03-Ocen (Do Not Delete) 9/13/2012 2:35:23 AM Punishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners Priscilla A. Ocen* The shackling of pregnant prisoners during labor and childbirth is endemic within women’s penal institutions in the United States. This Article investigates the factors that account for the pervasiveness of this practice and suggests doctrinal innovations that may be leveraged to prevent its continuation. At a general level, this Article asserts that we cannot understand the persistence of the shackling of female prisoners without understanding how historical constructions of race and gender operate structurally to both motivate and mask its use. More specifically, this Article contends that while shackling affects female prisoners of all races today, the persistent practice attaches to Black women in particular through the historical devaluation, regulation, and punishment of their exercise of reproductive capacity in three contexts: slavery, convict leasing, and chain gangs in the South. The regulation and punishment of Black women within these oppressive systems reinforced and reproduced stereotypes of these women as deviant and dangerous. In turn, as Southern penal practices proliferated in the United States and Black women became a significant percentage of the female Copyright © 2012 California Law Review, Inc. California Law Review, Inc. (CLR) is a California nonprofit corporation. CLR and the authors are solely responsible for the content of their publications. * Associate Professor of Law, Loyola Law School, Los Angeles. Versions of this Article were presented to the 2011 Advanced Critical Race Studies Seminar at UCLA School of Law, the UCLA Critical Race Studies Works-in-Progress Series, the 2011 African American Girls and the Juvenile Justice System Symposium at U.C. Berkeley School of Law, and the 2011 Southern California Junior Faculty Workshop. I would like to thank Tauny Lovell Banks, Devon Carbado, Sharon Dolovich, Kolleen Duley, Cheryl Harris, Addie Rolnick, Ronald Williams II, Steve Yeazell, Noah Zatz, and Mike Zimmer for their thoughtful comments. I am also indebted to Kimberlé Crenshaw, Carole Goldberg, Jerry Kang, and Saul Sarabia for their willingness to serve as sounding boards for many of the ideas contained in this Article. I am also thankful for the expert research assistance provided by Alisha Burgin, Karla Crone, and Alexandra Oprea. I am particularly grateful to the UCLA School of Law generally, and the Critical Race Studies Program in particular, for their faith in, and support for, this project. Finally, I dedicate this Article to my late mother, Audrey R. Ocen, in whose memory I seek to explore and challenge barriers to racial equity. 1239 03-Ocen (Do Not Delete) 9/13/2012 2:35:23 AM 1240 CALIFORNIA LAW REVIEW [Vol. 100:1239 prison population, these images began to animate harsh practices against all female prisoners. Moreover, this Article asserts that current jurisprudence concerning the Eighth Amendment, the primary constitutional vehicle for challenging conditions of confinement, such as shackling, is insufficient to combat racialized practices at the structural level. Current doctrine focuses on the subjective intentions of prison officials at the individual level and omits any consideration of how race underlies institutional practices. Instead, this Article suggests an expanded reading of the Eighth Amendment and the “evolving standards of decency” language that undergirds the “cruel and unusual punishments” clause. Specifically, this Article argues that evolving standards of decency should be guided by other constitutional provisions, such as the Thirteenth Amendment. This expanded reading, which this Article refers to as the “antisubordination approach,” draws upon Justice Harlan’s oft- cited dissent in Plessy v. Ferguson and his underappreciated reading of the Thirteenth Amendment therein. Under such a reading, conditions of confinement that result from or are related to repudiated mechanisms of racial domination should be deemed “cruel and unusual punishments.” By challenging race and gender subordination at the structural level, this Article suggests that we can move from an aspiration to the actualization of humane justice. Introduction................................................................................................... 1241 I. Incarceration and the Shackling of Female Prisoners During Pregnancy .......................................................................................... 1250 A. Control over the Exercise of Women’s Reproductive Capacity in the Criminal Justice System................................................... 1252 B. Shackling of Pregnant Women in Prison and the Attendant Psychological and Physical Harms ............................................ 1255 II. Slavery, Reconstruction-Era Punishment, and Constructions of Black Womanhood ...................................................................................... 1258 A. Racial and Gender Constructs of Black Women During Slavery and Post–Civil War Punishment Regimes ................................. 1260 1. Masculinization...................................................................... 1260 2. Sexual Deviance .................................................................... 1263 3. Maternal Devaluation............................................................. 1266 4. Dangerousness ....................................................................... 1268 B. The Second Reconstruction, Black Women, and the “New” Carceral Regime ........................................................................ 1269 III. The Invisibility of Race and Gender Within Eighth Amendment Doctrinal Discourses ......................................................................... 1274 03-Ocen (Do Not Delete) 9/13/2012 2:35:23 AM 2012] PUNISHING PREGNANCY 1241 A. The Current Constitutional Standard for Evaluating Conditions of Confinement Claims Under the Eighth Amendment............. 1276 B. Doctrinal Elision of Race and Gender in Eighth Amendment Challenges to the Shackling of Pregnant Prisoners.................... 1281 C. Persistence of Shackling Practices................................................ 1285 IV. Unshackling the Pregnant Body: The Liberatory Potential of Reading the Eighth Amendment in Light of the Thirteenth ............................ 1287 A. An Antisubordination Reading of the Eighth Amendment........... 1291 1. Conditions of Confinement as Punishment............................ 1291 2. Objective Measures of Contemporary Values, the Thirteenth Amendment, and the Shackling of Pregnant Prisoners .............................................................................. 1293 a. The Thirteenth Amendment as a Symbol of Contemporary Values ................................................... 1295 b. Standing to Bring Antisubordination Claim .................... 1302 c. Exception Clause No Bar to Symbolic Value of Thirteenth Amendment in the Context of Prison .......... 1304 B. Social Meaning of the Shackling of Pregnant Prisoners and Conflict with the Antisubordination Values of the Thirteenth Amendment................................................................................ 1308 Conclusion .................................................................................................... 1310 INTRODUCTION One might have hoped that, by this hour, the very sight of chains on Black flesh, or the very sight of chains, would be so intolerable a sight for the American people, and so unbearable a memory, that they would themselves spontaneously rise up and strike off the manacles. But, no, they appear to glory in their chains; now, more than ever, they appear to measure their safety in chains and corpses.1 Olivia Hamilton, a Black2 woman, was held in a Georgia jail.3 She was pregnant at the time of her conviction.4 Despite her pregnancy, she often found it difficult to see a doctor because of the indifference of the guards and the overcrowding in the prison.5 When the pains of labor harkened the arrival of 1. James Baldwin, An Open Letter to My Sister Angela, in IF THEY COME IN THE MORNING 13 (Angela Davis ed., 1971). 2. I capitalize Black because as Kimberlé Williams Crenshaw explains, it “reflect[s] my view that Blacks, like Asians, Latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun.” Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 HARV. L. REV. 1331, 1332 n.2 (1988). 3. INSIDE THIS PLACE, NOT OF IT: NARRATIVES FROM WOMEN’S PRISONS 29–31 (Robin Levi & Ayelet Waldman eds., 2011). 4. Id. at 28–29. 5. Id. at 30 (“I was [in jail in Georgia] about a month before I actually saw a doctor.”). 03-Ocen (Do Not Delete) 9/13/2012 2:35:23 AM 1242 CALIFORNIA LAW REVIEW [Vol. 100:1239 her baby, the shackles placed around her wrists compounded her agony.6 Despite being admitted to the hospital for a cesarean delivery, the birth of her child imminent, she remained under the close supervision of armed prison staff and was shackled throughout the procedure.7 Nearly one hundred years earlier, Elvira, also a Black woman, was sentenced to Eastham State Farm,8 a prison camp in rural Texas populated by Black men and women, for a minor offense.9 Although Elvira was pregnant at the time she was sentenced, her status as an expectant mother received no consideration.10 While incarcerated, prisoners, including those