Tuesday, September 13, 2011
The CDCR - - - California Department of Corrections and Rehabilitation - - -has anounced its plan "aimed at reuniting low-level offenders with their families and providing inmates with rehabilitative services within the community."
As the LA Times notes, the plan is not simply motivated by rehabilitative motives. The United States Supreme Court last May in Brown v. Plata upheld the court-ordered release of prisoners to remedy unconstitutional conditions at California prisons.
SB 1266, signed by then-Governor Schwarzenegger, as originally drafted was applicable only to female inmates. However, as the LA Times noted, this "could not be done because of a constitutional ban against gender-based discrimination. So the phrase "primary caregiver" was added to the bill." The law establishes:
a program under which female inmates, pregnant inmates, or inmates who, immediately prior to incarceration, were primary caregivers of dependent children, as defined, who are committed to state prison may be allowed to participate in a voluntary alternative custody program in lieu of confinement in state prison.
Yet the current policy of the CDCR, as announced, reinstates the gender classification:
"Initially, the program will be offered to qualifying female inmates.
Participation may be offered at a later date to male inmates,
at the discretion of the Secretary of CDCR."
Moreover, the "primary caregivers of dependent children" may render the law gender-neutral, but it may impact upon other equal protection concerns. Preferring parents or primary caregivers over those who are not warrants rational basis scrutiny. There may also be due process concerns. Pregnancy, likewise, might raise constitutional concerns.
For ConLawProfs, this could be an excellent equal protection in-class problem, discussion, extra assignment, or even an examination.
For California, this could mean more litigation.
[image: The Prisoner by Evelyn deMorgan via]