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Health Rights in the Balance: the Case Against Perinatal Shackling of Women Behind Bars Brett Dignam and Eli Y. Adashi

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Health Rights in the Balance: the Case Against Perinatal Shackling of Women Behind Bars Brett Dignam and Eli Y. Adashi HHR Health and Human Rights Journal Health Rights in the Balance: The Case Against Perinatal Shackling of Women Behind Bars Brett Dignam and Eli Y. Adashi Abstract Rationalized for decades on security grounds, perinatal shackling entails the application of handcuffs, leg irons, and/or waist shackles to the incarcerated woman prior to, during, and after labor and delivery. During labor and delivery proper, perinatal shackling may entail chaining women to the hospital bed by the ankle, wrist, or both. Medically untenable, legally challenged, and ever controversial, perinatal shackling remains the standard of practice in most US states despite sustained two-decades-long efforts by health rights legal advocates, human rights organizations, and medical professionals. Herein we review the current statu- tory, regulatory, legal, and medical framework undergirding the use of restraints on pregnant inmates and explore potential avenues of redress and relief to this challenge. We also rec- ognize the courage of the women whose stories are being told. If history is any guide, the collective thrust of domestic and international law, attendant litigation, dedicated advocacy, and strength of argument bode well for continued progress toward restraint-free pregnancies in correctional settings. Brett Dignam, MA, JD, is Professor of Law at Columbia Law School, Columbia University, New York, NY, USA. Eli Y. Adashi, MD, MS, is Professor of Medical Science at The Warren Alpert Medical School, Brown University, Providence, RI, USA. Please address correspondence to Eli Y. Adashi. Email: [email protected]. Competing interests: None declared. Copyright © 2014 Dignam and Adashi. This is an open access article distributed under the terms of Creative Commons Attribution Non-Commer- cial License (http://creativecommons.org/licences/by-nc/3.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original author and source credited. 13 B. Dignam and E. Adashi/Health and Human Rights 16/2 (2014) Introduction IN 1994, Women Prisoners of District of Columbia Female offenders Department of Corrections v. District of Colum- bia first upheld a challenge to perinatal shackling of Women were not spared. In recent years (1990-2009), pregnant inmates.1 The widespread practice did not 1.3 million women (1 in 92) were under custodial 10 become more broadly recognized until 1999, when or community-based correctional sanction. Of Amnesty International released the report Not those, 198,600 (15%) were confined behind federal, part of my sentence: Violations of the human rights state, and jail bars for an incarceration rate of 167 11 of women in custody.2 A second Amnesty Interna- per 10,000 adult women. While women only tional report, released in 2001 and entitled Abuse of account for 9% of the incarcerated population, the women in custody: Sexual misconduct and shackling 5% average annual growth rate of the female inmate of pregnant women removed any lingering doubts census over the last two decades has outpaced that 12 as to the legality of the practice.3 Herein we review of men (3.6%). the current statutory, regulatory, legal, and medical framework undergirding the use of restraints on Pregnancy behind bars pregnant inmates and explore potential avenues of redress and relief to this challenge. Accurate figures on the prevalence and incidence of pregnancy behind bars are unavailable, given inconsistent reporting requirements and Correction by the numbers pregnancy testing upon admission to jail or prison. After three decades of extraordinary growth (1980- Published accounts are sparse. In 1995, Breuner 2009), fueled by harsh mandatory sentencing and and Farrow—relying on a national survey of release policies, well over 7 million—1 in every 34— juvenile facilities—reported an annual census of 13 adult US men (82%) and women (18%) became by 2,000 pregnant adolescents behind bars. A 1999 2009 the subject of correctional jurisdiction be it jail, study of the California juvenile justice system prison, probation, or parole.4 No other developed listed a 16% incidence of pregnancy among female 14 or developing nation comes close.5 Adjusted for inmates. That same year, a survey by the American growth in the adult population, the latest (2011) Correctional Association (ACA) noted a total of national correctional census is three times the 1,900 pregnant inmates and 1,400 births in prisons 15 size of its 1980 counterpart.6 With 2.3 million (1 and jails during the year under study. Several in every 102) adults behind federal, state, and jail subsequent reports from the Centers for Disease bars, the national incarceration rate has soared to Control and Prevention and the Bureau of Justice 983 per 10,000 adults.7 With juvenile, territorial, Statistics, spanning 1994-2008, placed the incidence 16 military, and Indian country inmates accounted for, of pregnancy upon admission at 3-10%. As such, the national population in custody is 2.4 million these figures imply present-day prevalence rates of (1 in every 95) adults. This brings the national 6,000 to 20,000 pregnant inmates annually in the 17 incarceration rate to 1,049 per 10,000 adults.8 While nation’s jails and prisons. Often high risk in nature, federal and juvenile facilities are home to some of the pregnancies under discussion are marked the nation’s inmates (8% and 4%, respectively), state by limited or absent prenatal care, suboptimal prisons and local jails shoulder most of the burden nutritional support, substance and/or alcohol abuse, (55% and 33%, respectively).9 environmental and/or domestic violence, and sexually and/or parenterally transmitted diseases.18 DECEMBER 2014 NUMBER 2 VOLUME 16 Health and Human Rights Journal 14 B. Dignam and E. Adashi/Health and Human Rights 16/2 (2014) Perinatal shackling: The statutory and grounds the use of physical restraints on pregnant regulatory framework inmates before, during, and after labor and deliv- ery.24 The law further mandated that the “Attorney Designed for male offenders, the US correctional General shall submit to Congress a report on the system is still working through the adjustments practices and policies of agencies within the De- required to accommodate an ever-growing cohort partment of Justice relating to the use of physical of female inmates. Nowhere is this reality more restraints on pregnant female prisoners during 19 apparent than during pregnancy and parturition. pregnancy, labor, delivery of a child, or post-de- Nowhere is the tension more palpable than in the livery recuperation.”25 Properly implemented, data 20 case of perinatal shackling. Rooted in security collection could prove central to the enforcement of concerns ascribed to offsite medical care, perinatal the policies in question. As written, the law does not shackling is the default correctional solution to pub- apply to detainees of US Immigration and Customs 21 lic safety, officer protection, and flight risk. As such, Enforcement (ICE), which reports to the Depart- extensive—indeed continuous—perinatal shackling ment of Homeland Security. is an outgrowth of a gender-blind policy which has Concurrently, federal law enforcement agencies been extended to include pregnant women before, developed policies that reinforced this legislation. during, and after delivery. In effect, parturient In October 2007, the US Marshals Service (USMS) women are being ascribed the same security and revised its restraint policies, all but eliminating the flight risk as are their non-pregnant counterparts shackling of pregnant federal pretrial detainees and without regard to prior history of violence or escape inmates, unless deemed necessary by compelling attempts. As such, this practice runs counter to the security considerations.26 That the policy stated fact that female inmates commit less violence and that “restraints should not be used when compel- 22 less serious violence than male counterparts. ling medical reasons dictate, including when a Until relatively recently (2000), individual pregnant prisoner is in labor, is delivering her wardens and jailers had the authority to impose peri- baby, or is in immediate post-delivery recupera- natal restraints, given the absence of federal or state tion.”27 Special emphasis was placed on the use of statutes. However, on January 1, 2000, Illinois broke the least restrictive constraints “to ensure safety and the mold: the state legislature amended the Unified s e c u r it y.” 28 Shortly thereafter, the Federal Bureau Code of Corrections to prohibit perinatal shackling of Prisons (BOP), home to 14,000 federal female 23 during hospital transport and delivery. The statute inmates, amended its policy to bar the shackling of mandated that “when a pregnant female prisoner is pregnant inmates in labor, delivery, or post-delivery brought to a hospital…for the purpose of delivering recuperation “unless there are reasonable grounds her baby, no handcuffs, shackles, or restraints of any to believe the inmate presents an immediate, se- kind may be used. Under no circumstances may leg rious threat of hurting herself, staff or others, or irons or shackles or waist shackles be used on any there are reasonable grounds to believe the inmate 23 pregnant female prisoner who is in labor.” By mid- presents an immediate and credible risk of escape 2013, 17 other states had followed suit (Arizona, that cannot be reasonably contained through other California, Colorado, Delaware, Florida, Hawaii, methods.”29 The policy also indicated that
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