Correctional facilities

AuthorElaina Rahrig/Sarah Finley/Allison Bailey/Serena Dineshkumar/Alexis Pollitto
Pages491-526
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 AMENDMENTS 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 featureof 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 LawA 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 152,854an 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. DEPT 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
femaleoccupations, 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, 25152
(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 drugswhich 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 crimeshift 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, 21213 (2010) (highlighting the overlapping relationship of
education and workfor prisoners hoping to re-enter society after incarceration); FY 2019 Performance
Budget Congressional Submission Salaries and Expenses, U.S. DEPT OF JUST. FED. PRISON SYS.,
https://perma.cc/25L4-2CT4 (last visited Mar. 5, 2023).
A. CLAIMS UNDER THE FOURTEENTH AMENDMENTS 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 WOMENS L.J. 137, 14243, 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 & SOCY 281, 28485 (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, 183839 (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 51418; Hoffman, supra note 1, at 59495.
15. See Turner v. Safley, 482 U.S. 78, 89 (1987).
2023] CORRECTIONAL FACILITIES 493

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