An exam glove, a scalpel, and a handcuff rest on a table.

Shackling of Pregnant Prisoners Is Ongoing

By Alexa Richardson

Pregnant incarcerated women continue to be shackled–in prison, while being transported, during labor, and in the postpartum days at the hospital they may share with the baby.  Michele Aldana, who was serving time for a drug offense when she gave birth, was shackled throughout her thirty-hour labor while her ankles and wrists bled. “I felt like a farm animal,” she explained.  Eight times as many women are incarcerated today as in 1980, and 1,400 women are estimated to give birth each year while incarcerated. 

Recently, there have been significant reform efforts around the issue. In 2018, the First Step Act included a prohibition on shackling prisoners in federal prisons, except where the correctional officer felt shackling was necessary to prevent serious harm or escape. At the state level, laws are variable. Thirty-two states have some form of restriction on pregnant shackling, but only thirteen ban it broadly throughout pregnancy, labor, postpartum, and during transport; only nine states cover juveniles; only twenty states allow the physician to immediately remove the restraints if necessary; and only nine require that correctional staff stand outside the room for privacy considerations during childbirth. South Carolina is the latest to consider legislation prohibiting shackling of pregnant prisoners, in a bill currently before the state senate.

Even where the practice is banned, it still occurs. The lack of accountability after the passage of anti-shackling laws is considerable, and many of the corrections officers tasked with implementing the policies are unaware of the correct policy. Healthcare providers routinely report pregnant patients being shackled despite state prohibitions. Lawsuits by shackled prisoners also reveal violations of the law. In 2012, a Chicago court issued a $4.1 million judgment in a class action by 80 women that attested to being shackled in pregnancy, despite the Illinois law prohibiting the practice. Recently, a New York woman received a settlement after being shackled throughout labor, in violation of state law.

Major health organizations oppose the practice. Shackling people during pregnancy can obstruct access to necessary medical care, cause falls and injuries that can harm the pregnant person and the fetus, cause life-threatening blood clots, and interfere with the ability of people postpartum to safely handle, feed, and bond with the newborn. The practice impacts an extremely vulnerable group of people, who are at higher risk for lack of prenatal care, a history of intimate partner or sexual abuse, untreated mental or physical health conditions, and drug and alcohol dependence. The American College of Obstetricians and Gynecologists (ACOG) takes a strong position against shackling during pregnancy, citing the significant health risks it poses and the challenges it creates for providers administering medical care. The American Psychological Association has also condemned the practice, describing the mental health consequences of shackling during pregnancy as substantial. They report that “[w]omen subjected to restraint during childbirth report severe mental distress, depression, anguish, and trauma.”

Shackling people during pregnancy is also unnecessary. Policies that require prisoners are shackled during medical treatment were written broadly with male prisoners in mind, and did not take into account pregnant people at their inception. While there is not data specific to pregnant prisoners, more than 75% of incarcerated women are being held for non-violent offenses, usually in local or state jails, for minor offenses. Pregnant prisoners are unlikely to attempt to assault anyone. No escape attempts by unshackled pregnant prisoners have been documented. Prevention of self-harm can be achieved without the use of restraints.

Shackling prisoners during pregnancy is distinctly racialized. It disproportionately affects black women, who are almost twice as likely to be incarcerated as white women, and raises the specter of the violence of slavery in a gruesome way. Professor Priscilla Ocen argues that shackling black pregnant people reflects the historical denigration of black women’s reproduction through chattel slavery and chain gangs. The practice is rooted in the construction of black women as deviant, “unfit,” and “undesirable” mothers deserving of “unique punishment” for “exercising the choice to become mothers.” Today, the routine shackling of pregnant incarcerated women maintains incarcerated women’s “reproductive capacities [as a] site of subordination.”

Several scholars have argued that the practice of shackling, particularly during labor and birth, is unconstitutional. Most commonly, the Eighth Amendment prohibition on cruel and unusual punishment is invoked. In Estelle v. Gamble, the Supreme Court held that when prison personnel fail to provide care for a serious medical condition, with deliberate indifference to a prisoner’s medical needs, they have acted in violation of the Eighth Amendment. But subsequent cases construed the doctrine narrowly, raising the bar to show deliberate indifference and finding that failing to address pain and suffering alone does not constitute cruel and unusual punishment.

Two cases have found shackling during labor to violate the Eighth Amendment, but only on the particularized facts of the cases at hand. In Nelson v. Correctional Medical Services, a closely divided 6-5 en banc Eighth Circuit reversed the panel decision to find that Nelson’s shackling violated the Eighth Amendment, based on the specific acts of the corrections officer involved. However, the court did not find prison administrators liable, because they did not specifically “know” in each case whether the pregnant person was shackled. In Brawley v. Washington, Casandra Brawley was strip-searched by officers and then shackled to the bed throughout her labor. After birth, she was kept shackled and unable to walk or move around throughout her stay in the hospital. The court found that Brawley “endured unnecessary pain due to being chained to her bed” and that, if she could establish that the officers knew she was in labor, a jury could find that deliberate indifference was present. Importantly, both of these cases emphasized the physical injuries suffered by the plaintiffs, but did not acknowledge the dignitary or emotional harms of shackling. Without the physical harms, the cases may well have come out differently.

Shackling during pregnancy is indicative of the arbitrary and complete physical control to which incarcerated people are subjected, at the will of correctional guards, on a regular basis. The inherent vulnerability of pregnancy highlights the inhumane nature of incarceration more broadly. Efforts to ban the practice of shackling during pregnancy may represent a budding consensus that at least some routine practices of incarceration have gone too far. But they also show the limited ability of lawmakers to penetrate the correctional system and protect prisoners from inhumane treatment by corrections officers, who possess nearly unlimited authority within the black box of the corrections system. Stronger protections continue to be needed to stop the barbaric practice of shackling during pregnancy and labor, including improved mechanisms for remedy when the prohibitions are violated.

Alexa Richardson

Alexa Richardson is a law student at Harvard Law School and a Certified Professional Midwife. Prior to coming to law school, Alexa cared for families as the Director of a private midwifery practice in Baltimore, and led successful efforts to license and regulate Certified Professional Midwives in Maryland in her roles as President of the Association of Independent Midwives of Maryland (AIMM) and Chair of the Direct-Entry Midwife Committee under the Board of Nursing. Her research interests center on pregnant and birthing people, with particular focus in expanding the legal rights and protections available to this population. At HLS, Alexa serves as an editor of the Harvard Law Review, and as a student attorney in the Prison Legal Assistance Project.

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