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December 9, 1987

Bettye Delores Pitts, et al., Plaintiffs
Edwin Meese, III, et al., Defendants

The opinion of the court was delivered by: PENN

 The plaintiff Bettye Delores Pitts filed this action pursuant Due Process Clause of the Fifth Amendment to the Constitution of the United States. *fn1" Thereafter, the Gwendolyn A Samuels and Diane Henson were permitted to intervene as plaintiffs. *fn2" The plaintiffs also assert claims pursuant to 42 U.S.C. § 1983.

 The plaintiffs allege that it is the policy and practice of the defendants to incarcerate plaintiffs and other women like them, who have been convicted under the District of Columbia Code and sentenced in the Superior Court of the District of Columbia (Superior Court) for periods of incarceration in excess of one year, to federal correctional institutions, while simultaneously placing similarly situated males in District of Columbia correctional institutions. Plaintiffs ask the Court to declare that policy and practice unconstitutional and an abridgement of rights secured to plaintiffs and women like them by the equal protection component of the Due Process Clause of the Fifth Amendment to the Constitution of the United States and to enjoin and restrain the defendants from unconstitutionally discriminating against the plaintiffs and other women like them on the basis of sex. *fn3"

 The case is now before the Court on the defendants' motions to dismiss or, in the alternative, for summary judgment and the plaintiffs' motion for summary judgment.


 D.C. Code Ann. § 24-402 (1981) *fn4" provides in part:

Whenever any person has been convicted of crime in any court in the District of Columbia and sentenced to imprisonment for more than 1 year by the court, the imprisonment during the term for which he may have been sentenced or during the residue of said term may be in some suitable jail or penitentiary or in the Reformatory of the District of Columbia; and it shall be sufficient for the court to sentence the defendant to imprisonment in the penitentiary without specifying the particular prison or the Reformatory of the District of Columbia and the imprisonment shall be in such penitentiary, jail, or the Reformatory of the District of Columbia as the Attorney General shall from time to time designate: Provided, that the Mayor of the District of Columbia is vested with jurisdiction over such male and female prisoners as may be designated by the Attorney General for confinement in the Reformatory of the District of Columbia from the time they are delivered into his custody or into the custody of his authorized Superintendent, deputy, or deputies, and until such prisoners are released or discharged under due process of law.

 Moreover, D.C. Code Ann. § 24-425 (1981) *fn5" provides:

All prisoners convicted in the District of Columbia for any offense, including violations of municipal regulations and ordinances and acts of Congress in the nature of municipal regulations and ordinances, shall be committed, for their terms of imprisonment, and to such types of institutions as the court may direct, to the custody of the Attorney General of the United States or his authorized representative, who shall designate the places of confinements where the sentences of such persons shall be served. The Attorney General may designate any available, suitable, and appropriate institutions, whether maintained by the District of Columbia government, the federal government, or otherwise, or whether within or without the District of Columbia. The Attorney General is also authorized to order the transfer of any such person from one institution to another if, in his judgment, it shall be for the well-being of the prisoner or relieve overcrowding or unhealthful conditions in the institution where such prisoner is confined, or for other reasons.

 It is undisputed that in the District of Columbia or in the Washington D.C. metropolitan area there are no facilities for women prisoners who have been sentenced under the District of Columbia Code to a term of imprisonment which exceeds one year. Most women falling into that category are confined at the Federal Correctional Institution in Alderson, West Virginia, and some are incarcerated in other federal facilities depending upon their individual needs. On the other hand, male prisoners falling into the same category are usually incarcerated in the Reformatory of the District of Columbia in Lorton, Virginia or in the District of Columbia facility at Occoquan, Virginia. *fn6"

 In addition, it seems clear that the District of Columbia has no intention of constructing a prison facility within the next year to house female prisoners sentenced under the District of Columbia Code to serve in excess of one year. Within the last year the Mayor and the City Council, as well as local government agencies, community leaders and citizens have engaged in many discussions over the construction of a new prison facility in the District of Columbia or the surrounding metropolitan area. While it appears likely that such a facility will be constructed, the District of Columbia, in a response to an inquiry from this Court, has advised that it does not intend to provide for female prisoners in the new facility. *fn8"

 The plaintiffs argue that District of Columbia female prisoners are placed at a substantial disadvantage as compared to male prisoners because they are never incarcerated in the District of Columbia. As a consequence they are further away from their homes and families and that incarceration works a greater hardship upon them and their families, especially their children. Additionally, they are placed at a disadvantage because they are denied the benefits of such programs as furlough, work release, halfway house treatment, and educational study programs, which are available to male prisoners situated in the District of Columbia area.

 The Court will now turn to the undisputed evidence presented in the record of this case.


 In testimony before a House Subcommittee, Norman A. Carlson, Director, Bureau of Prisons, stated that the Bureau "handle[s] all female offenders sentenced in the District of Columbia, whereas in the other parts of the country, we handle only those women sentenced for federal crimes." Plaintiffs' Motion Exhibit F at 25. He noted further that the Bureau permits anybody to visit, "and obviously children would be welcome with parents and husbands, to come as frequently as seven days a week, Monday through Sunday, and visit all day." Id. And, significantly, Mr. Carlson testified that:

I think that we have found that because of the very large proportion of urban inmates, that maybe the trend ought to be to get away from rural type locations and get in areas where it will be easier for the people, once they have served their time, to go back into the community with a job skill or some kind of training that may be available to them when they return, like they are apt to do, in their urban community.

 Mr. Carlson's statement suggests that there is a benefit if urban inmates, such as those from the District of Columbia, are incarcerated, where possible, near their community. He noted that "because the average female offender has two dependent children for whom she must be responsible upon release, visitation programs to strengthen family ties are of particular importance." Plaintiffs' Motion Exhibit E at 6. Since female prisoners cannot be incarcerated in the District of Columbia area, the Carlson statements suggest that they are placed at a disadvantage when compared with male prisoners from the District of Columbia.

 Delbert C. Jackson, a former Director, District of Columbia Department of Corrections, submitted a paper before a House Subcommittee in which he stated that "women felons were transferred to Alderson, West Virginia and the [women's] reformatory was turned over to the Rehabilitation Center for Alcoholics (DHR) in 1967" after the Easter decision. *fn9" Plaintiffs' Motion Exhibit B at 2. Then Mr. Jackson made the follow statement as to "current" treatment and related problems of female prisoners incarcerated at Alderson, West Virginia.

Presently, the Department has no sentencing facilities for women offenders. Instead, women offenders are transferred to the Federal system and may be housed at Alderson, West Virginia, Lexington, Kentucky or as far away as Pleasanton, California. This reduces their ability to improve and/or maintain their family and community contacts and relationships which are a positive force in aiding them to achieve a successful community re-entry and adjustment upon release.
The lack of a Women's Correctional Facility in the District excludes equal protection to the female offender. They are unable to participate in Department activities such as our work-training and educational furlough program, and receive regular and necessary visits from their families and friends due to the hardship and expense incurred in traveling to West Virginia (this is not the case for the District's males incarcerated at Lorton).

 Id. at 2-3 (emphasis the Court's).

 In testimony that echoed that of Mr. Carlson and Mr. Jackson, Patricia P. Taylor, who was Assistant Director, Community Women's Programs, District of Columbia Department of Corrections testified that: "Several years ago we submitted as part of the Lorton Improvement Plan the drawings for the women's facility at Lorton. That plan has not yet become a reality, and it appears to constantly meet with heavy opposition." Plaintiffs' Motion Exhibit A at 49. She noted also that Congress had appropriated money for the Lorton Improvement Program but that the District never acted on it and "the money has now gone back." Id. at 54. With respect to the importance of prisoners being close to home, Ms. Taylor stated:

Oh, very important. You have to realize that at Alderson, these women are not eligible for our furlough program. They are not eligible for work training, and while we bring them back for work release when they are within six months away from their parole eligible date, their male counterparts are eligible to be in work training programs two years prior to that.

 Id. at 51-52 (emphasis the Court's).

 Council Member David Clarke at the Oversight Hearing before the Subcommittee on Judiciary and Education of the Committee on the District of Columbia, House of Representatives testified in part as follows:

As you are aware, the District of Columbia does not currently have a correctional facility for long-term women offenders. As a result, most of the District's women offenders are placed at the Federal correctional institution at Alderson, W. Va. The disadvantages of placement at Alderson are numerous. Problems relating to the lack of appropriate job training, educational programs and other services are apparent.
However, these problems are compounded by the fact that the women who are sent to Alderson, located more than 250 miles from the District, are virtually isolated from contact with family and friends. It is recognized that such isolation has a severe impact on the rehabilitation process. The inequity of this situation is magnified by the ...

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