More Jail Time for Women than Men?

L.A. County is out of jail space. The sheriff is therefore releasing some inmates though they've served less than 10% of their sentences. Other inmates, presumably ones whose release would, in the sheriff's view, be especially harmful, aren't being given this break.

There's generally no constitutional problem with that, even when this has unintended disparate racial impacts, or geographical impacts. Just as the police may constitutionally choose to police one area more than another when they think that area needs more police presence, and prosecutors may choose to prosecute some criminals but not others, so the sheriff isn't violating the Constitution (for instance, the Equal Protection Clause) through using his discretion — so long as he isn't considering the inmates' race, sex, religion, political views, or a few other attributes. Such discretionary decisions may be faulted as unfair, unwise, or violative of state law, depending on the circumstances, but they don't violate the Equal Protection Clause or other parts of the federal Constitutoin.

But here's a twist:

Over the years, the Sheriff's Department has maintained different release policies for men and women, even for those convicted of the same crimes.

Male and female inmates are housed in separate jail sections, and sheriff's officials said their release policies are based on the amount of space available and fluctuations in arrests.

Two years ago, women convicted of all but the most serious crimes were released immediately, serving none of their sentences. But in the last year, the department required women convicted of assault to serve 25% of their sentences while men served just 10%.

Klugman said he changed the policy earlier this month. Men and women now are eligible for release after serving 10% of their time....

When one's jail time turns on one's sex, that does pose a potential problem, both under the federal Equal Protection Clause, and under the state equivalent in the California Constitution, which has been interpreted as even more hostile to sex-based classifications.

Now the fact that the policy has sometimes favored women and sometimes men doesn't make it constitutional. Equal Protection Clause rights are individual — that Jane has gotten a break over John because of her sex in the past doesn't mean that Mary can be treated worse than Moe because of her sex today. This pattern does suggest that the sheriff's policy isn't animated by hostility to one or the other sex, but good intentions do not by themselves make sex discrimination impermissible. (Patterico criticizes the Times story for stressing in the lead paragraph only the discrimination against women, and saving the information that the discrimination has been against men in the recent past for later in the story; but whatever the journalistic objections to that might be, the point is not dispositive as a constitutional matter.)

The tougher questions are these:

1. The jail policy is an interesting hybrid. It seems to involve a facially sex-neutral rule: Inmates of less overcrowded jails get smaller sentence breaks. But this rule in turn operates based on the consequences of a facially sex-based rule: Women get put in one jail, men in another.

The separate-jails rule is definitely a sex classification, but it's constitutional (because the classification is needed for inmate safety). Does this mean that other rules that are based on the separate-jail system should also be treated as sex classifications, and should be presumptively unconstitutional? Or should we say that, if the other rules — here the "release based on overcrowding of the jail you're in" policy — are facially sex-neutral, they're OK even if they are based on the underlying sex-based system?

The one case I know of that's somewhat on point (though not identical), Jackson v. Thornburgh, 907 F.2d 194 (D.C. Cir. 1990), said such follow-up rules should be treated as nondiscriminatory: In this situation, the argument would go, women aren't being treated worse because they are women, but because they are in a less overcrowded prison. Likewise, the most on-point (though not very on-point) Supreme Court precedent, Personnel Administrator v. Feeney (1979), held that preferences for veterans in civil service hiring are constitutional: Though the process of becoming a veteran itself involves (constitutionally permissible) sex discrimination — even more in the past than now — any follow-up rules that turn on veteran status are not treated as sex discriminations.

On the other hand, I'm not sure that's right; when the inmates of a women's prison have to serve considerably more time for the same crimes than the inmates of a men's prison, it's hard to see how that can be treated as a sex-neutral classification. Moreover, as I mentioned above, California courts have read the California Constitution as being more hostile to sex classification than the U.S. Constitution is. The current California Constitution rule is that sex classifications must pass strict scrutiny, and not just the somewhat less demanding high-level intermediate scrutiny that the U.S. Constitution requires. Whether the California courts would also be more willing to treat ambiguous classifications as facially sex-based and therefore subject to strict scrutiny is hard to tell.

2. Say this is a sex classification, and subject to strict scrutiny; might it nonetheless be upheld? The policy of keeping women inmates locked up as long as jail space allows — even if that means keeping them locked up longer than comparable men inmates are held — would likely be seen as serving a compelling interest: keeping criminals off the streets. (I suppose some of them might be guilty of violating relatively less important laws, such as prostitution laws or drug possession laws, and it's possible but I think unlikely that courts would draw constitutional lines between what they see as the really important crimes and the less important crimes.)

Moreover, there don't seem to be less discriminatory (more "narrowly tailored") alternative means of serving the compelling interest. The sheriff can't lock up the men for the same amount of time as the women, because there's no space. And if he gives women the same break as the men, then he won't be serving the compelling interest adequately. (Apparently that's what the new policy does do, but the question is whether a court should have mandated this policy as a constitutional matter.) One solution is to get more prison space, but that can't be done overnight. Might the county be required to rent space in other counties' jails, to make sure that men serve the same length of time as women? Is that even possible? Would it be so costly that the county could justify not doing this? Not sure what the answer would be.

One could also put this question more broadly, and less legalistically: Even if sex discrimination is presumptively unconstitutional, should this presumption nonetheless be overcome by the need to prevent crime? Is this one of those interests that justifies, especially in difficult-to-fix temporary situations, a departure from our normal antidiscrimination norms?

In any event, this is a really interesting and conceptually complex question. My quick literature search found nothing written on it in the law reviews, but it seems much worth discussing.

Note that the Times story quotes me on the issue, but — as with many newspaper quotes — gives only part of my analysis: It quotes me as saying that the non-sex-related classifications are constitutional, but that the sex-related classifications are presumptively unconstitutional, but doesn't discuss the complicated questions raised in point 1 above.

UPDATE: Whoops! Meant to say "women aren't being treated worse because they are women, but because they are in a less overcrowded prison," but said "in an overcrowded prison" (the opposite of what I meant) by accident. Fortunately, commenter Sebastian Holclaw alerted me to the error -- many thanks.

Sebastian Holsclaw (mail):

Women aren't being burdened because they are women, but because they are in an overcrowded prison.

Aren't they being burdened (with longer sentences) because they are NOT in an overcrowded prison?
5.31.2006 8:09pm
Bob Smith (mail):
Note that nobody gave a damn when men were serving longer sentences than women, and women were routinely serving no jail time at all. Only when women started actually serving jail time did this become a problem. That tells me that this really is all about sexist attitudes, not supposedly sex-neutral "overcrowding".
5.31.2006 8:13pm
Eugene Volokh (www):
Mr. Holclaw: D'oh! Will fix.
5.31.2006 8:26pm
DNL (mail):
As conceptually difficult as this is, maybe the trick is to look at it backward.

Person X is convicted of a crime and sentenced to 3 years in prison. X may be sent to Prison A, wherein X will serve the full 3 years; or to Prison B, wherein X will serve four months (10% of three years). This is determined based on X's gender, but which gender gets to go to B changes due to factors not related to X's conduct. This determination is constitutional, as Prof. Volokh pointed out.

The fact that there's a seriously odd result shouldn't change this.
5.31.2006 9:21pm
Tony (mail):
The problem I see is that this kind of incidental, "indirect" discrimination seems easily manipulated into deliberate but "plausibly deniable" discrimination. Overcrowding is widespread in our system, and it is hard to imagine that this would not be used to advance the agendas of one government agency or another.

In particular, I could imagine the current practice of transferring gay / transgendered prisoners, or sex offenders, to separate facilities for "their own protection" serving as cover for keeping them in prison longer, perhaps just because some sherriff has a burr up his ass on that particular issue. Any group that could be justifiably moved to segregated facilities could then be subject to a very different form of justice - the fashion towards enormously long "official" sentences for certain crimes would only enhance this effect.

It seems to be a general rule of government: anything that can be abused will be abused.
5.31.2006 9:31pm
Joel B. (mail):
It seems like one way to solve the probably would be to base prison accomodation standards (number of cells) to (say for example) a 5 year moving average per capita crimes per population rate. As long as the number of cells is say X% of this per capita rate for both men and women (or whatever, but at least 5% of each other) then it would seem like it would be hard for there to be a constitutional problem.

The greater variability then, is if you're unfortunate to get caught in a below average crime year for your gender.
5.31.2006 9:39pm
Joel B. (mail):
Just to clarify, the per capita would be crimes by women per female population and crimes by men per male population in the given area.
5.31.2006 9:40pm
mls (mail):
Eugene wrote: "Say this is a sex classification, and subject to strict scrutiny."

Did you mean to say strict scrutiny for sex classifications? The VMI case might have made it intermediate-plus, but not officially strict scrutiny . . . .

And I read Feeney to stand for the proposition that the EP clause doesn't recognize disparate-impact discrimination, only intentional discrimination. The only way to complain about disparate impact is to claim it gives rise to an inference of intentional discrimination. So once you say that the sheriff's actions are not based on gender animus, but on prison condtiions, then there's no such inference, is there?
5.31.2006 9:50pm
Eugene Volokh (www):
MLS: Strict scrutiny, because that's the rule under the California equal protection provision, according to the California courts (as I noted in the post).

Also, note that one can have intentional discrimination -- or facial discrimination -- without animus. (Consider, for instance, Craig v. Boren and Mississippi University for Women v. Hogan, or for that matter J.E.B. v. T.B., none of which seems to have involved animus against the disfavored sex, which was men in all three cases, if I recall J.E.B. correctly.)
5.31.2006 10:31pm
TallDave (mail) (www):
That's an interesting quandary.

I wouldn't be surprised if judges rule the state has to do more to ensure similar crowding, especially if it can be shown the pattern is consistently biased toward one gender.
5.31.2006 10:44pm
Bob Smith (mail):
Note that part of the reason that men's prisons are overcrowded is that men's initial sentences are a lot longer than women's, on average, for the same crimes. In addition, I'd argue that overcrowding is a result of policy: OK for men, not for women. If all those women who got no jail time because jailing them would have resulted in overcrowding were treated like men, women's prisons would be overcrowded. It's amusing to now see complaints that women are being treated unfairly, when today's situation is the result of sexism in their favor.
5.31.2006 10:47pm
M. Simon (mail) (www):
There is an easy way to get more jail space. End prohibition.

It worked in 1933. It can work again.

Jail over crowding was a serious problem in the 20s and early 30s.

On top of that police and even the mayor of Chicago say that upwards of 85% of our crime problem is prohibition related.
5.31.2006 10:52pm
Michelle Dulak Thomson (mail):
Slightly OT but related: Yesterday's San Francisco Chronicle editorialized about a plan in Gov. Schwarzenegger's 2006-07 budget proposal to re-house roughly 40% of female prison inmates in smaller facilities run by outside contractors:

Schwarzenegger's plan is to seek bids from private contractors who will house nonviolent offenders in 75-, 100-, or 200-bed facilities. These will be "secure" facilities, meaning they will have locked doors so inmates cannot come and go as they please. But the new facilities will not have "perimeter" security walls or fences typical of a high-security prison.

Once there, the women will be provided with "wraparound" services, including mental-health therapy, substance-abuse treatment and classes in parenting, literacy and vocational skills. They will also have the opportunity to have more contact with their children.

State officials say the program will not cost any more than incarcerating women in regular prisons. They also point out that moving women out of high-security prisons will free up space for male inmates housed in overcrowded prisons.

According to a "corrections expert" quoted in the editorial, "the main benefit will be to place women closer to their children and families, and reintegrate them back into their communities."

The Chron likes the idea, except that facilities with locked doors strike it as still too much like, well, prison:

Schwarzenegger's plan could be improved by placing at least some of the 4,500 women -- those at the least risk of re-offending -- in far smaller community-based halfway houses or treatment facilities. The program should offer a broader range of alternatives for these women, and should not be used as a cover to establish a network of small privately-run prisons throughout the state.

What the piece doesn't discuss is whether the plan poses any equal-protection problems. I would have thought it did. If there are two inmates guilty of like, presumably non-violent offenses (drug use, prostitution, petty theft, whatever), why should one remain in a large, nasty prison in the middle of nowhere, while the other gets to move close to home in a building not surrounded by razor wire, sole on account of sex? It's not as though men don't have families and children too, or need to be "reintegrated back into their communities" on release.
5.31.2006 11:18pm
mls (mail):
Oops, missed the reliance on California law. My bad.

And of course you are right that gender animus is irrelevant when the statute (rule, policy) discriminates on its face.

But is this facial discrimination, like Hogan &Craig v. Boren and JEB (yes, all of which involved discrimination against men)? Aren't we dealing with a facially neutral rule -- when prisons become overcrowded, inmates are released early -- that has a disparate impact on women, since women's prisons don't suffer the overcrowding that men's prisons do? Your reliance on Feeney certainly suggests that this is a facially-neutral policy, disparate impact problem. Yes, I know you noted that Feeney wasn't squarely on point, but it wouldn't be even near the point if we were dealing with a facially-discriminatory rule, would it?

I guess it is possible to phrase it as a facially-discriminatory rule -- when prisons become overcrowded, men must serve only 10% of their sentences and women must serve 25% of their sentences. But that doesn't really seem to be the policy, it's the consequence of the policy.

Interesting classification problem . . . .
5.31.2006 11:29pm
Wintermute (mail) (www):
These are good comments. Like bobsmith, my tears are raining in my beer with sympathy for the women, but I have not seen this analysis take account of the seriousness of the offenses involved -- a factor not usually taken into account when race differentials in punishment are publicized either. As an aside, Gene, I thought practitioners were going to get increased respect here now that you've joined us; all the legal wisdom isn't found in law review articles by professors (even though some of us trenches guys have had brilliant pieces published in same). If this disparity lingers, I have little doubt a federal or state master will be appointed to equalize it; and orders may issue for a balance of prison space to accomodate the new trend of serious offenses by females, although I second the comment about the impact of selective Prohibition on our incarcerative resources.
5.31.2006 11:33pm
mls (mail):
Michelle Dulak Thomson writes about a proposed California prison plan that provides services/facilities that differ for men and women.

Actually, this isn't too uncommon, and most have survived constitutional challenge. But the usual problem is that men's prisons offer MORE services than do women's prisons. There are also often diversion programs that men are eligible for, but women are not -- the boot-camp porgrams in particular.

While it is certainly true that women often receive lesser sentences than men for similar crimes, it isn't generally true that women's prisons are somehow better than men's prisons. Women's prisons commonly suffer from lesser rehab services, fewer educational and vocational programs, poorer health care, little in the way of mental health services. Women prisoners aren't considered as "bad" as male prisoners, so they must not need the same kind of rehab services, right? And there are usually far fewer women prisoners than male prisoners in any given state, so their interests are usually considered last.
5.31.2006 11:42pm
Kingsley Browne (mail):
If there were a long-standing imbalance in time served, then I could see an argument that the proper response to men's being consistently released after a shorter time served would be to build more men's facilities. The failure to build more men's prisons could, I suppose, be viewed as discrimination against women under these circumstances.

But if the overall net result is, over the years, to impose similar burdens on men and women, I'm not sure that the same analysis applies. If, for example, an overcrowded completely integrated prison (this is a hypothetical, OK?) decided on a sex-blind basis to let prisoners out based upon a lottery, and one year, it so happens that more men get let out, and another year, more women get out, that does not seem problematic. I don't think the analysis changes if the lottery relates not to individual prisoners but to the sex-segregated facility they are housed in. (An official pulls either "male" or "female" out of a hat to identify the facility from which a prisoner will be released).

What is going on in California seems to be like this lottery. It does not seem like a facially sex-based classification to release prisoners from whichever prison is overcrowded. In that way, I think it is like Feeney. In statutory employment discrimination cases, the Court has made clear that just because there is a correlation (even a close one) between the forbidden trait and the selection criterion does not mean that the action constitutes disparate treatment. So, in Hazen Paper, the Court said that acting because of pension-vesting status is analytically distinct from acting because of age and therefore not a facial age distinction. Similarly, here, acting because of prison-overcrowding status of a particular facility does not constitute a facial sex classification.

I agree that if this is viewed as a facial sex classification, the problem is more difficult. Again, here, I think that it matters whether there is rough balance. Of course, the government cannot ordinarily justify discriminating against one person on the ground that it has discriminated in favor of another person from the same group. However, the government does have an important interest (there really is no serious way to analyze -- as opposed to declare -- whether the interest is "compelling") in not having to build enough prisons for the absolute maximum theoretical number of prisoners they might be called upon to house and also in not letting prisoners out prematurely if they have space to house them.

On the other hand, as Feeney made clear, simply acting in the knowledge that a policy will fall more harshly (or more beneficially) on one group than another does not convert a facially neutral policy into intentional discrimination. Instead, it must be shown that the government adopted the policy because of and not just in spite of its discriminatory effect. That's what seems to be happening in California even if there is a bottom-line disparity in the number of men and women who are being released. Does anyone really think that California adopted this practice because it wants women to spend more time in prison than men?
5.31.2006 11:55pm
Prof V,: Is this a typo? "but good intentions do not by themselves make sex discrimination impermissible."
6.1.2006 12:09am
A. Zarkov (mail):
If you want proof of the grossly disparate sentencing between men and women, you need look no further than capital punishment. I’m guessing that about 10,000 people have been executed in the whole history of the American republic. How many have been women? Surely less than 100, likely even less than 25. Even the woman who drowned her two children by putting them in the trunk of a car, and sinking car didn’t get executed.
6.1.2006 1:37am
freshlysqueezed (mail) (www):
Holy Smokes. I think what we need to do is re-evaluate capital punishment. Perhaps in place of "cruel-and-unusual," we could devise a system of "kind-and-normal" punishments. (i.e.-"Mr. Smith, the court finds you guilty of trafficking drugs, and pre-meditated murder. We sentence you to watching any movie released by Hollywood in the last 2 years. Or being confined in the penguin exhibit at Sea World for 24 hours.") freshly squeezed
6.1.2006 2:59am
CDU (mail):
Simply comparing the number of men executed to the number of women is meaningless unless the number of men and women conficted of capital crimes is equal. More men than women are conficted of capital offenses, so we would expect more men than women to be executed. At the very least, you need to look at is the death sentance rate, not the total numbers. I'd guess that men would still recieve a disproportionate number of death sentances, but the difference would be less than the raw numbers suggest.
6.1.2006 3:01am
D K Warren (mail):
I agree with Questioner. It looks like "impermissible" should be "permissible" in the following sentence:

This pattern does suggest that the sheriff's policy isn't animated by hostility to one or the other sex, but good intentions do not by themselves make sex discrimination impermissible.
6.1.2006 3:29am
Margo Schlanger:
The D.C. Circuit in a major case 10 years ago addressed something close to this issue: it held that giving women inmates fewer programming options did not violate the equal protection clause, where the women were housed at a smaller facility than the men were. Women Prisoners of District of Columbia Dept. of Corrections v. District
93 F.3d 910 (D.C. Cir. 1996.). Judge Rogers dissented.
6.1.2006 11:27am
Margo Schlanger:
The D.C. Circuit in a major case 10 years ago addressed something close to this issue: it held that giving women inmates fewer programming options did not violate the equal protection clause, where the women were housed at a smaller facility than the men were. Women Prisoners of District of Columbia Dept. of Corrections v. District
93 F.3d 910 (D.C. Cir. 1996.). Judge Rogers dissented.
6.1.2006 11:27am
Houston Lawyer:
Clearly, the only nondiscriminatory policy is to keep men and women in the same prison. Anything else is sex discrimination. Of course, my constitution doesn't contain any prohibition on sex discrimination.
6.1.2006 11:32am
CBH (mail):
I thought I'd mention that there has been recent movement in CA for female prisoner reform. That movement (and I presume Gov. Schwarzenegger's plan) was sparked in part by an interesting report on female prisoners.

While the information is this report does not answer the constitutional questions that Eugene poses, it does suggest some compelling policy resaons to alter the treatment of female prisoners.
6.1.2006 12:06pm
Hans Bader (mail):
Even if this doesn't violate the Constitution, it still might violate the federal statute Title IX under the Ninth Circuit's decision in Jeldness v. Pearce.
6.1.2006 12:22pm
Prof. Volokh:

You may want to check out who has linked to your above post and if you scroll down has been commenting on this issue for some time.
6.1.2006 2:10pm
Syd (mail):
"Houston Lawyer:
Clearly, the only nondiscriminatory policy is to keep men and women in the same prison. Anything else is sex discrimination. Of course, my constitution doesn't contain any prohibition on sex discrimination."

No, we simply need to send more women to prison so men and women's prisons are equally crowded. It's affirmative action in prisons.
6.1.2006 3:49pm
WxWax (mail):
Equal Protection Clause rights are individual — that Jane has gotten a break over John because of her sex in the past doesn't mean that Mary can be treated worse than Moe because of her sex today.

Er, not all courts agree with this statement by any means. One Ninth Circuit case reached the opposite conclusion in fairly analogous circumstances, holding that the equal protection clause entitled a litigant to the same undeserved benefit as had been "systematically granted" previously to persons similarly situated:

The question of remedy remains. The government argues that even if Servin-Espinoza’s equal protection rights
were violated, a remedy allowing him the opportunity to
apply for § 212(c) relief is improper. The proper remedy, the government suggests, would be to enforce the statute as written against deportable aliens such as Servin-Espinoza by denying § 212(c) relief, and also denying such relief to the excludable aliens to whom it was wrongly granted before our decision in Estrada-Torres. But Servin-Espinoza does not argue that his statutory rights have been violated; it is clear that they have not been. Rather, he argues that his equal protection rights have been violated. A remedy for that violation must provide equality of treatment. Because it is not feasible to go back and retroactively deny the § 212(c) relief that was wrongly granted to excludable aliens before Estrada-Torres, the only feasible way to provide equal treatment to Servin-Espinoza is to give him the same opportunity to apply for § 212(c) relief that excludable aliens were given.
. . . .
. . . Because we cannot turn back the hands of time and erase the favorable treatment of excludable aliens, the only feasible way to remedy the discrimination suffered by Servin-Espinoza is to grant him the same opportunity to apply for § 212(c) relief that was systematically granted to excludable aliens between the time of Fuentes-Campos and Estrada-Torres.

Servin-Espinoza v. Ashcroft, No. 01-16225 (9th Cir. Nov. 5, 2002).
6.1.2006 7:56pm
Bob Smith (mail):
That California prisoner's report is more sexist BS. Female prisoners may have been abused, or have children, so we should be extra-nice to them? Does anybody care if male prisoners have children or have been abused? Hell no, children don't need dads. Men are evil, women just need treatment and understanding.
6.1.2006 8:39pm
Supermike (mail) (www):
I agree, end prohibition. It's a start; A whole lot of other things should be made less illegal as well. Then we can reconfigure all remaining prisons as sex gender-and-sex-neutral supermax facilities. It'd require a long-overdue crackdown on prison rape. We should also look at instituting exile and outlawry. (Neither one of which need be especially cruel or unusual)
6.1.2006 9:39pm
TallDave (mail) (www):
Heh. Exile.

I like it.
6.2.2006 8:44pm
Fred (mail):
I agree with the idea of ending the drug prohibition...

Does it fit the definition of ironic that higher conviction rates results in higher prison crowding which results in reduced sentences thus putting more criminals back on the streets...
6.3.2006 12:48am
BGates (mail) (www):
Duke University's Erwin Chemerinsky said, "Imagine if the Legislature said women who commit assault will serve 2 1/2 times more than the men who committed the same crime. No one would stand for that."

I imagine if the Legislature said the prison term for assault could be arbitrarily reduced by 90%, no one would stand for that either. Yet here we are.

If the sheriff decided to start fresh and let everyone out of jail, would he be in violation of any law?
6.3.2006 5:41pm