The Equal Protection Clause in Prison

The Equal Protection Clause in Prison

The Equal Protection Clause set forth in the Fourteenth Amendment prohibits denying any person “the equal protection of the laws.” Id.  This constitutional protection does not stop at the prison gates, but its utility to the incarcerated is circumscribed, and efforts to violate rights under the clause can be fraught with difficulties related to the unique penological concerns prison life entails.

Suspect Class Designations

The Equal Protection Clause requires that all persons who are similarly situated be treated alike.  City of Cleburne v. Cleburne Loving Center, Inc., 473 U.S. 432, 439 (1985).  An equal protection claim may be established by proving that a defendant intentionally discriminated against the plaintiff where “similarly situated” persons were intentionally treated differently, without a rational relationship to a legitimate governmental purpose. Village of Hallowbrook v. Olech, 528 U.S. 562, 564 (2000).  A claim may also be shown by demonstrating that a defendant intentionally discriminated “against a plaintiff based on the plaintiff’s membership in a “protected” or “suspect” class. Vacco v. Quili, 521 U.S. 793, 799 (1997).
Classifications “like those based on nationality, or race, are inherently suspect and subject to close judicial scrutiny.” Graham v. Richardson, 403 U.S. 365, 372 (1971).  Unfortunately, prisoners, as a group, do not constitute a suspect class. Kaummerling v. Lappin, 553 F.3d 669, 685 (D.C. Cir. 2008); see Boivin v. Black, 225 F.3d 36, 42 (1st Cir. 2000)(collecting cases).  Nor do capital defendants, Dickeron v. Lakecsa, 812 F.2d 1116, 1119 (1st Cir. 1989), nor do indigents constitute a suspect class.  Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997).  Thus prisoners usually cannot advance Equal Protection Clause claims that compare them to non-incarcerated persons.

The Rational Basis Test

The Equal Protection Clause does not forbid all unequal treatment; as stated above, only when the unequal treatment lacks a rational relationship to a legitimate governmental purpose is the Equal Protection Clause implicated.  The test is a stringent one, and covers most claims advanced by prisoners.
To advance an equal protection claim in court, a prisoner is usually required to prove several elements.  First, he or she must prove that there exist “similarly situated” prisoners who have been intentionally treated differently.  Second, he or she must demonstrate that there is no “rational relation” between the dissimilar treatment and a legitimate penological interest.  This burden is substantial.  For example, in a New Jersey case, a Jewish inmate who sought kosher meals, in keep with his religion, was denied relief in federal court.  While acknowledging that kosher food is indeed an important part of that prisoner’s faith, the court sided with prison officials who presented several penal justifications for their policy prohibiting such meals, to wit, it was too expensive to give certain inmates special meals; devoting food service resources to a few prisoners would reduce the prison’s ability to provide nutritious meals to other prisoners; and there might be resentment from other prisoners to contend with.  The court’s ruling was upheld on appeal, as these reasons bore a rational relation to a legitimate government interest.  Baranowski v. Hart, 486 F.3d 112, 125 (3d Cir. 2007).
The standard of proof applied to government justifications in rational basis test cases is low.  Even establishing that a prisoner is “similarly situated” can be problematic in the equal protection context.  Disabled prisoners are often unable to rely on equal protection as a means of enforcement simply because they are, indeed, unique. See Hansen v. Rimel, 104 F.3d 189, 190 (8th Cir. 1997)(no equal protection claim where hearing impaired prisoner sought specially modified telephone because prisoner not similarly situated with hearing prisoners); Pierce v. County of Orange, 526 F.3d 1190, 1225 (9th Cir. 2009)(failure to provide accessible toilet to disabled prisoners because access to special toilets not provided to other inmates).
When it comes to women prisoners, the courts are still undecided in defining the contours of equal treatment based on gender.  But women prisoners often lose equal protection cases on “similarly situated” grounds, because officials point to the differences in propensities for violence, sentence length, and other factors as justifications for denying programs to women that male prisoners enjoy. E.g., Prince v. Endell, 78 F., 3d 397, 399 (8th Cir. 1996)(per curiam)(women not similarly situated, granting immunity to state officials for dissimilar treatment). Cf. Craig v. Boren, 429 U.S. 190, 218 (1976)(rejecting strict scrutiny as standard in equal protection claims based on gender).
State officials can generally demonstrate a rational basis easily.  In fact, official actors need not even demonstrate that the proffered reasons for their dissimilar treatment are actually applicable; they must merely show that there are “any reasonably conceivable set of fact that [could] provide a rational basis for the classification.” FCC v. Beach Communications, Inc., 508 U.S. 307, 313 (1993)(emphasis supplied). See, e.g., Tillman v. Lebanon County Corr. Facility, 221 F.3d 410, 423 (3d Cir. 2000)($10.00 a day fee to prisoners for various services deemed rational because program purported to teach prisoners fiscal responsibility).
Still, there must be some measure of legitimate reasoning for the state action, and there are cases in which such justifications have been set aside by the courts. See, e.g., Love v. Reed, 216 F.3d 682, 690 (8th Cir. 2000)(equal protection claim stated where no legitimate reasons offered for denying Saturday issuance of food for Sunday consumption for religious purposes); Reed v. Faulkner, 842 F.2d 960, 964 (7th Cir. 1988)(equal protection claim stated where hair length regulation applied to Rastafarians but not Native Americans without good reason).
The rational basis test generally allows for dissimilar treatment of prisoners where that treatment is based on security classifications of prisoners based on their institutional or criminal history, sex offender status, or other classic penological concerns.  For example, prisoners held in segregation cannot state equal protection claims for dissimilar treatment from those in general population. Hammer v. Ashcroft, 570 F.3d 798, 801 (7th Cir. 2009)(en banc)(segregation); Wirsching v. Colorado, 360 F.3d 1191, 1205 (10th Cir. 2004)(no equal protection violation in sex offender designation because label rationally related to “protecting children” in community).  While homosexual prisoners cannot be discriminated against simply because of their sexual orientation, homosexual prisoners cannot usually assert an equal protection claim when they are treated differently if officials cite security interests as a basis for such treatment. See  Veney v. Wyche, 293 F.3d 726, 734 (4th Cir. 2002)(single cell policy for gay prisoners upheld as related to safety and security concerns).

The Strict Scrutiny Test

Racial designations, however, are usually considered under a heightened level of review.  In such cases, courts generally apply the “strict scrutiny” test.  In such a case, the government is required to prove that the dissimilar treatment is “narrowly tailored” to address a “compelling government interest.” Johnson v. California, 543 U.S. 499, 505 (2005).  Prison classifications based on race are deemed immediately suspect, and, as such, require a heightened level of scrutiny. Id.  While “security” is often cited as a justification for dissimilar treatment, the courts apply a less deferential view of this interest is race cases.  For example, in Johnson, the California Department of Corrections and Rehabilitation segregated prisoners by race in cells at its reception centers, on the basis that putting different races together had proved to cause more violence.  However, under the strict scrutiny test, the Supreme Court ruled that prison officials would need to do more than simply rely on generalized allegations when it comes to racial designations; the officials had simply brought out veteran administrators to cite their experiences, with no real supporting data or other evidence.  This was deemed insufficient under the higher standard, and the case was remanded. Id., at 511.
Strict scrutiny can be applied in cases involving allegations that the government has imposed a substantial burden on prisoners’ religious exercise, as well, depending on the nature of the dissimilar treatment. Sossamon v. Texas, 560 F.3d 316, 335 (5th Cir. 2009). See Morrison v. Garraghty, 239 F.3d 648, 661 (4th Cir. 2001)(strict scrutiny applied to refusal to recognize Native American religion of prisoner without tribal membership).

Equal Protection: A High Bar to Overcome

The long and short of equal protection is that prisoners may have a difficult time demonstrating that they belong to a suspect class.  Instead, they must prove that they are similarly situated to a number of fellow prisoners.  Then, they must fight the uphill battle of the rational basis test, which simply asks prison administrators to advance plausible reasons for the restrictions imposed.  In the most extreme cases of dissimilar treatment, prisoners at least enjoy the protection of strict scrutiny of official action, but only in limited circumstances.  While the Equal Protection Clause fight can be a challenging process to successfully navigate, high rewards are in store for those who win this game.
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