PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 21-2655 & 22-2027

____________

LACEY STRADFORD;

WILLIAM NETTLES;

JESSE STROUD;

WILLIAM SCOTT;

RICHARD RICHARDSON,

on behalf of THEMSELVES AND ALL OTHER 

SIMILARLY SITUATED

v.

SECRETARY PENNSYLVANIA DEPARTMENT OF 

CORRECTIONS,

 Appellant

____________

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. No. 2-16-cv-02064)

District Judge: Honorable Juan R. Sanchez

____________

Argued: June 29, 2022
2

Before: JORDAN, PORTER, and PHIPPS, 

Circuit Judges.

(Filed: November 9, 2022 )

____________

Sean A. Kirkpatrick

Office of Attorney General of Pennsylvania

Strawberry Square, 15th Floor

Harrisburg, PA 17120

Daniel B. Mullen [Argued]

Office of Attorney General of Pennsylvania

1251 Waterfront Place

Mezzanine Level

Pittsburgh, PA 15222

Counsel for Appellant

Donald Driscoll [Argued]

Community Justice Project

100 Fifth Avenue

Suite 900

Pittsburgh, PA 15222

Alexandra Morgan-Kurtz

Pennsylvania Institutional Law Project

247 Fort Pitt Boulevard

4th Floor

Pittsburgh, PA 15222

Counsel for Appellees
3

____________

OPINION OF THE COURT

____________

PORTER, Circuit Judge.

Class representatives Lacey Stradford, William Nettles, 

Jesse Stroud, William Scott, and Richard Richardson 

(“Appellees”), all convicted sex offenders, allege the 

Pennsylvania Department of Corrections (“DOC”)1enforces a

policy that unconstitutionally discriminates against sex 

offenders. The policy requires DOC to consider, among other 

things, “community sensitivity” when it evaluates parolees for 

halfway house placement. The District Court entered summary 

judgment for Appellees, holding that sex offenders and nonsex offenders are similarly situated and consideration of 

“community sensitivity” when making halfway house 

assignments is irrational.

But not all crimes are alike. The differences among sex 

crimes, and between sex crimes and non-sex crimes, preclude 

the purported similarity between sex offenders and non-sex 

offenders in this case. A discretionary grant of parole cannot 

erase those differences. In any event, DOC’s halfway house 

policy considering “community sensitivity,” among many 

other factors, is rationally related to more than one legitimate 

government interest. So we will reverse and remand for entry 

of summary judgment for the DOC.

1 At the time of judgment, John Wetzel was the Secretary of 

Corrections. George Little took his place. See Fed. R. App. P. 

43(c)(2) (providing automatic substitution of officeholders).
4

I

After completing a minimum sentence, inmates in 

Pennsylvania are eligible to serve the rest of their sentence on 

parole. See 61 Pa. Cons. Stat. § 6137(a)(3). Parole is “a matter 

of grace and mercy shown to a prisoner who has demonstrated 

to the Parole Board’s satisfaction his future ability to function 

as a law-abiding member of society upon release before the 

expiration of the prisoner’s maximum sentence.” Hudson v. 

Pa. Bd. of Prob. & Parole, 204 A.3d 392, 396 (Pa. 2019)

(quoting Rogers v. Pa. Bd. of Prob. & Parole, 724 A.2d 319, 

322–23 (Pa. 1999)).

The decision to grant parole is discretionary. 42 Pa. 

Cons. Stat. § 2154.5(b). Before deciding, the Parole Board 

must investigate, among other things, “[t]he general character 

and background of the inmate,” “[t]he nature and 

circumstances of the offense committed,” “[t]he written or 

personal statement of the testimony of the victim or the 

victim’s family,” the inmate’s “behavioral condition and 

history,” and his “complete criminal record.” 61 Pa. Cons. Stat. 

§ 6135(a).

When reviewing parole applications, the Parole Board 

must determine whether “[t]he best interests of the offender 

justify or require that the offender be paroled” and whether “the 

interests of the Commonwealth will be injured by the 

offender’s parole.” Id. § 6137(a)(1)(i)–(ii). In evaluating this 

standard, the Parole Board considers its own guidelines, which 

are designed to: (1) “[g]ive primary consideration to the 

protection of the public and to victim safety,” (2) “[p]rovide 

for due consideration of victim input,” (3) encourage proper 

conduct of parolees, (4) “encourage inmates and parolees to 

participate in programs that have been demonstrated to be 
5

effective in reducing recidivism,” (5) prioritize “incarceration, 

rehabilitation and other criminal justice resources for offenders 

posing the greatest risk to public safety,” (6) “[u]se validated 

risk assessment tools,” and “take into account available 

research relating to the risk of recidivism, minimizing the 

threat posed to public safety and factors maximizing the 

success of reentry.” 42 Pa. Cons. Stat. § 2154.5(a).

The Parole Board also has authority to delay parole 

release until a satisfactory home plan is arranged and approved. 

See 37 Pa. Code § 63.1(d) (“The date of parole may be 

postponed until a satisfactory plan is arranged for the parolee 

and approved by the Board.”); Barge v. Pa. Bd. of Prob. & 

Parole, 39 A.3d 530, 548 (Pa. Commw. Ct. 2012). Because 

finding housing is often difficult, most inmates first rely on 

halfway houses. Those houses have limited capacity. Public 

houses have only 700 spaces, and private contract facilities 

have 2,100 spaces statewide. But each year, about 9,000 

Pennsylvania inmates are released on parole.

Sex offenders face several collateral consequences due 

to the nature of their criminal acts. They must participate in a 

specialized treatment program to become eligible for parole. 

Violent sex offenders must continue that specialized treatment 

program even after release from prison. Sex offenders must 

register with the Pennsylvania State Police. For violent sex 

offenders, the Pennsylvania State Police must notify the victim 

of their release. And relevant here, the Pennsylvania State 

Police must notify each resident, school district, day-care 

center, and college about nearby registered violent sex 

offenders. 42 Pa. Cons. Stat. §§ 9718.1, 9799.13, 9799.26, 

9799.27, 9799.70.
6

According to DOC, that notification requirement makes 

it difficult to place sex offenders into community halfway 

houses because once neighbors are notified, some oppose sex 

offenders’ presence. In at least one instance, community 

backlash against high concentrations of sex offenders in 

neighboring halfway houses caused a halfway house to close.

For the same reasons it is hard to place sex offenders 

into halfway houses, sex offenders once placed tend to linger 

in halfway houses longer than other parolees. Potential 

landlords can use an applicant’s sex offender status to refuse 

leasing to them, and many sex offenders cannot obtain 

federally funded housing. See 42 U.S.C. § 13663(a); 24 C.F.R. 

§ 5.856. As a result, paroled sex offenders often remain in 

halfway houses until their maximum sentences expire, and 

because sex offenders receive higher-than-average maximum 

sentences, it can take years for their sentences to expire once 

they are paroled. By contrast, according to DOC, other 

parolees spend ninety days on average in a halfway house. The 

cumulative effect of these phenomena is that sex offenders clog 

the parole system.

As originally drafted, DOC Policy 8.1.1 Section 4 

designated sex offenders as categorically “hard to place” and 

rejected them for initial placement into halfway houses. 

J.A. 76. When the putative sex offender class challenged that 

policy in court, the District Court determined that, because 

non-sex offenders have a greater likelihood of successfully 

rejoining their communities after temporary placement in a 

halfway house, the DOC’s policy served the legitimate interest 

in avoiding clogging the system. Stradford v. Wetzel, No. CV 

16-2064, 2017 WL 1196656, at *4 (E.D. Pa. Mar. 31, 2017). 

The named plaintiffs appealed.
7

While on appeal, DOC changed its policy. The new 

policy lists thirteen factors DOC must consider before placing 

a parolee in a halfway house:

a. community sensitivity to a criminal offense 

or specific criminal incident;

b. board action stipulations;

c. program needs vs. program availability in a 

particular area;

d. separations from other reentrants or staff;

e. multiple failures at one facility;

f. victim consideration;

g. medical or mental health needs;

h. final discharge of maximum sentence date;

i. gender status of the facility;

j. pilots or studies being conducted;

k. request by the reentrant for relocation;

l. available community resources/support; and

m. where the reentrant’s committing county; 

requested release county; and home county are 

in relation to an appropriate center.

J.A. 83.

After the policy change, we vacated the District Court’s 

judgment and remanded for it to consider whether the lawsuit 

was moot. Stradford v. Sec’y Pa. Dep’t of Corr., 783 F. App’x 

150, 151 (3d Cir. 2019). Appellees filed an amended complaint 

challenging the new policy and the District Court found the suit 

not moot. See Stradford v. Wetzel, 519 F. Supp. 3d 214, 223 

n.6 (E.D. Pa. 2021). The District Court said its former decision 

was in error. Id. at 230. It held that paroled sex offenders are 

similarly situated to other paroled offenders, and that there 

could be no rational basis to delay their placement into halfway 
8

houses because of “community sensitivity.” Id. at 224–25, 

230–31.2 This appeal followed.

II

Appelleesfiled this class action under 42 U.S.C. § 1983. 

The District Court had subject matter jurisdiction under 28 

U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 

U.S.C. § 1291.

We review de novo the District Court’s resolution of 

cross-motions for summary judgment. Int’l Union, United 

Mine Workers of Am. v. Racho Trucking Co., 897 F.2d 1248, 

1252 (3d Cir. 1990). Summary judgment is appropriate when, 

drawing all reasonable inferences in favor of the nonmoving 

party, “the movant shows that there is no genuine dispute as to 

any material fact,” and thus the movant “is entitled to judgment 

as a matter of law.” Thomas v. Cumberland Cnty., 749 F.3d 

217, 222 (3d Cir. 2014) (quoting Fed. R. Civ. P. 56(a)).

2 The DOC says that there is an unresolved dispute of material 

fact over the degree of delay in halfway house placement 

caused by the community-sensitivity factor. While this is a 

factual dispute, it is not material because both parties agree that 

the community sensitivity factor disfavors sex offenders. In 

defense of the policy, DOC admits that community backlash 

makes sex offenders difficult to place. And DOC recognizes 

that “lack of community acceptance,” Appellant’s Opening Br. 

12, prevents it from “[p]lacing too many sex offenders into 

halfway houses at a given moment,” Appellant’s Opening Br. 

13. Without a genuine dispute of material fact, we will evaluate 

the equal-protection claim’s merit.
9

III

The Fourteenth Amendment’s Equal Protection Clause 

states that “[n]o State shall . . . deny to any person within its 

jurisdiction the equal protection of the laws.” U.S. Const. 

amend. XIV, § 1. The Supreme Court has said that “the equal 

protection of the laws is a pledge of the protection of equal 

laws.” Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). At 

bottom, the Equal Protection Clause requires equal treatment 

of “all persons similarly situated.” Ass’n of N.J. Rifle & Pistol 

Clubs, Inc. v. Att’y Gen. N.J., 910 F.3d 106, 125 (3d Cir. 2018)

(quoting Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 

F.3d 141, 151 (3d Cir. 2005)). “The Equal Protection Clause 

does not forbid classifications.” Nordlinger v. Hahn, 505 U.S. 

1, 10 (1992). But the distinctions between classes “must be 

rationally related to a legitimate governmental purpose.” City 

of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985).

To establish an equal-protection claim, a plaintiff “must 

show that the Government has treated it differently from a 

similarly situated party and that the Government’s explanation 

for the differing treatment does not satisfy the relevant level of 

scrutiny.” Real Alternatives, Inc. v. Sec’y Dep’t of Health & 

Hum. Servs., 867 F.3d 338, 348 (3d Cir. 2017) (emphasis 

removed) (citing City of Cleburne, 473 U.S. at 439–40).3

3 The parties agree that the DOC’s policy is subject to rational 

basis review because sex offenders do not belong to a suspect 

or quasi-suspect class and the DOC’s policy implicates no 

fundamental constitutional rights. See Artway v. Att’y Gen. of 

N.J., 81 F.3d 1235, 1267 (3d Cir. 1996).
10

A

Because “equality” is a rhetorically ambiguous concept, 

it’s easy to “invoke any existing descriptive inequality as a 

basis for asserting what is essentially a prescriptive grievance.” 

Peter Westen, Speaking of Equality: An Analysis of the 

Rhetorical Force of “Equality” in Moral and Legal Discourse

279 (1990). But the Fourteenth Amendment proscribes

unequal treatment only among persons similarly situated 

according to a relevant standard of comparison. See 

Nordlinger, 505 U.S. at 10 (Persons are similarly situated 

under the Equal Protection Clause when they are alike “in all 

relevant respects.”). So an equal-protection challenge must 

allege more than “broad generalities” in identifying a 

comparator. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1204 

(11th Cir. 2007). Courts must “isolate the factor allegedly 

subject to impermissible discrimination.” United States v. 

Olvis, 97 F.3d 739, 744 (4th Cir. 1996) (quoting United States 

v. Aguilar, 883 F.2d 662, 706 (9th Cir. 1989)); Cung Hnin v. 

TOA (USA), LLC, 751 F.3d 499, 504–05 (7th Cir. 2014) 

(same); Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th 

Cir. 1995) (same). Other factors explaining disparate treatment 

will usually preclude persons from being similarly situated. In 

turn, the failure to identify similarly situated persons dooms an 

equal-protection claim. See Hill v. Borough of Kutztown, 455 

F.3d 225, 239 (3d Cir. 2006) (citing Levenstein v. Salafsky, 414 

F.3d 767, 776 (7th Cir. 2005)) (stating equal-protection claim 

“must fail because [plaintiff] does not allege the existence of 

similarly situated individuals”).

Pennsylvania law creates three tiers of sex offenders 

based on their offenses and further distinguishes sexually 

violent predators. See 42 Pa. Cons. Stat. §§ 9799.14, 9799.24.
11

DOC incorporates those distinctions into its decisions on when 

and where to place sex offender parolees. Appellees must show 

that these are irrational distinctions for those decisions.

When evaluating whether offenders are similarly 

situated under the Equal Protection Clause, we must assess the 

nature of their respective crimes. See Skinner v. Oklahoma ex 

rel. Williamson, 316 U.S. 535, 541 (1942) (determining 

whether embezzlement and grand larceny are “intrinsically the 

same quality of offense”); Doe v. Settle, 24 F.4th 932, 940 (4th 

Cir. 2022) (“When a law imposes collateral consequences 

based on criminal convictions, two impacted offenders who are 

treated differently can be similarly situated if their convictions 

are similar enough.”). So Appellees need to show, for example, 

that an offender convicted of rape and an offender convicted of 

robbery, wire fraud, or a drug offense “are alike ‘in all relevant 

respects.’ ” Harvard v. Cesnalis, 973 F.3d 190, 205 (3d Cir. 

2020) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)).

Because Appellees assert that all sex offenders are 

similarly situated to all other offenders eligible for parole, they 

need to do this comparison for each crime of conviction. They

must also show that sex offenders are similarly situated among 

themselves. Differences between crimes might reasonably 

explain differences in treatment. So Appellees must evaluate 

each crime to see if they are, in essence, the same quality of 

offense.

Appellees have not made these comparisons. But courts 

that have done so conclude, unsurprisingly, that sex crimes and 

non-sex crimes—and even different types of sex crimes—are 

dissimilar. See, e.g., Petitpas v. Martin, No. 20-3557, 2021 WL 

6101469, at *2 (2d Cir. Dec. 22, 2021) (collecting cases);

Carney v. Okla. Dep’t of Pub. Safety, 875 F.3d 1347, 1353–54 
12

(10th Cir. 2017) (aggravated sex offenders are not similarly 

situated to ordinary sex offenders); Litmon v. Harris, 768 F.3d 

1237, 1243 (9th Cir. 2014) (mentally disordered offenders and 

mentally disordered sex offenders are not similarly situated to 

sexually violent predators).

These essential differences between crimes also explain 

why laws imposing collateral burdens on sex offenders have 

generally been upheld. See, e.g., United States v. Kebodeaux, 

570 U.S. 387, 395–96 (2013) (explaining why differences 

between sex offenders and non-sex offenders justify postrelease registration rules); Smith v. Doe, 538 U.S. 84, 103–04 

(2003) (upholding reporting requirements for sex offenders); 

Conn. Dept. of Pub. Safety v. Doe, 538 U.S. 1, 4 (2003)

(upholding publicly available sex offender registry).

“Sex offenders are a serious threat in this Nation.” 

McKune v. Lile, 536 U.S. 24, 32 (2002) (plurality opinion). 

“[T]he victims of sexual assault are most often juveniles,” id., 

and “[t]he sexual abuse of a child is a most serious crime and 

an act repugnant to the moral instincts of a decent people.” 

Ashcroft v. Free Speech Coal., 535 U.S. 234, 244 (2002). 

Precisely because sex offenses are serious and different than 

other types of crimes, Pennsylvania law imposes unique 

collateral consequences on sex offenders. Sex offenders must 

register with the state police, may not qualify for federally 

funded public housing, and must participate in a sex offender 

treatment program.4 And the state police must notify each 

4 See 42 Pa. Cons. Stat. § 9799.13 (requiring registration with 

the state police); 34 U.S.C. § 20920 (requiring states put 

offender information on a publicly accessible website); 42 

U.S.C. § 13663(a) (prohibiting those who are subject to a 

lifetime registration requirement from public housing); 42 Pa. 
13

resident, school district, day-care center, and college about 

nearby registered sex offenders. See 42 Pa. Cons. Stat. 

§ 9799.27. Those collateral consequences are linked to 

Pennsylvania’s finding that “[s]exual offenders pose a high 

risk of committing additional sexual offenses and [that] 

protection of the public from this type of offender is a 

paramount governmental interest.” 42 Pa. Cons. Stat. 

§ 9799.11(a)(4).

Because of these policies, sex offenders have a harder 

time finding a job or a home. The notification policy also 

means that residents are aware of the presence of sex offenders 

(unlike other offenders) in their neighborhood. These are 

inescapable facts for policymakers at DOC trying to make 

rational halfway house policies.

Appellees argue that a favorable parole action 

eliminates the differences between offenders because the 

Parole Board considers them all safe to release into the public. 

See Appellees’ Br. 17–18. The District Court adopted that 

theory. Wetzel, 519 F. Supp. 3d at 224–25. We disagree. The 

individualized assessment underlying a favorable parole action 

doesn’t expunge one’s legal status as a sex offender, or change

him from a sex offender to a non-sex offender. And the parole 

inquiry of “whether an individual poses a substantial danger of 

physical harm to others is far broader than the inquiry into 

whether one is likely [to] . . . engage in sexually violent 

criminal behavior.” Litmon, 768 F.3d at 1243 (internal 

quotation marks omitted). So a favorable parole action does not 

Cons. Stat. § 9718.1 (requiring participation in treatment 

program); 42 Pa. Cons. Stat. § 9799.70 (mandating a continued 

treatment program for violent sex offenders).
14

alleviate the differences between sex crimes and non-sex 

crimes.

A parole board’s individualized assessment is merely a 

reasoned “prediction[] of future behavior” about a particular 

individual, so by itself it cannot make two people, let alone 

entire groups of offenders, similarly situated. Conn. Bd. of 

Pardons v. Dumschat, 452 U.S. 458, 464 (1981). As in other 

states, the decision to parole in Pennsylvania is discretionary. 

See 42 Pa. Cons. Stat. § 2154.5(b). The Parole Board uses a 

general and flexible standard when deciding to grant parole. 

See 61 Pa. Cons. Stat. § 6137(a)(1)(i)–(ii). When applying this 

standard, the Parole Board considers numerous subjective 

criteria. See 42 Pa. Cons. Stat. § 2154.5(a). And to aid in its 

decision, it must investigate, among other things, the various 

attributes of the inmate and the facts of his crime. See 61 Pa. 

Cons. Stat. § 6135(a).

Despite its best efforts, the Parole Board can’t predict

any offender’s future conduct. The Parole Board’s

discretionary, predictive, and fallible determination is based on 

individualized evaluation and imperfect knowledge. That is 

legally relevant because state action that involves 

“discretionary decisionmaking based on a vast array of 

subjective, individualized assessments” necessarily results in 

different treatment among those subject to the discretionary 

action. Engquist v. Or. Dep’t of Agric., 553 U.S. 591, 603–04

(2008) (different but discretionary treatment of apparently 

similarly situated employees does not raise equal protection 

concerns).

The Equal Protection Clause allows state officials to 

exercise their discretion to grant parole to “one class of 

criminals and deny it to others,” to determine “the kind or 
15

amount of evidence upon which to base its determination,” or 

attach whatever “conditions to the application for or to the 

granting of [parole] as [the state] may deem proper.” Ughbanks 

v. Armstrong, 208 U.S. 481, 488 (1908).5 The government “is 

not bound to grant a parole in any case” so long as it treats 

similarly situated persons equally. Id. at 487.

The District Court held that considering the collateral 

consequences of sex offenses was irrelevant because they “are 

part of the very classification on the basis of which Plaintiffs 

argue they are suffering discrimination.” Wetzel, 519 F. Supp. 

3d at 225. That is, the District Court agreed with Appellees that 

DOC couched an equal protection violation within another, 

antecedent equal protection violation. But these collateral 

burdens have themselves survived Equal Protection Clause

scrutiny. See, e.g., Artway, 81 F.3d at 1267–68. And in any 

event, Appellees’ counsel acknowledged in oral argument that 

state and federal laws imposing collateral burdens on sex 

offenders are reasonable attempts to protect the public and 

disclaimed the suggestion that they, too, are unconstitutional. 

Appellees are not similarly situated with non-sex 

offender parolees, so the first prong of their equal protection 

claim fails. Hill, 455 F.3d at 239. But even if Appellees could 

show that they are similarly situated to non-sex offender 

parolees, that would not save their claim. Because Appellees

5 Of course, Pennsylvania may not classify offenders based on 

factors that are “foreign to the parole statute,” such as race, 

religion, or political beliefs. Newman v. Beard, 617 F.3d 775, 

784 (3d Cir. 2010). But none of these impermissible factors are 

at issue here.
16

don’t belong to a suspect class, they would have to show that 

DOC’s halfway house policy is irrational.

B

Under the rational basis test, a law does not “run afoul 

of the Equal Protection Clause if there is a rational relationship 

between the disparity of treatment and some legitimate 

governmental purpose.” Armour v. City of Indianapolis, 566 

U.S. 673, 680 (2012) (quoting Heller v. Doe, 509 U.S. 312, 

319–20 (1993)). The challenged “legislation enjoys a 

presumption of validity, and [a] plaintiff must negate every 

conceivable justification for the classification in order to prove 

that the classification is wholly irrational.” Brian B. ex rel. Lois 

B. v. Pa. Dep’t of Educ., 230 F.3d 582, 586 (3d Cir. 2000). “[I]f 

there is any reasonably conceivable state of facts that could 

provide a rational basis for the classification,” the policy 

survives. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 

(1993). And if DOC’s conceivable rationale seems tenuously 

related to its governmental interest, the sex offenders still must 

show that its criteria and actions are “wholly irrational.” 

Cabrera v. Att’y Gen. U.S., 921 F.3d 401, 404 (3d Cir. 2019) 

(citation omitted).

DOC’s halfway house policy is supported by rational 

bases. Pennsylvania has a legitimate interest in considering 

public safety and public concern over the concentration of 

sexual offenders in a given area. Specifically, DOC has a 

legitimate interest in considering a community’s rational 

concern about sex offenders’ troubling crimes and risk of 

recidivism.

Communities rationally fear that sex offenders pose a 

serious “danger to the community” because they typically have 
17

a “higher risk of recidivism.” United States v. Juv. Male, 670 

F.3d 999, 1010 (9th Cir. 2012) (quoting United States v. 

Salerno, 481 U.S. 739, 747 (1987)); Litmon, 768 F.3d at 1244; 

see also Doe v. Moore, 410 F.3d 1337, 1347 (11th Cir. 2005) 

(“The increased reporting requirements based on evidence of 

increased recidivism among [sex offenders] . . . [are] rationally 

related to the state’s interest in protecting its citizens from 

criminal activity.”); Cutshall v. Sundquist, 193 F.3d 466, 483 

(6th Cir. 1999) (“Given the indications that sex offenders pose 

a particular threat of reoffending, we cannot say that the Act is 

irrational [under the Equal Protection Clause].”).

These fears are not based on mere animus or unfounded 

prejudice. “Half of prisoners released after serving time for 

rape or sexual assault had an arrest within 9 years that led to a 

conviction.” U.S. Department of Justice, Bureau of Justice 

Statistics, Recidivism of Sex Offenders Released from State 

Prison: A 9-Year Follow-Up (2005-2014) 6 (2019) 

(https://bjs.ojp.gov/library/publications/recidivism-sexoffenders-released-state-prison-9-year-follow-2005-14, last 

visited September 14, 2022). And the Justice Department 

recently confirmed its prior findingsthat sex offenders released 

from state prison are much more likely than other released 

prisoners to be arrested for rape or sexual assault. Id. at 5. See 

McKune, 536 U.S. at 32 (citing 1997 and 2000 studies).

But even if sex offenders recidivate at equal or lower 

rates than other criminals, a community can rationally fear sex 

offenders more than other criminals because sex offenders 

target “vulnerable individuals.” Artway, 81 F.3d at 1267 

(“Protecting vulnerable individuals from sexual offenses is 

certainly a legitimate state interest.”); see also Doe v. Cuomo, 

755 F.3d 105, 115 (2d Cir. 2014) (requiring a sex offender 
18

considered non-dangerous to remain on a sex offender registry 

rationally relates to protecting the public).

Appellees contend that any consideration of community 

sensitivity impermissibly opens the door to irrational prejudice 

held unconstitutional by City of Cleburne, 473 U.S. 432. That 

argument conflates “mere negative attitudes, or fear, [toward 

the mentally retarded] unsubstantiated by factors which are 

properly cognizable in a zoning proceeding” with one of 

thirteen factors cumulatively considered by the Parole Board 

before designating prisoners for discretionary placement in a 

halfway house. Id. at 448. In City of Cleburne, the city council 

denied a special use permit for a group home for the

intellectually disabled. To support its decision, the council 

pointed to “the negative attitude of the majority of property 

owners located within 200 feet” of the proposed location. Id.

But those concerns are not “properly cognizable in a zoning 

proceeding.” Id. The council needed a different reason to 

justify denying the permit.

The Court in Cleburne emphasized that only “irrational

prejudice” is unlawful under the Fourteenth Amendment. Id. at 

450 (emphasis added); see also U.S. Dep’t of Agric. v. Moreno, 

413 U.S. 528, 534–35 (1973) (holding that nothing more than 

“a bare congressional desire to harm a politically unpopular 

group” violates the Equal Protection Clause); Romer v. Evans, 

517 U.S. 620, 632 (1996) (holding unlawful a state law that 

precluded local ordinances from protecting homosexuals from 

discrimination because it “seems inexplicable by anything but 

animus toward the class it affects”). In other words, disfavor 

based on nothing but mere animus toward a group violates the 

Equal Protection Clause. Here, DOC relied on thirteen factors 

to evaluate a parolee’s fitness for placement in a halfway 
19

house, and those factors are related to the success of the 

halfway house system.

Appellees argue that by virtue of the Parole Board’s 

favorable decision, sex offenders granted parole do not have

the same likelihood of recidivism as sex offenders denied 

parole. This argument relies on two faulty premises. In its 

strongest form, the argument presumes that a favorable parole 

decision somehow eliminates or reduces the offender’s actual

likelihood of recidivism. In its weaker form, the argument 

presumes that a decision to grant parole is a definitive finding 

of offenders’ low risk to the public. But any parole decision is 

an exercise of discretion considering, among many other 

things, the Parole Board’s best assessment of an offender’s risk 

of recidivism. The Parole Board doesn’t purport to predict the 

future, and it certainly can’t determine the offender’s actual 

likelihood of recidivism. The agency’s discretionary, 

predictive decision doesn’t render irrational community

concerns about sex offender recidivism or the State’s 

legitimate interest in protecting vulnerable people.

For administrative and efficiency reasons, DOC also 

has a rational interest in considering community concern over 

high concentrations of sex offenders. See Califano v. Jobst, 

434 U.S. 47, 53 (1977) (administrative efficiency of Social 

Security program is a legitimate government interest satisfying 

rational basis test). According to DOC, space in halfway 

houses is limited. There are more parolees than rooms 

available in halfway houses. Thus, halfway houses cannot 

accommodate every parolee, especially not for long periods.

The nettlesome issue with sex offenders, according to DOC, is 

that they tend to stay longer in halfway houses and end up 

clogging the halfway house system. DOC says this is 
20

attributable to the collateral burdens that sex offenders 

uniquely face.

Because of those challenges, the population of sex 

offenders in halfway houses tends to increase over time. Such 

concentration, combined with sex offenders’ propensity to

recidivate, arguably creates an increased risk of sex crimes in 

an area. Because of similar concerns, Pennsylvania law limits 

the number of sexually violent predators in group homes, 

including halfway houses. See 42 Pa. Cons. Stat. 

§ 9799.55(d)(1). The community is rationally sensitive to sex 

offender concentration, and DOC’s policy of considering 

community sensitivity for halfway house placement rationally 

relates to its interest in maximizing halfway house availability 

for all offenders.

Appellees argue that most, but not all, offenders were 

successfully placed in homes after their stays in halfway 

houses, that most sex offenders left halfway houses before their 

sentences expired, that at least one halfway house’s occupants

consist of forty percent sex offenders without controversy, and 

that DOC officials did not produce evidence showing that sex 

offenders commit sex offenses during their stays at halfway 

houses. But this evidence doesn’t negate every conceivable 

justification offered by DOC or show that its halfway house 

policy is utterly irrational. “[T]he Constitution does not require 

the [DOC] to draw the perfect line nor even to draw a line 

superior to some other line it might have drawn. It requires only 

that the line actually drawn be a rational line.” Armour, 566 

U.S. at 685. Nor does rational basis review require specific 

facts to justify the government’s legitimate purpose; all it asks 

is whether a policy is rational based on “any reasonably 

conceivable state of facts.” Beach Commc’ns, 508 U.S. at 313. 
21

Even “rational speculation unsupported by evidence or 

empirical data” is enough. Id. at 315. DOC’s halfway house 

policy satisfies that low bar.

Finally, we note that the entire criminal law system

reflects the community’s moral judgments. See United States 

v. Bass, 404 U.S. 336, 348 (1971) (“[B]ecause of the 

seriousness of criminal penalties, and because criminal 

punishment usually represents the moral condemnation of the 

community, legislatures and not courts should define criminal 

activity.”). Criminal and penal laws graduate punishment to 

account for the severity of the crime and the defendant’s moral 

culpability. See, e.g., Wimberly v. Williams, 14 F.4th 1140, 

1148–49 (10th Cir. 2021) (state had rational basis to treat sex 

offenders differently because they “have been convicted of 

crimes considered particularly heinous”). There is no reason to 

depart from this principle for parole proceedings. The public’s 

moral judgments about sex offenses are no less legitimate in 

post-conviction matters, particularly where offenders are still 

serving their term of punishment. See Commonwealth v. 

Williams, 692 A.2d 1031, 1035 (Pa. 1997) (citing Griffin v. 

Wisconsin, 483 U.S. 868, 873–75 (1987)) (“parole is a form of 

criminal punishment imposed after a guilty verdict”).

* * *

Because the District Court erred in granting summary 

judgment for Appellees, we will reverse and remand for entry 

of summary judgment for the Department of Corrections. In 

light of our disposition, the appeal of the District Court’s April 

29, 2022 order will be dismissed as moot.