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Constitutional Law

Exam 21

30 minutes

Fact Pattern

Recent studies have shown that alternative parenting programs for female inmates can greatly benefit the inmates upon reentry into society. Programs that allow women to have regular overnight visitation with their children, homestays near prisons for children of inmates, and plans that allow women to remain with their newborn children for up to one year after birth can reduce individual rates of recidivism by up to fifty percent. There is a marginal, though less substantial, benefit for men who were the primary caregiver of their children prior to incarceration.

Wanting to act on the findings of these studies, reduce the prison population, and reunite mothers with their families, State A implements a new alternative custody program. The program allows female inmates who were the primary caregivers of children prior to incarceration to participate in the program in lieu of serving time in prison. Under the program, these women live in a state residential home within fifteen miles of their families for a time period up to the last twenty-four months of their sentences.

The limited capacity of the residential facilities means that no inmate is guaranteed access to the program. Male inmates are not allowed to take advantage of the program even if they were primary caregivers prior to entering prison. 

Applications to the program are evaluated using an extensive set of measurements. The program coordinator analyzes many different characteristics of the applicants, including, but not limited to: personal background, criminal record, potential for drug and alcohol abuse, behavior while in prison, family support, age of children, and education level. The program is highly individualized. The program coordinator endeavors to choose prisoners who stand to gain the most from the program and have best chance to succeed upon release. So far, the program has accepted 100 individuals, all of whom have been female inmates. 

S is a male prisoner in State A. He requests to participate in the alternative custody program. S meets all program criteria, but is rejected admission. S is told his rejection was solely because, as a male, he doesn’t qualify for the program. S files suit against the state, asserting that the alternative custody program is unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. In response, the state argues that two substantial government interests support the program: (1) reducing the size of the prison population, and (2) reuniting mothers with their families.


  1. How should the court rule? Explain, analyzing only the equal protection issue.

Question 1

How should the court rule? Explain, analyzing only the equal protection issue.