ACLU Challenges Constitutionality of New Michigan Law Exempting Prisoners

March 14, 2000

Today the ACLU of Michigan filed a federal class action lawsuit challenging the treatment of women prisoners at the Livingston County jail. Significantly, the lawsuit challenges as unconstitutional a state law [HB
4475 and 4476] exempting prisoners from the protections of the state human rights law that prohibits discrimination on the basis of race, gender, and religion.

The law, Michigan Public Act No. 202 of 1999 (HB 4475 and 4476) took effect on March 10.

"This lawsuit illustrates the need to have civil rights protections available to prisoners because discrimination, harassment, and unfair treatment are real and legitimate problems within the Michigan prisons and jails," said ACLU of Michigan Executive Director Kary Moss. "This lawsuit further substantiates what Amnesty International and Human Rights Watch have told us for years: Michigan's treatment of women prisoners is sub-standard and falls below international human rights norms. For the state legislature and Governor to take away the state law remedy is to turn the clock back 100 years."

The lawsuit is filed on behalf of Theresa Ann Cox, a former prisoner at the jail, on behalf of herself and other women prisoners. Ms. Cox, who had been convicted of driving under the influence, was sentenced to ten days in jail beginning January 29, 1999. Although the order of probation provided that she could do work release, Sheriff Donald Homan refused to allow it solely because of her gender. This policy of denying work release has applied to all other women prisoners while men have been allowed to work at their jobs during the day and serve their time at night and on the weekends.

ACLU Cooperating Attorney Michael Pitt stated: "Working women are entitled to the same privileges as working men. The policy at this jail seems to reflect the assumption that women's work is less important than men's. This is an archaic stereotype that in no way reflects reality."

Additionally, the lawsuit charges that women are discriminated against by guards. For example, there is a significant disparity in the number of type of trustee assignments available for women prisoners in comparison with male prisoners. Women trustees are relegated to less-favored laundry work while men are given more favorable positions, including clerical work. Men are able to recreate outside in "the yard", while women are relegated to a garage. Male guards can view women prisoners in the shower and women, because of one-piece suits which they are required to wear, can be viewed from the waist up by guards while using the toilet facilities.

The lawsuit challenges the treatment of women prisoners as a violation of the equal protection clause of the fourteenth amendment, the cruel and unusual punishment clause of the eighth amendment, and the prohibition against unreasonable searches and seizures as guaranteed by the fourth amendment. The lawsuit also alleges that the defendants violated the Elliot-Larsen Civil Rights Act (ELCRA) which allows successful plaintiffs to get damages and attorneys fees which they are not able to obtain under the state constitution's equal protection and non-discrimination doctrines. ELCRA also protects against gender discrimination while the state constitution bars only discrimination based on "religion, race, color or national origin."

The lawsuit alleges that the amendment to ELCRA, passed by the legislature on December 20, 1999, exempting correctional facilities from the protection of that law, violates the fourteenth amendment because it deprives a single class of persons (prisoners) of an effective remedy for the violation of their rights. The lawsuit asks for an injunction prohibiting continuation of these discriminatory policies, an order declaring the 12/20/99 amendment to ELCRA unconstitutional, and an order awarding the plaintiff and class members monetary damages.

ACLU cooperating attorneys are Michael Pitt of Pitt, Dowty, McGehee & Mirer; Deborah Labelle; Professor Roderick M. Hills of the University of Michigan Law School; and Michael Steinberg and Kary Moss of the ACLU of Michigan.

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