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15 Wm. & Mary J. Women & L. 591 (2008-2009)
Separate but Unequal- When Overcrowded: Sex Discrimination in Jail Early Release Policies

handle is hein.journals/wmjwl15 and id is 597 raw text is: SEPARATE BUT UNEQUAL - WHEN OVERCROWDED: SEX
DISCRIMINATION IN JAIL EARLY RELEASE POLICIES
LARA HOFFMAN*
ABSTRACT
It is currently constitutional to house male and female prisoners
in separate jail facilities based solely on gender. But is it also consti-
tutional to provide separate early release policies to male and female
prisoners convicted of the same crime, in the same county, and sen-
tenced to the same length of time based solely on gender and separate
housing arrangements? For decades, jail officials in many counties
have released some prisoners before the end of their judicially man-
dated sentences to relieve overcrowding and meet budget constraints.
A small study of jails around the country conducted as research for
this Article reflects the differences these early release policies can
have between genders. The United States Supreme Court has never
directly addressed the issue of differing early release policies based
on gender, and lower federal courts have only addressed the con-
stitutionality of unequal programs and services for male and female
inmates. Some of these courts analyzed prisoners' equal protection
claims under heightened or intermediate scrutiny, while others have
given wide discretion to prison administrators concerning varying
needs of individual prisons and applied only rational basis review.
This Article argues that all gender-based equal protection claims
made by prisoners should be analyzed using intermediate scrutiny,
rather than the more deferential rational basis test, and that male and
female prisoners subject to early release policies should be deemed
similarly situated in an equal protection analysis. Specifically, it
suggests that separate gender-based early release policies are not
gender-neutral, even when they appear facially neutral, because of
the causal relationship between these policies and the segregation
of men and women into separate prison facilities. Accordingly, the
Article finds such policies unconstitutional under the intermediate
* Law Clerk to the Honorable Harry Pregerson, Ninth Circuit Court of Appeals.
J.D., UCLA School of Law; M.A., University of Pennsylvania; B.A., Dartmouth College.
I would like to express my deepest gratitude to Professor Eugene Volokh for his valuable
comments, encouragement, and help with the idea in the first place. Special thanks to
Jennifer Turner for her careful edits, and to the editors of the William & Mary Journal
of Women and the Law for their hard work on this Article. This piece is dedicated to my
incredible husband Nishad Chande, whose unwavering love and support mean everything,
and to our son Remi Brooks.

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