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    Burton Andrew Wark v. Allan L. Robbins, Warden, Maine State Prison, 458 F.2d 1295, 1st Cir. (1972)

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    This document summarizes a court case in which a male prisoner appealed the denial of his habeas corpus petition. He claimed he was denied equal protection because females sentenced to the same prison but housed at a different facility faced a lower maximum sentence for escape. The court found that the petitioner did not establish the facilities were similarly secure and that escaping each carried substantially different risks. It affirmed the denial, finding the crimes of escaping the different facilities were meaningfully distinct and not just nominally so.

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    Burton Andrew Wark v. Allan L. Robbins, Warden, Maine State Prison, 458 F.2d 1295, 1st Cir. (1972)

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    This document summarizes a court case in which a male prisoner appealed the denial of his habeas corpus petition. He claimed he was denied equal protection because females sentenced to the same prison but housed at a different facility faced a lower maximum sentence for escape. The court found that the petitioner did not establish the facilities were similarly secure and that escaping each carried substantially different risks. It affirmed the denial, finding the crimes of escaping the different facilities were meaningfully distinct and not just nominally so.

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    Filed: 1972-04-12 Precedential Status: Precedential Citations: 458 F.2d 1295 Docket: 71-1377

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    This document summarizes a court case in which a male prisoner appealed the denial of his habeas corpus petition. He claimed he was denied equal protection because females sentenced to the same prison but housed at a different facility faced a lower maximum sentence for escape. The court found that the petitioner did not establish the facilities were similarly secure and that escaping each carried substantially different risks. It affirmed the denial, finding the crimes of escaping the different facilities were meaningfully distinct and not just nominally so.

    Copyright:

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    33 views6 pages

    Burton Andrew Wark v. Allan L. Robbins, Warden, Maine State Prison, 458 F.2d 1295, 1st Cir. (1972)

    Uploaded by

    Scribd Government Docs
    This document summarizes a court case in which a male prisoner appealed the denial of his habeas corpus petition. He claimed he was denied equal protection because females sentenced to the same prison but housed at a different facility faced a lower maximum sentence for escape. The court found that the petitioner did not establish the facilities were similarly secure and that escaping each carried substantially different risks. It affirmed the denial, finding the crimes of escaping the different facilities were meaningfully distinct and not just nominally so.

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    of 6

    458 F.

    2d 1295

    Burton Andrew WARK, Petitioner, Appellant,


    v.
    Allan L. ROBBINS, Warden, Maine State Prison, Respondent,
    Appellee.
    No. 71-1377.

    United States Court of Appeals,


    First Circuit.
    Heard Feb. 23, 1972.
    Decided April 12, 1972.

    David A. Nichols, Camden, Me., for appellant.


    Charles R. Larouche, Asst. Atty. Gen., for appellee.
    Before ALDRICH, Chief Judge, McENTREE and COFFIN, Circuit
    Judges.
    COFFIN, Circuit Judge.

    With a deft touch, fate finds us deciding our first equal protection case since
    Congressional passage of the Equal Rights Amendment at the behest of a male
    seeking the same rights as those bestowed on females. In this case, coming to
    us on appeal from denial of a petition for habeas corpus by the district court, a
    Maine prisoner who escaped from State Prison and thereafter received a six to
    twelve year sentence (which could have been "for any term of years") claims
    that he is deprived of equal protection of the law in that a female felon similarly
    sentenced to State Prison, but sent to the Women's Reformatory, could at most
    be sentenced for eleven months for the crime of escape from the latter
    institution.1

    The petitioner first sought post-conviction habeas relief in the Maine Superior
    Court, including his present claim among a number of others. The Single
    Justice, in dismissing the petition, simply held: "The penalty [for escape] turns
    on the institution from which the prisoner escapes." On appeal, the Supreme
    Judicial Court, assuming that the maximum escape penalty for women

    sentenced to the State Prison but sent to the Women's Reformatory was eleven
    months, dealt with the issue as one posing a statutory distinction as between the
    sexes and held that there was "a validating relationship as between the varying
    behavioral patterns of the two sexes. . . ." Wark v. State, 266 A.2d 62, 65
    (Me.1970). It noted at the outset that the statutes had "long provided for an
    exclusively male population at the State Prison, a maximum security
    institution", id. at 65, and that the legislature could "on the basis of long
    experience" conclude that even women sentenced to State Prison for serious
    offenses could be "effectively confined in an institution which lacks the high
    walls, armed guards and security precautions of a prison." It went on to hold:
    3 the same token the Legislature could reasonably conclude that the greater
    "By
    physical strength, aggressiveness and disposition toward violent action so frequently
    displayed by a male prisoner bent on escape from a maximum security institution
    presents a far greater risk of harm to prison guards and personnel and to the public
    than is the case when escape is undertaken by a woman confined in an institution
    designed primarily for reform and rehabilitation. Viewing statutory provisions for
    punishment as in part a deterrent to criminal conduct, the Legislature could logically
    and reasonably conclude that a more severe penalty should be imposed upon a male
    prisoner escaping from the State Prison than upon a woman confined at the
    'Reformatory' while serving a State Prison sentence who escapes from that
    institution." Id. at 65.2
    4

    The district court adopted this reasoning, adding, "In the view of this Court, a
    classification based not merely upon the distinctive attributes of the sexes, but
    more importantly upon the character of the institution from which the prisoner
    escapes, is neither arbitrary nor unreasonable, and in no way a denial of Equal
    Protection."

    In all of the proceedings below, with the possible exception of those before the
    Single Justice, the fact that a sexbased classification existed was accepted and
    the court's focus was the adequacy of the state's justification. This is also the
    posture in which the case has been argued to us. Accordingly, we have been
    presented with the wide-ranging choice of standard of review which landmark
    cases in this fluid area suggest: the conventional, relaxed review customary in
    reviewing economic regulations, McGowan v. Maryland, 366 U.S. 420, 81
    S.Ct. 1101, 6 L.Ed.2d 393 (1960); the more rigorous review, calling for a
    justification of a suspect classification through proof of a compelling reason
    therefor, Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010
    (1967);3 or something in between.4

    Before entering such an analytical thicket, we face a preliminary and decisive

    difficulty. The very concept of a classification, the rationality of which must be


    justified under some standard of review, implies that it, the classification, is the
    only barrier to plaintiff's being treated like others. That is, but for the fact that a
    plaintiff is a black, a female, a poor person, a non-resident, he or she could
    vote, be hired, go to a quality school, qualify for welfare benefits, have a
    lawyer, etc. Here, there are two "but fors". Plaintiff differs from a female felon
    who escapes, not only in sex but in the fact that he escapes from a different
    institution.
    7

    Petitioner has not challenged the constitutionality of Maine's system of


    confining male and female felons in different institutions. Such a claim would
    embrace a broader range of disparate treatment of the sexes. Whatever might be
    the merits of such a case, but see Williams v. McNair, 401 U.S. 951, 91 S.Ct.
    976, 28 L.Ed.2d 235 (1971),5 that was not the case presented to either the state
    or the district court. Our question, therefore, is whether a female state prisoner
    lodged in the Women's Reformatory and a male inmate of the State Prison are
    "similarly circumstanced". On this threshold issue we think that a plaintiff has
    some burden to establish the similarity.

    There is no evidence in the record as to the nature of these two institutions. Our
    only sources of information, on the present record, are the statutes. The only
    provision of the law regarding females sentenced to State Prison in effect at the
    time pertinent to this case was that "the department shall maintain quarters at
    the Reformatory for Women for the incarceration of all women sentenced to
    the State Prison" and that they "shall be subject to all rules governing persons
    sentenced to the State Prison." 34 M.R.S.A. Sec. 852.6 From this, petitioner
    argues that it is not reasonable to treat one institution as correctional and the
    other as penal, at least for men and women with state prison sentences. Indeed,
    he argues that to treat male and female escapees differently is "every bit as
    arbitrary as preferring the prisoner in Dormitory A over the prisoner in
    Dormitory B."

    We concede for the purposes of this case that the record does not support any
    reliance on one institution being "correctional" and the other "penal".
    Notwithstanding, a conclusion that the State Prison and the Women's
    Reformatory are capable of being equated in terms of their security
    environment is not suggested by the panoply of statutes uniquely directed to
    men confined at the State Prison. Duncan v. Maine, 158 Me. 265, 183 A.2d
    209, cert. denied, 371 U.S. 867, 83 S.Ct. 129, 9 L.Ed.2d 104 (1962). In toto
    they suggest what is meant by a "maximum security" institution. The then
    relevant statutes authorized the possession and use of arms in preventing
    escape, 34 M.R.S.A. Sec. 558; gave Prison employees the power of sheriffs,

    when authorized, in apprehending escapees, 34 M.R.S.A. Sec. 591; provided


    heavy penalties for Prison officers suffering or aiding in escapes, 34 M.R.S.A.
    Sec. 594; authorized the use of weapons against a convict resisting an officer,
    34 M.R.S.A. Sec. 595; authorized solitary confinement, 34 M.R.S.A. Sec. 711;
    prescribed a sentence of up to 20 years for one aiding a convict's escape, 34
    M.R.S.A. Sec. 753, for one harboring an escaped convict, a sentence up to that
    originally imposed on the convict, 34 M.R.S.A. Sec. 754, and, for one
    delivering articles to convicts without permission, a sentence of up to 2 years,
    34 M.R.S.A. Sec. 755.
    10

    While it is conceivable that the reference in 34 M.R.S.A. Sec. 852 to "quarters"


    for state prisoners in the Women's Reformatory and to "all rules governing
    persons sentenced to the State Prison" means that the security environment of a
    woman prisoner is as complete as that in the State Prison, we are not willing to
    assume so. See Duncan v. Maine, supra. Indeed, so to assume would in effect
    place the burden on the state of proving dissimilarity of circumstances.
    Viewing plaintiff as having the burden of establishing, prima facie, a similarity,
    we hold that he has not carried it.7 On this record we think it likely that one
    venturing escape from the State Prison, with the attendant risks of violence and
    danger to inmates, prison personnel, and the outside community is not similarly
    circumstanced to one venturing escape from the Women's Reformatory. It
    follows that the crime of escape from the Women's Reformatory described in
    34 M.R.S.A. Sec. 859, and that of escape from the State Prison described in 34
    M.R.S.A. Sec. 710, are not merely nominally-and penally-distinct, but that they
    respond to substantially different circumstances.

    11

    We therefore affirm.

    This duality of treatment is similar to that encountered in Massachusetts, where


    an escape from the Massachusetts Correctional Institution at Framingham (for
    women) is punishable by a term not exceeding two years, 268 Mass.G.L. Sec.
    16A, while an escape from other penal institutions is punishable by a term of
    not more than ten years, 268 Mass.G.L. Sec. 16. On the other hand, we note
    that no such disparity appears in the statutes of the other states which we have
    examined, the American Law Institute's Proposed Official Draft of the Model
    Penal Code (1962), the Report of the National Commission on Reform of
    Federal Criminal Laws (1971), or in 18 U.S.C. Sec. 751

    Certiorari was denied sub nom. Wark v. Maine, 400 U.S. 952, 91 S.Ct. 255, 27
    L.Ed.2d 259 (1970) (Justices Harlan, Stewart and Blackmun dissenting)

    A federal district court in United States ex rel. Robinson v. York, 281 F.Supp. 8
    (D.Conn.1968), has recently employed the suspect classification doctrine as a
    basis for striking down a statutory scheme of heavier penalties for female than
    for male misdemeanants. See also Lamb v. Brown, 456 F.2d 18 (10th Cir.
    1972); Sail'er Inn, Inc. v. Kirby, 5 Cal.3d 1, 95 Cal.Rptr. 329, 339-340, 485
    P.2d 529, 539-540 (1971) ("sex should be treated as suspect"); cf.
    Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400 (1968). See generally
    Note, Developments in the Law-Equal Protection, 82 Harv.L.Rev. 1065, 10871120, 1124-27 (1969); Note, Sex Discrimination and Equal Protection: Do We
    Need a Constitutional Amendment?, 84 Harv.L.Rev. 1499, 1507-16 (1971);
    Brown, et al., The Equal Rights Amendment: A Constitutional Basis for Equal
    Rights for Women, 80 Yale L.J. 871, 875-82 (1971)

    This intermediate approach is arguably suggested by Reed v. Reed, 404 U.S.


    71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), the first case in which the Court has
    struck down a sex-based classification. In invalidating a mandatory provision of
    the Idaho probate code giving men a preference over women in appointments as
    administrators of estates, the Court quoted from Royster Guano Co. v. Virginia,
    253 U.S. 412, 415, 40 S.Ct. 560, 64 L.Ed. 989 (1920), in saying that a
    classification "must rest upon some ground of difference having a fair and
    substantial relation to the object of the legislation", 404 U.S. at 76, 40 S.Ct. at
    561. On the one hand it is noteworthy that the Court has moved away from its
    readiness to conceive any reasonable basis for differentiating the sexes, as
    demonstrated in Hoyt v. Florida, 368 U.S. 57, 82 S.Ct. 159, 7 L.Ed.2d 118
    (1961) [upholding a Florida statute relieving women from involuntary jury
    service], but on the other it is equally apparent that the Court had ample
    opportunity to hold sex a "suspect classification" but did not do so. These
    observations, particularly in a case involving such a substantial interest as that
    of appellant in being subjected to an escape penalty free of extraneous sexbased
    considerations, would argue for a requirement that the state must do more than
    allow a court to speculate and must in fact demonstrate a substantial relation to
    a legitimate state objective. See Cox, The Supreme Court, 1965 Term,
    Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80
    Harv.L.Rev. 91, 95 (1966). See also Note, Developments in the Law-Equal
    Protection, 82 Harv.L.Rev. 1065, 1120-21, 1127-31 (1969)

    This was an affirmance, without opinion, of the decision of a three-judge court,


    reported in 316 F.Supp. 134 (D.S.C. 1970), upholding as a "reasonable
    classification" the exclusion of males from state-supported Winthrop College in
    South Carolina

    This was repealed in 1967. Present section 851 merely lists females sentenced
    to State Prison as one of the categories of the Women's Correctional Center

    (formerly the Women's Reformatory) inmates, to be "confined in accordance


    with the orders or sentences of the courts and the rules and regulations of the
    center applicable to each such category." No reference to "quarters" remains
    7

    We recognize that we have concentrated on only one element-the security


    environment and risks attending escape therefrom-and this in connection with
    the threshold issue of determining whether petitioner and a female felon
    escapee are similarly circumstanced. This analysis admittedly differs from that
    of other courts considering this case, which have concentrated on the quest for
    justification of differential treatment, basing such justification on several
    factors-behavioral differences of the sexes, the difference between penal and
    correctional institutions, and the difference in security environment. This
    difference in focus does not appear to us to require remand for the purpose of
    taking evidence on security aspects and risks. Counsel for petitioner has
    demonstrated his resourcefulness; we assume that he purposely confined his
    reliance to the language of 34 M.R.S.A. Sec. 852

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