Lawyers for Racial Justice: Shackling of Pregnant Incarcerated Individuals

Overview

In many instances, federal and state law provide additional protections and extra care to individuals who are pregnant. However, many people are denied this level of compassion, empathy, and care, particularly people who are incarcerated.

Throughout American history, federal and state governments have controlled women’s (particularly Black women’s) bodies, health, reproductive rights, and care through barbaric and inhumane laws, policies, and practices. During slavery, Black women were forced to have children to increase slaveowners’ wealth. Pregnant women worked the fields up until they went into labor, were forced to return to the fields soon after giving birth, and often traumatically separated from their infants. Pregnancy did not protect Black women from physical violence at the hands of plantation owners and overseers, nor from lynching in the Jim Crow era. Government control over women’s bodies, particularly women of color, continued into the modern era through forced sterilization, punitive welfare laws, and the numerous effects of the increased mass incarceration of women.

One continuous risk is the practice of shackling pregnant incarcerated women during labor and while giving birth. Shackling disproportionately impacts Black women, who are almost twice as likely as white women to be incarcerated. Proponents of shackling argue that it is a necessary restraint on individuals who are incarcerated. However, a majority of women who are incarcerated are non-violent offenders, the physical demands of pregnancy make escape attempts very unlikely, and there is no record of a pregnant incarcerated person having ever escaped from a hospital. In a 2019 study, approximately 83% of respondents reported that pregnant women were shackled in hospital visits, and 12.3% were shackled all the time. Almost two-thirds of respondents cited as the reason for shackling simply because there was a rule or protocol, not because a person posed a threat to others or was deemed a flight risk.

Shackling significantly risks the health and wellbeing of women and fetuses during pregnancy, and interferes with a physician’s ability to safely practice medicine and provide the best quality of patient care. Restricting a woman’s ability to move during labor may prohibit her from shifting positions, affect her balance, result in cuts, bruises, and other injuries to her legs, ankles, and abdomen, and in emergencies risk her life and the survival of the fetus. The effects may also cause lifelong health issues to children post-birth. As a result, major medical associations, including The American Medical Association, American College of Obstetricians and Gynecologists, and American Public Health Association, oppose this practice.

The practice has been condemned internationally as a human rights abuse by The United Nations and The United Nations Committee against Torture. Recent U.S. case law has held that under certain circumstances, this practice may violate the Eighth Amendment’s prohibition against cruel and unusual punishment. (See Nelson v. Correctional Medical Services, 583 F.3d 522 (8th Cir. 2009), Women Prisoners v. District of Columbia, 877 F. Supp. 634 (D.D.C. 1994), and Brawley v. Washington, 712 F. Supp. 2d 1208 (W.D. Wash. 2010).)

While the federal First Step Act of 2018 prohibits shackling most pregnant women in federal prisons, it fails to protect the approximately 85% of women who are held in state prison or county jail. This project aims to complete an up-to-date survey of shackling laws in 50 states, the District of Columbia, and Puerto Rico, and a model policy so that advocates and legislators can draft and pass new laws to protect pregnant individuals who give birth while incarcerated. This policy will help protect the health and wellbeing of women and children, and restore basic rights and dignity to all expectant and new mothers, regardless of where they live.

Project Details

  • Seeking attorneys from law firms and/or corporate legal departments to research the law in 50 states plus DC and Puerto Rico

  • Data will be used to create model legislation

  • No prior experience required

  • Clear written instructions and mentorship provided

  • 1-2 hours of work per state/territory

  • Deadline is March 10, 2022

To express interest in this project, please fill out the form on this page and select “Shackling of Pregnant Incarcerated Individuals” in the Projects field. In the “Questions / Comments” field, please provide an estimate of how many states/territories your attorneys will be able to take on.