Criminal

Gay C. Grunfeld saw a clear constitutional violation in California's prison program that let female inmates serve their sentences at home - if they were primary caregivers for a child prior to custody and if they had been convicted of a low-level, non-violent crime. The name partner at Rosen Bien Galvan & Grunfeld LLP said she was amazed to learn that the plan, known as the Alternative Custody Program, excluded male prisoners.

"That law was so denigrating to men as fathers," Grunfeld said. A female former associate at her firm brought the situation to Grunfeld's attention. "Her father had been an important caregiver in her life," Grunfeld said. As she litigated the constitutionality of the exclusion on behalf of inmate William A. Sassman, a father of two, the two associates at her firm who worked on the case, Blake Thompson and Van Swearingen, each took three-month parenting leaves, underscoring the centrality of men in their offsprings' lives, Grunfeld said. "It illustrated how fundamentally absurd the law is," she said. Sussman's need was especially compelling because his mother, who was caring for Sussman's daughters, was terminall ill with colon cancer.

The suit asserted that the program's bar on male inmates violates the 14th Amendment's equal protection clause and perpetuates gender stereotypes.

Grunfeld's legal crusade to right the wrong yielded a powerful Sept. 9, 2015 opinion by Chief Judge Morrison C. England Jr. of Sacramento, granting summary judgment to the plaintiff. Sassman v. Brown, 99 F.Supp.3rd 1223 (E.D. Cal., filed July 16, 2014).

"Judge England took the case extremely seriously and added some points we had not briefed," Grunfeld said. England wrote that "sex is an unnecessary proxy for need given the ACP's highly individualized application and case management system" and added, "the State impermissibly relies on overly-broad generalizations regarding the differences between men and women."

Grunfeld noted that the law, as first written, entitled otherwise all qualified primary caregivers to serve their sentences at home. The Legislature changed it to exclude men in 2011, and Gov. Jerry Brown signed the altered law in 2012. "The legislative analyst told [lawmakers] in an opinion letter essentially, don't do it," Grunfeld said. "They were warned."

The plaintiff, Sassman, contacted the Rosen Bien firm soon after he had been rejected by prison officials for the program. "Had he been a woman, he would have been eligible," Grunfeld said. A disturbing aspect was that state lawyers were determined to preserve the male inmate exclusion, Grunfeld said. "They defended the program and litigated to the hilt," she said. "It took all this work to send a strong message to the state to stop relying on stereotypes."

Even after England's ruling, the state wouldn't yield, Grunfeld said. "His mother has died, and he's still in prison," she said, because prison officials said they needed time to revise the program. "The judge required the corrections department to open the program immediately, but they refused. They got a six-month extension to April 9. We expect him to be in the program soon."

Grunfeld said she was especially gratified that England's opinion closely tracked the arguments against gender exclusions set out by Associate Justice Ruth Bader Ginsburg in the landmark 1996 case striking down the Virginia Military Institute's male-only policy. U.S. v. Virginia, 518 U.S. 515.

"In today's world, men are caregivers, and should be," Grunfeld said. "I'm very pleased to have been a part of this case."