Stradford v. Sec'y Pa. Dep't of Corr.

• Decision Date: 09 November 2022
• Docket Number: s. 21-2655 & 22-2027
• Citation: 53 F.4th 67
• Parties: Lacey STRADFORD; William Nettles; Jesse Stroud; William Scott ; Richard Richardson, on behalf of Themselves and All Other Similarly Situated v. SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Appellant
• Court: U.S. Court of Appeals — Third Circuit

53 F.4th 67

Lacey STRADFORD; William Nettles; Jesse Stroud; William Scott ; Richard Richardson, on behalf of Themselves and All Other Similarly Situated

v.SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Appellant

Nos. 21-2655 & 22-2027

United States Court of Appeals, Third Circuit.

Argued: June 29, 2022

Filed: November 9, 2022

Sean A. Kirkpatrick, Office of Attorney General of Pennsylvania, Strawberry Square, 15th Floor, Harrisburg, PA 17120, Daniel B. Mullen [Argued], Office of Attorney General of Pennsylvania, 1251 Waterfront Place, Mezzanine Level, Pittsburgh, PA 15222, Counsel for Appellant

Donald Driscoll [Argued], Community Justice Project, 100 Fifth Avenue, Suite 900, Pittsburgh, PA 15222, Alexandra Morgan-Kurtz, Pennsylvania Institutional Law Project, 247 Fort Pitt Boulevard, 4th Floor, Pittsburgh, PA 15222, Counsel for Appellees

Before: JORDAN, PORTER, and PHIPPS, Circuit Judges.

OPINION OF THE COURT

PORTER, Circuit Judge.

Class representatives Lacey Stradford, William Nettles, Jesse Stroud, William Scott, and Richard Richardson ("Appellees"), all convicted sex offenders, allege the Pennsylvania Department of Corrections ("DOC")¹ enforces a policy that unconstitutionally discriminates against sex offenders. The policy requires DOC to consider, among other things, "community sensitivity" when it evaluates parolees for halfway house placement. The District Court entered summary judgment for Appellees, holding that sex offenders and non-sex offenders are similarly situated and consideration of "community sensitivity" when making halfway house assignments is irrational.

But not all crimes are alike. The differences among sex crimes, and between sex crimes and non-sex crimes, preclude the purported similarity between sex offenders and non-sex offenders in this case. A discretionary grant of parole cannot erase those differences. In any event, DOC's halfway house policy considering "community sensitivity," among many other factors, is rationally related to more than one legitimate government interest. So we will reverse and remand for entry of summary judgment for the DOC.

I

After completing a minimum sentence, inmates in Pennsylvania are eligible to serve the rest of their sentence on parole. See 61 Pa. Cons. Stat. § 6137(a)(3). Parole is "a matter of grace and mercy shown to a prisoner who has demonstrated to the Parole Board's satisfaction his future ability to function as a law-abiding member of society upon release before the expiration of the prisoner's maximum sentence." Hudson v. Pa. Bd. of Prob. & Parole , 651 Pa. 308, 204 A.3d 392, 396 (2019) (quoting Rogers v. Pa. Bd. of Prob. & Parole , 555 Pa. 285, 724 A.2d 319, 322–23 (1999) ).

The decision to grant parole is discretionary. 42 Pa. Cons. Stat. § 2154.5(b). Before deciding, the Parole Board must investigate, among other things, "[t]he general character and background of the inmate," "[t]he nature and circumstances of the offense committed," "[t]he written or personal statement of the testimony of the victim or the victim's family," the inmate's "behavioral condition and history," and his "complete criminal record." 61 Pa. Cons. Stat. § 6135(a).

When reviewing parole applications, the Parole Board must determine whether "[t]he best interests of the offender justify or require that the offender be paroled" and whether "the interests of the Commonwealth will be injured by the offender's parole." Id. § 6137(a)(1)(i)–(ii). In evaluating this standard, the Parole Board considers its own guidelines, which are designed to: (1) "[g]ive primary consideration to the protection of the public and to victim safety," (2) "[p]rovide for due consideration of victim input," (3) encourage proper conduct of parolees, (4) "encourage inmates and parolees to participate in programs that have been demonstrated to be effective in reducing recidivism," (5) prioritize "incarceration, rehabilitation and other criminal justice resources for offenders posing the greatest risk to public safety," (6) "[u]se validated risk assessment tools," and "take into account available research relating to the risk of recidivism, minimizing the threat posed to public safety and factors maximizing the success of reentry." 42 Pa. Cons. Stat. § 2154.5(a).

The Parole Board also has authority to delay parole release until a satisfactory home plan is arranged and approved. See 37 Pa. Code § 63.1(d) ("The date of parole may be postponed until a satisfactory plan is arranged for the parolee and approved by the Board."); Barge v. Pa. Bd. of Prob. & Parole , 39 A.3d 530, 548 (Pa. Commw. Ct. 2012). Because finding housing is often difficult, most inmates first rely on halfway houses. Those houses have limited capacity. Public houses have only 700 spaces, and private contract facilities have 2,100 spaces statewide. But each year, about 9,000 Pennsylvania inmates are released on parole.

Sex offenders face several collateral consequences due to the nature of their criminal acts. They must participate in a specialized treatment program to become eligible for parole. Violent sex offenders must continue that specialized treatment program even after release from prison. Sex offenders must register with the Pennsylvania State Police. For violent sex offenders, the Pennsylvania State Police must notify the victim of their release. And relevant here, the Pennsylvania State Police must notify each resident, school district, day-care center, and college about nearby registered violent sex offenders. 42 Pa. Cons. Stat. §§ 9718.1, 9799.13, 9799.26, 9799.27, 9799.70.

According to DOC, that notification requirement makes it difficult to place sex offenders into community halfway houses because once neighbors are notified, some oppose sex offenders' presence. In at least one instance, community backlash against high concentrations of sex offenders in neighboring halfway houses caused a halfway house to close.

For the same reasons it is hard to place sex offenders into halfway houses, sex offenders once placed tend to linger in halfway houses longer than other parolees. Potential landlords can use an applicant's sex offender status to refuse leasing to them, and many sex offenders cannot obtain federally funded housing. See 42 U.S.C. § 13663(a) ; 24 C.F.R. § 5.856. As a result, paroled sex offenders often remain in halfway houses until their maximum sentences expire, and because sex offenders receive higher-than-average maximum sentences, it can take years for their sentences to expire once they are paroled. By contrast, according to DOC, other parolees spend ninety days on average in a halfway house. The cumulative effect of these phenomena is that sex offenders clog the parole system.

As originally drafted, DOC Policy 8.1.1 Section 4 designated sex offenders as categorically "hard to place" and rejected them for initial placement into halfway houses. J.A. 76. When the putative sex offender class challenged that policy in court, the District Court determined that, because non-sex offenders have a greater likelihood of successfully rejoining their communities after temporary placement in a halfway house, the DOC's policy served the legitimate interest in avoiding clogging the system. Stradford v. Wetzel , No. CV 16-2064, 2017 WL 1196656, at *4 (E.D. Pa. Mar. 31, 2017). The named plaintiffs appealed.

While on appeal, DOC changed its policy. The new policy lists thirteen factors DOC must consider before placing a parolee in a halfway house:

a. community sensitivity to a criminal offense or specific criminal incident;

b. board action stipulations;

c. program needs vs. program availability in a particular area;

d. separations from other reentrants or staff;

e. multiple failures at one facility;

f. victim consideration;

g. medical or mental health needs;

h. final discharge of maximum sentence date;

i. gender status of the facility;

j. pilots or studies being conducted;

k. request by the reentrant for relocation;

l. available community resources/support; and

m. where the reentrant's committing county; requested release county; and home county are in relation to an appropriate center.

J.A. 83.

After the policy change, we vacated the District Court's judgment and remanded for it to consider whether the lawsuit was moot. Stradford v. Sec'y Pa. Dep't of Corr. , 783 F. App'x 150, 151 (3d Cir. 2019). Appellees filed an amended complaint challenging the new policy and the District Court found the suit not moot. See Stradford v. Wetzel , 519 F. Supp. 3d 214, 223 n.6 (E.D. Pa. 2021). The District Court said its former decision was in error. Id. at 230. It held that paroled sex offenders are similarly situated to other paroled offenders, and that there could be no rational basis to delay their placement into halfway houses because of "community sensitivity." Id. at 224–25, 230–31.² This appeal followed.

II

Appellees filed this class action under 42 U.S.C. § 1983. The District Court had subject matter jurisdiction under 28 U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291.

We review de novo the District Court's resolution of cross-motions for summary judgment. Int'l Union, United Mine Workers of Am. v. Racho Trucking Co. , 897 F.2d 1248, 1252 (3d Cir. 1990). Summary judgment is appropriate when, drawing all reasonable inferences in favor of the nonmoving party, "the movant shows that there is no genuine dispute as to any material fact," and thus the movant "is entitled to judgment as a matter of law." Thomas v. Cumberland Cnty. , 749 F.3d 217, 222 (3d Cir. 2014) (quoting Fed. R. Civ. P. 56(a) ).

III

The Fourteenth Amendment's Equal Protection Clause states that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Supreme Court has said that "the equal protection of the laws is a pledge of the protection of equal laws." Yick Wo v. Hopkins , 118 U.S. 356, 369, 6 S.Ct. 1064, 30 L.Ed. 220 (1886). At bottom, the Equal Protection Clause requires equal treatment of "all...