Correctional facilities

• Author: Elaina Rahrig/Sarah Finley/Allison Bailey/Serena Dineshkumar/Alexis Pollitto
• Pages: 491-526

CORRECTIONAL FACILITIES

EDITED BY ELAINA RAHRIG, SARAH FINLEY, ALLISON BAILEY,

SERENA DINESHKUMAR, AND ALEXIS POLLITTO

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 491

II. GENDER DISPARITY IN PRISON PROGRAMS . . . . . . . . . . . . . . . . . . . . . . 492

A. CLAIMS UNDER THE FOURTEENTH AMENDMENT’S EQUAL

PROTECTION CLAUSE ................................ 493

B. CLAIMS UNDER TITLE IX OF THE EDUCATION AMENDMENT OF

1972 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 495

III. SEXUAL VIOLENCE IN PRISON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 496

A. PREA IN IMMIGRATION DETENTION FACILITIES .............. 499

B. PREA IN MILITARY DETENTION FACILITIES ................ 501

C. SEXUAL ABUSE OF FEMALE PRISONERS BY PRISON GUARDS ...... 502

D. INMATE-ON-INMATE SEXUAL ABUSE . . . . . . . . . . . . . . . . . . . . . . 506

IV. REPRODUCTIVE RIGHTS OF INCARCERATED WOMEN................ 507

A. PROVISION OF GYNECOLOGICAL AND OBSTETRIC HEALTH CARE . . . 508

B. PREGNANCY, CHILDBIRTH, AND CHILD CARE IN CUSTODY . . . . . . . 509

C. ACCESS TO ABORTION................................ 511

V. TRANSGENDER PRISONERS ................................. 513

VI. GENDER DISPARITY ON DEATH ROW.......................... 518

VII. OTHER TYPES OF CORRECTIONAL FACILITIES .................... 522

VIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 525

I. INTRODUCTION

Since the turn of the century, there has been an increase in scholarship on gender

discrimination, segregation, and abuse in the United States (U.S.) prison system.

1

1. See Spencer Beall, “Lock Her Up!”: How Women Have Become the Fastest-Growing Population

in the American Carceral State, 23 BERKELEY J. CRIM. L. 1, 4 (2018) (arguing that women’s

incarceration is a “unique feature” of American mass incarceration that should be more widely studied);

Grace DiLaura, Comment, “Not Susceptible to the Logic of Turner”: Johnson v. California and the

Future of Gender Equal Protection Claims From Prisons, 60 UCLA L. REV. 506, 510 (2012) (noting

that scholars have discussed the potential impact of Johnson v. California on gender equal protection

cases); Lara Hoffman, Separate But Unequal - When Overcrowded: Sex Discrimination in Jail Early

Release Policies, 15 WM. & MARY J. WOMEN & L. 591, 595 (2009) (observing that a number of articles

have studied gender differences in prison programming); Kim Shayo Buchanan, Impunity: Sexual Abuse

in Women’s Prisons, 42 HARV. C.R.-C.L. L. REV. 45, 48 (2007) (positing that “gendered racialization of

women prisoners informs legal and institutional indifference to their treatment in prison”); Chime

`ne I.

Keitner, Victim or Vamp? Images of Violent Women in the Criminal Justice System, 11 COLUM. J.

GENDER & L. 38, 39 (2002); Martin A. Geer, Human Rights and Wrongs in Our Own Backyard:

Incorporating International Human Rights Protections Under Domestic Civil Rights Law—A Case

Study of Women in United States Prisons, 13 HARV. HUM. RTS. J. 71, 87 (2000).

491

This Article explores a number of the unique legal issues raised by gender dispar-

ities and distinctions in correctional facilities. Part II of this Article examines the

disparate provision of prison services to women, specifically highlighting the

courts’ reactions to both equal protection and Title IX lawsuits brought by female

prisoners. Part III focuses on the continuing pervasiveness of prison rape, address-

ing the prison policies that facilitate sexual abuse in prisons and the legislative

impediments rape survivors face in accessing legal remedies. Part IV analyzes the

often-neglected reproductive health needs of female prisoners. Part V addresses the

placement and protection of transgender prisoners in correctional facilities. Part VI

explores the gender disparity in capital sentencing. Finally, Part VII looks into dis-

parate gender treatment in immigration facilities. Part VIII concludes the Article.

II. GENDER DISPARITY IN PRISON PROGRAMS

While females historically constituted a very small percentage of the total

prison population, over the last quarter century, the number of females in prison

has risen drastically.

2

See Incarcerated Women and Girls, SENTENCING PROJECT 1, https://perma.cc/X5PS-TUNU (last

updated May 2022) (noting that the number of incarcerated women was nearly five times higher in 2020

than in 1980); Myrna S. Raeder, A Primer on Gender-Related Issues That Affect Female Offenders, 20

CRIM. JUST. 4, 4 (2005).

Between 1980 and 2020, the number of incarcerated

females in the U.S. increased from 26,326 to 152,854—an increase of more than

475%.

3

Incarceration rates have dropped over the past decade, but most of these

decreases are attributable to male prisoners. The female prison population grew

approximately 0.2% annually from 2006 to 2015, while the adult male population

decreased at the same annual rate of 0.2%.

4

See E. ANN CARSON, BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., NCJ 251149, PRISONERS IN

2016, at 3, https://perma.cc/9MY4-FDTR (last updated Aug. 7, 2018).

In 2015 to 2016, while the female

prison population increased by 0.7%, the male prison population decreased by

1.3%.

5

Despite the growth rate of the female prison population, the number of

women in prison remains far lower than the number of men, comprising approxi-

mately 7% of the total prison population.

6

Female prisoners generally receive lower quality programs, facilities, and basic

conditions of confinement than male prisoners.

7

For example, vocational opportu-

nities that are available to female prisoners are often confined to traditional

“female” occupations, such as upholstery.

8

See Adam Harris, Women in Prison Take Home Economics, While Men Take Carpentry, THE

ATLANTIC (Apr. 30, 2018), https://perma.cc/XZN2-65AX.

Despite the fact that female prisoners

experience higher rates of medical and mental health conditions than male prison-

ers, studies show that adequate health services are either limited or “lack the

2.

3. See Incarcerated Women and Girls, supra note 2.

4.

5. Id.

6. Id.

7. See Torrey McConnell, Note and Comment, The War on Women: The Collateral Consequences of

Female Incarceration, 21 LEWIS & CLARK L. REV. 493, 501 (2017); Peter M. Carlson, Public Policy,

Women, and Confinement: A Plea for Reasonableness, 14 WM. & MARY J. WOMEN & L. 245, 251–52

(2008).

8.

492 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:491

trauma focus needed to adequately respond to the complex mental health issues

present.”

9

Similarly, substance abuse treatment programs were developed in

response to men’s motivations for using drugs—which often differ from women’s

reasons for using drugs.

10

See Stacy Calhoun, Nena Messina, Jerome Cartier, & Stephanie Torres, Implementing Gender-

Responsive Treatment for Women in Prison: Client and Staff Perspectives, FED. PROBATION, https://

perma.cc/EKR6-8LWC (last visited Mar. 5, 2023).

Scholars also note that female prisoners are more likely

to have been the only parent living with and caring for minor children preceding

their arrest.

11

Yet, women often face greater barriers to visiting with their children

because the lower number of female correctional facilities means they are often

sent further from home to serve their sentences than their male counterparts.

12

These discrepancies are compounded by the “tough on crime” shift in criminal

justice policy that has resulted in a tightening of prison budgets for rehabilitative

programming across correctional facilities generally.

13

See Martha F. Davis, Learning to Work: A Functional Approach to Welfare and Higher

Education, 58 BUFF. L. REV. 147, 212–13 (2010) (highlighting the “overlapping relationship of

education and work” for prisoners hoping to re-enter society after incarceration); FY 2019 Performance

Budget Congressional Submission Salaries and Expenses, U.S. DEP’T OF JUST. FED. PRISON SYS.,

https://perma.cc/25L4-2CT4 (last visited Mar. 5, 2023).

A. CLAIMS UNDER THE FOURTEENTH AMENDMENT’S EQUAL PROTECTION CLAUSE

The legal standard of review for gender-based prison policies remains in flux.

14

In 1987, the Supreme Court held in Turner v. Safley that prison regulations

infringing on prisoners’ constitutional rights are valid if they are “reasonably

related to legitimate penological interests.”

15

In 2005, however, the Court limited

the scope of Turner’s deferential test in Johnson v. California, holding that courts

9. See Lisa Kanti Sangoi & Lorie Smith Goshin, Women and Girls’ Experiences Before, During, and

After Incarceration: A Narrative of Gender-Based Violence, and an Analysis of the Criminal Justice

Laws and Policies that Perpetuate this Narrative, 20 UCLA WOMEN’S L.J. 137, 142–43, 158 (2013);

Joseph B. Allen, Note, Extending Hope into “The Hole”: Applying Graham v. Florida to Supermax

Prisons, 20 WM. & MARY BILL RTS. J. 217, 226 (2011) (discussing a 2006 St. Petersburg Times

investigation that found that 77% of women in solitary confinement in Florida were diagnosed as

mentally ill, as compared to 33% of men).

10.

11. See Sarah Wynn, Mean Women and Misplaced Priorities: Incarcerated Women in Oklahoma, 27

WIS. J.L. GENDER & SOC’Y 281, 284–85 (2012); Marne L. Lenox, Note, Neutralizing the Gendered

Collateral Consequences of the War on Drugs, 86 N.Y.U. L. REV. 280, 291 (2008).

12. See Deseriee A. Kennedy, “The Good Mother”: Mothering, Feminism, and Incarceration, 18

WM. & MARY J. WOMEN & L. 161, 171, 178 (2012); Raeder, supra note 2, at 18. But see Anne E. Jbara,

Note, The Price They Pay: Protecting the Mother-Child Relationship Through the Use of Prison

Nurseries and Residential Parenting Programs, 87 IND. L.J. 1825, 1836, 1838–39 (2012) (describing

implementation at both state and federal level of “community-based residential parenting programs,”

which feature facilities in which women can serve their sentences while living with and caring for their

minor children).

13.

14. The court in Greene v. Tilton, No. 2:09-CV-0793, 2012 WL 691704, at *6-8 (E.D. Cal. Mar. 2,

2012) provides a helpful analysis of the split that exists among the courts on this issue. See also DiLaura,

supra note 1, at 514–18; Hoffman, supra note 1, at 594–95.

15. See Turner v. Safley, 482 U.S. 78, 89 (1987).

2023] CORRECTIONAL FACILITIES 493