William & Mary Journal of Race, Gender, and Social Justice


Lara Hoffman


It is currently constitutional to house male and female prisoners in separate jail facilities based solely on gender. But is it also constitutional to provide separate early release policies to male and female prisoners convicted of the same crime, in the same county, and sentenced 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 mandated 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 constitutionality 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 scrutiny standard. Finally, this Article concludes with suggestions for altering these problematic early release policies in ways that are both gender-neutral and cost effective.