Female Prisoners Equal Protection

JurisdictionUnited States,Federal
CitationVol. 76
Publication year2021

76 Nebraska L. Rev. 371. Female Prisoners Equal Protection


Leapfrogging over Equal Protection Analysis: The Eighth Circuit Sanctions Separate and Unequal Prison Facilities for Males and Females in Klinger v. Department of Corrections, 31 F.3d 727 (8th Cir. 1994)


I. Introduction 371
II. Background 374
III. Standard of Scrutiny Applicable in
Equal Protection Cases 377
IV. Eighth Circuit's Approach to the
Applicable Standard of Scrutiny 382
V. Eighth Circuit's Threshold
Similarly Situated Standard 384
VI. Eighth Circuit's Alternate
Holding of Proving Intentional
Discrimination 389
VII. Cases Since Klinger 393
VIII. Conclusion 398


Women's prisons are experiencing considerable growth in the criminal justice system.(fn1) In 1980, more than 12,000 women were housed in federal and state prisons.(fn2) The numbers have steadily increased, totaling almost 60,000 women who are currently being held in federal


and state prisons.(fn3) Since the early 1980s, the growth rate in the number of women prisoners has almost doubled that of male prisoners. The male prison population has grown by 214%, while the female prison population has grown by 386%.(fn4) The number of female inmates is still small, however, when compared to the number of male inmates.(fn5) This difference in numbers has led to increased disparities in the treatment of male and female prisoners.(fn6) For example, male prisoners usually are placed in separate institutions according to their security risk, whereas it is impractical to provide maximum and minimum security risk prisons for the relatively small number of female inmates. Similarly, women's prisons are often unable to offer medical and counseling services that are as complete as those in larger men's prisons.(fn7) Many educational and vocational programs available to men are scaled down considerably or are not offered at all to women.(fn8) Historically, women have been incarcerated with no particular mandate for what to do with them.(fn9) Although courts often give lip service to providing equal protection for women once they are confined to prisons, the equal treatment often ends when the women actually enter the prison system. Typically, the programs and vocational services offered to women prisoners are enacted to help women fulfill their traditional homemaking roles. Most women's prisons offer programs that reflect the outdated attitude prevalent in the 1960s. As such, programs like sewing, decals application, handicrafts, and cooking are the most common training programs available to women, whereas men's prisons offer a wide variety of vocational training.(fn10)


Although "inmates do not have a constitutional right to vocational or educational programs per se,"(fn11) disparities in access to these programs may violate the United States Constitution.(fn12) When classifications have been based on gender, courts have held that the classification must be analyzed under a heightened scrutiny standard.(fn13) The Eighth Circuit, in Klinger v. Department of Corrections,(fn14) however, frustrated any possibility for women inmates to ever establish an equal protection violation for inferior programs and services in the prison context.

This Note will discuss the Eighth Circuit's decision in Klinger and will argue that its conclusion rested on a fundamental misapplication of the standards enunciated by the United States Supreme Court for the analysis of gender-based equal protection claims under the Fourteenth Amendment. Part II will present the background of the Klinger decision specifically and the position of incarcerated women generally. Parts III and IV will discuss the scrutiny standard applicable to equal protection claims based on gender discrimination and will conclude that the Eighth Circuit was wrong to dismiss the plaintiffs' claims without applying the appropriate level of scrutiny. Part V will discuss the Eighth Circuit's imposition of a threshold standard, mandating that plaintiffs prove that they are similarly situated to male prisoners. Part VI will discuss the Eighth Circuit's alternate holding that even if women prisoners are similarly situated to male prisoners, the classification was not facially invalid and thus plaintiffs must prove intentional discrimination. Finally, Part VII will analyze the impact the Eighth Circuit's opinion has had on subsequent equal protection litigation.



The Nebraska Center for Women (NCW) is the only prison for women in the State of Nebraska. Because women are housed only in NCW based solely on their gender, female inmates consequently can receive only those educational programs and services offered at NCW.(fn15) Men, on the other hand, are incarcerated in a number of different prison facilities depending upon a variety of penological considerations, which range from an inmate's custody level to his programming needs.(fn16)

Male inmates in Nebraska can be housed in one of four penal institutions. The Nebraska State Penitentiary (NSP) normally houses the medium and maximum security inmates. The other three institutions generally house the minimum security inmates.(fn17) At the time of the lawsuit, the female population at NCW ranged from approximately ninety to 130 inmates and included inmates with minimum, medium, and maximum security designations. During the same period, the male population at NSP ranged from approximately 650 to 800 inmates.(fn18)

Nebraska assigns male and female prisoners to sex-segregated prisons that provide male and female prisoners access to a different constellation of services and programs. Many of the educational, vocational, and recreational programs and services available to female prisoners in Nebraska are manifestly inferior to those offered to male prisoners.(fn19) Allocating such programs reflects indifference, bias, and stereotypical notions of women's roles in society.(fn20)

The Eighth Circuit Court of Appeals came face to face with the issue of opportunities provided to women incarcerated in Nebraska. In Klinger v. Department of Corrections, a class action suit was filed by female inmates at NCW. These plaintiffs contended that they received inferior and unequal prison programs and services compared to those provided to the male inmates at NSP and, accordingly, the female inmates' rights guaranteed by the Fourteenth Amendment's Equal Protection Clause had been violated.(fn21) The women were con


cerned specifically about inferior programs such as education and services that were offered at NCW.(fn22)

Believing they were treated unfairly, some of the women prepared a written grievance and circulated it among the other inmates at NCW. The NCW superintendent acknowledged receipt of the grievance, but refused to address the issues that the grievance raised because it required certain comparisons that the NCW staff refused to make. The superintendent suggested to the NCW inmates that they submit the grievance to the director of the Nebraska Department of Correctional Services (DCS).(fn23) As suggested, the inmates submitted the letter to the DCS. The DCS responded by denying that inequality existed for the NCW inmates, but did promise relief in three main areas: lack of equal pay, lack of visitation for inmates during their initial orientation at the prison, and lack of inmate training in legal research.(fn24) Relief was also granted in some minor respects, such as equalizing when the lights had to be turned off for the night in both the male and female facilities. Despite the DCS's promises, after four months equal pay had not been established and no inmate had completed training in legal research.(fn25) Consequently, the inmates filed a pro se complaint in the United States District Court of Nebraska on July 20, 1988.(fn26)

In nearly every area of prison programming, the district court found that the female inmates were burdened by comparatively inferior programs and services, which could not be justified by an important state interest. Equal protection violations were found in the following areas: postsecondary and vocational education; prison law libraries; medical, dental, and mental health care; inmate pay; preem


ployment training; prerelease programs; and recreational opportunities.(fn27) Without exception, the court concluded the disparate treatment in each area was predicated upon inaccurate, irrelevant, or pretextual stereotypical assumptions about women that served to devalue women inmates.(fn28)

Interlocutory appeal pursuant to 28 U.S.C. §1292 (b)(fn29) was granted. The issue on appeal was confined to consideration of the proper legal analysis to be applied to claims of gender discrimination in prisons under the Equal Protection Clause. The Eighth Circuit was asked to consider three issues, focusing exclusively upon the equal protection violations found by the district court:

(1) Did the court correctly determine that the female inmates at the Nebraska Center for Women are similarly situated to the male inmates at the Nebraska State Penitentiary for purposes of the Equal Protection Clause regarding the programs and services challenged by the plaintiffs?
(2) Did the court correctly determine that "heightened scrutiny" as opposed to "rational basis" scrutiny is the proper level of scrutiny to judge the equal protection claims of the female inmates at the Nebraska Center for Women, and if so, did the court correctly apply "heightened scrutiny" to the facts?
(3) Did the court correctly conclude that the Equal Protection Clause requires the State of Nebraska to provide programs and services to female inmates at NCW which are "substantially equivalent" to or in parity with the programs and services provided male inmates at the Nebraska State Penitentiary and, if so, did the court correctly apply such concepts to the facts?(fn30)

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