Full opinion text
OPINION ON REMAND BREMER, Chief United States Magistrate Judge. I. INTRODUCTION...................................................... 1251 II. EQUAL PROTECTION STANDARDS.................................. 1252 A. Similarly Situated Analysis.......................................... 1254 1. Overview of Iowa DOC Institutions............................. 1254 2. Comparisons Within and Among Prisons......................... 1258 a. Limitations of Statistics.................................... 1258 b. Factors To Be Considered................................. 1259 (1) Population size ...................................... 1259 (2) Security level........................................ 1259 (3) Types of crimes..................................... 1260 (4) Length of sentence.................................. 1260 (5) Special characteristics................................ 1260 3. “Similarly Situated” Determination.............................. 1261 B. Level of Scrutiny.................................................. 1262 1. Rational Basis................................................. 1262 2. Heightened Scrutiny........................................... 1263 3. Invidious Discrimination........................................ 1264 C. Standards Applied.................................................. 1264 III. FINDINGS OF FACT AND CONCLUSIONS OF LAW.................. 1265 A. Claims Applicable to All ICIW Inmates.............................. 1265 1. Findings of Fact.............................................. 1265 a. Classification of Inmates for Purposes of Institutional Incarceration ...................................................... 1265 b. Access to the Courts, Libraries, and Legal Materials........ 1267 (1) Legal assistance practices by inmates ................. 1267 (2) Legal materials in the library........................ 1267 (3) Law library hours................................... 1268 (4) Photocopies of legal materials......................... 1269 (5) Availability of trained law library aides................ 1269 c. Annual Classification Reviews.............................. 1269 d. Classification Screening for Jobs ........................... 1270 e. Classification Decisions to Segregate HIWAIDS Inmates..... 1271 f. Movie Censorship......................................... 1271 g. Access to Counselors...................................... 1272 h. Access to Canteens........................................ 1272 i. Mathematical Errors in Canteen Orders .................... 1273 j. Long-Term Rehabilitative Treatment....................... 1273 k. Rate of Pay for Work Allowance........................... 1274 l. Educational Opportunities and Vocational Training........... 1275 m. Rehabilitation — Gender Self-Esteem ........................ 1276 n. Level A of the ICIW Inmate Level System................. 1276 o. Visitation................................................. 1277 2. Conclusions of Law............................................ 1278 B. Claims Applicable to Minimum Live-Out Security Inmates............ 1280 1. Findings of Fact.............................................. 1280 a. Percentages of Women and Men Inmates Classified to Minimum Live-Out Housing......................................... 1281 b. Housing and Programming................................. 1281 c. Institutional Off-Grounds Work Opportunities................ 1281 d. Yard Time and Yard Privileges and Opportunities........... 1282 e. Library Access............................................ 1282 f. Furloughs for Minimum Live-Out Inmates.................. 1282 g. Visitation for Minimum Live-Out Inmates................... 1282 h. Substance Abuse Programs for Women and Men Minimum Live-Out Inmates.............................................. 1283 2. Conclusions of Law............................................ 1283 C. Claims Applicable to Minimum Security Inmates ..................... 1284 1. Findings of Fact.............................................. 1284 a. Percentages of Women and Men Inmates Classified to Minimum Live-Out................................................. 1285 b. Off Institutional Grounds and Off Secured Perimeter Work Opportunities............................................. 1285 c. Yard Time and Yard Privileges and Opportunities........... 1285 d. Library Access............................................ 1286 e. Access to Hobby Crafts................................... 1286 f. Telephone Privileges....................................... 1287 g. Limitation on Canteen Privileges........................... 1287 2. Conclusions of Law............................................ 1287 D. Claims Applicable to Medium Security Inmates....................... 1288 1. Findings of Fact.............................................. 1288 a. Policies and Practices for Inmates Obtaining Better Housing and Greater Privileges......................................... 1288 b. Yard Privileges........................................... 1289 2. Conclusions of Law............................................ 1289 E. Claims Applicable to Maximum Security Inmates..................... 1289 1. Findings of Fact.............................................. 1289 a. Policies and Practices for Inmates Obtaining Better Housing and Greater Privileges......................................... 1290 b. Yard Privileges........................................... 1290 2. Conclusions of Law............................................ 1290 IV. CONCLUSION........................................................ 1290 APPENDIX................................................................. 1292 A. Iowa DOC Statistical Summary (February 1994)...................... 1292 B. Time Served Before Parole (July 1992 — June 1993)................... 1298 C. Summary of Institutional Security Levels and Inmate Security Levels (April 1993) ....................................................... 1298 D. Types of Crimes (February 1994) ................................... 1299 E. Number of Sentences Per Inmate (February 1994) ................... 1299 F. Custody Score Breakdown (February 1994) .......................... 1299 I. INTRODUCTION Plaintiff class, inmates of the Iowa Correctional Institute for Women (ICIW), brings this 42 U.S.C. § 1983 action alleging that Defendants, officials of the Iowa Department of Corrections (DOC), violated their rights under the Fourteenth Amendment Equal Protection Clause. Plaintiffs claim that certain policies, programs, practices, services, and facilities at the State’s only all-female correctional institution differ substantially from those at various components of Iowa’s all-male correctional institutions, and that these differences constitute an equal protection violation. Plaintiffs do not challenge the regulation requiring women inmates to be segregated from men inmates, or claim discriminatory funding. Plaintiffs seek only declaratory and injunctive relief, not money damages. The case was tried before this court for six days in March and April of 1994 at ICIW in Mitchell-ville, Iowa. The record was reopened for two days in June and July of 1994, regarding law’s newly imposed security level incentive system. This court held that the Plaintiff class was not similarly situated to select groups of male inmates in the Iowa DOC system, relying on Klinger v. Department of Corrections, 31 F.3d 727, 731 (8th Cir.1994), cert. denied, — U.S. -, 115 S.Ct. 1177, 130 L.Ed.2d 1130 (1995) (rejecting equal protection challenge by the female inmates of the Nebraska Department of Corrections). Pargo v. Elliott, 894 F.Supp. 1239, 1242 (S.D.Iowa 1994) (Opinion and Judgment). This court also held that Plaintiffs failed to establish an equal protection violation, and found no discriminatory treatment or motive in the programs at ICIW. Judgment was entered for Defendants on September 23, 1994. On Plaintiffs’ appeal, the case was remanded for more detailed findings of fact and explanation of the conclusions of law reached. Pargo v. Elliott, 49 F.3d 1355 (8th Cir.1995). Both parties submitted supplemental briefs in light of the Eighth Circuit’s opinion in this matter. The court now enlarges its findings of fact and conclusions of law. The court has attempted to be concise in fulfilling the instructions on remand, mindful of the admonition that inter-prison program comparison “results in precisely the type of federal court interference with and ‘micro-management’ of prisons that Turner condemned.” Klinger, 31 F.3d at 733 (following Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). The court has tried to strike a balance in finding sufficient facts on the issues at hand, without an overly elaborate detailing of prison life in Iowa. However, more than a cursory analysis is required because the reviewing court has requested “factual findings about the various programs and services, whether men and women inmates were similarly situated in terms of any particular program area, the differences in the programs, or the reasons for them.” See Pargo, 49 F.3d at 1357. As requested, the court has expanded its conclusions of law to elaborate upon the correct standard to apply to the facts. The legal analysis and factfinding here should serve for a clear understanding of the court’s conclusion that, with regard to the claims raised, women and men inmates in Iowa are not similarly situated. The court also analyzed the record and determined that Defendants did not violate Plaintiffs’ constitutional rights to equal protection. II. EQUAL PROTECTION STANDARDS The court begins its analysis of the facts by looking at the classifications, by security level and programming, which Plaintiffs have selected for their claims of dissimilar treatment. The groups to be compared are not comprised of all women and men inmates. Rather, Plaintiffs have elected to focus on programs and services offered to discrete groups of women inmates at ICIW, which comprise nearly all of the female prison population in Iowa. To accept the Plaintiffs’ premise that “inmates are inmates” ignores the many factors relating to each penal institution in Iowa, as well as the constant changes affecting programs and services at each institution. The court thus looks beyond the gross classification of inmate status only. The Fourteenth Amendment Equal Protection Clause of the United States Constitution requires the states to treat similarly situated persons in a substantially equivalent manner. F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 562, 64 L.Ed. 989 (1920); Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). However, “[dissimilar treatment of dissimilarly situated persons does not violate equal protection.” Klinger, 31 F.3d at 731. “Thus, the initial inquiry in analyzing an equal protection claim is to determine whether a person is similarly situated to those persons who allegedly receive favorable treatment.” United States v. Whiton, 48 F.3d 356, 358 (8th Cir.1995). Courts have applied a variety of analyses to this threshold question, in some eases determining only that all inmates must be similar because they are inmates, and in other cases analyzing factors which govern the different institutions. The Plaintiffs claim that certain groups of women inmates at ICIW are similarly situated to certain groups of male inmates at selected correctional institutions. To determine the question, the court must look beyond one’s status as an inmate, and analyze the similarities and differences in the makeup of the various institutions. Klinger, 31 F.3d at 731-32; see also Timm v. Gunter, 917 F.2d 1093, 1103 (8th Cir.1990). In Pargo, this court used population, average security levels, types of crimes, and average length of sentence as key factors to determine that ICIW and its women inmates are not similarly situated to Iowa correctional institutions housing male inmates of various security levels. Pargo, 894 F.Supp. at 1240-41; see Klinger, 31 F.3d at 731-32. The court found that ICIW’s small population and the segregation of female inmates from male inmates influence programming, and there are clear differences in each prison’s security needs. Pargo, 894 F.Supp. at 1242. An examination of key factors relating to the various correctional institutions in Iowa supports the court’s conclusion. A. Similarly Situated Analysis Plaintiffs have made comparisons between women inmates at the women’s institution and male inmates at a variety of men’s institutions. Iowa has eleven correctional institutions. One is designed to house female inmates on a long-term basis. Another houses men and women inmates on a short-term basis at the DOC prisoner intake center. The remainder are men’s institutions housing prisoners for varying terms. In determining whether women and men inmates are similarly situated, the court has examined all eleven institutions and makes the following findings of fact. 1. Overview of the Iowa DOC Institutions All eleven Iowa correctional institutions operate under the same general policies of the Iowa Code. DOC is the agency that is responsible for the control, treatment, and rehabilitation of all prison inmates in the state. Iowa Code § 904.102 (1993). The DOC states as its mission: “To protect the public through the community based and institutional supervision of offenders sentenced to the Department while providing a safe and humane environment and programming that encourages responsible behavior.” Iowa DOC, Annual Report (1994). Thus, the DOC has dual goals of punishment and rehabilitation. Prison officials identified a number of penological interests that motivate the various policies adopted by the DOC: maintaining overall prison security for inmates, visitors, and staff within the prison; public safety outside the prison; inmate management that facilitates rehabilitation and security interests. (Defs.’ Ex. C, DOC Policies IN-V-12; IN-V-20.1 — 20.5.) DOC policies apply to all institutions, without regard to gender. Each institution has funding to complete its goals. (Appendix C.) Iowa Medical and Classification Center (IMCC). IMCC, located in Oakdale, was built in the early 1970s as the Iowa Security Medical Facility, and converted to a correctional facility in the mid-1980s. IMCC is a medium security institution authorized to house minimum, medium, and maximum security inmates. (Pis.’ Ex. 115.) It is the “reception center” where all prisoners report after sentencing for assignments to other prisons. It also houses a few inmates for longer than the usual 90-day intake review, as well as inmate patients for mental health treatment. A double fence with armed guard towers surrounds the perimeter of the facility. (Trial Tr. at 976.) According to 1993 population figures, IMCC housed 579 inmates; this included 148 inmates classified as minimum security, 284 inmates classified as medium security; 10 inmates classified as maximum security, and 137 unclassified inmates. (Appendix C.) At the time of trial, eight inmates at IMCC were serving life sentences. (Appendix D.) There typically are 10-15 women with extraordinary medical, psychiatric, discipline, or security concerns housed at IMCC. (Trial Tr. at 398-99; Loeffelholz Dep. at 6.) These women inmates are returned to ICIW when possible. (Brandt Dep. at 15-17.) Iowa State Penitentiary (ISP). ISP, the oldest prison west of the Mississippi, was built in 1839 at Fort Madison. It is a traditional walled prison with armed guard towers. (Trial Tr. at 516.) The penitentiary is a maximum security facility. (Appendix C.) Inmates live in single cells. ISP has a design capacity of 570. (Appendix C.) According to 1993 population figures, ISP housed 596 inmates; this included 61 inmates classified as minimum security, 64 inmates classified as medium security; 471 inmates classified as maximum security, and no minimum live-out inmates. (Appendix C.) ISP also houses long-term protective custody inmates. (Trial Tr. at 390.) At the time of trial, about 230 inmates at ISP were serving life sentences. (Appendix D.) Iowa Men’s Reformatory (IMR). IMR, located in Anamosa, was built in 1873. Stone walls surround the prison, with armed guard towers at various points. (Trial Tr. at 549, 554.) IMR is a medium security institution authorized to house minimum and medium security inmates. IMR has a design capacity of 840, housing inmates in cells. (Appendix C. ) According to 1993 population figures, IMR housed 1293 inmates; this included 66 inmates classified as minimum security, 1154 inmates classified as medium security; 73 inmates classified as maximum security, and no minimum live-out inmates. (Appendix C.) At the time of trial, 91 inmates at IMR were serving life sentences. (Appendix D. ) Luster Heights Work Camp (LHWC). LHWC is a satellite facility of IMR, located in Harpers Ferry about 90 miles away from Anamosa. The facility is designed to house 82 inmates. (Hebron Dep. at 5; Wood Dep. at 4.) There is no perimeter security. (Trial Tr. at 555.) According to 1993 population figures, LHWC housed 72 inmates; this included 71 inmates classified as minimum security, and one inmate classified as medium security. (Appendix C.) At the time of trial, no inmates at LHWC were serving life sentences. (Appendix D.) North Central Correctional Facility (NCCF). NCCF is a minimum security facility in Rockwell City, with a razor wire perimeter fence patrolled by armed guards in vehicles. (Trial Tr. at 976.) A majority of its population comes directly from IMCC. (Burt Dep. at 5.) The average stay at NCCF is six months because most of the inmates there are awaiting parole. (Burt Dep. at 3-4.) The facility has a design capacity of 220. (Appendix C.) According to 1993 population figures, NCCF housed 236 inmates; this included 235 inmates classified as minimum security, and one inmate classified as maximum security. (Appendix C.) At the time of trial, two inmates at NCCF were serving life sentences. (Trial Tr. at 394.) Mount Pleasant Correctional Facility (MPCF). MPCF is a medium security unit with double razor wire fences and armed guard towers. (Trial Tr. at 976; Carruthers Dep. at 7.) MPCF has a design capacity of 528. (Appendix C.) According to 1993 population figures, MPCF housed 807 inmates; this included 71 inmates classified as minimum security, and 736 inmates classified as medium security. (Appendix C; Roffe Dep. at 53.) At the time of trial, 11 inmates at MPCF were serving life sentences. (Appendix D.) The focus at MPCF is on treatment. (Roffe Dep. at 3.) Approximately 55% of the inmates housed there are in a residential sex offender program or residential substance abuse program; the remaining 45% are general population inmates. MPCF is a licensed treatment center. Clarinda Correctional Facility (CCF). CCF is a medium security facility with double razor wire fences and armed guard towers to secure the perimeter. (Trial Tr. at 385-86, 974.) CCF has a separate living unit that accommodates 60 inmates in The Other Way (TOW) program, a licensed residential substance abuse program. CCF has a design capacity of 155 inmates. (Appendix C.) According to 1993 population figures, CCF housed 273 inmates; this included 71 inmates classified as minimum security, and 202 inmates classified as medium security. (Appendix C.) At the time of trial, nine inmates at CCF were serving life sentences. (Appendix D.) Iowa Correctional Release Center (CRC). CRC is a minimum live-out facility in Newton. Some guards at the facility are armed; there are no guard towers. (Trial Tr. at 274.) CRC has a design capacity of 121. (Appendix C.) According to 1993 population figures, CRC housed 148 inmates; this included 146 inmates classified as minimum security, and two inmates classified as medium security. (Appendix C.) At the time of trial, no inmates at CRC were serving life sentences. (Appendix D.) Farm 1 and Farm 3. The “Farms” are two minimum security facilities near ISP that operate as working farms. The main facility is at Farm 1, located two miles north of ISP. Farm 3, located ten miles south of ISP near Montrose, is more handicapped accessible. (Helling Dep. at 10; Hedgepeth Dep. at 20.) Farm 1 inmates work on the facility’s farm and do maintenance work at ISP. (Hedgepeth Dep. at 22.) Farm 3 inmates work at a tree farm in Shimek Forest, as well as working on the facility’s regular farm. (Helling Dep. at 10; Hedgepeth Dep. at 20.) The Farms have a combined design capacity of 150. (Appendix C.) According to 1993 population figures, the Farms housed 143 inmates; this included 142 inmates classified as minimum security, and one inmate classified as medium security. (Appendix C.) At the time of trial, no inmates at the prison farms were serving life sentences. (Appendix D.) John Bennett Correctional Center (JBCC). JBCC is located adjacent to one wall of ISP. The perimeter is secured by a double razor wire fence and armed guard towers. (Trial Tr. at 515-16.) Unarmed guards are stationed within the units. JBCC is designated a medium security facility, with a design capacity of 100 inmates, and 137 minimum, medium, and maximum security inmates were housed there at the time of trial. (Trial Tr. at 514; Appendix C.) According to 1993 population figures, 12 inmates were classified as minimum security, 126 inmates were classified as medium security; and one inmate was classified as maximum security. (Appendix C.) At the time of trial, 11 inmates at JBCC were serving life sentences. (Appendix D.) Iowa Correctional Institution for Women (ICIW). The court extensively toured the ICIW facility in connection with this litigation and held the trial on site in March and April of 1994. The women’s prison was first located in Rockwell City (at the NCCF facility that now houses male prisoners) and moved in 1985 to the present Mitchellville site, which was formerly a training school for juvenile girls. (Trial Tr. at 587.) Some of the staff at the training school remained when the facility was converted to the women’s prison. (Trial Tr. at 587.) The ICIW facility, located in a pastoral setting on the edge of a farming community about 20 miles east of Des Moines, consists of structures that were red brick school buildings, modified with security doors and windows for correctional use. Modern brick and block buildings have been added recently for dining, laundry, medical clinic, drug treatment, and housing. (Trial Tr. at 596.) Iowa Prison Industries has a commercial printing facility on-site, which employs women inmates. The ICIW buildings surround an expansive, shaded commons area with large trees, benches, volleyball nets, and exercise stations. A large open yard used for team sport activities separates the outer grounds of the facility from neighboring com fields. ICIW, classified as medium security, is not a walled prison, and has no guard towers. (Pis.’ Ex. 115.) A single fence with razor wire secures the perimeter, enclosing all but two of the ICIW buildings; the minimum live-out cottage and drug treatment building are just outside of the fence. (Trial Tr. at 598.) ICIW is the only prison in the Iowa system with no armed guards. (Trial Tr. at 977.) Before the perimeter fence was built in 1993, inmates could occupy the yard only with a guard present. (Trial Tr. at 594; Sebek Dep. at 40.) The construction of the perimeter fence increased the freedom of movement for most inmates at the institution. (Trial Tr. at 594.) Today, rather than presenting an ominous atmosphere, ICIW is more reminiscent of the campus of a rural high school. Cf. Klinger, 824 F.Supp. at 1381 (noting that “[ajlthough this case is not about ambience, in many respects [the Nebraska Center for Women] looks like a college campus”). During the day, the majority of the inmates are engaged in classroom, work, or recreational activities. ICIW currently provides a secure but relatively nonrestrictive environment conducive to rehabilitation. ICIW is the only prison facility in Iowa designed for long-term housing of inmates of all security levels (minimum, medium, and maximum security), with a minimum live-out (MLO) facility. (Trial Tr. at 601.) ICIW also is the only Iowa facility that houses female inmates on a long-term basis. A new building houses medium and maximum security level prisoners. (Trial Tr. at 608.) Minimum security inmates either reside in the general population at ICIW, or are housed in the minimum live-out facility just outside the perimeter fence. (Trial Tr. at 611.) About 300 women are incarcerated in the Iowa prison system, comprising about 6% of the total Iowa prison population. (Appendix A.) At the time of trial, approximately 250 women were housed at ICIW. (Appendix A.) ICIW has a design capacity of 230, with dormitory rooms equipped for two, four, or six inmates. (Trial Tr. at 854; Appendix C.) Inmate population at ICIW increased from about 60, in 1985, to the current population. Most ICIW inmates are designated at minimum and medium security levels. At the time of trial, only 16 inmates at ICIW were at the maximum security level, and about 20 inmates resided in the MLO facility. (Appendix C.) At the time of trial, 17 inmates at ICIW were serving life sentences. (Trial Tr. at 617; Appendix D.) 2. Comparisons Within and Among Institutions In assessing whether women inmates at ICIW are similarly situated to inmates at men’s institutions, no single factor dictates the outcome. The Klinger appellate court, as has this court, looked to the circumstances of incarceration: population, security levels, types of crimes, and length of sentence as among the key factors in determining whether women inmates and men inmates in varying distinctive institutions are similarly situated for this equal protection challenge. The size of the institution and the types of inmates housed there necessarily will affect the level of security and the number, type, and length of programs offered. 31 F.3d at 731-32. An overall comparison of Iowa’s prison population with the population at ICIW shows that ICIW is, in effect, a microcosm of the entire prison population. The ICIW population is not, however, similar to the inmate populations at any of the individual men’s institutions. The age distribution, the educational levels, and the sentences imposed on ICIW inmates, are roughly similar to the prison population as a whole. (Appendix A.) Unlike the women inmates, however, male inmates are concentrated in various institutions according to security levels. (Appendices A and C.) The result is greater variation among the various men’s institutions, rather than within a single institution, with respect to age distribution, educational level, and sentence length. ICIW reflects greater variation within a single institution. Given these significant differences, prison administrators at each institution face very different challenges in providing adequate security and appropriate programming. a. Limitations of Statistics The discussion that follows is subject to an important caveat: reliance on statistical comparisons of the various institutions may be misleading. Comparisons based on statistics must be precisely limited in order to be valid. Statistical comparisons might be accomplished through the use of the arithmetic mean, the median, the mode, or some other more sophisticated type of statistical analysis. For example, there are eleven facilities in the Iowa prison system, with a total population of about 5,000 inmates. Thus, the arithmetic mean of inmates per institution is about 455. This mean does not accurately portray the wide disparities in populations, such as at IMR (1400 inmates), LHWC (75 inmates) and ICIW (230 inmates). Nor does the arithmetic mean suggest that ISP, with about 550 inmates and the largest representation of inmates serving maximum security and life sentences, represents the “average” institution in Iowa. Moreover, the arithmetic mean does not account for the composition of the security levels at the institutions. This is particularly true of ICIW, which is the only institution specifically designed to house inmates from all security levels. (Trial Tr. at 601.) According to 1993 statistics, the ICIW population comprised only 6% of the total prison population. (Appendix A.) Within the ICIW population, only about 7% were serving life sentences. (Appendix D.) At the time of trial, only about 8% of the ICIW population was housed in the MLO facility. (Appendix A.) When the sample size is so small, any conclusions as to women inmates serving life sentences or women inmates in the MLO facility may be tenuous. To make any inferences that are “statistically significant,” a larger sample would be required. See J. Levin & J. Fox, Elementary Statistics in Social Research 14-17 (1994) [hereinafter referred to as Levin & Fox]. In fact, given the small percentage of women inmates, most statistical comparisons will be of limited value. In analyzing statistics, the court also is cautious not to read into demographic data pejorative stereotypes or rationalizations “that potentially might effect the violation of a constitutional right.” Bills v. Dahm, 32 F.3d 333, 336-37 (8th Cir.1994) (equal protection challenge between a men’s institution and a women’s institution regarding visitation by a male inmate’s infant). Smaller institutions are not immune from statistical comparisons, but sound conclusions are necessarily limited. Thus, in discussing “averages” within the prison population in Iowa, the court is generally aware of commonalities not skewed by the arithmetic means. The court finds frequency distribution rather than the arithmetic mean more appropriate to its analysis. See Levin & Fox, supra, at 12-14. For example, the average education level at ICIW is 11.6 years, as is true of LHWC, MPCF, NCCF and Farm 1. (Appendix A.) Yet, the actual number (and the population percentage) of inmates who have completed a GED varies from 91 (38%) at ICIW to 39 (51%) at LHWC. b. Factors To Be Considered In analyzing Plaintiffs’ claims, the court has examined the factors set out in Klinger, 31 F.3d at 731-32, in determining whether the women and men inmates are similarly situated. These factors include population size, security levels, types of crimes, average length of sentences, and special characteristics. (1) Population size The population size of an institution (the number of inmates actually housed in the facility, as opposed to design capacity) is an important factor that is used when determining the policies and programs at a particular institution. Security and management concerns at a large, overcrowded institution are very different from the concerns at a small institution that is not overcrowded. In 1994, ICIWs inmate population was 238. (Appendix A.) ICIW falls in the mid-range of the Iowa prison population size, with populations in the eleven facilities varying from about 1400 to about 50. General population statistics do not take into account the multilevel security issues that arise at ICIW. (2) Security level A second factor that influences daily operation is the security level at each institution. The court does not place great weight on the “average” (arithmetic mean) security level at ICIW because the ICIW population includes a wider range of security levels than any single men’s institution. In the men’s institutions, similar security level inmates, for the most part, reside together in institutions appropriately designed for their security level. (Appendix C.) The arithmetic mean security level for men’s institutions is therefore more likely to reflect the frequency distribution at that institution than would be true for ICIW. For example, ISP is designated a maximum security institution. As of April 1993, almost 90% (471) of the inmates at ISP were designated maximum security. (Appendix C.) MPCF is designated a medium security facility. About 90% (736) of the inmates were classified as medium security. CRC is designated a minimum security facility; nearly all inmates were designated medium security. Although ICIW was designated a medium security facility, only about half of the inmates were designated medium security. (Appendix C.) (3) Types of crimes A third factor in determining similarity is the types of crimes for which inmates were convicted. Types of crimes for which inmates are sentenced are separated by the DOC into four categories: crimes against persons, nonperson crimes, chemical crimes, and life sentences. (Appendix A.) The type-of-crime factor will weigh heavily on administrative decisions concerning security and the type of rehabilitative programs and policies that should be implemented. At the time of trial, just under half of the offenses committed by inmates housed at ICIW were nonperson crimes, one-fourth were crimes against persons, and one-fifth were chemical crimes; the remaining 5% were life sentences. (Appendix D.) Some of the men’s institutions predominantly housed inmates convicted of nonperson offenses (the Farms, LHWC, CCF, NCCF, and CRC) while others were about evenly divided between person and nonperson crimes (JBCC, IMR, IMCC, and MPCF) or predominantly crimes against persons (ISP). (Appendix D.) The population at ICIW is more diverse in terms of types of crimes committed than is reflected in individual men’s institutions. The wider variations in security levels raise different security concerns for the prison officials, and types of offense are only somewhat probative in comparing institutions. (4) Length of sentence A fourth factor to be examined is the length of sentence served by the inmates at each individual institution. The “average” sentence (that is, the arithmetic mean) imposed upon an inmate at ICIW is about 11 years. (Defs.’ Ex. B.) As with the arithmetic mean of security levels, the arithmetic mean of sentences is misleading with respect to ICIW, which is only a small part of the total prison population and which houses a broad range of inmates. A small or diverse population may skew calculations of the arithmetic mean. Prison officials testified that women generally did not spend as much time in prison as men, even for committing similar crimes. (Trial Tr. at 792; Halford Dep. at 10.) Warden Long attributed this phenomenon (experienced nationwide) to three factors: (1) women generally commit fewer crimes; (2) women tend to commit less serious crimes; and (3) women are perceived as a lower risk to society because they often have more ties to family and community, and thus are paroled sooner. (Trial Tr. at 832.) As shown in data from February 1994, Iowa women inmates generally had fewer sentences and lower security classifications than men inmates. (Appendices E and F.) In 1992-93, 203 women and 2,098 men inmates were eligible for parole. When comparing sentences served by inmates paroled for serious or aggravated misdemeanors, women served an average of 8.5 months, and men served an average of 7.75 months. Of inmates paroled for undesignated felonies, women served an average of 148 months, and men served an average of 218 months. Of inmates paroled for class D felonies, women served an average of 14 months, and men served an average of 17 months. Of inmates paroled for class C felonies, women served an average of 26 months, and men served an average of 40 months. Of inmates paroled as habitual offenders, women served an average of 96 months, and men served an average of 73 months. From June 1992 — July 1993, no women inmates were eligible for parole for class B felonies, but men inmates served an average of 92 months. (Appendix B.) Thus, on the whole, women served less time than men, especially for the more serious felonies. (5) Special Characteristics Finally, there may be special characteristics of one group of inmates not comparable to another that should be considered when determining the similarity of the institutions. The Klinger appellate court found: female inmates as a class have special characteristics distinguishing them from male inmates, ranging from the fact that they are more likely to be single parents with primary responsibility for child rearing to the fact that they are more likely to be sexual or physical abuse victims. Male inmates, in contrast, are more likely to be violent and predatory than female inmates. 31 F.3d at 731-32. In assessing whether institutions are similarly situated with respect to gender, the court takes notice of claims of special characteristics when determining whether any disparity in policies is justified. The court finds that ICIW does offer special programs directed toward special needs of women inmates. ICIW does not offer a sexual abuse victim treatment program because administrators believe there is no definitive research that significantly correlates victimization and criminal behavior. (Halford Dep. at 37.) ICIW officials recognize that the majority of the inmates report that they were victims of domestic violence, physical violence or sexual abuse. (Brainerd Dep. at 11.) Programs about domestic violence, prostitution, and incest survivors were developed a number of years ago. (Trial Tr. at 590-91.) A family preservation program also is offered at ICIW because many of the inmates were custodial parents before entering the institution. (Trial Tr. at 810.) Inmates have received counseling for postpartum depression. (Brainerd Dep. at 34.) ICIW provides classes in anger management and self-esteem. (Brainerd Dep. at 38-39.) Inmates with eating disorders have been sent to IMCC. (Brainerd Dep. at 35.) Thus, Iowa prison officials consider special inmate needs in setting up programs at ICIW. 3. “Similarly Situated” Determination Based on the factors of population size, security level, types of crimes, lengths of sentences, and special characteristics of inmates, the court concludes that ICIW inmates are not similarly situated to the various categories of male inmates at selected institutions. These factors highlight several important differences between women and men inmates. First, the women’s institution uniquely combines all security levels of inmates. Women inmates constitute a very small portion (6%) of the total prison population, so they all can be housed at a single institution. Second, women generally spend less time in prison than men because women generally are sentenced for fewer crimes, and for less serious crimes. Women often are paroled earlier than men because they are considered to be lower risk parolees. Third, characteristics common to inmates at the women’s institution are different from characteristics of inmates at men’s institutions. The differences among the various men’s institutions and ICIW are so significant that comparisons between the two would ignore “separate sets of decisions based on entirely different circumstances.” See Klinger, 31 F.3d at 732. The court holds that Iowa women inmates and men inmates, grouped in large or divided classifications, are not similarly situated. Generally, equal protection analysis requires that the Fourteenth Amendment be applied only to groups that are similarly situated. Ending the inquiry at this point, however, is unwarranted if there are other indications of gender-disparate treatment or invidious discrimination. At least one Eighth Circuit case has indicated that, even when the comparison groups are not found to be similarly situated, a district court must proceed to consider whether differential treatment has a rational relationship to a legitimate state interest. Bills v. Dahm, 32 F.3d 333, 336 (8th Cir.1994). In another case, the Eighth Circuit reviewed equal protection claims to ensure that there had been no invidious discrimination. Ricketts v. City of Columbia, 36 F.3d 775, 781 (8th Cir.1994). Despite the conclusion that women and men are not similarly situated, the court will proceed with further analysis based on these precedents, as it did in Pargo, 894 F.Supp. at 1243. B. Level of Scrutiny 1. Rational Basis In a case involving an inmate gender discrimination claim, the Eighth Circuit held that even if classes are found not to be similarly situated, a court still must apply a rational basis analysis. Bills, 32 F.3d at 336. The Bills court instructed as follows: Although Mr. Bills may not be similarly situated to the inmates of the NCW, he is entitled to a determination of whether the regulation complained of is arbitrary. Where men and women are found not to be similarly situated, the court must still determine whether it would have been reasonable for a prison official to believe that the denial of overnight child visitation to Mr. Bills, in light of the program at the NCW, was rationally related to a permissible state objective. In Parham, the Court upheld a Georgia law that denied a biological father the right to recover in a wrongful death action for the death of an illegitimate child. The decision of the Court affirmed the Georgia Supreme Court’s determination that, although the mother and father were not similarly situated, the statute had to at least have a rational relationship to a legitimate state interest. 32 F.3d at 336 (relying on Parham v. Hughes, 441 U.S. 347, 99 S.Ct. 1742, 60 L.Ed.2d 269 (1979)) (citations omitted). There have been at least three published opinions by the Eighth Circuit since Bills was decided in which the court concluded that the parties were not similarly situated, and then did not continue on to determine whether a rational basis for differential treatment existed. Association of Residential Resources v. Gomez, 51 F.3d 137, 140-41 (8th Cir.1995) (“Because the private and public [mental health] facilities are not similarly situated, [a state rule providing different reimbursement formulas] does not violate the Equal Protection Clause”; providing alternative holding that even if the facilities were similarly situated, “the dissimilar treatment is rationally related to a legitimate state purpose”); Ricketts, 36 F.3d at 781 n. 2 (gender discrimination; “dissimilar treatment of those not similarly situated does not result in an equal protection violation”); Klinger, 31 F.3d at 731 (prison gender discrimination case; “[a]bsent a threshold showing that she is similarly situated to those who allegedly receive favorable treatment, the plaintiff does not have a viable equal protection claim”). In none of these cases was Bills followed, or overruled. 2. Heightened Scrutiny When a challenge is made to a facially discriminatory policy, or one which has been shown to have a disparate impact on women, the court reviews under a heightened scrutiny analysis. See Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976). Traditionally, a facial classification triggers the stepped-up scrutiny in order to remedy the “fixed notions concerning the roles and abilities of males and females.” Pitts, 866 F.2d at 1454 (quoting Mississippi Univ. for Women, 458 U.S. at 724, 102 S.Ct. at 3336). The court in Pitts, applying the Craig heightened scrutiny test, reviewed “general budgetary and policy choices” made in a facially gender based decision not to build a women’s prison facility in the local District of Columbia area. Id. at 1454-55. Defendants argue that the heightened scrutiny test does not apply because there are no differences in treatment, and the classes of inmates are not similarly situated. The Defendants claim that the burden of proof never shifts to the government to establish that gender classification has an important purpose and that the relationship between that purpose and classification is substantial. Therefore, Defendants have elected not to claim “important governmental objectives” in any different treatment of male and female inmates. (Defs.’ Answer to Interrog. 132.) Prison policies may be subject to a heightened scrutiny review in an equal protection analysis of the decision making process. “[M]ale and female inmates are similarly situated for purposes of the process by which the Department makes programming decisions. That is, instead of alleging differences in programs between prisons, a proper equal protection claim may allege differences in the process by which program decisions were made at the prisons.” See Klinger, 31 F.3d at 733 n. 4 (emphasis in original). However, Plaintiffs have not cited to any facially gender based state law or “general budgetary and policy choices” in support of their claims. Nor have the Plaintiffs challenged the decision to segregate women and men inmates, or any budget allocation for ICIW. Additionally, Plaintiffs failed to present evidence of policies that were motivated by discriminatory intent. See Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 274, 99 S.Ct. 2282, 2293-94, 60 L.Ed.2d 870 (1979). Because of this, the court does not engage in the Craig heightened scrutiny analysis. In spite of the prison dissimilarities, administrators’ decisions are subject to scrutiny. After applying a rational basis analysis, the court has examined the entire record to determine whether any vestiges of invidious discrimination remain at ICIW, even though women and men inmates are not similarly situated. Pargo, 894 F.Supp. at 1243. 3. Invidious Discrimination The Court in J.E.B. v. Alabama ex rel. T.B., — U.S. -, -, 114 S.Ct. 1419, 1425, 128 L.Ed.2d 89 (1994), recently observed that “our Nation has had a long and unfortunate history of sex discrimination.” Society’s discriminatory and stereotypical assumptions pertain, as well, to women in prisons. See Rosemary Herbert, Note, Women Prisons: An Equal Protection Evaluation, 94 Yale L.J. 1182, 1192 (1985) (arguing that gender-segregated prisons “developed from inaccurate, paternalistic assumptions of the type that have been found to stigmatize in other contexts”). The court is aware of the historical trends in corrections when women have been treated in stereotypical and paternalistic ways. See Meda Chesney-Lind, “Rethinking Women’s Imprisonment: A Critical Examination of Trends in Female Incarceration,” in The Criminal Justice System and Women 113 (Barbara R. Price & Natalie J. Sokoloff eds., 2d ed. 1995) [hereinafter referred to as Chesney-Lind]. The court also is aware that, historically, women’s prison programs were “fewer and less varied” than the men’s prison programs. Merry Morash et al., A Comparison of Programming for Women and Men in U.S. Prisons in the 1980s, 40 Crime & Delinq. 197, 197 (1994) [hereinafter referred to as Morash], Women’s prison programs have been criticized for inadequate variety; qualitative differences based on stereotypes of women and men; and failure to address unique needs of women inmates. Id. These circumstances do not, however, exist at ICIW. In reviewing the extensive record in this case, the court finds Iowa DOC officials have acknowledged their awareness of historical trends. The ICIW warden testified that one of her goals was to eliminate historical paternalism by bringing ICIW into compliance with DOC policy, which means administering programs that establish in the women inmates the attitudes of being independent, self-sufficient, and having pride and self-worth. (Trial Tr. at 818-20.) For women inmates, the Iowa DOC provides a variety of programs; educational opportunities; access to legal materials; and work opportunities that include jobs not limited to those based on stereotypical views of women. When inmates who are not similarly situated raise claims of gender discrimination, this court will still take cognizance of the valid constitutional claims of prison inmates. The court will not apply a heightened scrutiny test when no facially discriminatory policy has been challenged, but the court has scrutinized the evidence for signs of invidious gender discrimination, “the ultimate object of heightened scrutiny.” See Pitts, 866 F.2d at 1459. The burden of proof remains on Plaintiffs to identify policies or processes which discriminate against women. ‘When a widespread custom of a municipality impacts disproportionately on one gender, an equal protection violation arises ‘only if that impact can be traced to a discriminatory purpose.’ ” Ricketts, 36 F.3d at 781 (citing Feeney, 442 U.S. at 272, 99 S.Ct. at 2292-93). C. Standards Applied In the Findings of Fact and Conclusions of Law section that follows, the court has detañed differences and simüaríties in programs and services offered to ICIW women and offered at certain men’s institutions. The court also has scrutinized the programs and services offered to ICIW inmates of aü security levels using a rational basis analysis, taking cognizance of the legitimate penological interests established in the record. See Turner, 482 U.S. at 84, 107 S.Ct. at 2259; Bills, 32 F.3d at 336. Although the court bypassed a Craig heightened scrutiny analysis, it has searched for invidious discrimination in programming decisions and implementation. See Klinger, 31 F.3d at 733; Ricketts, 36 F.3d at 781. III. FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiffs order their allegations in the following groupings: claims applicable to all ICIW inmates; claims applicable to minimum live-out inmates; claims applicable to minimum security inmates; claims applicable to medium security inmates; and claims applicable to maximum security inmates. The court will address the issues in that order. A. Claims Applicable to All ICIW Inmates 1. Findings of Fact Plaintiffs raise 15 issues pertaining to all ICIW inmates. Again, the court finds women inmates are not similarly situated to men inmates. Based on the following findings of fact, the court concludes that the challenged policies are gender neutral in design and application. In addition, the court concludes that there is a rational basis for the implementation of these gender neutral policies. The court has found no evidence of any invidious discrimination. a. Classification of Inmates for Purposes of Institutional Incarceration A person sentenced to prison in Iowa, whether female or male, is first sent to IMCC, where the DOC staff assigns a custody score, based upon written objective standards imposed without regard to the inmate’s gender. (Trial Tr. at 382, 385.) The goal is to “place inmates in the least restrictive security level consistent with security and treatment needs.” (Trial Tr. at 376.) Security classifications are based on the seriousness of the offense, the inmate’s prior record, and personal and behavioral characteristics of the inmate. Gender is not a consideration in the classification decision. (Felker Dep. at 20.) The custody scores can range from 1-18 and determine the security level of the inmate. A custody score of 1-5 is classified as minimum security; a score of 6-10 as medium security; and a score of 11 and higher is classified as maximum security. (Trial Tr. at 380-81; Defs.’ Ex. C, IN-V-20.2.) The custody score determines in which of nine locations male inmates will be housed; nearly all women inmates are sent to ICIW. (Trial Tr. at 386; DOC Policy IN-V-20.2.) After initial screening at IMCC, minimum security men are housed at IMR, Farm 1 or Farm 3, NCCF, or CRC; minimum security women are housed at ICIW. (Trial Tr. at 383.) Medium security men are housed at MPCF, CCF, IMR, or JBCC; medium security women are housed at ICIW. (Trial Tr. at 385-86.) Maximum security men are housed at IMR or ISP; maximum security women are housed at ICIW. (Trial Tr. at 386.) DOC policy allows each institution to develop a “level system” to grant extra privileges to inmates as incentives for good behavior. (Defs.’ Ex. C, IN-V-20.1.) ICIW and some men’s institutions utilize level systems. The custody score, which determines the security level of the inmate (maximum, medium, or minimum security) also is used in determining an inmate’s privilege level within the institution. At ICIW, the privilege level system sets out the privileges available to inmates at the maximum, medium, or minimum security levels. Within the various security classifications, inmates can gain or lose privileges based on their behavior in the institution. Due to the variations in physical plants, population, and programming among the facilities, it is difficult to compare privilege level systems between ICIW and the men’s facilities as a whole, or even among the men’s institutions. ICIW is in a unique position, as the only prison in Iowa designed to house all security classifications of inmates, from maximum security to minimum security inmates. Thus, ICIW must accommodate a wider variation of security needs than any of the men’s institutions. (Trial Tr. at 601.) In operating the privilege level system at ICIW, prison officials separate the population within a single facility to reflect the privilege levels of the various security classifications for women in the institution. (Pls’.Ex. 131.) As a result, the privilege level system at ICIW, an institution with a single fence which houses a range from maximum to minimum live-out inmates, is different from the privilege level systems in walled institutions, such as IMR or ISP, which house inmates with primarily the same security classification, or from a privilege level system at minimum live-out facilities, such as LHWC. The less restrictive privilege levels at ICIW are comparable to those used at LHWC, the prison farms, and CRC. However, the most restrictive security level at ICIW is not comparable to institutions designated as maximum security facilities because ICIW has no walls, cells, guard towers, or armed guards. The ICIW inmates classified as medium and maximum security benefit from being housed with minimum security inmates, in that while in the general population, they mix with the minimum security inmates. Rather than governing all inmates by the requirements for the maximum security prisoners, ICIW imposes the fewest restrictions and manages behavior with fewer restrictions, particularly when compared to men’s medium and maximum security institutions. The DOC has developed policies specific to all inmates serving life sentences at any prison facility. (Defs’ Ex. C, IN-V-20.3.) Each inmate serving a life sentence is required to serve ten years at the maximum security level. (Trial Tr. at 392-93.) If after an inmate serving a life sentence has served ten years, and has had no disciplinary reports for the previous two years, reclassification to a medium security level is possible. (Trial Tr. at 393.) Then, after eight years at the medium security level, the inmate serving a life sentence may become eligible for the minimum security level. (Trial Tr. at 393.) At ICIW, women inmates serving life sentences mix with minimum security general population inmates sooner than do male inmates and generally receive more privileges than male inmates. (Trial Tr. at 621.) Plaintiffs accurately point out that male inmates are routinely transferred among institutions because of changing security classifications and treatment needs, while most women inmates remain at ICIW. The court, however, disagrees with Plaintiffs’ claim that no women inmates are classified out of IMCC to an institution whose primary role is rehabilitative treatment, or whose primary mission is to prepare inmates for successful reentry into free society. (Plaintiff Class’ Proposed Findings of Facts, Conclusions of Law and Order at 14 [hereinafter Pis.’ Proposed Findings of Facts].) The court finds ICIW has the same primary dual purpose of security through inmate management and rehabilitation through treatment and counseling as is true for the men’s facilities. (Defs.’ Ex. C, DOC Policies IN-V-12; IN-V-20.1-20.5.) Due to the size of the inmate population, the Parole Board recognizes that in Iowa, male inmates who progress through the various security levels will be transferred among institutions, whereas female inmates who progress through the various security levels will remain in the same institution under different security classifications. (Trial Tr. at 872-73.) The ICIW system of intra-institution movement by women from one security level to another, or from a living unit to the on-site treatment unit has been recognized by the Parole Board as comparable to men’s transfers from one institution to another based on changes in security classification or treatment needs. b. Access to the Courts, Libraries, and Legal Materials Plaintiffs’ claims on the issue of access to the courts can be broken into five distinct categories: (1) legal assistance practices by inmates; (2) legal materials in the library; (3) law library hours; (4) photocopies of legal materials; and (5) availability of trained law library aides. (1) Legal assistance practices by inmates Plaintiffs claim that they do not receive comparable access to inmate legal assistants because the DOC policy is applied in a more restrictive fashion at ICIW. Inmate legal assistants (“jailhouse lawyers”) are permitted at ICIW according to DOC policies. (Trial Tr. at 705-06.) Because of some confusion about the difference between jailhouse lawyers and library aides and problems relating to their use, ICIW, like most men’s institutions, requires jailhouse lawyers to register before giving advice, and to agree not to charge for the legal advice given. (Pis.’ Exs. 3, 4.) Under ICIW policy, an inmate may register with the program director to be put on a list of people available to work with other inmates by assignment or agreement. (Trial Tr. at 705.) The jailhouse lawyer can sign an agreement with another inmate to provide legal assistance at no charge. (Trial Tr. at 705.) The inmate and the jailhouse lawyer can then pass legal materials to each other for discussion. (Trial Tr. at 706.) Jailhouse lawyers cannot be involved in grievance or disciplinary matters. (Trial Tr. at 706.) Legal assistance practices by inmates at men’s facilities vary. At IMCC, jailhouse lawyers are permitted to register to assist other inmates, and inmates have access (primarily by telephone) with an attorney who handles civil matters. (Brandt Dep. at 7, 9.) ISP jailhouse lawyers cannot operate between ISP and JBCC. (Helling Dep. at 24-25. ) Jailhouse lawyer privileges can be taken away as a disciplinary measure. (Helling Dep. at 25.) Jailhouse lawyers are no longer required to register at ISP. (Helling Dep. at 26. ) At ISP, legal materials can be taken to the library, but not to the yard or gym. (Helling Dep. at 27.) IMR does not have a trained legal assistant. (Sissel Dep. at 10-13.) No evidence was developed at trial on legal assistance practices at NCCF, MPCF, CCF, CRC, the Farms, JBCC, and LHWC. As an example of the impact of ICIW’s policy on legal assistance by inmates, Plaintiffs introduced evidence that Cathy Pargo was not allowed to serve as a jailhouse lawyer because, according to ICIW officials, she had tried to circumvent prison policies in the past and misrepresented herself as a trained paralegal when she was not so trained. (Pis.’ Exs. 6, 8-14.) The court finds the officials’ testimony to be credible. Gender was not a factor in the Warden’s determination to disallow Pargo’s participation as a jailhouse lawyer, or in the ICIW policy governing practices of jailhouse lawyers. (2) Legal materials in the library Plaintiffs claim that the legal materials at ICIW are inadequate, and of a significantly lower volume than at the men’s institutions that house long-term inmates. ICIW has a law library, containing a variety of legal resources. The ICIW collection is not as extensive as the IMR or ISP collection, but both IMR and ISP serve far more inmates than ICIW. ICIW inmates can obtain additional sources from the State Law Library upon request. (Burnell Dep. at 33-34.) Women inmates generally have not been involved in as much litigation as men inmates. (Trial Tr. at 933.) On the whole, longer-term inmates engage in more litigation. (Hedgepeth Dep. at 18.) ICIW has fewer longer-term inmates, whether measured