women who were not
12 / Women in Jail: Legal Issues

eligible for good time) rationally related to a legitimate governmental interest? Applying

this rule in Jackson, the court found the policy furthered the rational goal of reducing

crowding, even though women could not benefit from the good time law as much as men.

Recent cases from the District of Columbia Court of Appeals and the Eighth Circuit Court

of Appeals challenge the equal protection argument in support of improved women’s

programming in even more fundamental ways than either Pitts or Jackson.

The Glover-Canterino line of cases is very fact-driven: the courts find male and female

inmates to be generally similarly situated, look at the quality/quantity of what men have,

compare that to what is available to women, and generally find substantial disparities. The

justifications offered by the government are found inadequate under the heightened

scrutiny test. The court then orders improvement in the women’s programs. To the extent

Glover and Canterino are models (both involved state prison systems, not jails), the court

then oversees the improvement efforts of the defendants for perhaps years. (The Glover

case was still active in late 1996, 17 years after the first major opinion in the case.)

The Eighth Circuit and District of Columbia circuit decisions change how the threshold

equal protection question is asked: are the two groups being compared similarly situated?

In Klinger v. Department of Corrections, 31 F.3d 727 (8th Cir., 1994), cert. denied, 115

S.Ct. 1177 (1995), the district court compared what was available to women in the

Nebraska Center for Women against what was available for men at the Nebraska State

Penitentiary.* The approach the lower court took was to compare programs at the women’s

institution against those at the penitentiary, program by program. Not surprisingly, the

court found a wider diversity of programs at the male facility. The court then found a

violation of equal protection. This is the traditional Glover-Canterino approach.

On appeal, the decision was reversed because the court of appeals felt that women at the

single women’s institution were not “similarly situated” to male inmates at the penitentiary,

which was one of several male facilities. The two groups not being properly comparable,

the conclusion that there was a violation of equal protection was, by definition, incorrect

since the concept of equal protection simply does not apply to groups that are not alike.

It is possible to read Klinger narrowly, as simply reflecting a poor strategic choice by

plaintiffs in defining the comparison group. However, the Eighth Circuit declined to give

it such a narrow reading in a subsequent case and the court of appeals for the District of

Columbia has also adopted a broad reading of the holding.

The approach of the Klinger court was applied by the district court in a case involving the

 

*The comparison was chosen by the plaintiffs, a choice they came to regret. Late in the case, they

attempted to change the male comparison group from the Penitentiary to all male facilities in the Nebraska

department. The court refused this request, saying it came too late.
Women in Jail: Legal Issues / 13

Iowa women’s prison, Pargo v. Elliot, 69 F.2d 280 (8th Cir., 1995). The lower court made

extensive findings regarding differences between men’s and women’s facilities and

programming, but ruled against the inmates. The court of appeals’ opinion in Pargo is

very short, doing little but affirming the lengthy decision of the district court, which

appears at 894 F.Supp 1243 (D. Iowa, 1995).

Plaintiffs in Pargo compared classifications by security level and programming at the Iowa

Correctional Institution for Women (ICIW), which houses almost all of Iowa’s female

inmates, to facilities and programs at a variety of Iowa’s male institutions. This was a

broader range of comparison than that of Klinger. Nevertheless, the district court still

found the two groups not similarly situated. The court of appeals agreed.

The court declined to take an “inmates are inmates” approach, which looks solely at gross

disparities between accommodations for men and women. Instead, the court looked at

more subtle questions as the “key factors” in determining the similarly situated question.

These included:

• population size of the prison,

• security levels,

• types of crimes,

• length of sentence,

• special characteristics, 894 F.Supp. at 1259, et seq.

The court felt statistical comparisons between groups of male and female inmates were of

“limited value” because the numbers of female inmates in various subgroups were not large

enough to be statistically significant. After reviewing the five factors it identified as

important, the court concluded female inmates at ICIW were “not similarly situated to the

various categories of male inmates at selected institutions,” 894 F.Supp. at 1261. The court

of appeals affirmed.

Perhaps to guard against possible reversal, the district court moved from its “not similarly

situated” conclusion (which could have ended its inquiry) to analyzing the merits of the

Equal Protection claims of the plaintiffs. The result: a conclusion that even if male and

female inmates were similarly situated, there was no Equal Protection violation.

The court used the rational basis test for its Equal Protection analysis, rejecting the tougher

heightened standard in light of Klinger, and because no facially discriminatory policy was

challenged. The court noted the substantial body of literature describing historical

discriminatory and stereotypical assumptions that often lie at the root of disparities

between men’s and women’s prisons, but decided “these circumstances do not, however,

exist at ICIW,” 894 F.Supp. at 1264.

The court then engaged in a lengthy factual review of a substantial number of programs

available to male and/or female inmates. The court generally found programs were

gender-neutral and were rationally related to legitimate state interests. No evidence of
14 / Women in Jail: Legal Issues

invidious discrimination against women was found. The court of appeals found no error

with this analysis.

At about the same time the Eighth Circuit was deciding Pargo, the district court of the

District of Columbia was deciding Women Prisoners of the District of Columbia v. District

of Columbia, 877 F.Supp. 634 (D.D.C., 1995), modified 899 F.Supp. 658 (D.D.C., 1995).

Women Prisoners raised a broad array of issues on behalf of women held in facilities

operated by the District of Columbia (not those women transferred to Alderson), including

issues regarding conditions of confinement and sexual abuse raised under the Eighth

Amendment and sexual discrimination issues raised both under an equal protection theory

as well as under Title IX of the Education Amendments of 1972, 20 USC §1681(a). The

specifics of Title IX are discussed later in this report. Here it is sufficient to note that Title

IX, which generally forbids discrimination on the basis of sex in education programs or

activities receiving federal funding, requires an initial finding that males and females are

similarly situated in the same manner as an equal protection claim. 

The district court found violations of both equal protection and Title IX after first finding

the female inmates housed in D.C. facilities were similarly situated to men housed in

various other facilities after comparing their custody levels, sentence structures, and

purposes of incarceration, a fairly precise comparison. But not precise enough to satisfy

the court of appeals. In Women Prisoners, etc. v. District of Columbia, 93 F.3d 910

(D.C.Cir.,1996), the court followed Klinger and Pargo in holding that the evidence did not

show male and female inmates to be similarly situated. The court noted the five factors

from Pargo, emphasizing that the lower court should have considered “the striking

disparities between the sizes of the prison populations (male and female) that were being

compared,” 93 F.3d at 925. The court thus reversed the lower court’s finding of an equal

protection violation.

The Klinger-Pargo-Women Prisoners approach to parity cases does not in theory preclude

a conclusion that male and female inmates are similarly situated. Its practical effect may

do just that. Clearly, the approach taken by the two appeals courts makes it much more

difficult to find male and female inmates similarly situated, especially if, as suggested in

Women Prisoners, the differing size of the two groups is relevant. It would appear

impossible to create a comparison between all (or even most) women and the bulk of male

inmates. Application of the five factors from Pargo would seem to mean that, at best,

comparisons could be made only between small subgroups of male and female inmates.

The real effect then of these two cases, if their approach is adopted generally, may be to

virtually end the use of equal protection arguments to improve conditions in female

facilities.

Klinger and Women Prisoners also criticize the program-by-program comparison taken

in the Glover-Canterino approach and used by the district courts in both cases. In Klinger,

the court could have ended its opinion with the conclusion that the two groups were not

alike for equal protection purposes. However, the court then went on to say, in essence,
Women in Jail: Legal Issues / 15

“but if they were similarly situated, here is the way we would address the equal protection

issue.” The majority said there could not be an equal protection violation because the lower

court had incorrectly applied the heightened scrutiny test. Even though there was a facial

gender classification that resulted in women going to one institution and men going to a

variety of others, this did not necessarily explain the reasons for program differences

between the male and female institutions. In other words, the court of appeals said that the

program differences were, as far as it could tell, not the product of a facial gender

discrimination and therefore the disparities had to be analyzed under the Feeney test,

which requires plaintiffs to prove discriminatory intent. It is at this point that the Klinger

court truly parts company with the Glover-Canterino approach, which sees the decision to

separate male and female inmates as the critical one, requiring heightened scrutiny of

every difference that followed. Sometimes “every difference” can be picayune.

In McCoy v. Nevada Department of Prisons, 776 F. Supp. 521 (D. Nev., 1991), the court

said that among the many disparities it expected defendants to justify to avoid a decision

against them was why inmates in the Nevada State Penitentiary had access to more ice

machines than did inmates in the women’s prison. (McCoy involved many disparities far

more substantial than ice machines.)

To the court of appeals in Klinger, that a women’s facility might lack a program available

at a men’s facility “proves almost nothing,” 31 F.3d at 732. Instead, the comparison should

be to the process by which programming decisions are made for men and women, 31 F.3d

at 733, n. 4.

In Women Prisoners, the 2-1 majority specifically refused to be drawn into a program-byprogram comparison, because “[S]uch an approach completely eviscerates the deference

that federal courts are obliged to give prison administrators,” 93 F.3d at 926, 927. The

court characterized the plaintiffs’ argument as a decision to provide male inmates with

access to a program not available to female inmates violated equal protection and that “any

divergence from an identity of programs gives rise to equal protection liability,” 93 F.3d

at 926.

The Klinger-Pargo-Women Prisoners approach creates a great deal of uncertainty in what

had appeared to be a relatively settled approach to parity lawsuits. These cases make it

difficult, perhaps impossible, for a court to find male and female inmates are similarly

situated.

These cases also say that even if groups are similarly situated, it is improper to conduct an

equal protection review based on a program-by-program comparison. Because the new

approach comes from courts of appeals and the older approach from district courts, the

Klinger-Pargo-Women Prisoners means of analysis carries much stronger precedential

value. Because the approach also may effectively remove disparities in programming

between male and female inmates from review under the Equal Protection Clause, the

approach is controversial and may not be accepted by other courts of appeal.
16 / Women in Jail: Legal Issues

Even if more courts gravitate toward the institution-friendly tests from Feeney or Klinger,

equal protection comparisons between male and female institutions are certainly not over.

The heightened scrutiny analysis will continue to apply in cases where there is a facial

discrimination on the basis of gender, such as where a work release program is “for men

only.” For instance, a boot camp program operated by the Virginia Department of

Corrections had the effect of shortening the offender’s sentence. The district court found

the “male only” policy violated equal protection, West v. Virginia Department of

Corrections, 847 F.Supp. 402 (W.D.Vir. 1994).

Regardless of which test ultimately prevails, it is clear that at least some legitimate reason

is likely to be required to explain why female inmates are treated differently than their

male counterparts. The proactive jail administrator should:

• identify areas of disparate treatment or conditions,

• identify the reasons for such differences,

• work to eliminate such disparities.

If Agency Receives Federal Dollars, Statute May

Require More Equality Than Parity in Some Programs

A very undeveloped area of law that has similar, but potentially more dramatic,

implications than the parity cases arises under the section of federal statutory law and

accompanying regulations commonly referred to as Title IX, 20 USC Sec, 1681 et seq., 45

CFR Sec. 86.1 et seq. The caselaw here is just as divided as it is in the equal protection

arena.

Title IX says that no person shall be denied the benefits of or discriminated against on the

basis of sex in any education program or activity that receives federal assistance. Before the

requirements of the law apply, a state or local government must receive federal financial

assistance and must operate an “education program or activity which receives or benefits

from such assistance,” 45 CFR Sec. 86.2(h). The law applies to educational institutions, with

some exceptions. The entire institution receiving federal funds is subject to the provisions

of Title IX, not just an individual program which is directly benefiting from the money, 42

USC Sec. 2000d-7 (1988).32

Because the requirements of Title IX are tied to receipt of federal education funding, the

law may have much more potential impact for prisons than for jails since it is less likely

that a jail will have received federal education funding. Two circuit courts have looked at

Title IX in the corrections context. One found it applicable, the other did not.

In Jeldness v. Pearce, 30 F.3d 110 (9th Cir., 1994),33 the Ninth Circuit held that Title IX

applied to programs operated by the Oregon Department of Corrections. The court went

on to say that the requirements of Title IX were stiffer than those of the Equal Protection
Women in Jail: Legal Issues / 17

Clause. “Parity” was not enough. Title IX demands “equality.”

Having stated as a general principle that Title IX requires equality, the court then had a

very difficult time explaining what equality means in a context which separates men and

women, a reality of corrections not challenged in Jeldness. After acknowledging that

prisons have unique security concerns that must be taken into account in applying Title IX,

that women’s institutions are typically much smaller than men’s, that there may not be a

demand for the same courses at men’s and women’s facilities, and that some programs may

be site-specific, the appeals court essentially punted the case back to the district court for

the “difficult task of determining how these requirements” of equality should apply, 30

F.3d at 1229.

The dissenting judge in Jeldness criticized the majority for reading many concepts into the

statute that he felt were not there. He also felt the majority’s approach gave little or no

guidance to someone trying to read the opinion and understand what it said Title IX

specifically would require. The judge also said that, given the great disparity between the

numbers of male and female inmates, equality was a “mathematical impossibility.” He

noted that operating programs with the goal of providing equal opportunity would

generate some programs “available to men but not women, given the 20 to 1 ratio between

male and female inmates.” This “is the lack of equality which troubles the majority,” 30

F.3d at 1235. But, the judge then notes, giving women the same total number of courses

that were available to men would result in far more courses per prisoner being available

to the women. “Equality of one variable forces the inequality of the other,” 30 F.3d at 1235.

Jeldness provided the basis for the district court’s analysis in Women Prisoners. As

discussed earlier in these pages, the court of appeals rejected the finding that the female

plaintiffs in Women Prisoners were similarly situated to male inmates (at least as argued

in the case) and reversed the results of the lower court. This result quashed the need for

the court to assess the “scope of Title IX in the prison context” but the court noted “grave

problems with the proposition that work details, prison industries, recreation, and religious

services (all programs addressed by the lower court in its Title IX findings and order) have

anything in common with the equality of educational opportunities with which Title IX is

concerned,” 93 F.3d at 927. The court then vacated various portions of the lower court’s

order dealing with those programs.

While Women Prisoners balks at a program-by-program comparison and refuses to accept

that identity of programs is required, its comments in this regard are in the context of

equal protection, not Title IX. Therefore, Women Prisoners neither reaffirms nor

disagrees with the Ninth Circuit’s holding that Title IX requires equality of programming

where it properly applies.

The limits—or limitation—of Title IX as a source of rights for female offenders have yet

to be thoroughly explored, although the narrow approach to the threshold “similarly

situated” question taken by Women Prisoners may make Title IX claims hard to bring. (It
18 / Women in Jail: Legal Issues

should be noted that Title IX could be the basis of a claim brought by male inmates as

well.) Jeldness and Women Prisoners at the district court level took a broad approach in

interpreting a statute and regulations that were not written with the prison or jail setting

in mind and which, for that reason, may result in increased judicial involvement with the

operation of programs in jails to which Title IX applies.

Cross-Gender Supervision

The growth of equal opportunity and limitations on jobs reserved for a single sex spawned

conflict between employees’ rights to work and inmates’ rights of privacy. With the growth

of “cross-gender supervision,” more and more correctional officers of one sex supervise

inmates of the other sex. The opportunities for female officers to work in male facilities

have increased dramatically over the last 10 to 15 years.

Under normal circumstances, an inmate has little or no privacy from supervision by

officers. The officer may conduct a pat or strip search or see the inmate changing clothes,

using the toilet, or taking a shower. But may an officer not of the same sex as the inmate

perform these functions? If not, may the employer obtain a “bona fide occupational

qualification” (BFOQ) under Title VII that allows certain jobs to be reserved for officers

of the same sex as inmates? The general answers to these questions are that officers of the

opposite sex can perform most of these functions and that BFOQs will be very difficult to

obtain. (A fairly clear line is drawn at cross-gender strip searches, and somewhat vaguer

lines are perhaps drawn at other places).

BFOQs: Very Hard to Justify—

Accommodation of Interests May Come First

Under normal circumstances, an employer may not discriminate against employees on the

basis of sex. Jobs may not be reserved for one sex or the other. There is an exception to

this rule when a BFOQ exists that establishes the necessity for a job being performed by

a single sex.

In general, courts have been very reluctant to approve BFOQs for correctional officer posts

in prisons or jails, Torres v. Wisconsin Department of Corrections, 838 F.2d 944 (7th Cir.,

1988) overruled in part 859 F.2d 1523 (1988), en banc, Hardin v. Stynchcomb, 691 F.2d

1364 (11th Cir., 1982).

The employer who has discriminated against an employee on the basis of sex has the

difficult burden of establishing the existence of a BFOQ to justify the discrimination. In

the context of whether male employees could be excluded from working with female

inmates, the justification would typically be based on concerns that the presence of male

employees would intrude too far on the inmates’ right to be free from being seen in states

of undress by persons of the opposite sex. To succeed in establishing a privacy-based

BFOQ, the employer will have to show the conflict between inmate privacy and employee
Women in Jail: Legal Issues / 19

job interests could not be minimized by such steps as rearranging job responsibilities or

finding ways of accommodating inmate privacy concerns while still permitting officers of

the opposite sex to work with the inmates. Such accommodations might take the form of

shower screens or curtains, permitting inmates to block views into cells for brief periods,

announcing the presence of an officer of the opposite sex in the unit, making count times

known to inmates, and providing reasonable sleeping attire so inmates are not exposed

while asleep.

In Torres, one of the few cases involving male officers working in a female facility (as

opposed to the opposite situation), a ban on male officers working in female units was

defended in part as necessary to protect the privacy interests of the inmates. Evidence

showed that because of such things as shower curtains and allowing cell windows to be

temporarily blocked, there really was no ordinary circumstance in which an officer was

likely to see an inmate in a state of undress. As a result, the court rejected privacy as a

justification for single-sex posts.

One federal appeals court recognized a small loophole to the normally difficult BFOQ

standards. A reasonable gender-based job assignment policy is acceptable and does not

have to be justified as a BFOQ if it imposes only a “minimal restriction” on other

employees, Tharp v. Iowa, 68 F.3d 223 (8th Cir., 1995). In Tharp, the two male plaintiffs

applied for jobs that their employer, a correctional institution, had recently reserved for

women only. Their applications were denied and the jobs were filled by women with less

seniority than the men. The evidence showed that the men were not terminated or

demoted and suffered no pay reduction. Both were later promoted. Making the jobs

single-sex addressed concerns about inmate privacy, rehabilitative services for inmates, and

interests of female employees. Under these facts, the court found the restrictions to be

minimal and rejected the plaintiffs’ case. It is hard to say if the court would have reached

the same result if some greater negative impact had befallen the men.

The Tharp case may prove important for jails that feel they cannot adequately provide

privacy for female inmates by allowing male officers to work in female housing units

because it does approve gender-based job restrictions without requiring a BFOQ showing.

However, the Tharp exception is clearly a very limited one that has yet to be considered,

let alone adopted, by other courts of appeal.

Some Inmate Privacy Concerns Continue

To say that it is very difficult to limit officer positions to one sex or another is not the same

as saying that courts do not recognize some inmate privacy interests in regard to

observation by the opposite sex. They do.

Courts have generally said that some incidental viewing of inmates in states of undress

does not offend the Constitution if it is reasonable, the exception rather than the rule, and

based on a legitimate reason. Most courts that have approved such observation have at

least assumed the institution has made some efforts to accommodate privacy concerns
20 / Women in Jail: Legal Issues

(shower curtains, etc.). In Thompson v. Wyandotte County, 869 F.Supp. 893 (D. Kan.,

1994), the court found the female inmate’s claim of being seen in the shower on “irregular

and isolated occasions” did not violate Constitutional protections. Viewing must be

“regular” to violate the Constitution, Canell v. Armenikis 840 F.Supp. 783 (D.Or., 1993);

if circumstances justified a male officer viewing a male inmate nude, they would likewise

justify a female officer viewing the inmate.

The major cross-gender supervision cases deal with observation of male inmates by female

officers and have generally not imposed major restrictions on those officers’ ability to

observe inmates, Grummett v. Rushen, 587 F.Supp. 913 (ND Cal., 1984), aff’d., 779 F.2d

491 (9th Cir., 1985), Timm v. Gunter, 917 F.2d 1093 (8th Cir., 1992). Is what these cases

say for female officers and male inmates also true for female inmates and male officers, or

will courts say that female inmates have greater privacy protections vis-a-vis being observed

in states of undress by persons of the opposite sex? Thompson approved “irregular and

isolated” observation, assuming a legitimate reason for such observation. (Note: Virtually

all the cases that have approved some form of cross-gender supervision assume observation

is done in a professional way and for legitimate reasons. If this is not the case, expect court

intervention.) Canell implied that any time any officer may observe an inmate in a state of

undress, the gender of the officer is irrelevant. Still, until more cases have addressed the

male officer-female inmate situation directly, it may be wise for agencies to be very cautious

about permitting such observation and make serious attempts to provide means of

accommodating the privacy concerns of female inmates.

Touching and Closer Observation

While courts are generally willing to accept some cross-gender intrusions into inmate

privacy, they continue to draw limits. Except in emergency situations, most courts have said

that strip searches must be performed by persons of the same sex as the inmate, Canedy

v. Boardman, 16 F.3d 183 (7th Cir., 1994).

One court took very strong exception to a policy permitting male officers to pat search

female inmates, Jordan v. Gardner, 986 F.2d 1521 (9th Cir., 1993). Although the case

appeared to be one arising under the Fourth Amendment, the court analyzed the case

under the Eighth Amendment and found that the practice amounted to cruel and unusual

punishment. Of persuasive impact for the court was expert testimony to the effect that a

substantial number of the plaintiffs (a class comprised of inmates at the women’s prison in

Washington State) had been subjected to physical or sexual abuse prior to coming to

prison and that some of this number would react to the very thorough pat searches as a

continuation of that abuse. These women, the experts testified, would suffer severe

psychological trauma as a result of the searches.

The obvious reading of Jordan is that a policy allowing male officers to pat search female

inmates under routine circumstances is unconstitutional. However, one court, interpreting

Jordan, suggests the case may be limited to its facts and cannot necessarily be read as
Women in Jail: Legal Issues / 21

having broad applicability, Carl v. Angelone, 883 F.Supp. 1433 (D. Nev., 1995).

The uncertainty created by Jordan and its limited reading by the Nevada district court in

Carl presents a serious dilemma for the administrator of the small jail, who may have an

all male staff much of the time: can male officers pat search females at the time of booking

(or other times, for that matter) or must such searches be delayed until a woman can be

found to conduct the search? Thorough pat searches of arrestees is an essential part of the

booking process. A new inmate should not be allowed to mingle with other inmates without

first being thoroughly searched.* But who can do the search if no female staff members are

present?

Carl suggests that stronger security concerns might permit an exception to Jordan. Other

expert testimony might be mustered that would rebut the testimony that was so influential

in Jordan. Maybe Jordan wouldn’t apply to the jail booking situation. But most lawyers,

perhaps erring on the side of conservatism and liability avoidance, probably would counsel

their jail administrator clients to treat Jordan as applying to the booking pat search and

to only allow female officers to pat search female arrestees.

What about pat searches of male inmates by female officers? Here caselaw strongly suggests

that such searches are acceptable and, by implication, Jordan is at least limited by the

female inmate - male officer situation, Madyun v. Franzen, 704 F.2d 954 (7th Cir., 1983),

Canedy v. Boardman, 16 F.3d 183 (7th Cir., 1994). Even these cases leave some doubt

regarding pat searches that involve contact with the inmate’s genital area (as a thorough

pat search must) when such contact violates the inmate’s religious beliefs. This issue, which

has not been litigated directly, may be affected by Congressional passage of the Religious

Freedom Restoration Act in 1994, a law that made it more difficult for correctional

agencies to justify even security-based practices that impose a substantial burden on an

inmate’s religious beliefs.

Strip Searches of Arrestees

An example of an issue that theoretically applies equally to both men and women but that

in fact seems to have applied virtually exclusively to women relates to the practice of strip

searching persons at the time of arrest and booking into the jail.

 

*Under limited circumstances, an arrestee may be strip searched, Chapman v. Nichols, 989 F. 2d 393

(10th Cir.,1993). Absent an emergency situation, such strip searches would be performed by an officer of the

same sex as the arrestee.
22 / Women in Jail: Legal Issues

The common practice in jails used to be to strip search every person booked into the jail,

regardless of reason for arrest or whether any specific reason existed to suspect a particular

arrestee of possessing contraband. This blanket strip search policy has now been

condemned as an unreasonable search violating the Fourth Amendment by eight federal

appeals courts prior to 1990. No court has reached a contrary decision. The Supreme

Court has refused to review strip search decisions five times. See Chapman v. Nichols, 989

F.2d 393 (10th Cir., 1993), for a list of cases dealing with this topic.

The rule that comes from these cases is that an arrestee may be strip searched when there

is reasonable suspicion to believe the person is carrying contraband. This suspicion may

be based on the reason for arrest (drug offenses, felonies involving some level of violence

or perhaps all felonies, or the individual behavior of the arrestee are the most commonly

suggested grounds for a strip search). Persons arrested for minor offenses may not be strip

searched absent reasonable suspicion.

What makes this a de facto women’s issue is that every strip search decision of which the

author is aware involved the search of a woman. Despite the overwhelming caselaw

condemning strip searching all arrestees, cases still are being reported regarding the

practice. For instance, a woman was strip searched in a Texas jail in 1993 after she

voluntarily turned herself in on a minor offense, posted bond, and was still in the jail only

because she agreed to wait until a court date could be arranged, Dugas v. Jefferson County,

1996 WL 388784 (E.D.Tex., 1996).

Medical Care

Male and female inmates share a fundamental right to adequate medical care. Inadequate

medical care can, if bad enough, violate the prohibition against cruel and unusual

punishment, which is part of the Eighth Amendment to the U.S. Constitution.

Not all poor medical care violates the Eighth Amendment. According to the Supreme

Court, only when medical care (or the lack thereof) shows “deliberate indifference to

serious medical needs” does it violate the Constitution, Estelle v. Gamble 429 U.S. 97

(1976). Estelle and other cases make it clear that this is not an easy standard to meet.

Actions must show more than negligence or even gross negligence to cross the threshold

and become deliberate indifference.

What is “Deliberate Indifference”?

After coining the phrase in 1976 in the Estelle case, the Court waited nearly 20 years

before it tried to define deliberate indifference. In the case of Farmer v. Brennan, 114

S.Ct. 1970 (1994), the Court revisited the phrase and explained that to be deliberately

indifferent, an official must “know of and disregard an excessive risk to inmate health or

safety; the official must both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also draw the inference,” 114
Women in Jail: Legal Issues / 23

S.Ct. at 1979. Elsewhere in the Farmer

decision, the Court said an official could be

liable under the Eighth Amendment “only if

he knows that inmates face a substantial risk of

serious harm and disregards that risk by

failing to take reasonable measures to abate

it.”

The “actual knowledge” requirement from Farmer reversed a trend among some lower

courts that had held an official could be found deliberately indifferent to a problem where

the official reasonably “should have known” about the problem. The actual knowledge

requirement will probably have its greatest impact in cases that involve only an incident

and a single inmate, as opposed to class actions that allege systemic deficiencies in an

institution.

Thus, several factors are relevant in showing officials were deliberately indifferent:

• A risk of harm must be excessive or substantial.

• The risk must be for serious harm.

• The official must have actual knowledge of the risk. It is not enough that the

official should have known of the risk.

• The official must fail to take reasonable steps to abate the risk.

When is a Medical Need “Serious”?

In many cases, there is no real question about whether a medical need is “serious.” A

condition need not be life-threatening to qualify as serious. Hemorrhoids qualified as a

serious medical need in one case, Henderson v. Harris, 672 F.Supp. 1054 N.D. (Ill., 1987).

When the answer to the “is it a serious need” question is not obvious, courts must define

the meaning of the term. Lower courts have used various phrases to define what makes a

medical need “serious.” One court asks if the failure to treat a condition will result in

“further significant injury or the ‘unnecessary and wanton infliction of pain,’” and says a

condition is serious if a reasonable doctor or patient would find it important and worthy

of comment or treatment, McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir., 1992).

The same case indicates that chronic or substantial pain renders a condition serious. Pain

is a common element in many “serious medical need” findings.

A condition in which “a lay person would easily recognize the necessity for a doctor’s

attention” qualifies a problem as serious in the mind of another court, Hill v. DeKalb

Regional Youth Detention Center, 40 F.3d 1176, 1187.

Risk of Future Harm

A jail official could be liable

under the Eighth Amendment

“only if he knows that inmates

face a substantial risk of

serious harm and disregards

that risk by failing to take

reasonable measures to abate

it.”
24 / Women in Jail: Legal Issues

In another relatively recent case, the Supreme Court made clear what most had assumed:

a risk of future harm, if serious enough, violates the Eighth Amendment, Helling v.

McKinney, 113 S.Ct. 2475 (1993).

In cases alleging poor conditions, such as inadequate medical care, officials have often

found themselves arguing that, in the absence of serious injury or death, conditions could

not be found constitutionally deficient. Helling makes it clear that someone need not have

died from poor conditions for the conditions to be found unconstitutional.

The fundamental principles for medical cases outlined above will be applied in cases

involving both male and female offenders. Some of the medical issues that have arisen

regarding female offenders are discussed next.

Abortion

Perhaps 5 of every 100 women who enter a jail are pregnant.34 Some of these women may

want prenatal care and may require care for delivery of their babies. Others may want an

abortion. Does a woman in jail have the same right to an abortion as her counterpart on

the street? If she does have a right to an abortion, must the jail pay for it? Do the answers

to these questions depend on whether the abortion is necessary to preserve the health or

life of the woman, as opposed to being considered “elective”?

Very few cases deal with the issue of abortion in jail. Only one has addressed the three

questions posed above directly, Monmouth County Correctional Institute v. Lanzaro, 834

F.2d 326 (3rd Cir., 1987), cert denied, 486 U.S. 1006 (1987). Monmouth County jail policy

said that if the jail doctor did not diagnose the medical necessity of the abortion, the

woman was required to obtain a court order directing her release from custody and to find

her own funding.

The court held that this policy violated two separate constitutional rights: (1) the woman’s

right under the Fourteenth Amendment to obtain an abortion (this is the general right to

abortion), and (2) the right to medical care under the Eighth Amendment. In its Eighth

Amendment analysis, the court said it made no difference that the abortion was considered

“elective” for the plaintiff because, unless the abortion was performed relatively quickly,

the woman would not be able to have the procedure done at all.

Because the policy impinged on the Fourteenth Amendment right to abortion defined in

Roe v. Wade, 410 U.S. 113 (1973), the court asked what competing interests—“legitimate

penological interests” —the jail had that might justify such a restriction of a constitutionally

protected right. In balancing the interests of the inmate against those of the institution,

the court applied a four-question test that comes from other Supreme Court decisions in

the corrections field, most notably Turner v. Safley, 107 S.Ct. 2254 (1987).
Women in Jail: Legal Issues / 25

The first question under Turner asks how the restrictions are related to legitimate

penological interests. The only

rationales the defendants offered in

Lanzaro related to unspecified

administrative and cost burdens the jail

might face were it required to offer

abortions such as the one requested.

Cost and administrative burden

arguments rarely suffice to justify the

government’s denial or restriction of a

constitutional right, and the court rejected the defendants’ argument here.

Secondly, the court asked if there were alternative ways the plaintiff might exercise the

constitutional right in question. While such alternatives may exist in many contexts where

inmates’ rights are restricted (for instance, restrictions on practicing one aspect of a

person’s religion do not preclude practicing other aspects of the religion), the court found

no alternative in the abortion context: the woman could either get the abortion or she

could not. The jail’s policy could easily have the effect of canceling the woman’s

constitutional right to free choice.

Thirdly, the court asked what burdens would be placed on the jail if the request for an

abortion was accommodated. Here the court found that the costs associated with providing

an abortion would actually be less than those associated with providing proper prenatal

care and delivery.

Lastly, the court inquired as to whether there were obvious alternatives that would

accommodate the claim at minimal cost to valid penological objectives. None was found.

As a result of its four-question inquiry, the court concluded that the defendants did not

have a “legitimate penological interest” that could justify restricting the plaintiff’s right to

abortion under the Fourteenth Amendment.

The court also reviewed whether the policy violated the Eighth Amendment: did it amount

to “deliberate indifference to a serious medical need”? Defendants argued that because the

abortion was not necessary to save the life of the plaintiff, a “nontherapeutic” abortion, it

could not be considered a serious medical need. The court rejected this argument, noting

the relatively short time that a woman may have to obtain an abortion and concluding that,

unless the jail acted quickly on an abortion request, the woman could lose her ability to

have an abortion altogether. In deciding an abortion was a “serious” medical need, the

court felt that denying an abortion “will likely result in tangible harm to the inmate,” 834

F.2d at 349.

Lanzaro equivocates on the question of who must pay for the abortion. The court approved

the lower court’s order that the defendants had at least the duty to assist the plaintiff in

finding someone who would pay for the costs of the abortion. The decision strongly implies

In its Eighth Amendment analysis,

the court said it made no

difference that the abortion was

considered “elective” . . . because,

unless the abortion was performed

relatively quickly, the woman

would not be able to have the
26 / Women in Jail: Legal Issues

that if no other funding source can be found, the jail would have to pay the costs.

Other abortion cases are not as strong as Lanzaro. In Bryant v. Maffuci, 923 F.2d 979 (2d

Cir., 1991), the court assumed an Eighth Amendment right to abortion and then found

that the actions of the defendants did not violate that

right. The plaintiff requested an abortion late in the

second trimester of her pregnancy. Some short

delays in arranging for the abortion resulted in it

becoming impossible because of the length of the

pregnancy. The court also found the defendants’

policy regarding abortion, which essentially deferred the decision to the contract medical

provider, did not violate any rights of the plaintiff.

In Gibson v. Matthews, 926 F.2d 732 (6th Cir., 1991), the issue before the court was

whether an inmate’s right to abortion provided by the jail was clearly established in the late

1980s. In holding it was not, the court expressed some question about whether Lanzaro

correctly stated the law, without specifically disagreeing with the result in that case.

Abortion remains a controversial issue in American society, one which extends into

American jails. While the caselaw remains thin, there are no decisions directly contrary to

Lanzaro, which found a woman’s right to abortion in jail protected under two separate

constitutional theories. While Lanzaro did not directly hold that the jail must fund

abortions, it strongly implied that absent some other funding source, the funding

obligation would fall on the jail. From a purely fiscal perspective, the costs attendant to

providing an abortion probably would be less than the costs of providing prenatal care and

delivery, if the woman was to be in jail that long.

While some details about a woman’s right to demand abortion in a jail setting remain open

to debate (e.g., under what circumstances would some delay or even refusal be

permissible), it would appear legally prudent for the jail to be prepared to provide

abortion services under at least many circumstances. A policy of flatly refusing to provide

abortions may be difficult to defend.

Prenatal Care

The most significant pregnancy/childbirth-related issue for jails is the scope of their duty

to provide prenatal care for pregnant inmates. As with other medical issues, the

seriousness of this issue grows the longer the woman remains in the jail. Delays of minor,

routine care are not likely to present a major legal issue if the delay is only for a matter of

days and there is no serious consequence arising from the delay. But, while not providing

some type of medical care to a woman who will be released from jail in a matter of days

may not be significant, refusing the same care to a woman likely to be in the jail for months

or more can have serious medical and legal ramifications.

. . . it would appear legally

prudent for the jail to

be prepared to provide

abortion services under at

least many circumstances.
Women in Jail: Legal Issues / 27

Breast Feeding

There is no generalized right to breast feed an infant in jail, Southerland v. Thigpen, 784

F.2d 713 (5th Cir., 1986). However, in another case where a prison permitted contact visits,

a district court entered a preliminary injunction permitting a woman to breast feed the

baby she could otherwise hold during visits, Berrios-Berrios v. Thornburgh, 716 F.Supp.

987 (E.D. Ky., 1989).

In Southerland, the woman gave birth to a child while in prison and was allowed to breast

feed while in the medical center where the baby was born. She was not allowed to breast

feed when she came back to the prison. In the Berrios-Berrios case, the court issued its

order (which is not necessarily a final ruling on the issue) under a relatively unique set of

circumstances: inmates had direct contact with visitors and infants could visit their

mothers. In allowing the mother to nurse her baby in the visiting room, the court was

demanding a relatively minor change in operating practice. The court refused to order the

institution to provide or allow the woman to have a breast pump or to order the institution

to store milk for the woman.

While the Berrios-Berrios facts could repeat themselves, a jail could avoid them. There is

generally no right to contact visits, Block v. Rutherford, 468 U.S. 576 (1984). In general,

courts have been very reluctant to demand much of institution officials in the visiting area.

Perhaps the most courts have done is to order some jails to expand visiting generally in

the face of extremely limited visiting opportunities, Morrow v. Harwell, 768 F.2d 639 (5th

Cir., 1985), (weekend visiting ordered).

Abuse of Female Inmates

The paramount duty of a jail is to maintain safety and security for inmates, for staff, and

for the public. There is always some level of risk that inmates will assault other inmates.

This risk can be managed but not eliminated given the nature of the inmate population.

If some level of danger to inmates from other inmates is legally and operationally

tolerable, danger to inmates from staff is not. There is perhaps no greater indictment

against the management of an institution

than a showing that staff are assaulting

inmates. While reported court decisions

dealing with abuse of female inmates by

male officers are rare, there are examples.

In Hovater v. Robinson, 1 F.3d 1063 (10th

Cir., 1993), a female inmate sued following

alleged sexual assaults by a correctional

officer. The court of appeals dismissed the

case against the sheriff because there was no indication the officer presented any threat of

If some level of danger to inmates

from other inmates is legally and

operationally tolerable, danger to

inmates from staff is not. There is

perhaps no greater indictment

against the management of an

institution than a showing that

staff are assaulting inmates.
28 / Women in Jail: Legal Issues

inappropriate sexual behavior toward female inmates prior to the incident, which would

permit a finding that the sheriff was deliberately indifferent to the inmate’s right to be free

from assault by officers. The opinion indicates that had the sheriff had notice of the risk

posed by the officer, he and the county could have been liable.

Another court found rape; coerced sodomy; unsolicited touching of female prisoners’

vaginas, breasts, and buttocks by prison employees; vulgar sexual remarks by officers; and

male officers entering female housing units unannounced harmed some female inmates

and was so “pervasive” as to create a serious risk of serious harm to other female prisoners

in three institutions in the District of Columbia, Women Prisoners v. District of Columbia,

877 F.Supp. 634 (D.D.C., 1994), reversed in part, 93 F.3d 910 (D.C. Cir., 1996). This case

was discussed at length earlier regarding equal protection and Title IX.

Injury or the likelihood of serious harm must be shown to meet the objective prong of the

Eighth Amendment. To meet the subjective, state of mind prong, evidence must show

officials were deliberately indifferent to the risks. Complaints from the women to police,

to the Inspector General, and to prison officials alerted officials to the problem, said the

court. The court also found that much of the condemned behavior was “widely known by

staff,” 877 F.Supp. at 666. These factors created an inference of deliberate indifference on

the part of the officials. Deliberate indifference was further shown by the lack of staff

training on the subject of sexual harassment of female inmates and a lack of information

for prisoners on how to file complaints regarding harassment. Poor investigative practices

also contributed to the court’s finding of an Eighth Amendment violation. One official

testified he would leave investigations to the police. Another said he believed he could not

take action unless there was a conviction. The result was that many complaints were never

resolved and no action was taken against the officers alleged to have committed assaults.

In response to the problems it found, the court in Women Prisoners ordered the D.C.

Department of Corrections to write and implement a new policy dealing with harassment

of female inmates, to implement a new practice of investigating complaints and internal

monitoring of complaints and investigations, and to provide training on sexual harassment

for all Department employees working with female prisoners. This training was required

quarterly “for all years succeeding entry of the Court Order,” 877 F.Supp. at 681.

Additional training for female prisoners relating to sexual harassment was also ordered.

Portions of the lower court’s order were reversed on appeal.

One result of the Women Prisoners case, which included a substantial number of additional

issues in which the court found against the defendants, is that a federal court has imposed

ongoing operational requirements on the District of Columbia. The court’s order provides

that its requirements will stay in effect “until the Defendants have complied with all

provisions for 5 years,” 877 F.Supp. at 690.
Women in Jail: Legal Issues / 29

The Georgia Department of Corrections faced similar allegations of sexual abuse of female

inmates in the early 1990s. Six states—Georgia, Idaho, Iowa, Louisiana, Nevada, and

North Dakota—have specific statutes making sex between correctional officers or DOC

staff and inmates illegal. At least two persons entered guilty pleas to charges under the

Georgia act. One person was acquitted and other criminal charges remain pending. These

allegations of sexual abuse became part of a long running conditions case, Cason v.

Seckinger, 84-313-1-MAC.35 A consent order also has been entered under which the

Department adopted an operating procedure for responding to inmate complaints of

sexual abuse.

The disturbing events chronicled in Hovater, Women Prisoners, and the Georgia litigation

demonstrate that sexual abuse of female inmates can occur and, in some situations, can

become a pattern of behavior. The author of this report is not aware of any comparable

problems arising around female officers supervising male inmates. An agency concerned

about liability, quality of management, and, indeed, its own self-respect, must make serious

efforts to prevent sexual abuse of female inmates.

Access to the Courts

In 1977, the Supreme Court affirmed the proposition that inmates have a right of access

to the courts that correctional facilities may not impede. The Court held further that

institutions have an affirmative duty to provide legal resources to inmates that allow a

“meaningful” exercise of the right, Bounds v. Smith, 430 U.S. 817 (1977). This affirmative

duty can be met by providing assistance from persons trained in the law (lawyers,

paralegals, law students) or by providing adequate law libraries.

The general principle from Bounds, a prison case, applies to the jail setting, although

there is some continuing question whether the jail must always provide legal resources for

its inmates to the same extent as must a prison. The existence and extent of any such

differences need not be explored here. Suffice it to say that legal resources available to

inmates generally in many, many jails are probably inadequate under whatever legal test

might be applied. These inadequacies typically become even more acute for female

inmates.

The access to the courts issue has two ramifications for women. The first is basic access to

legal materials. Once again, the relatively small number of women in the jail works against

them. The jail that tries to meet its obligations under Bounds through the provision of

some form of law library will not have a separate library for women. The hours the library

is available to women will typically be far less than for men, raising a question as to whether

Sexual abuse of female inmates can

occur and, in some situations, can

become a pattern of behavior.
30 / Women in Jail: Legal Issues

the jail meets its Bounds obligations, which include not only providing the basic resource,

but also providing adequate access to that resource. Dealing with the access to resources

issue may become doubly difficult for the jail manager because historically female inmates

have not demanded access to legal resources to the same extent as their male counterparts.

The second issue relates to whether the right material is in the law library, although here

the caselaw does not run in favor of female inmates. The focus of most correctional

institution law libraries has been on materials related to the criminal law and to “inmate

rights” issues, which may not be the most pressing legal concerns for many female inmates.

A very high percentage of women in prison had children living with them before

incarceration 36 and are likely to be more concerned about parental rights issues.

Must a jail then provide legal materials related to parental rights and other family law

issues? Courts have only recently begun to consider this question, but the trend appears

to be to exclude such materials from the constitutionally mandated sorts of materials a law

library must provide for inmates. In reversing a lower court decision that required the

Michigan Department of Corrections to provide assistance in child custody matters, the

Sixth Circuit emphasized that the state’s affirmative duties under Bounds extend only to

assistance in post-conviction matters, habeas corpus, and inmate civil rights, Glover v.

Johnson, 75 F.3d 264 (6th Cir., 1996).
Women in Jail: Legal Issues / 31

Section 3. Trends

Although litigated less often than issues regarding male inmates, legal issues regarding

female inmates remain potentially significant for the jail. These issues range from the

comparative quality and quantity of programs and facilities, and several unique medical

issues, to the normal wide range of legal issues that apply equally to male and female

inmates. Some of these issues are purely operational, while some need to be anticipated

and addressed in the planning and design of a new jail.

The trend in litigation regarding female inmates is similar to that involving male inmates.

Led by the conservative direction of the Supreme Court, courts are not taking the strong

activist role they did in years past.

Marked by decisions such as Turner v. Safely 482 U.S. 78 (1987) and Sandin v. Conner,

115 S.Ct. 2293 (1995), the Supreme Court has reduced the scope of potential court

oversight over corrections with regard to issues arising under the Due Process Clause of

the Fourteenth Amendment (including inmate disciplinary hearings) as well as other issues

in which legitimate interests of the jail compete with the rights of inmates. For example,

First Amendment rights to correspondence or publications are limited by legitimate

security concerns of the institution.

In Turner and Sandin, as well as other decisions in recent years, the Supreme Court has

emphasized that federal courts must defer to the judgment of correctional administrators

in all but the most extreme cases. This message has been heard by district and circuit

appeals court judges. For instance, the Religious Freedom Restoration Act, initially

thought to be the source of renewed court oversight in the area of religion, has been given

a narrow, limited construction by most courts called upon to apply its terms in the prison

or jail context, Hamilton v. Schriro, 74 F.3d 1545 (8th Cir., 1996).

This generally conservative trend becomes specific in at least two major decisions directly

involving women in custody: the Klinger and Pargo decisions discussed at length earlier

in these pages. If the approach taken by the Eighth Circuit in these cases is adopted by

other courts of appeal, or ultimately by the Supreme Court, the Equal Protection Clause

may lose much of its force for compelling improvements for female inmates.

Another general trend that may reduce the threat of litigation regarding female inmates

is simply the apparent decrease in the number of lawyers or law firms willing to take on

major corrections reform cases, particularly when those cases involve only a jail. Public or

private funding for public service law firms is decreasing, and with it the number of

organizations that might be willing to litigate on behalf of female inmates. Unless the

inmates themselves reverse the historic trend of being much less litigious than male
32 / Women in Jail: Legal Issues

inmates (something which may happen in the prison setting, but is less likely to occur in

jails, where most inmates come and go rather quickly), there probably will continue to be

relatively few civil rights cases filed by or on behalf of female inmates.

Congress and various state legislatures have passed, or are considering passage of, bills

intended to reduce the power of the federal courts over state and local correctional

agencies. Some of these efforts may succeed in cutting down the number of meritless

lawsuits filed by inmates. Others, which purport to directly limit the powers of the federal

courts, raise fundamental constitutional questions regarding the concept of the Separation

of Powers.

Not all of the trends in today’s law erode the role of the courts in defining and protecting

the rights of inmates generally and female inmates in particular. For instance, the Title IX

cases, exemplified by Jeldness and Women Prisoners, may have a substantial impact at least

in those jurisdictions which, because of the receipt of federal financial assistance for

education, are subject to the provisions of Title IX. The Jeldness case also indicates this will

be an area of considerable confusion, as courts try to determine what the idea of no

discrimination on the basis of sex means in a setting where such discrimination (separation

of male and female inmates) remains an unchallenged reality.

Courts also continue to protect rights previously identified by the Supreme Court, even

when those may have been watered down somewhat in recent years. Adequacy of medical

care will continue to be an issue of concern to the courts and one of considerable

importance to female inmates. Conditions of confinement claims, often triggered by

problems caused by crowding, also remain viable, despite some tightening of the

requirements of such claims by the Supreme Court.

In the not-so-distant past, litigation or the threat of litigation served as a major prod for

jail administrators and county governments to address and correct problems in their jails.

More than one jail administrator has both grumbled about court intervention with jail

operations and blessed the same intervention as the only effective means of requiring

major problems to be addressed.

To some extent, the litigation prod does not carry the strength it once did. To some, this

reflects a step in the right direction toward restoring a “proper” balance between the courts

and the legislative and executive branches of government. The risk that such steps create

is that without the threat of being held accountable before a federal court, the quality of

jail and prison operations may begin to deteriorate. The public’s attitude toward offenders

is harsher today than in decades past. In some circles, it seems that almost anything more

than bread and water is seen as a frill, an unnecessary perk, part of a “country club” facility.

While this is an exaggeration, the “get tough on inmates” mood, combined with decreasing

levels of accountability for maintaining some level of minimum standards, raises the

specter of decreased funding for jails, corresponding cutbacks in staff and training, and

the rebirth of the sorts of very brutal, barbaric, and often dangerous conditions that led
Women in Jail: Legal Issues / 33

to the initial wave of court intervention in the early 1970s.
32 / Women in Jail: Legal Issues

Bibliography

All Too Familiar Sexual Abuse of Women in U.S. State Prisons (1996). New York:

Women’s Rights Project of Human Rights Watch.

American Correctional Association (1990). The Female Offender: What Does the

Future Hold? Laurel, MD.

Beal, Glenda J., ed. (1993). ACA National Jail and Adult Detention Directory. Laurel,

MD: American Correctional Association.

Bureau of Justice Statistics (December 3, 1995). Press Release. Washington, DC: U.S.

Department of Justice.

Florida Supreme Court (1990). Report of the Florida Supreme Court Gender Bias

Study Commission. Tallahassee, FL.

Gilliard, Darrell K. and Allen J. Beck (January 1997). Prison and Jail Inmates at

Midyear 1996. Bureau of Justice Statistics Bulletin. Washington, DC: U.S. Department

of Justice.

Maguire, Kathleen and Ann L. Pastore, eds. (1994). Bureau of Justice Statistics

Sourcebook of Criminal Justice Statistics 1993. Albany, NY: State University of New

York, Hindelang Criminal Justice Research Center.

Morash, Merry, Robin N. Haarr, and Lila Rucker (1994). “A Comparison of

Programming for Women and Men in U.S. Prisons in the 1980s.” Crime and

Delinquency, Vol. 40, No. 1.

O’Brien, David G. (Spring 1996). “Jeldness v. Pearce: Will the Requirements of Title IX

Handcuff Prison Administrators?” New England Journal on Criminal and Civil

Confinement, 22.

Pontell, Henry N. and Wayne N. Walsh (1994). “Incarceration as a Deviant Form of

Social Control: Jail Overcrowding in California.” Crime and Delinquency, Vol. 40, No.

1, p. 18, 19.

Rafter, Nicole (1990). “Equal Protection Forcing Changes in Women’s Prisons.” II

Correctional Law Reporter, 52.

Snell, Tracy L. (1992). Correctional Populations in the United States, 1992.

Washington, DC: U.S. Department of Justice, Bureau of Justice Statistics.
Women in Jail: Legal Issues / 33

Snell, Tracy L. (1992). Special Report: Women in Jail 1989. Washington, DC: U.S.

Department of Justice, Bureau of Justice Statistics.

“Status Report: State Prisons and the Courts (Winter 1993/94).” National Prison Project

Journal.

“Status Report: State Prisons and the Courts (Winter 1994/95).” National Prison Project

Journal.

Appendix

An Overview of the Courts and Corrections

Time Was Once That . . . .

Plunging into a detailed discussion of legal issues for female inmates may be confusing for

those not familiar with the history of courts and corrections. This Appendix provides a

short general background on the courts’ involvement with corrections. Much of the history

of corrections in America in the last third of the 20th Century is that of the inmates’ rights

movement and the involvement of federal courts with the operation of jails and prisons.

Persons unfamiliar with the inmates’ rights movement, which has waned somewhat in

recent years, may be surprised to learn how many current correctional practices and

concerns are the product of court decision or at least the fear of litigation and liability. If

one looks hard enough, it is possible to find one or more court decisions from somewhere

in the country that touch on virtually every aspect of inmate life in the institution. This is

not to say that what one court in one jurisdiction said in one case 15 years ago still reflects

good law today. However, it highlights the very influential role courts have played in

defining legally binding expectations for jails and prisons in the United States.

Another indicator of the extent of court involvement is simply the number of jurisdictions

that are, or have been, under court order in a major conditions of confinement case, i.e.,

a case in which various living conditions and practices in the institution have been found

to amount to cruel and unusual punishment in violation of the Eighth Amendment. As of

January 1995, only three states had never been involved in major litigation dealing with

crowding or conditions in their prisons (Minnesota, New Jersey, and North Dakota).

Thirty-three states have at least one major institution under court order, and major

litigation is pending in at least 11 others.* By 1989, nearly one of every three large

 

*

“Status Report: State Prisons and the Courts (Winter 1994/1995).” National Prison Project Journal.
34 / Women in Jail: Legal Issues

American jails were under court order in conditions of confinement cases.†

Hundreds, if not thousands, of other court orders deal with relatively discrete practices or

procedures (e.g., arrestee strip searches, or types of publications an inmate may receive,

or how an inmate may practice his/her religion, or inmate discipline, among many

potential areas).

 

†

Pontell, Henry N. and Wayne N. Walsh (1994). “Incarceration as a Deviant Form of Social Control:

Jail Overcrowding in California. Crime and Delinquency, Vol. 40, No. 1.
Women in Jail: Legal Issues / 35

Most of these lawsuits as well as the tens of thousands of less serious, often frivolous, civil

rights cases inmates file in the federal courts every year deal with male inmates. However,

23 major cases dealing with female offenders are pending in some form among the states

and the District of Columbia.* Almost half of the cases deal with medical/mental health

issues, while most of the rest deal with more general conditions issues.

Courts Used to Keep Hands Off

Courts have not always been concerned with conditions and practices in jails and prisons.

Before the late 1960s, courts maintained what was known as a “hands-off” approach,

deferring to the judgment of institution administrators. However, that gradually changed.

What spawned the beginning of court involvement was a series of cases with very shocking

facts, such as inmate trusties having authority over other inmates and the basic power to

run the prison, even deliver medical care, Holt v. Sarver, 309 F. Supp. 361 (E.D. Ark.,

1970), Newman v. Alabama, 503 F.2d 1320

(5th Cir., 1974). In Newman, a bedsoreridden quadriplegic, with wounds infested

with maggots, waited nearly three weeks

between the time the maggots were

discovered and his wound was cleaned.

That was then. Inmates and inmate advocates

brought these conditions, practices, and

customs to the courts’ attention. These types of facts shocked the conscience of judges,

convinced them that no one or no organization was holding jail and prison administrators

accountable for the ways in which they ran their institutions. Beginning in the late 1960s,

in light of many claims with similar sorts of appalling facts, the hands-off era ended and

a period of “hands-on” involvement of the courts began.

Since then, courts have recognized that if the government is going to operate a jail system,

“it is going to have to be a system that is countenanced by the Constitution of the United

States,” Holt v. Sarver (Ark., 1970). Echoing the meaning of these words, the Supreme

Court in 1974 stated that “there is no iron curtain drawn between the Constitution and the

prisons of this country,” Wolff v. McDonnell, 418 U.S. 539 (1974). The protections of the

Constitution extend into correctional facilities, the only question being the extent of those

protections.

Life After the Hands-On Era

Very active court involvement with correctional facilities marked the 1970s, as the extent

of problems in America’s correctional institutions came to the attention of the courts. This

 

*

State Prisons and the Courts, op. cit.

If the government is going to

operate a jail system, “it is

going to have to be a system

that is countenanced by the

Constitution of the United

States,” Holt v. Sarver, (Ark.,

1970).
36 / Women in Jail: Legal Issues

“hands-on” period reached its zenith in 1979 with a Supreme Court decision in a case that

came from a jail operated by the federal government, Bell v. Wolfish, 441 U.S. 520 (1979).

Bell included several issues, but the most important was the question of whether doublecelling inmates—putting two persons in a space designed for one—was unconstitutional.

The Supreme Court declared it was not, saying there was no “one man, one cell principle

lurking” in the Constitution, 441 U.S. at 542. With this holding and the general statement

that lower courts were becoming too “enmeshed in the minutiae of prison operations,” 441

U.S. at 562, Bell marked the end of the hands-on era and introduced a period of court

retreat from the very active role courts played in the 1970s.

The Supreme Court has decided a substantial number of cases dealing with inmate rights

since Bell. Consistently those cases have followed a relatively conservative line, recognizing

that inmates still enjoy the protections of the Constitution but that those protections are

not as extensive as lower courts often found them to be.

Conditions in America’s jails and prisons no longer approach the horrors that led

to court intervention nearly three decades ago. Although the courts have retreated

from the extreme activism of the 1970s, court decisions and the threat of litigation

still play a major role in the operation of a correctional facility.

Scope of Court Involvement: You Name It!

There are few areas of jail operation that have not been the subject of at least one (if not

many) lawsuits over the years. Some of the issues the courts have addressed (with varying

results) include:

• Inmate safety and classification;

• Access to and the quality of medical care;

• Searches of inmates, visitors, and staff;

• Religious practices;

• Cross-gender staffing: observation and searches of one sex by the other;

• Diet and nutrition, including medical and religious diets;

• Access to or limitations on what inmates can read;

• Access to the courts and legal materials;

• Basic facility sanitation;

• Personal hygiene, e.g., from toilet paper to toothbrushes to hot water;

• Out-of-cell time and exercise;

• Disciplinary procedures;

• Administrative segregation: procedures for entry and conditions in segregation

units;

• Censorship of incoming and outgoing mail, handling of legal mail;

• Clothing;

• Overall physical environment, including such things as lighting, heating, cooling,

ventilation, and noise levels;
Women in Jail: Legal Issues / 37

• Comparison of programs and facilities available to male vs. female inmates;

• Protection against suicide;

• Use of force: when, how much;

• Smoking and smoke-free jails;

• Abortions;

• HIV: disclosure, treatment, segregation;

• Employee training and qualifications;

• And so forth.

Progress in American corrections remains bolstered by the thousands of court decisions

of the last 25 years, which have touched nearly every aspect of correctional facility

operation. While compara-tively few of these cases have dealt directly with female inmates,

the rules from many of those cases apply in theory equally to both men and women.

The quality of jail and prison management and operation is typically far more advanced

than 20 years ago. However, sometimes the advancement in management and operational

practices has not extended as far for female inmates as it has for male inmates.

Understanding Section 1983 Lawsuits

Inmates file most of their lawsuits in federal court under a law passed by Congress during

post-Civil War Reconstruction. That law appears at Title 42 of the United States Code, in

Section 1983. Some understanding of “Sec. 1983 actions” may help foster an

understanding of some of the important mechanics of civil rights litigation: who gets sued,

and why, and what the court has the power to do. Section 1983 reads as follows:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any state or territory, subjects, or causes to be subject, any citizen

of the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an action at law,

suit in equity, or other proper proceeding for redress.

This statute, which was largely ignored until the birth of the civil rights movement in the

middle of the 20th Century, conveys no rights itself, other than providing a means of

raising a civil rights claim in federal court.

In summary, Sec. 1983 permits suits against persons acting on behalf of state or local

governments (acting “under color of state law”) to be sued by someone who claims the

person acted or failed to act in a way that caused the violation of the plaintiff’s rights under

either the federal Constitution or federal statute. The great majority of Sec. 1983 actions

that affect corrections deal with constitu-tional, not statutory, issues. Municipal

corporations such as counties and cities may be sued directly under Sec. 1983.
38 / Women in Jail: Legal Issues

The Court’s Relief Powers

Section 1983 gives the court a variety of relief powers it may exercise to correct

constitutional violations it may find. The most important are damages and injunctive relief.

Damages. Damages may be awarded against individual defendants in a Sec. 1983 action

only if the right that was violated was “clearly established.” This protects government

officials from being monetarily liable for failing to predict the future course of

constitutional law. The “qualified immunity” defense is not available to government

agencies, such as counties.

Injunctive relief. Injunctions respond to past and present problems, but focus on the

future: what must be done to correct this problem and prevent its reoccurrence. Having

found a constitutional violation (or violations) AND having decided there is a continuing

problem, the court may enter an order requiring the defendant to correct the problem by

addressing its cause. For instance:

• Constitutional problem: Excess levels of violence.

• Cause: Gross overcrowding, causing the breakdown of the classification system.

An additional cause might be inadequate staffing.

• Cure: A population cap and population reduction order.

• Impact: Compliance with a population reduction order affects the entire criminal

justice system, from police to prosecutors to courts to the jail and prison since all

of these agencies help determine who is incarcerated and for how long.

Relief orders will start at the least-intrusive level needed to bring a facility up to

constitutional levels, Stone v. San Francisco, 968 F.2d 850 (9th Cir., 1992). But if the

defendants do not comply with the relief order, more court orders are entered that

become more intrusive and more demanding until the defendants come into compliance.

The principle to remember about the court’s relief power is that the court has the power

necessary to require defendants to correct the problems. The amount of power used

grows in direct proportion to the court’s view of the defendants’ inability or reluctance to

remedy the problem.

Attorneys’ Fees

As a means of encouraging litigation to vindicate civil rights violations, Congress passed

a law that allows the “prevailing party” in a civil rights case to be awarded attorneys’ fees,

42 USC Sec. 1997.

“Prevail” includes more than winning the lawsuit after a trial. Winning only a portion of
Women in Jail: Legal Issues / 39

the case will support a fee award. Settling the case through a consent decree supports a fee

award, making the fee a proper question in settlement negotiations. Courts have awarded

fees even where the lawsuit becomes a “catalyst” for improvements.

Computation of fees. Fees are computed by multiplying the hours the lawyer spent on

the winning portions of the case by the hourly rate charged by similar lawyers in the

community. This produces the “lodestar” fee figure, which may be adjusted slightly up or

down depending upon circumstances. In a big case, with hundreds or thousands of hours

and rates sometimes exceeding $300/hour, this formula can produce fees of six or even

seven figures.

The size of the fee is not necessarily limited by the size of the relief the plaintiff receives,

although after a 1993 Supreme Court decision, a nominal damage award of $1.00

generally will no longer support a fee award, Farrar v. Hobby, 113 S.Ct. 56 (1992).

One other point about attorneys’ fees: they may not be covered by a county’s insurance

policy! Where a county’s coverage paid for “damages,” from “errors and omissions,” it did

not cover attorneys’ fees, Sullivan County, TN v. Home Indemnity Co., 925 F.2d 152 (6th

Cir., 1992).

Prison Litigation Reform Act will reduce size of fees. In the spring of 1996, Congress

passed the Prison Litigation Reform Act, which, among other things, imposed restrictions

on the award of attorneys’ fees in inmate cases. Among other limitations, the law puts a cap

on the hourly rate a judge can use to determine the size of the fee as well as attempts to

prevent fee awards under a “catalyst” theory.

Inmate Rights: What Are the Issues?

Even though court decisions touch on so many aspects of jail and prison operation, inmate

lawsuits derive from only four constitutional amendments: the First, Fourth, Eighth, and

Fourteenth.

First Amendment: To what extent may inmates exercise their rights of religion, speech,

press, and, in general, the right to communicate with persons outside the jail? What

justifies restricting those rights?

First Amendment issues, especially dealing with limitations on the practice of religion and

the censorship or rejection of correspondence and publications, have been the subject of

much litigation over the years. Although it took the courts a considerable period of time

to decide how they would balance inmate claims about matters protected by the First

Amendment against institution claims of competing, overriding interests (generally

security), this question was resolved in 1987 with two decisions from the Supreme Court,

Turner v. Safely 482 U.S. 78 (1987) and O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987).

In these two cases, the Court said that when a prison regulation “impinges on inmates’

constitutional rights, the regulation is valid if it is reasonably related to legitimate
40 / Women in Jail: Legal Issues

penological interests,” Turner. “Legitimate penological interests” include security, order,

safety, rehabilitation (for convicted persons), and perhaps equal opportunity.

The so-called “Turner Test” is a relatively easy one for institution administrators to meet

because in both Turner and O’Lone, the Court emphasized that lower courts must give a

great deal of deference to the judgment of correctional officials on matters such as security.

This has made it very difficult for courts to second guess officials as to the need for a

particular type of restriction.

As easy as the Turner test may be, officials still must be aware of when their actions restrict

an area protected by the Constitution and must be able to articulate a legitimate reason for

such actions.

Litigation over limitations on an inmate’s ability to practice his or her religion while in jail

or prison has increased since the passage of the Religious Freedom Restoration Act by

Congress in 1994. This law made it more difficult for institution administrators to be able

to justify restricting religious practices because, in it, Congress effectively overruled the

Turner test regarding restrictions that impose a “substantial burden” on the practice of

religion. To justify such restriction, officials must show the restriction furthers a

“compelling governmental interest” and is the least-restrictive means of furthering such

interest.

 Fourth Amendment: What types of searches are reasonable/unreasonable for inmates,

visitors, and staff? What privacy protections do persons retain upon entering the jail?

Courts have been cautious about limiting the ability of prison or jail staff to search inmates.

For instance, the Supreme Court has said that inmates have absolutely no privacy rights

regarding their cells and therefore staff may search a cell any time, and for any reason,

Block v. Rutherford, 468 U.S. 576 (1984). The Court also said that inmates may be strip

searched any time they return from somewhere outside the secure perimeter of the facility

where they might have been able to obtain contraband, Bell v. Wolfish, 441 U.S. 520

(1979).

The increase in female officers working with male inmates and, to a somewhat lesser

degree, male officers working with female inmates has raised questions about whether

there are certain functions a staff member may not do with an inmate of the opposite sex.

In general, strip searches remain a same-sex task. Whether pat searches may be done by

a member of the opposite sex remains unsettled. Where cross-gender supervision exists

(which is virtually everywhere, to at least some degree), courts expect jails and prisons to

make at least some efforts to accommodate inmate privacy concerns and limit situations

where staff of one sex observe inmates of the other sex naked, showering, using the toilet,

etc.

Eighth Amendment: What conduct, such as the use of force, and/or conditions amount
Women in Jail: Legal Issues / 41

to cruel and unusual punishment?

The Eighth Amendment has been the source of some of the most significant litigation

dealing with corrections facilities through what is known as the conditions of

confinement lawsuit. These suits look at two separate issues:

1. Objective issue: Are conditions that affect the basic human needs of the inmates,

including medical care, personal safety, shelter, sanitation, food, clothing, and

exercise so bad as to harm the inmates or present an unreasonable risk of serious

harm to them? Wilson v. Seiter, 111 S.Ct. 2321 (1991), Helling v. McKinney, 113

S.Ct. 2475 )1993).

2. Subjective issue: Are institution officials “deliberately indifferent” to those bad

conditions?

Conditions of confinement cases can be very expensive and complicated to try, sorely

taxing the resources of an affluent jurisdiction. However, these cases have their real impact

in the relief phase.

If a court finds that officials are deliberately indifferent to one or more conditions that are

bad enough to meet the objective test from Wilson and Helling, the court will begin to

exercise its relief powers described earlier. This means the court will try to determine what

the causes of the problems are and tailor a relief order that tries to address the causes of

the problem. If the cause of the problem is crowding, as it often is in a conditions case,

then the court may direct the defendants to reduce the levels of crowding in the institution.

This can lead to population caps and, in the case of a county, affect the jurisdiction’s entire

criminal justice system.

Not all lawsuits related to conditions of confinement are class actions involving the entire

institution. Suits brought by individual inmates over individual problems are common,

particularly in the area of medical care. Here the legal question is whether the medical

care was so bad as to show “deliberate indifference to a serious medical need,” Estelle v.

Gamble, 429 U.S. 97 (1976). Medical suits do not always just involve medical staff. When

non-medical staff, such as correctional officers, impede an inmate’s access to medical care

or interfere with the delivery of prescribed treatment, they also may become defendants

in a medical case.

The other major area of Eighth Amendment litigation relates to the use of force. Here

also, the limits set by the Supreme Court do not impose a tremendous burden on the jail

and prison administrator. Staff are permitted to use force in many circumstances, but when

the force involves “the wanton and unnecessary infliction of pain” or is used “maliciously
42 / Women in Jail: Legal Issues

or sadistically for the very purpose of causing harm,” it violates the Eighth Amendment,*

Hudson v. McMillian, 112 S.Ct. 995 (1992).

In deciding whether force meets the Hudson test, the Supreme Court said lower courts

should consider five factors:

1. The need for the use of any force,

2. The amount of force actually used,

3. The extent of any injuries sustained by the inmate,

4. The threat perceived by the reasonable correctional official, and

5. Efforts made to temper the use of force.

Fourteenth Amendment: Due process and equal protection. Several unrelated issues are

included under the Fourteenth Amendment:

1. Due process:

• What process is due to assure fairness in inmate discipline? At least when a release

date is at risk in a disciplinary proceeding, the Fourteenth Amendment requires

notice, a hearing, and various other procedural rights, Sandin v. Conner, 115

S.Ct. 2293 (1995), Wolff v. McDonnell, 418 U.S. 539 (1974).

• What other types of decisions require some form of due process, and what form

must that process take?

• Due process also protects/regulates conditions of confinement and use of force

for pre-trial detainees, who are not protected by the cruel and unusual

punishment clause of the Eighth Amendment.

2. Access to the courts: Since 1977, jails and prisons have had affirmative duties to provide resources

(law libraries or persons trained in the law) to assist inmates in exercising their right of access to

the courts, Bounds v. Smith, 430 U.S. 817 (1977). Bounds dealt with the prison setting. The

principles announced in Bounds apply to jails, but courts are still struggling with the extent to

which the precise demands of the right of access to the courts may differ between the jail and

prison setting.

3. Equal protection: This Clause, which generally requires that similar groups be treated alike by

government unless sound reasons exist for treating them differently, provides the basis for some

of the most important litigation on behalf of women. These so-called “parity” cases were described

 

*Technically, the Eighth Amendment does not protect pre-trial detainees. Instead, this group is

protected by the Fourteenth Amendment. The legal test for evaluating use of force under the Fourteenth

Amendment is essentially the same as that applied to sentenced offenders.
Women in Jail: Legal Issues / 43

in detail earlier.

This short summary of the potential constitutional issues in running a jail belies the

complexity of those issues, but demonstrates the potential consequences of a jail failing to

meet the requirements of the Constitution.
30 / Women in Jail: Legal Issues

Endnotes

 

1. Gilliard, Darrell K. and Allen J. Beck (January 1997). Prison and Jail Inmates at

Midyear

1996. Bureau of Justice Statistics Bulletin. Washington, DC: U.S. Department of Justice,

p. 6.

2. Ibid., p. 4.

3. Snell, Tracy L. (1992). Special Report: Women in Jail 1989. Washington, DC: U.S.

Department

of Justice, Bureau of Justice Statistics, p. 3.

4. Ibid., p. 3.

5. Ibid., p 10.

6. Morash, Merry, Robin N. Haarr, and Lila Rucker (1994). “A Comparison of

Programming

for Women and Men in U.S. Prisons in the 1980s.” Crime and Delinquency, Vol. 40,

No. 1,

p. 198.

7. Women in Jail 1989, op. cit., p. 6.

8. Ibid., p. 4.

9. Ibid., p. 7.

10. Ibid., p. 7.

11. Maguire, Kathleen and Ann L. Pastore, eds. (1994). Bureau of Justice Statistics

Sourcebook

of Criminal Justice Statistics 1994. Albany, NY: State University of New York,

Hindelang

Criminal Justice Research Center, p. 415.

12. Women in Jail 1989, op. cit., p. 7.

13. Ibid., p. 9.

14. Beal, Glenda J., ed. (1993). ACA National Jail and Adult Detention Directory. Laurel,
Women in Jail: Legal Issues / 31

 

MD:

American Correctional Association, p. xiv.

15. Ibid., p. 277.

16. American Correctional Association (1990). The Female Offender: What Does the

Future Hold?

Laurel, MD, p. 2.

17. Florida Supreme Court (1990). Report of the Florida Supreme Court Gender Bias

Study

Commission. Tallahassee, FL, p. 94.

18. Ibid., p. 94.

19. Women in Jail 1989, op. cit., p. 8.

20. Ibid., p. 9.

21. Florida Supreme Court Gender Bias Study, op. cit., p. 95.

22. Ibid., p. 95.

23. The Female Offender, op. cit., p. 16.

24. Ibid., p. 16.

25. Ibid., p. 17.

26. Women in Jail 1989, op. cit., p. 9.

27. Ibid., p. 9.

28. The Female Offender, op. cit., p. 16.

29. A Comparison of Programming for Women and Men, op. cit., p. 199.

30. “Status Report: State Prisons and the Courts (Winter 1993/1994).” National Prison

Project

Journal, p. 14.

31. Rafter, Nicole (1990). “Equal Protection Forcing Changes in Women’s Prisons.” II

Correctional

Law Reporter, 52.

32. O’Brien, David G. (Spring 1996). “Jeldness v. Pearce: Will the Requirements of Title
32 / Women in Jail: Legal Issues

 

IX

Handcuff Prison Administrators?” New England Journal on Criminal and Civil

Confinement,

22, p. 73.

33. Ibid., p. 84.

34. The Female Offender, op. cit., p. 17.

35. State Prisons and the Courts, op. cit.

36. A Comparison of Programming for Women and Men, op. cit., p. 198.