Despite Reforms, Shackling of Pregnant Prisoners Persists

In 2011, Valerie Nabors was serving a sentence at Nevada’s Florence McClure Women’s Correctional Center in Las Vegas for stealing more than $250 in casino chips. She was pregnant and went into labor while incarcerated. Nabors was handcuffed and taken to an ambulance where guards shackled her ankles together, even though Nevada had previously outlawed the use of restraints on pregnant prisoners during labor and delivery.

Guards refused to remove the shackles when an ambulance supervisor protested, and again at the hospital when a nurse questioned their use. Finally, the guards complied after a delivery room nurse insisted the restraints be removed, and Nabors underwent an emergency cesarean section. Within 10 minutes of the surgery, however, guards again shackled Nabors’ ankles and chained her to the bed.

During the ordeal, Nabors suffered a separation of her pubic bones and several pulled muscles in her groin, which her physician determined were a direct result of the restraints. “We were shocked,” said Staci Pratt of the ACLU of Nevada. “And it takes a lot to shock an ACLU attorney.”

After suing the Nevada Department of Corrections, the state paid Nabors a $130,000 settlement in January 2014. See: Nabors v. Nevada DOC, U.S.D.C. (D. Nev.), Case No. 2:12-cv-01044-LRH-VCF. Two months later the Nevada Board of State Prison Commissioners adopted new rules, including training requirements for guards and oversight regulations.

Unfortunately, Nabors’ experience is not an isolated one.

“Pregnant women are the most vulnerable and the least threatening in the prison system and should rarely, if ever, be restrained,” noted Alicia M. Walters, a reproductive justice advocate with the ACLU of Northern California. Yet pregnant prisoners in 29 states can be shackled to their hospital beds during childbirth, even when confined for only immigration-related offenses. [See: PLN, Sept. 2012, p.14].

According to the U.S. Department of Justice’s Bureau of Justice Statistics, approximately 40,000 pregnant women are sentenced to prison annually. Many are serving time for non-violent crimes and pose little flight risk, yet most are shackled during childbirth.

“Just because they may be arrested for a nonviolent offense does not mean that’s going to match their behavior,” declared Beth Arthur, president of the Virginia Sheriffs’ Association.

Those in the medical community generally agree that shackling pregnant prisoners creates a risk for both mother and child.

“Pregnant women in correctional facilities are more likely to experience miscarriage, preeclampsia, pre-term birth, and low birth weight infants, all of which seriously jeopardize the health of the mother and, in many cases, her newborn,” stated California Assemblywoman Toni Atkins. “Shackling increases these risks by causing women to fall and by making emergency medical care more difficult to administer.”

In a case arising out of Arkansas, in 2009 the 8th Circuit Court of Appeals held there is a clearly established right for pregnant prisoners to not be shackled while in labor. See: Nelson v. Corr. Med. Servs., 583 F.3d 522 (8th Cir. 2009) (en banc) [PLN, April 2010, p.20].

A 2010 American Medical Association resolution deemed the practice “barbaric,” unsafe and “medically hazardous,” and banned the use of restraints during labor or delivery. [See: PLN, Dec. 2010, p.48]. And the American Correctional Association encouraged states to adopt written policies prohibiting the use of restraints on pregnant prisoners. Not all states have followed those recommendations, however.

“The whole attitude of law enforcement officers [is] that an inmate is an inmate, and every inmate is a flight and safety risk,” said Virginia lawmaker Patrick A. Hope, who twice tried unsuccessfully to introduce bills to ban the shackling of pregnant prisoners. His 2011 bill did not even make it to a vote.

After legislative proposals failed, the Virginia Board of Corrections amended its rules on November 14, 2012 to restrict the use of restraints on pregnant prisoners. But advocates said a law is still needed to require prison staff to publicly report when prisoners are restrained under exceptions to the new rules.

As of July 2014, only 21 states had passed legislation to limit or ban the shackling of pregnant prisoners during labor and delivery, while a federal statute applies to the Bureau of Prisons.

“It blows my mind that I have to sign a law for that,” said Massachusetts Governor Deval Patrick on May 19, 2014, after his signature made Massachusetts the most recent state to restrict placing restraints on pregnant prisoners.

The law, which took effect immediately, has been hailed as providing the most comprehensive health and safety standards for imprisoned pregnant women to date; in addition to limiting the kinds of restraints that prison guards can use and the situations in which they can use them, it requires that pregnant prisoners always be transported in vehicles with seatbelts, and mandates that such prisoners be provided with proper medical care, nutrition and basic necessities such as maternity clothes.

Massachusetts was the third state to adopt anti-shackling legislation in 2014. A week earlier, Minnesota Governor Mark Dayton signed a similar bill into law, and in April 2014 an anti-shackling bill was adopted in Maryland. Anti-shackling legislation was also introduced in Iowa, New Jersey and the District of Columbia this year. Yet even in some states that outlaw or limit restraints, pregnant prisoners are still being shackled.

“Correctional institutions are incredibly opaque. It’s often very difficult to get information on what’s happening,” said Gavi Wolfe, legislative counsel for the ACLU of Massachusetts. “They don’t rigorously monitor the use of restraints, especially when it’s been a part of their practice for a long time, and one they haven’t thought to scrutinize. Our prison culture has gone so far in the direction of all practices being OK in the name of security – even when security isn’t an issue – that we have, in general, lost sight of humanity in the face of reflexive prison policies.”

California is estimated to have the nation’s third-largest population of women in prison, putting the state at the forefront of this issue.

“In 2005, California became one of the first states to prohibit shackling of incarcerated pregnant women during labor, delivery, and recovery after childbirth,” wrote Walters, with the ACLU of Northern California. On September 28, 2012, the state went further by enacting one of the nation’s first laws that completely bans the shackling of pregnant prisoners (Penal Code § 3407).

However, a survey conducted by Legal Services for Prisoners with Children (LSPC), a San Francisco-based advocacy group, determined that while 21 California counties are in full compliance with the new law, almost two-thirds are not.

“We see it as very promising that dozens of counties have already taken steps to comply with this law,” LSPC policy director Jesse Stout said upon the survey’s release in February 2014. “But we still see a need for more work, since there are still dozens of counties that have compliance issues that do not fully follow these very basic health and safety protections for pregnant women.”

The California statute prohibits using leg irons, waist chains or handcuffs behind the body on pregnant prisoners; it further states that they should be restrained in alternative ways – such as handcuffed in front of their bodies – only if absolutely necessary for the safety of the public or other prisoners. Finally, the law removes from prison guards the final say on removing restraints, and instead gives that authority to medical professionals.

In a statement, the California Board of State and Community Corrections responded to the LSPC survey by questioning its methodology. “It’s important to note that the report cites no evidence that women are being shackled contrary to law,” the statement said. “The question it raises concerns whether counties are compliant in developing written policies and are notifying inmates of those policies.”

Called a “victory” for incarcerated women, the California law is actually quite rare. Advocacy groups are lobbying for federal standards and shackling bans in the states that still authorize the practice, but say the results have been less than encouraging.

The non-profit Correctional Association of New York, which monitors conditions in New York prisons, noted that shackling remains commonplace despite a 2009 state law. The group surveyed 27 women who gave birth in prison since the law was enacted and found that 23 reported having been shackled just before, during or after delivery.

“The law was put in place because New York State recognized that these practices are an affront to human rights and decency,” said Tamar Kraft-Stolar, who directs the association’s Women in Prison Project. “The fact that it’s being routinely violated is egregious.”

In 1999, Illinois became the first state in the nation to ban the shackling of prisoners who were in labor or being transported to a hospital. Yet scores of women have come forward with stories of restraints being removed only in the moments before delivery, or not at all.

In 2007, 18-year-old Cora Fletcher was eight months pregnant when she was booked into the Cook County Jail in Chicago for missing a court date on a retail theft charge. A prenatal checkup detected no fetal heartbeat, so Fletcher was sent to a hospital where a medical team attempted to induce labor. Both her hands and feet were shackled to the bed until she went into labor, then only one hand and foot were released as she gave birth to her stillborn child.

Fletcher was one of 80 women who filed a class-action lawsuit against Cook County, alleging that they were restrained during in-custody births between September 2007 and June 2010.

In April 2010, the county amended its policies to provide that pregnant prisoners could be handcuffed but that shackles and belly chains could no longer be used. The policy was changed again in February 2011, dictating that restraints should not be used at all unless the prisoner poses a security or flight risk. Similar legislation was signed into law in January 2012 by Illinois Governor Pat Quinn.

On May 22, 2012, U.S. District Court Judge Amy St. Eve preliminarily approved a $4.1 million settlement in the class-action suit against Cook County, providing each plaintiff with an average of $35,000, according to attorney Thomas Morrissey. He said the more important victory, however, was the fact that “we actually stopped the practice” of shackling pregnant prisoners at the Cook County jail.

Yet despite the class-action lawsuit, settlement and subsequent reforms, the defendants admitted no wrongdoing and said they settled the case only for the sake of expediency. [See: PLN, March 2013, p.31].

“This settlement is probably the most fair and efficient way to end this lawsuit and to prevent further cost to taxpayers,” said Cook County Sheriff’s Office spokesman Frank Bilecki. “The County sheriff’s office strictly prohibits the use of security restraints on pregnant women in custody absent of unusual circumstances,” he added, and boasted that Cook County’s treatment of female detainees is the “most progressive in the nation” – but without acknowledging that litigation had compelled reforms.

Such lawsuits are critical to ensure that prisons and jails comply with anti-shackling laws, according to Danyell Williams, a former midwife for prisoners in Philadelphia. “These laws were passed and everybody patted themselves on the back for doing what was right and human and then went on about their business,” she said. “But there’s no policing entity that’s really going to hold these institutions responsible.”

Similar horror stories and lawsuits have been reported across the nation, most notably in Arizona’s Maricopa County. “It doesn’t surprise me that these cases have gotten a lot of media attention,” said the ACLU’s Walters. “A lot of organizations are watching that county closely because of Sheriff Joe [Arpaio],” who is well known for his abusive treatment of prisoners.

“Women and unborn children should be treated with basic human dignity,” observed Heather Rice, director of the U.S. Prisons and Policy Program for the National Religious Campaign Against Torture. “No woman who is in one of the most precarious situations and circumstances ... should have to unnecessarily go through being restrained.”

In the majority of states that have not adopted anti-shackling laws, however, they do.

 

Sources: www.ibtimes.com, www.washingtonpost.com, ACLU of Virginia press release (Nov. 19, 2012), Chicago Tribune, www.huffingtonpost.com, www.abcnews.go.com, www.guardian.co.uk, www.care2.com, www.nytimes.com, http://nationinside.org, www.kqed.org, www.correctionalassociation.org, www.cosmopolitan.com

 

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