Judicial Decisions and Prison Reform: The Impact of Litigation on Women Prisoners (1983)

Despite a decade of prison reform, women in U.S. prisons still suffer discrimination in a wide variety of areas. This paper explores three categories of prison litigation concerning women: sex discrimination; medical care, especially for pregnant women; and parental rights. I discuss the limited impact which judicial decisions have had on conditions within women's prisons, and analyze the reasons for this ineffectiveness. Prior to the 1960s, federal courts in the United States openly refused to interfere with the internal operations of prisons. The courts justified their hands-off policy on three grounds: (1) they advanced a separation of powers argument, claiming that the prison system was under the authority of the Attorney General whose administrative decisions were not subject to judicial review; (2) they claimed that they lacked professional expertise on prison life; and (3) they did not want to undermine prison discipline (Glick, 1973:284).' In the late 1960s and the early 1970s, however, a political and legal movement emerged within the U.S. prison system, spurred in part by a 1964 U.S. Supreme Court ruling that state prisoners could sue state officials in federal court for denial of their constitutional rights (Cooper v. Pate, 1964). Federal judges began to elucidate and protect the legal rights of prisoners, prison law became a new specialty, and judgments increasingly favored prisoners. In 1974 the U.S. Supreme Court declared that there is no iron curtain drawn between the Constitution and the prisons of this country (Wolff v. McDonnell, 1974:539). Since the 1,960s, the courts have upheld prisoners' rights in such areas as: freedom of religion; the right of prisoners to assist each other with legal work; the necessity for a prison to maintain a minimally adequate law library for prisoners; limitations on the censorship of mail; procedural fairness regarding prison discipline; and prohibitions of the more inhumane forms of solitary confinement (Krantz, 1976:105). Theoretically, the rights that some prisoners have won should apply to all prisoners. In fact, this is not the case. Women in prison have not benefited from many of the rulings because court decisions have generally been limited to conditions in specific prisons and made in response to suits from male prisoners. It was not until the mid-1970s that female prisoners began taking a more active interest in securing prison reform through litigation. Since then, court decisions have upheld the rights of women prisoners in terms of contact visitations, regular outdoor exercise, and opportunities to be trustees (Mitchell v. Untreiner, 1976); educational and vocational programs (Glover v. Johnson, 1979); and the availability of minimum security jail facilities with their accompanying privileges (Molar v. Gates, 1979). While both men and women suffer tremendously in prison, women have been singled out for certain types of abuse and denial of rights. This paper explores a number of areas of litigation which specifically affect women in prison. First, I give an overview of the conditions of women in prison. Then, I examine judicial decisions within three specific areas of litigation: sex discrimination; medical care, especially for pregnant women; and parental rights. Finally, I explore the relationship between judicial decisions and prison reform by examining prison society and society at large. The paper concludes with reflections on the effectiveness of court-ordered