More Jail Time for Women than Men?

L.A. County is out of jail space. The sheriff is therefore releasing some inmates though they've served less than 10% of their sentences. Other inmates, presumably ones whose release would, in the sheriff's view, be especially harmful, aren't being given this break.

There's generally no constitutional problem with that, even when this has unintended disparate racial impacts, or geographical impacts. Just as the police may constitutionally choose to police one area more than another when they think that area needs more police presence, and prosecutors may choose to prosecute some criminals but not others, so the sheriff isn't violating the Constitution (for instance, the Equal Protection Clause) through using his discretion — so long as he isn't considering the inmates' race, sex, religion, political views, or a few other attributes. Such discretionary decisions may be faulted as unfair, unwise, or violative of state law, depending on the circumstances, but they don't violate the Equal Protection Clause or other parts of the federal Constitutoin.

But here's a twist:

Over the years, the Sheriff's Department has maintained different release policies for men and women, even for those convicted of the same crimes.

Male and female inmates are housed in separate jail sections, and sheriff's officials said their release policies are based on the amount of space available and fluctuations in arrests.

Two years ago, women convicted of all but the most serious crimes were released immediately, serving none of their sentences. But in the last year, the department required women convicted of assault to serve 25% of their sentences while men served just 10%.

Klugman said he changed the policy earlier this month. Men and women now are eligible for release after serving 10% of their time....

When one's jail time turns on one's sex, that does pose a potential problem, both under the federal Equal Protection Clause, and under the state equivalent in the California Constitution, which has been interpreted as even more hostile to sex-based classifications.

Now the fact that the policy has sometimes favored women and sometimes men doesn't make it constitutional. Equal Protection Clause rights are individual — that Jane has gotten a break over John because of her sex in the past doesn't mean that Mary can be treated worse than Moe because of her sex today. This pattern does suggest that the sheriff's policy isn't animated by hostility to one or the other sex, but good intentions do not by themselves make sex discrimination impermissible. (Patterico criticizes the Times story for stressing in the lead paragraph only the discrimination against women, and saving the information that the discrimination has been against men in the recent past for later in the story; but whatever the journalistic objections to that might be, the point is not dispositive as a constitutional matter.)

The tougher questions are these:

1. The jail policy is an interesting hybrid. It seems to involve a facially sex-neutral rule: Inmates of less overcrowded jails get smaller sentence breaks. But this rule in turn operates based on the consequences of a facially sex-based rule: Women get put in one jail, men in another.

The separate-jails rule is definitely a sex classification, but it's constitutional (because the classification is needed for inmate safety). Does this mean that other rules that are based on the separate-jail system should also be treated as sex classifications, and should be presumptively unconstitutional? Or should we say that, if the other rules — here the "release based on overcrowding of the jail you're in" policy — are facially sex-neutral, they're OK even if they are based on the underlying sex-based system?

The one case I know of that's somewhat on point (though not identical), Jackson v. Thornburgh, 907 F.2d 194 (D.C. Cir. 1990), said such follow-up rules should be treated as nondiscriminatory: In this situation, the argument would go, women aren't being treated worse because they are women, but because they are in a less overcrowded prison. Likewise, the most on-point (though not very on-point) Supreme Court precedent, Personnel Administrator v. Feeney (1979), held that preferences for veterans in civil service hiring are constitutional: Though the process of becoming a veteran itself involves (constitutionally permissible) sex discrimination — even more in the past than now — any follow-up rules that turn on veteran status are not treated as sex discriminations.

On the other hand, I'm not sure that's right; when the inmates of a women's prison have to serve considerably more time for the same crimes than the inmates of a men's prison, it's hard to see how that can be treated as a sex-neutral classification. Moreover, as I mentioned above, California courts have read the California Constitution as being more hostile to sex classification than the U.S. Constitution is. The current California Constitution rule is that sex classifications must pass strict scrutiny, and not just the somewhat less demanding high-level intermediate scrutiny that the U.S. Constitution requires. Whether the California courts would also be more willing to treat ambiguous classifications as facially sex-based and therefore subject to strict scrutiny is hard to tell.

2. Say this is a sex classification, and subject to strict scrutiny; might it nonetheless be upheld? The policy of keeping women inmates locked up as long as jail space allows — even if that means keeping them locked up longer than comparable men inmates are held — would likely be seen as serving a compelling interest: keeping criminals off the streets. (I suppose some of them might be guilty of violating relatively less important laws, such as prostitution laws or drug possession laws, and it's possible but I think unlikely that courts would draw constitutional lines between what they see as the really important crimes and the less important crimes.)

Moreover, there don't seem to be less discriminatory (more "narrowly tailored") alternative means of serving the compelling interest. The sheriff can't lock up the men for the same amount of time as the women, because there's no space. And if he gives women the same break as the men, then he won't be serving the compelling interest adequately. (Apparently that's what the new policy does do, but the question is whether a court should have mandated this policy as a constitutional matter.) One solution is to get more prison space, but that can't be done overnight. Might the county be required to rent space in other counties' jails, to make sure that men serve the same length of time as women? Is that even possible? Would it be so costly that the county could justify not doing this? Not sure what the answer would be.

One could also put this question more broadly, and less legalistically: Even if sex discrimination is presumptively unconstitutional, should this presumption nonetheless be overcome by the need to prevent crime? Is this one of those interests that justifies, especially in difficult-to-fix temporary situations, a departure from our normal antidiscrimination norms?

In any event, this is a really interesting and conceptually complex question. My quick literature search found nothing written on it in the law reviews, but it seems much worth discussing.

Note that the Times story quotes me on the issue, but — as with many newspaper quotes — gives only part of my analysis: It quotes me as saying that the non-sex-related classifications are constitutional, but that the sex-related classifications are presumptively unconstitutional, but doesn't discuss the complicated questions raised in point 1 above.

UPDATE: Whoops! Meant to say "women aren't being treated worse because they are women, but because they are in a less overcrowded prison," but said "in an overcrowded prison" (the opposite of what I meant) by accident. Fortunately, commenter Sebastian Holclaw alerted me to the error -- many thanks.