CORRECTIONAL FACILITIES
EDITED BY RILEY SMITH, SIMONE OBADIA, HEMA GHARIA,
SERENA DINESHKUMAR, HATTIE PHELPS, LINDSAY SERGI, AND JESSICA FLYNN
I. INTRODUCTION ........................................ 437
II. GENDER DISPARITY IN PRISON PROGRAMS ..................... 438
A. CLAIMS UNDER THE FOURTEENTH AMENDMENT’S EQUAL
PROTECTION CLAUSE ................................ 439
B. CLAIMS UNDER TITLE IX OF THE EDUCATION AMENDMENTS ACT
OF 1972 ........................................ 441
III. SEXUAL VIOLENCE IN PRISON .............................. 442
A. PREA IN IMMIGRATION DETENTION FACILITIES ............. 445
B. PREA IN MILITARY DETENTION FACILITIES ................ 447
C. SEXUAL ABUSE OF FEMALE PRISONERS BY PRISON GUARDS . . . . . 449
D. INMATE-ON-INMATE SEXUAL ABUSE ..................... 452
IV. REPRODUCTIVE RIGHTS OF INCARCERATED WOMEN ............... 453
A. PROVISION OF GYNECOLOGICAL AND OBSTETRIC HEALTH CARE . . 453
B. PREGNANCY, CHILDBIRTH, AND CHILD CARE IN CUSTODY ...... 455
C. ACCESS TO ABORTION ............................... 457
V. TRANSGENDER PRISONERS ................................ 459
VI. GENDER DISPARITY ON DEATH ROW ......................... 463
VII. OTHER TYPES OF CORRECTIONAL FACILITIES ................... 467
VIII. CONCLUSION ......................................... . 471
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 K. 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).
437
This Article explores a number of the unique legal issues raised by gender disparities
and distinctions in correctional facilities. Part II of this Article examines the dispar-
ate provision of prison services to women, specifically highlighting courts’ reactions
to both equal protection and Title IX lawsuits brought by female prisoners. Part III
focuses on the continuing pervasiveness of prison rape, addressing 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 disparate gender treatment in immi-
gration 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 Niki Monazzam & Kristen M. Budd, Incarcerated Women and Girls, SENTENCING PROJECT 1
(Apr. 3, 2023), https://perma.cc/7KHN-Y59U (noting that the number of incarcerated women was
nearly six times higher in 2021 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 2021, the number of incarcerated females in the U.S.
increased from 26,326 to 168,449—an increase of more than 525%.
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% during that period.
4
See E. ANN CARSON, BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., NCJ 251149, PRISONERS IN
2016 at 5, https://perma.cc/9MY4-FDTR.
From 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 approximately 7% of the total prison population.
6
E. ANN CARSON, BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., NCJ3015125, PRISONERS IN 2021
at 6, https://perma.cc/H58D-Q8F7.
Female prisoners generally receive lower quality programs, facilities, and basic
conditions of confinement than male prisoners.
7
For example, vocational opportu-
nities for 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/DT6V-V354.
Despite the fact that female prisoners experience higher rates
2.
3. See Monazzam & Budd, supra note 2.
4.
5. Id.
6.
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) (explaining that “[b]ecause women
still make up such a minority of the prison population, facilities lack the motivation and the financial
resources to take into ac- count the key differences between male and female offenders.”); Peter M.
Carlson, Public Policy, Women, and Confinement: A Plea for Reasonableness, 14 WM. & MARY J.
WOMEN & L. 245, 251–52 (2008).
8.
438 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 25:437
of medical and mental health conditions than male prisoners, studies show that
adequate health services are either limited or “lack the trauma focus needed to
adequately respond to the complex mental health issues present.”
9
Similarly, sub-
stance abuse treatment programs were developed in response to men’s motiva-
tions 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, 74 FED. PROBATION 27
(2010) https://perma.cc/EKR6-8LWC.
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 discrep-
ancies 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. at 19,
https://perma.cc/25L4-2CT4.
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 (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).
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