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Resource: Beyond Parity and Equal Protection: Women Prisoner's Right Litigation in the 1990s

By: Julie Cho

May 1, 2000

This paper examines the changing landscape of the women prisoners' rights movement, from mid-1970s to present--describing its shift from predominantly equal protection and Title IX claims to sexual misconduct and adequacy of health care claims. Of particular interest is an inquiry into the reasons why and how women prisoners' rights litigation has remade itself from a movement motivated by traditional feminist principles of equality and parity, to a movement comfortable with female victim status, emphasizing the distinct characteristics of the female inmate population compared to the male inmate population. First, this paper will examine important cases in the development of the women prisoners' rights movement, including the following cases: Glover v. Johnson, 478 F. Supp. 1075 (E.D. Mich. 1979); Canterino v. Wilson, 546 F. Supp. 174 (W.D. Ky. 1982); Lucas v. White, No. C. 96-02905 (N.D. Cal. filed Aug. 13,1996); Nunn v. Michigan Department of Corrections, No. 96-CV-71416-DT (E.D. Mich. 1995); Shumate v. Wilson, 95-619 (E.D. Cal.); Women Prisoners v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994).

This paper will then consider three informal models of institutional reform litigation as explanations for the development of women prisoners' rights litigation from the mid-1970s to present. The three "models" are prisoner-driven litigation, lawyer-driven litigation, and litigation driven by the energy and resources of other movements such as the feminist and civil rights movements. After considering and rejecting these models as thorough explanations of women prisoners' rights litigation today, this paper offers its own reasons that in combination, help explain these developments--increased number of women prisoners, strategic response to anti-prisoner attitudes, and previously unlitigated areas emerging out of the implementation of gender-neutral prison policies. Finally, this paper considers the limits of institutional reform litigation in this context, nevertheless concluding that in women's prisons, litigation may still be an effective tool.