Stop the shackles: the case for reforming incarcerated mothers’ rights
By Violet Boyd
“Giving birth to my son without any medical help in the jail shower was one of the most terrifying experiences of my life. My body was falling apart, and no one would listen to me. No one cared,” said formerly incarcerated mother Ashley Caswell. While in jail, Caswell almost died giving birth due to inadequate care. Although horrifying, her story is not unique–too many incarcerated women face lack of care and mistreatment while pregnant in prison. Not only are current practices inhumane, they are unconstitutional. Policies regarding pregnant women in prison must be reformed and upheld to ensure a just and safe future for mothers and their babies.
The United States has the highest incarceration rate of women in the world and has seen an eightfold increase since the 1970s. The majority of women who enter jail are in their reproductive years and around 2,000 babies are born to incarcerated women annually. However, as historically male-focused institutions, correctional facilities often fail to address the needs of women. They frequently lack reproductive healthcare, gender-specific substance abuse treatment, counseling for histories of abuse, family services, appropriate bathroom and recreational facilities, and protection against sexual victimization.
Shackling pregnant women is a common practice that violates their constitutional rights and endangers them and their babies. Because most correctional facilities lack on-site obstetric care, during transport, labor, and delivery, incarcerated mothers are frequently shackled with handcuffs, leg irons, and or waist chains. Reform advocates argue that shackling is not based on genuine security concerns, as risk of escape is highly unlikely due to the physical and emotional stress of labor and delivery. Moreover, mothers face increased risk of falling and injuring themselves and their fetus while shackled. During labor, restraints also inhibit their ability to assume various positions and prevent immediate transport to the operating room if necessary. In 2011, the American College of Obstetricians and Gynecologists released a committee opinion on the matter: “[p]hysical restraints have interfered with the ability of physicians to safely practice medicine by reducing their ability to assess and evaluate the physical condition of the mother and the fetus, and have similarly made the labor and delivery process more difficult than it needs to be; thus, overall putting the health and lives of the women and unborn children at risk.” For infants, maternal separation can lead to severe emotional and behavioral problems including low self-esteem, less successful peer relationships, and difficulty coping with life stressors.
Shackling pregnant women is not only dangerous and dehumanizing, it is unlawful. Every court to consider the practice of shackling women during labor has found it unconstitutional. However, only 17 states restrict the use of restraints as a matter of statute and four as a matter of policy. Additionally, under the Eighth Amendment, prisons are required to provide prenatal care. Yet, there are currently no federal standards to ensure that pregnant people actually receive the care that they need. In 1976, the Supreme Court case Estelle v. Gamble affirmed that the Constitution requires prisons to provide medical care to inmates by holding that “deliberate indifference to serious medical needs of prisoners” violates the Eighth Amendment prohibition on cruel and unusual punishment. Policies such as providing treatment for high-risk pregnancies, rehab for mental illness and substance abuse, and requiring unshackled labor and delivery must be codified and enforced.
Tracey Edwards is just one of many mothers who endured shackles while pregnant. She was shackled during and after giving birth, which violated the prison system’s policy. This not only caused Edwards distress, but also interfered with her ability to bond with her newborn. In addition to being shackled, Edwards was also abruptly cut off from her medication for opioid use disorder, which caused a painful, dangerous, and unnecessary withdrawal. After the incident, she sued the North Carolina Correctional Institution. The district court ruled against her but she is in the process of appealing the ruling. American Civil Liberties Union disability rights program staff attorney Joseph Longley commented on Edwards’ case: “This appeal is about accountability. No one, especially a new mother, should endure such cruel and degrading conditions.”
Another mother, Pamela Winn, suffered a miscarriage in prison after falling while shackled. Despite efforts to advocate for herself as a registered nurse, she did not receive prenatal care and miscarried around three months later, shackled to a bed. “When I was miscarrying, I lay in wet blood, locked in a dark cell, curled up in excruciating pain until an officer made rounds roughly five hours later because there was no emergency call button or any way to notify anyone of my situation,” Winn said. “I suffered the entire miscarriage shackled to the bed with two male officers between my legs. I was dehumanized with no privacy,” she concluded. Moreover, when she passed the fetus, she was told that her unborn child had been thrown in the trash. She did not receive counseling and had no opportunity to grieve her miscarriage. She was released in 2013 and founded RestoreHER, a southern regional policy advocacy reentry organization led by formerly incarcerated women.
Other mothers suffer at the hands of the prison system without even being shackled. In 2018, Diana Sanchez told staff at least eight times that she was experiencing contractions but they chose to take a ‘wait and see’ approach, despite existing labor and delivery statutes. She birthed her baby alone in a cell a few hours later. “That pain [of labor] was indescribable. What hurt me more, though, was the fact that nobody cared,” Sanchez said. Even in the most dire situations, mothers’ needs are often ignored in prison.
Reproductive rights do not end with birth–competent parents must be allowed to raise their own children. The Adoption and Safe Families Act of 1997 requires states to terminate parental rights to children who have been in foster care for 15 of the last 24 months with no exception for incarcerated parents. Yet the average sentence for women in prison is 18 months, which means that by the time of their release, they will have lost custody. Although parents have the opportunity to appeal the termination of their custody, it must be filed quickly. Additionally, if the appeal fails, the parent permanently loses their legal rights to their child. Broader efforts must be made to prevent wrongful imprisonment of women in the first place. Improving schools, housing, healthcare, and employment opportunities could strengthen communities, especially poor communities of Color. This is important as women of Color make up two-thirds of the female prison population. Alternatives to imprisonment include probation, furlough, and temporary parole. These solutions could especially benefit pregnant women and their babies.
While advocacy groups have made some progress in improving prison conditions for women, institutional and legal reform are necessary. Without judicial oversight, incarcerated mothers and their babies will continue to be put in dangerous situations that violate their rights. Only through substantive reform can lawmakers protect some of society’s most vulnerable citizens.
