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2012 Law & Public Policy

Safe pregnancies for incarcerated women: Why both parties should support anti-shackling legislation

By Hilary DetmoldDownload as PDF.   In January 2011, Massachusetts State Representative Kay Khan, a Democrat, introduced a bill entitled “House 2234: An Act relative to safe pregnancies and related health care for female inmates.”  Representative Khan has long championed educational opportunities and reproductive rights of incarcerated women.  One provision of Khan’s bill, however, addresses a relatively new concern: the shackling of pregnant prisoners during labor and delivery.  In 2010, the Rebecca Project for Human Rights and the National Women’s Law Center harshly criticized Massachusetts and six other states for their shackling policies.  Some states are taking steps to recognize the importance of women’s reproductive health:  twelve states already have laws regulating the use of shackles or restraints on pregnant prisoners, and the corrections departments in additional states—as well as the Federal Bureau of Prisons—have internal policies limiting or banning it.  Massachusetts has neither a statute nor a statewide policy limiting the practice.  The time has come for the Commonwealth to join the other states in taking steps to eliminate this dangerous practice.

Fortunately, anti-shackling legislation presents an opportunity for coalition-building among legislators and citizens of every political stripe.  A bill like Representative Khan’s makes good sense, both legally and financially.  Civil rights organizations as well as conservative, pro-life groups can unite in supporting the protection of women and children in safe pregnancy and delivery.  In Idaho, the ACLU and Right to Life—the extreme left and the extreme right of the political spectrum, one might say—recently joined forces to help pass such a bill.

Numerous incarcerated women who gave birth in restraints have won lawsuits against corrections departments in several other states.  An Arkansas woman, imprisoned for identity fraud and bad checks, was forced to wear shackles during delivery over the protests of her doctor and nurses.  She suffered back problems and as a result was awarded nominal damages in a 2009 lawsuit.  In 2011, a Tennessee jury awarded $200,000 in damages to a prisoner after she gave birth under similar conditions.  The Rebecca Project, an organization that advocates for women’s rights and reproductive justice, ranked both Arkansas and Tennessee as having a more humane policy toward pregnant women than Massachusetts.

The total prison population in the United States is now well over 1.6 million, a 12.5 percent increase in ten years.  The female prisoner population, meanwhile, is more than 112,000, a 20 percent increase over the same period.  There are great differences between the male and female prison populations.  Women are much less likely than men to be convicted of violent offenses.  Only 17 percent of women arrested in 2000 were for violent crimes, while 71 percent were for larceny, theft or drug-related offenses.  The rapid increase in the female prison population has been driven largely by drug offenses.  Nevertheless, many corrections officials seem intent on applying the same level of restraint to male and female inmates—even pregnant ones, when the chance of assault or escape is very small.

In Massachusetts, in the absence of a high-profile lawsuit drawing attention to the issue, there is little impetus to address a problem affecting only an unsympathetic population.  It is difficult to rally support for the rights of an all but invisible group: mothers behind bars.  But the fact is that many women incarcerated for property offenses can trace their crimes to poverty, or drug and alcohol abuse.  Female inmates are disproportionately women of color, and they are more likely to have suffered physical and/or sexual abuse.  Still, there is little consideration for women who themselves are victims.  This is not a politically powerful constituency, and they must rely on others, for the most part, to improve the conditions of their confinement.

In the last few years, the reproductive health of women in prison has gradually come to be viewed as a human rights issue.  In 2007, a letter from the American College of Obstetricians and Gynecologists brought attention to the issue.  It stated that the use of such restraints “interfered with the ability of physicians to safely practice medicine . . . thus, overall putting the health and lives of the women and unborn children at risk.”  In 2008, the Federal Bureau of Prisons revised its policy, limiting the use of restraints during labor and delivery to only when there is immediate threat of harm or escape.

Today, the coalition in support of anti-shackling legislation includes the ACLU, Amnesty International, Human Rights Watch and the American College of Obstetricians and Gynecologists.  The ACLU has an anti-shackling “toolkit,” including a draft of a model bill for advocates.  No state yet has enacted the model bill exactly as drafted, but Rhode Island has come close.  In Massachusetts, Representative Khan has more than twenty cosponsors for her bill, representing a wide geographic area of the Commonwealth.  These advocates remain hopeful that Massachusetts will join other states in choosing to limit the primitive practice of shackling pregnant prisoners.

Hilary Detmold is a third-year law student at Suffolk University Law School.  She received her B.A. in Modern Culture and Media from Brown University.  Hilary is interested in labor and employment law, and she hopes to pursue a career in civil litigation.

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