California Changes Prisoner Property Policy After Suit Filed Alleging Gender Discrimination Against Men
by Douglas Ankney
Over seven years after California prisoner David Scott Harrison sued the state Department of Corrections and Rehabilitation (CDCR), the prison system removed some, though not all, of the gender-based personal property restrictions that he challenged. In a letter to PLN on May 23, 2024, he also shared what it cost the state: $258,512.35.
That’s how much the office of Attorney General Rob Bonta (D) spent defending the civil rights action that Harrison filed in September 2016. In the suit, he alleged that CDCR’s 2014 personal property schedules permitted gender-based discrimination in violation of the Equal Protection Clause of the U.S. Constitution’s Fourteenth Amendment, as well as Art. 1, § 17 of the California Constitution. The policy prohibited Harrison from possessing many items permitted to female prisoners, regardless of security classification, including small electronics such as hair dryers and electric curling irons; scarves, kimonos, and bath towels; clothing such as denim jeans; sugary foods; jewelry; and the card game Uno.
Without a hearing, the federal court for the Northern District of California granted the state summary judgment, finding that men and women prisoners were not “similarly situated.” Harrison appealed, and the U.S. Court of Appeals for the Ninth Circuit vacated the judgment; as PLN reported, the Court held that such gender-based property regulations “are constitutional only if the government demonstrates they serve important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” [See: PLN, Feb. 2021, p.52.]
Back at the district court, CDCR admitted that it had changed the policy since the suit was filed, and the new policy issued on November 1, 2023, mooted Harrison’s claims. He countered that the revised policy still left too many items unreasonably designated for “women only,” including hair clips, curling irons, earrings, alarm clocks, tweezers and plastic hangers; CDCR failed to show “a close fit” between these restrictions and interests that it claimed necessitated them, Harrison said. The state moved to cut off this argument with another—that he had not filed grievances to the revised policy, thereby failing to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e. The district court agreed and dismissed the case on February 23, 2024. Harrison was represented by attorneys Anthony P. Schoenberg and Hillary C. Krase with Farella Braun + Martel LLP in San Francisco. See: Harrison v. Kernan, 2024 U.S. Dist. LEXIS 31571 (N.D. Cal.).
In his letter to PLN, Harrison said that he obtained the state’s litigation expense with a California Public Records Act request. He also noted that CDCR presented no data to support the continued designation of over 20 items for “women only” under its new policy. He has filed grievances over that issue in preparation to refile his legal complaint, and PLN will update developments as they are available. That he won the policy changes is commendable, though it is shocking that California would spend such a large sum defending a discriminatory policy instead of simply allowing men and women to possess the same items of property.
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