Constitutional Law - Section 1

Final Examination

Professor Harpaz

May 9, 2000

Question I

(Suggested time: 90 minutes) (80 out of 160 total exam points)

            The prison population in the United States is about 2 million and growing. Ten percent of these prisoners are women and the number of women in prison has increased dramatically in the last 15 years. Over the past several years, allegations that women prisoners are often the victims of sexual abuse by male prison guards entrusted with their care have surfaced. Instances of such abuse have been documented throughout the prison system including federal, state and local correctional facilities as well as in prisons operated by private companies that are under contract with a state to provide and manage prison facilities. No similar charges of widespread abuse of male prisoners by female guards or same-gender abuse by either male or female guards have been documented. A number of lawsuits have been filed by women prisoners who have been victims of sexual abuse by male prison guards seeking money damages from the government responsible for the conditions of their incarceration. Some of these suits have resulting in significant monetary awards to women prisoners who have suffered sexual abuse.

            Congress recently held hearings to consider solutions to this problem. In the course of the hearings, Congress learned that experts have estimated that over twenty percent of women prisoners have been victims of various forms of sexual abuse by male guards while in prison ranging from rape to making demands that women prisoners strip. It is believed that approximately ten percent of male guards assigned to women’s prisons are guilty of such behavior. In their testimony, experts explained that women prisoners are particularly vulnerable to male prison guards both because of disparities in physical size and strength and because of socialization that conditions men to believe they are entitled to receive sexual favors from women, particularly when the men are in positions of dominance and the women in positions of subservience. Congress also heard testimony about efforts to reduce the abuse of women prisoners through means such as training programs for prison guards. The witnesses generally agreed that thus far training programs had not succeeded in reducing sexual abuse of women prisoners and that more such allegations were likely to surface as the federal and state governments improved their mechanisms for reporting sexual abuse without fear of retaliation.

            In investigating sexual abuse of women prisoners, Congress not only documented the physical and emotional consequences of prisoner sexual abuse, but also made findings about the economic consequences of this behavior. According to Congress, in addition to the large damage awards that have been awarded to victims of such abuse, sexual abuse also impairs the productivity of the prison labor force. In the face of low unemployment rates and a traditional workforce that can no longer meet the need for additional workers, both male and female prisoners have become an increasingly important source of laborers for private industry as well generating a new source of revenue for the government that allows the government to offset the substantial economic costs of incarceration. It costs the government between $35,000 and $70,000 per year to house a prisoner.

            As a result of these hearings, Congress enacted the Protection of Women Prisoners Act (POWPA). The Act prohibits the employment of male guards to guard female prisoners in federal, state, local and private prisons. The Act’s ban on employment only applies prospectively to the hiring of new guards at women’s prisons when vacancies occur, although prisons are urged wherever possible to arrange to transfer male guards to prisons housing men and replace them with female guards. The current breakdown by gender of guards in women’s prisons is 80 percent male and 20 percent female. This does not occur because of a shortage of female guards. More than one-third of all prison guards are women. However, most female prison guards are employed guarding male prisoners.

            POWPA also allocates $10,000,000 for grants to state prisons to develop programs to reduce prisoner sexual abuse in all prison situations, without regard to the gender of either the correctional officers or the prisoners. In addition, the act imposes a reporting requirement on the states to report to Congress on an annual basis allegations of sexual abuse by correctional officers against prisoners so Congress can continue to obtain information relevant to considering the enactment of other measures designed to protect the physical integrity of the prison population.

            After the enactment of POWPA, several lawsuits were filed involving the South Carolina Prison for Women, a state prison. The first suit was filed by Carol James, a prisoner at the South Carolina Prison for Women. Ms. James claims that the State of South Carolina is violating her right to privacy protected by the Fourteenth Amendment Due Process Clause by allowing male guards to work in living areas of the prison and observe female inmates while they are dressing and undressing, taking showers and using toilets.

            A second suit was filed by Allen Rogers. Allen Rogers is an otherwise qualified male applicant for a job at the South Carolina Prison for Women whose application for employment was rejected by the State solely because of his gender as required by POWPA. The State has asserted that it would have hired Mr. Rogers as a prison guard at the Prison for Women but for the requirements of POWPA. The State has joined Mr. Rogers’ lawsuit against the federal government which claims that Congress lacks the power under Article I, Section 8 to enact POWPA and that the statute violates his right to equal protection of the law under the Fifth Amendment.

            A third suit was filed by the State of South Carolina against the federal government. In its suit, South Carolina argues that POWPA violates its right to state sovereignty embodied in the Tenth Amendment.

            You are a law clerk to the judge assigned to all three cases. The judge asks you to write a memorandum of law detailing the constitutional arguments presented by Carol James, Allen Rogers and the State of South Carolina as well as the arguments that will be made by the government defendants in these three suits. Your memorandum should address the due process claim asserted by Carol James, the Article I, Section 8 and equal protection claims asserted by Allen Rogers and the Tenth Amendment claim asserted by the State of South Carolina.

Question II

(Suggested time: 90 minutes) (80 out of 160 total exam points)

            Several years ago, the Oregon legislature enacted the Oregon Death With Dignity Act. The Act allows a terminally ill competent adult over the age of 21 to obtain a prescription from a doctor for a fatal drug dosage for the express purpose of ending their life. The Act defines a person to be terminally ill if they have an incurable and irreversible disease that has been medically confirmed and will, within reasonable medical judgment, produce death within six months.

            Oregon’s law was the first such law in the nation. Its adoption was greeted by outrage by many people both within and without the State of Oregon. When it enacted the statute, the Oregon legislature was aware that the Death With Dignity Act was offensive to the public policy of other states, such as the nearby State of Washington, where doctor-assisted suicide remains a crime. The Oregon legislature did not want to interfere with the public policy of other states, subject nonresidents to possible criminal charges under the laws of other states or encourage nonresidents to come to Oregon for the purpose of ending their lives. Therefore, it included certain residency requirements among the provisions of the law.

            The rights created under the Act are available only to competent adult residents of Oregon who have been determined by their attending physician and consulting physician, who both must be licensed to and practicing medicine in the State of Oregon, to be suffering from a terminal illness, and who have voluntarily expressed their wish to die. Such persons may make written requests for medication for the purpose of ending their lives in a humane and dignified manner. After a patient has made such a request, the patient’s attending physician shall inform the patient of the potential risks and probable results of taking the medication to be prescribed. The attending physician’s decision to prescribe life-ending drugs must then be confirmed by a consulting physician who confirm’s the patient’s diagnosis and competence, and the fact that the patient has made a voluntary, informed decision. After the confirmation by the consulting physician and no sooner than fifteen days after the written request, the attending physician may prescribe the necessary drugs to end the patient’s life. The prescription for the necessary drugs may be filled by a licensed Oregon health care provider who is authorized to fill a prescription for the prescribed medication. Physicians and health care providers who comply with the Act are not subject to civil or criminal liability or professional disciplinary proceedings for their actions by the State of Oregon.

            Since the enactment of the Death With Dignity Act, 30 Oregon residents have exercised their right to die with dignity using its provisions. Ten of those Oregon residents were cared for by Oregon physicians on the staff of Tender Mercies Hospital. Tender Mercies is a private for-profit hospital located in Oregon near the Oregon/Washington border. It is a licensed Oregon health care provider and specializes in the treatment of terminally ill patients.

            Recently, John Bacon sought to exercise rights under the Act. Mr. Bacon is a resident of the State of Washington who lives several miles from the Oregon border. He has been diagnosed as terminally ill with less than six months to live. He is under the care of Albert Goodheart, an Oregon physician who is on the staff of the Tender Mercies Hospital. Because of its location near the Oregon/Washington border, 60 percent of the patient’s treated by Tender Mercies live in Washington. Mr. Bacon’s written request for medication for the purpose of terminating his life was rejected by Dr. Goodheart and Tender Mercies Hospital solely because he was not a resident of Oregon and was therefore ineligible under the provisions of the Death With Dignity Act.

            After his request was rejected, a suit was filed by John Bacon who is challenging the constitutionality of the provision of the Death With Dignity Act that limits its applicability to Oregon residents. A separate suit was filed by Dr. Goodheart and Tender Mercies Hospital arguing that the residency restriction in the act unconstitutionally interferes with their right to provide medical care to out of state patients and deprives them of income they would otherwise earn from caring for out-of-state patients.

            You are a law clerk to the judge assigned to both cases. The judge has asked you to write a memorandum of law detailing the constitutional arguments available to John Bacon, Dr. Goodheart and Tender Mercies in challenging the constitutionality of the residency requirement of the Oregon Death With Dignity Act as well as the arguments available to the State of Oregon in defense of the constitutionality of the residency requirements of the Act.

END OF EXAMINATION