United States District Court, E.D. California
For William A. Sassman, Plaintiff: Jesse Abram Stout, LEAD ATTORNEY, Legal Services for Prisoners with Children, San Francisco, CA; Blake Thompson, Kathryn Grzenczyk Mantoan, Gay Crosthwait Grunfeld, Rosen Bien Galvan & Grunfeld LLP., San Francisco, CA; Richard Van Swearingen, Rosen Bien Galvan & Grunfeld, San Francisco, CA.
For Edmund G. Brown, Jr., Governor of California, Jeffrey A. Beard, Secretary of the California Department of Corrections and Rehabilitation, Defendants: Maneesh Sharma, LEAD ATTORNEY, CA Dept of Justice, San Francisco, CA; Martine N. D'Agostino, LEAD ATTORNEY, Attorney General's Office for the State of California, San Francisco, CA.
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, JR., CHIEF UNITED STATES DISTRICT JUDGE.
William Sassman (" Plaintiff" ) initiated this action against Edmund G. Brown, Jr., Governor of California, and Jeffrey A. Beard, Secretary of the California Department of Corrections and Rehabilitation, in their official capacities (collectively " Defendants" ), and Does 1-10. Plaintiff claims Defendants' exclusion of men from California's Alternative Custody Program (" ACP" ), as authorized by California Penal Code section 1170.05, violates the Equal Protection Clause of the Fourteenth Amendment. Presently before the Court is Plaintiff's motion for a preliminary injunction by which he seeks to enjoin Defendants from continuing to exclude Plaintiff and other male prisoners from the ACP because of their gender. The Court heard argument from counsel for both sides
on Wednesday, October 1, 2014, at 9:30 a.m. Upon consideration of the materials in the record, as well as the arguments of counsel in open court, Plaintiff's motion was DENIED;  this written order follows.
Senate Bill No. 1266, adding California Penal Code section 1170.05, was signed into law on September 30, 2010. It provided for the implementation of the ACP, " a program under which female inmates, pregnant inmates, or inmates who, immediately prior to incarceration, were primary caregivers of dependent children . . . who have been committed to state prison may be allowed to participate in a voluntary alternative custody program . . . in lieu of confinement in state prison." S.B. 1266 § 2 (emphasis added). Accordingly, the ACP was originally intended to be open to all female prisoners, but only to males who were " primary caregivers" of dependent children. Legislative findings underlying the new law were as follows:
The incarceration rate for female offenders has doubled over the last 20 years. As a result, California now has about 10,000 incarcerated women, which is more than any other state.
Nearly 70 percent of female inmates are nonviolent offenders. Two-thirds of female inmates were convicted of property or drug-related crimes.
While over half of the men in prison were incarcerated for violent crimes, only 30 percent of women were convicted of violence.
Female inmates are more likely to be victims of violent crimes than to be the perpetrators. Four in 10 female inmates were physically or sexually abused before 18 years of age.
Over two-thirds of women are classified as low risk by the prison classification system. However, women are often held in more secure environments than their custody classifications would warrant.
Approximately 67 percent of incarcerated women are mothers, and many of them are single parents. Most of California's incarcerated mothers are the primary caregivers of dependent children and hope to return home to their children. While the vast majority of children of incarcerated men continue to live with their mothers, children of incarcerated women are more likely to end up living with other relatives or in foster care.
Separating parents from children has a substantial impact on their futures. Children of inmates are much more likely than their peers to become incarcerated. Research suggests that mothers who are able to maintain a relationship with their children are less likely to return to prison. Research also demonstrates that a father's involvement in his child's life greatly improves the child's chances for success. Helping incarcerated fathers foster stronger connections with their children, where appropriate, can have positive effects for children. Strong family connections help to ensure that fathers stay out of prison once they are released.
To break the cycle of incarceration, California must adopt policies that facilitate parenting and family reunification.
Section 1 of Stats. 2010, c. 644 (S.B. 1266) (emphasis added).
The next year, on September 12, 2011, CDCR formally launched the ACP. According to the CDCR, " [i]nitially, the program [would] 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." Swearingen Decl. ¶ 7 & Ex. F. CDCR indicated it might at some point allow some men to participate in an effort to comply with court-ordered obligations to reduce inmate populations. Id., ¶ 8 & Ex. G.
Subsequently, on June 27, 2012, Governor Brown signed Senate Bill No. 1021, modifying Section 1170.05 to read: " [F]emale inmates sentenced to state prison for a determinate term of imprisonment pursuant to Section 1170, and only those persons, shall be eligible to participate in the Alternative Custody Program authorized by this section." Cal. Penal Code § 1170.05(c) (emphasis added). Shortly thereafter, on September 13, 2012, CDCR issued a notice of approval of emergency regulatory action providing that " [t]o be eligible to participate in the Alternative Custody Program (ACP), the inmate must volunteer and be female." 15 CCR § 3078.2(a). During the public comment period, CDCR received a number of comments questioning whether the ACP impermissibly discriminates against men. The CDCR acknowledged that the program discriminates on the basis of sex, but took the position that the discrimination was permissible because male and female inmates are not similarly situated. Swearingen Decl. ¶ 10 & Ex. I, Comment and Response 5A (citing Woods v. Horton, 167 Cal.App.4th 658, 671,
84 Cal.Rptr.3d 332 (2008)).
To some extent, the parties disagree as to the purpose of the ACP. According to Plaintiff, the primary purpose of the program is to work toward family reunification. ECF No. 1 at 5. As a result, Plaintiff contends that there is no legitimate reason for excluding men from the program. ECF No. 5-1 at 17. For their part, Defendants argue that " gender makes a difference in prison management and administration." ECF No. 15 at 1. More specifically, Defendants point out that " CDCR recognizes that the pathways to criminality for females are significantly different from those of males." Id. at 2. For example, Defendants contend that " the most common pathways to crime for women are based on survival of abuse, poverty, and substance abuse . . . and female offenders are more likely to suffer from a history of physical or sexual abuse." Id. Defendants offer a number of statistics to support their argument, such as " [f]ifty-seven percent of incarcerated women report physical or sexual abuse before imprisonment, compared to 16% of men," and " [r]oughly two-thirds of incarcerated women have a child under the age of eighteen." Id. Defendants contend that children of incarcerated mothers are more likely to be placed in foster care than children of incarcerated fathers, who are more likely to be cared for by a mother or step-mother. Id. at 3. Additionally, they contend that " most of California's incarcerated mothers are the primary ...