Wark v. Robbins

• Decision Date: 12 April 1972
• Docket Number: No. 71-1377.,71-1377.
• Citation: 458 F.2d 1295
• Parties: Burton Andrew WARK, Petitioner, Appellant, v. Allan L. ROBBINS, Warden, Maine State Prison, Respondent, Appellee.
• Court: U.S. Court of Appeals — First Circuit

458 F.2d 1295 (1972)

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 February 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:

"By the same token the Legislature could reasonably conclude that the greater 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

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 sex-based 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.

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. § 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. § 558; gave Prison employees the power of sheriffs, when authorized, in apprehending escapees, 34 M.R.S.A. § 591; provided heavy penalties for Prison officers suffering or aiding in escapes, 34 M.R.S.A. § 594; authorized the use of weapons against a convict resisting an officer, 34 M.R.S.A. § 595; authorized solitary confinement, 34 M.R.S.A. § 711; prescribed a sentence of up to 20 years for one aiding a convict's escape, 34 M.R.S.A. § 753, for one harboring an escaped convict, a sentence up to that originally imposed on the convict, 34 M.R.S.A. § 754, and, for one delivering articles to convicts without permission, a sentence of up to 2 years, 34 M.R.S.A. § 755.

While it is conceivable that the reference in 34 M.R.S.A. § 852 to "quarters" for state prisoners in the Women's Reformatory and to "all rules governing persons...