20 Am. U. J. Gender Soc. Pol'y & L. 247

American University Journal of Gender, Social Policy and the
Law
2011
Comment
BIRTHING BARBARISM - THE
UNCONSTITUTIONALITY OF SHACKLING PREGNANT
PRISONERS
Claire Louise Griggs [FNa1]
I.
II.

III.

IV.
V.

Introduction
Background
A. America's Shackling Epidemic
B. Shackling on a Case by Case Basis
1. Women Prisoners v. District of Columbia
2. Nelson v. Correctional Medical Services
C. The Health Implications of and Justifications for
Shackling
D. Medical Standards of Care for Prisoners
Analysis
A. Shackling Deprives Prisoners of Their Constitutionally
Guaranteed Level of Medical Care Under Estelle v. Gamble
B. Shackling is Unconstitutional In Violation of the Eighth
Amendment
1. Shackling Laws Are Unconstitutional Under Nelson v.
Correctional Medical Services
2. The Court in Women Prisoners v. District of Columbia
Should Have Found That Shackling Laws are
Unconstitutional
C. Illinois, California, and New York Have All Outlawed
Shackling and Other States Should Follow Their Model and
Move Towards Passing Legislation that Also Outlaws
Shackling
1. Other States Should Follow the Model Laid Out by the
Illinois Law and Enact Laws Banning Shackling
2. Other States Should Follow the Model Laid Out by
California Law and Enact Laws Banning Shackling
3. Other States Should Follow the Model Laid Out by New
York Law and Enact Laws Banning Shackling
Policy Recommendations
Conclusion

I. Introduction
While public opinion largely dictates that shackling is too
barbaric for civilized society, it happens with frightening
frequency. [FN1] A majority of states shackle female
prisoners during childbirth; forty states allow the shackling of
female prisoners during labor, delivery, and post-partum
recovery. [FN2] Some women give birth alone in their cells,
despite statutes dictating that these women must receive
medical attention. [FN3] While shackling is illegal in several
states, such as Illinois, California, and New York, these efforts
are not sufficient because far too many states legalize the
practice. [FN4] Further, even in states where shackling is

illegal, waves of lawsuits claiming that shackling practices
continue are prevalent despite the laws banning the practice.
[FN5]
However, there are encouraging times ahead, as states
such as Tennessee and Georgia are drafting legislation
prohibiting shackling. [FN6] Recently, in the landmark
decision Nelson v. Correctional Medical Services, the United
States Court of Appeals for the Eighth Circuit declared
shackling unconstitutional and in violation of the Eighth
Amendment. [FN7]
This Comment argues that pro-shackling laws are
unconstitutional, violating the Eighth Amendment's
prohibition against cruel and unusual punishment because
shackling not only causes excessive physical pain, it deprives
prisoners of a constitutionally guaranteed level of medical
care. [FN8] Part II discusses the history of shackling, its
prevalence and health implications, and the statutory medical
standards of care for prisoners. [FN9] Part III argues that
states that currently allow shackling are employing what
should be illegal methods in violation of the U.S. Constitution.
[FN10] Part IV discusses how other states should implement
anti-shackling legislation. [FN11] Finally, Part V concludes
that the Nelson Court and state statutes prohibiting shackling
could provide a foundation for courts interpreting state statutes
that permit shackling to find this practice unconstitutional.
[FN12]
II. Background

A. America's Shackling Epidemic
The majority of female inmates shackled during labor are
non-violent offenders and are not considered flight risks.
[FN13] Samantha L., a Wisconsin inmate, gave birth with her
ankles shackled eighteen inches apart. [FN14] Her shackles
remained in place until moments before the actual birth of her
child. [FN15]
Inmate Latiana W. is one of several suing the Cook
County, Illinois, Sheriff's Office for using restraints on
prisoners in labor, contrary to Illinois law. [FN16] Despite
multiple objections from her attending physician, the
corrections officer present during Latiana's labor refused to
remove the restraints. [FN17] As a result, her physician could
not administer an epidural. [FN18] Being shackled also
hindered her childbirth, as Latiana could not properly position
her legs to push out the placenta. [FN19]
Another horrifying experience happened in Florida's
Collier County Jail. [FN20] In this case, Joan repeatedly
pleaded for medical help because she began leaking amniotic
fluid, but officers denied and ignored her. [FN21] By the time
she finally received an ultrasound--two weeks later--her doctor
informed her that she had leaked out all of her amniotic fluid
and, as a result, her fetus's skull had collapsed. [FN22]
It is unclear exactly how and why the practice of
shackling originated, but many historians believe the practice
began in the 1970s when criminal justice facilities began

adopting gender-neutral policies. [FN23] The main
justifications for shackling are maintaining security and
decreasing flight risk. [FN24] However, the justifications for
shackling pale in comparison to the severe damage and
degradation it causes. [FN25] What is clear is that shackling
affects a significant amount of women. [FN26] The shackling
policies themselves hearken back to an era that considered
convicted women morally subhuman and especially
condemned any evidence of sexual activity. [FN27] Many
jurisdictions failed to modify these restraint policies to
accommodate pregnancy. [FN28] Shackling policies that
consider the differences between male and female inmates
recognize that the shackling of female inmates is less
necessary. [FN29] For example, women are more likely than
men to be serving time for a drug offense, and less likely to be
serving time for a violent crime. [FN30]

C. The Health Implications of and Justifications for Shackling

B. Shackling on a Case by Case Basis

D. Medical Standards of Care for Prisoners

1. Women Prisoners v. District of Columbia
A group of female prisoners sued the District of Columbia
prisons in Women Prisoners v. District of Columbia, alleging
widespread Eighth Amendment violations regarding the
conditions of confinement for female inmates. [FN31] The
D.C. Circuit Court reaffirmed that the only deprivations that
triggered Eighth Amendment scrutiny “are deprivations of
essential human needs.” [FN32] The court amended the trial
court's ruling that shackling violates the Eighth Amendment,
and rejected the provision that prisons have written protocols
regarding the use of restraints on pregnant women. [FN33]
While the District of Columbia Department of Corrections'
(DOC) protocol supposedly prohibits the use of restraints
during labor, delivery, and recovery, unless the woman has
demonstrated a history of violent behavior, the District of
Columbia (D.C.) has no actual legislation limiting the use of
shackling on pregnant inmates. [FN34] Thus, pursuant to
Women Prisoners and current law, D.C. has some limits on the
practice of shackling, but does not ban the practice outright.
[FN35]

Several states have enacted legislation that prohibits
shackling. [FN48] In 2000, Illinois passed legislation
prohibiting the use of leg irons or shackles or waist shackles
on any pregnant prisoner in labor. [FN49] California followed
in 2006, enacting a statute banning shackling unless it is
strictly necessary for the safety of officers and the public.
[FN50] In 2009, New York similarly banned the practice.
[FN51]

2. Nelson v. Correctional Medical Services
More recent is the notable anti-shackling case of Nelson
v. Correctional Medical Services, where the court
strengthened constitutional protections against shackling
methods. [FN36] The pregnant prisoner in Nelson entered the
Arkansas prison system on June 3, 2003, for credit fraud.
[FN37] On September 20, 2003, she started experiencing labor
pains; upon arrival at the hospital, the officer shackled her to a
wheelchair and wheeled her to the maternity ward. [FN38] At
more than seven centimeters dilated, the officer then shackled
Nelson to a bed. [FN39] The Eighth Circuit held that the law
“clearly established” that shackling a woman prisoner during
labor and delivery violated the Eighth Amendment, imposing
cruel and unusual punishment. [FN40] The court also
discussed the standard of confinement and medical care, and
found that the security officer acted with deliberate
indifference. [FN41] The court further noted that either
interference with care, or infliction of unnecessary suffering
establishes deliberate indifference in medical care cases in
violation of the Eighth Amendment. [FN42]

Shackling practices are degrading, barbaric, humiliating,
and life threatening to both mother and child. [FN43] Pregnant
women are already more prone to tripping and falling because
they have a different center of gravity: shackling their arms or
ankles, therefore increases the risk of them falling on their
stomachs. [FN44] In addition, labor and delivery are
extremely unpredictable and waiting for a guard to remove a
prisoner's shackles can have dire consequences. [FN45] For
example, it is important that the delivering physician can
quickly move and manipulate the mother to avoid potentially
life-threatening emergencies. [FN46] In Nelson, the prisoner
suffered a hip dislocation and an umbilical hernia directly
resulting from the shackles that prevented movement of the
prisoner's legs. [FN47]

There exists no shortage of instances where officers deny
pregnant inmates proper medical attention when the prisoners
alert correctional officers that they are in labor. [FN52] The
Illinois code regarding failure to provide medical care to
prisoners limits the liability of the public entity, except where
the employee knows that a prisoner is in need of medical care
and wantonly disregards the need. [FN53] The statute strictly
states that an employee observing that a prisoner is in need of
immediate medical care must take reasonable action to
summon such care. [FN54] The California code is almost
identical, providing that an employee is liable only if they
know or have reason to know that a prisoner is in need of care
and fail to try and provide such care. [FN55] New York
provides that it is within the discretion of the sheriff to
determine if an inmate requires outside medical attention and
if that outside treatment is necessary. [FN56] Finally, the D.C.
code specifies that the Department of Corrections shall have
the power to provide for an inmate's proper treatment and care.
[FN57]
Case law dictates the entitlement of inmates to specific
standards of care. [FN58] In Estelle v. Gamble, the Supreme
Court held that deliberate indifference to a prisoner's serious
condition or injury constitutes cruel and unusual punishment.
[FN59] The Court clearly held that the government has an
obligation to provide medical care to anyone incarcerated for
the purpose of punishment. [FN60] The Court based the
government's obligation to provide medical care on an
evolving standard of human decency that it says is the mark of
a progressing and maturing society. [FN61] The Court further
held that deliberate indifference to the serious medical needs
of prisoners is an “unnecessary and wanton infliction of pain”
proscribed by the Eighth Amendment. [FN62]

III. Analysis
A. Shackling Deprives Prisoners of Their Constitutionally
Guaranteed Level of Medical Care Under Estelle v. Gamble.
Inmates still maintain constitutional rights while in prison.
[FN63] Prisoners have an unalienable constitutional right to
medical care. [FN64] The willful disregard of an inmate's
medical needs violates the Eighth Amendment. [FN65] In
Estelle, the Supreme Court explained that the acts or
omissions depriving an inmate of medical care must be
sufficiently harmful so as to show deliberate indifference to
serious medical needs in order to be unconstitutional. [FN66]
This deliberate indifference constitutes a willful disregard of
an inmate's medical needs. [FN67] Perhaps most notably, the
Estelle Court concluded that the deliberate indifference
standard applies where a prison guard intentionally denies or
delays access to medical care, or intentionally interferes with
the treatment a prisoner is prescribed. [FN68] Essentially,
Estelle provides an undeniable anti-shackling standard
construed pursuant to the Constitution. [FN69] An example of
a flagrant violation of the standard set forth in Estelle is the
case of nineteen-year-old Terra K., who pounded on the door
to her cell as she went into labor, but prison guards ignored
her and she ultimately gave birth alone in her cell. [FN70]
This violates Estelle because the prison guards
deliberately denied the inmate medical care when she clearly
had extremely delicate and complicated medical needs.
[FN71] Prison guards intentionally interfered with that
inmate's treatment by ignoring her cries that she was in labor
and denied her access to medical care by keeping her locked in
her cell. [FN72] While the case of Terra K. may not be
facially unconstitutional under the standard set forth in Estelle,
it violates the Eighth Amendment, because prison guards
inflicted cruel and unusual punishment by denying Terra K.
access to medical care. [FN73]
Another example of a constitutional violation is the
previously mentioned case of Joan S. [FN74] By the time
prison guards actually allowed Joan access to medical care,
her doctor informed her that her fetus's skull had collapsed.
[FN75] Prison guards violated Joan's Eighth Amendment
right, as they delayed taking her to the hospital and her
acquisition of proper medical attention. [FN76] Prison guards
violated the standard set forth in Estelle entitling prisoners to
medical care by forcing Joan to carry her dead child for
several days, an obvious health emergency that requires urgent
medical attention. [FN77]
Officials were deliberately indifferent when they denied
Joan medical care by refusing to take her to a doctor despite
her repeated pleas; delayed taking her to a hospital; forced her
to carry her dead fetus; and delayed getting her a necessary
shot associated with her rare blood type that would help
prevent complications with future pregnancies. [FN78] The
behavior of the jail officials in the case of Joan S. is a flagrant
violation of her Eighth Amendment rights, and a clear
deprivation of her constitutionally protected right to medical
care. [FN79]
The act of chaining pregnant inmates to hospital beds
during labor constitutes deliberate indifference to the

prisoners' medical needs. [FN80] Restricting a woman's
movement while she is in labor exacerbates the pain and
distress associated with the birthing process, and may lead to
complications that pose serious risks to the lives and health of
both the mother and her baby. [FN81] Further, the shackling
of inmates during labor serves no legitimate objective because,
although they are convicted felons, it is extremely difficult-and in some cases impossible--for pregnant inmates to either
try and escape or pose a safety risk. [FN82] Indeed, shackling
a woman to a bed during childbirth serves no justifiable
penological purpose, as her being pregnant would have no
relevance on her sentence. [FN83] Shackling during labor
could have no deterrent effect on the original crime, and
thereby punishes the prisoner for bearing children, not for
breaking the law. [FN84]
While the Eighth Circuit ultimately found that shackling
violates the Eighth Amendment's prohibition on cruel and
unusual punishment, Nelson's ordeal also invokes a claim
under the Estelle standard. [FN85] Prison officials refused to
take Nelson to a hospital to give birth until she was already in
active labor. [FN86] Nelson was still in leg shackles when she
started to deliver her baby, despite the repeated pleas of
doctors and nurses to remove the shackles. [FN87]
While decided under a different standard, Nelson clearly
exhibits a violation of a prisoner's constitutionally protected
right to medical care. [FN88] When applying the standard of
deliberate indifference to a serious medical need, as in the
Estelle case, it is clear that Nelson was not subject to humane
conditions of confinement. [FN89] The prison infirmary nurse
denied and delayed Nelson's access to medical care by sending
her back to her cell despite her nearing active labor. [FN90]
Further, the officer stationed on duty in Nelson's delivery
room displayed deliberate indifference when she refused to
remove the shackles despite the requests of medical
professionals. [FN91] By refusing to transport Nelson to the
hospital in a timely manner, and refusing to remove the
shackles at the request of medical professionals causing
unnecessary bodily harm, the prison guards intentionally
interfered with Nelson's access to medical care. [FN92] This
violated her constitutionally protected right to medical care.
[FN93] In Estelle, the Supreme Court held that denying,
delaying, or inhibiting a prisoner's access to medical care
constitutes cruel and unusual punishment. [FN94] Under this
standard shackling is unconstitutional because, as was seen in
Nelson, the act of shackling clearly delays and inhibits a
prisoner's access to medical care. [FN95]
B. Shackling is Unconstitutional In Violation of the Eighth
Amendment.
1. Shackling Laws Are Unconstitutional Under Nelson v.
Correctional Medical Services.
Pregnancy and labor are serious medical conditions.
[FN96] As is established in Estelle, failing to provide care for
a serious medical condition is a constitutional violation.
[FN97] Therefore, policies permitting the shackling of
pregnant inmates during childbirth violate the Eighth
Amendment of the United States Constitution, which prohibits
inflicting cruel and unusual punishment. [FN98]

In Nelson v. Correctional Medical Services, the court
touched on the asserted security interests justifying shackling.
[FN99] Not only does the act of shackling exhibit a deliberate
indifference to the prisoner's medical needs, but in Nelson,
and all other shackling cases, there is no competing
institutional need or penological interest served by the
practice. [FN100] Arguably, shackling would be permissible if
it served some legitimate objective, such as public safety.
[FN101] However, it is reasonable to assume that no woman
while in labor poses a flight risk. [FN102] Thus, the policy of
shackling pregnant inmates during childbirth clearly does not
provide the requisite valid connection between prison
regulations and the legitimate governmental interests put
forward to justify it. [FN103] It is illogical to have genuine
concerns that a woman in active labor poses a legitimate
security risk or would try to escape. [FN104]
A complaint must show two elements to successfully
allege an Eighth Amendment violation: 1) an objective
standard, determining whether the prisoner filing suit had a
serious medical need or faced a risk to their health or safety;
and 2) a subjective standard, analyzing whether the prison
official had knowledge of the need or risk but ignored it.
[FN105] The Nelson court found the objective and subjective
prongs of the Eighth Amendment standard easily satisfied.
[FN106] First, expert medical testimony satisfied the objective
standard when the doctor witness declared that it is always
dangerous to shackle a woman during the final stages of labor.
[FN107] Second, statements from prison guard demonstrated
her actual knowledge of risk to the shackled prisoner and
satisfied the subjective component of the Eighth Amendment
standard. [FN108] Moreover, evidence that, as a result of
being shackled while in labor, Nelson soiled her bed sheets,
causing her actual discomfort and humiliation, and subjecting
her to the risk of infection, further satisfied the subjective
standard. [FN109] The court also noted that an officer had
been present while the nurses were attempting to help the
prisoner push her baby through the birth canal, and that
medical personnel had repeatedly asked for the removal of the
shackles. [FN110] Further, since the prisoner was not a flight
risk, she clearly established that the government could not
reasonably claim that her case warranted shackling. [FN111]
Applying Nelson's holding, other cases are also obviously
unconstitutional. [FN112] For example, in the case of Desiree
C., prison guards rushed her to the hospital with one ankle
chained to a gurney, with contractions every three minutes.
[FN113] She had an emergency C-section, and when she
awoke from general anesthesia she spent four days in
recovery, shackled to a bed and under the watch of an armed
guard. [FN114] The shackles made physical recovery more
difficult, as her doctor instructed her to get up and walk to
help her stomach muscles heal. [FN115]
When applying the Nelson standard to this situation, it is
clear that the prison officials violated Desiree's constitutional
rights, as they showed a clear deliberate indifference to her
situation. [FN116] Under Nelson, Desiree had a clearly
established right to not be shackled, as there was no clear and
convincing evidence that she was a flight risk. [FN117]
Further, Desiree was not subject to humane conditions of
confinement as prescribed under Nelson, as she had to walk to

aid her recovery while still in shackles. [FN118] Under the
standards set forth in Nelson, Desiree experienced deliberate
indifference with regards to her medical condition and
unnecessary pain and suffering from the shackling, thus
violating her Eighth Amendment rights. [FN119]
The existence of the obvious and simple alternative of
supervising pregnant inmates during childbirth, which many
states are already doing, and the lack of a logical connection
between the goals of security and prevention of escape and the
policy permitting the shackling of pregnant inmates during
childbirth, demonstrate that this common practice and prison
policy is unconstitutional. [FN120]
2. The Court in Women Prisoners v. District of Columbia
Should Have Found That Shackling Laws are
Unconstitutional.
In Women Prisoners v. District of Columbia, the appellate
court erred in reversing the trial court and should have
declared the practice of shackling unconstitutional. [FN121]
This would have been a perfect opportunity for the court to
establish a clear standard with regards to the law. [FN122] The
court should have let the standard set forth by the trial court
stand, for had it done so there would be a firm standard in case
law declaring shackling illegal and in violation of the Eighth
Amendment. [FN123] Instead, the decision leaves the power
to administer remedies for shackling in the hands of local D.C.
courts. [FN124] However, this is insufficient, as it not only
leaves D.C. without any anti-shackling laws, but also provides
ample opportunity for an uneven application of a remedy.
[FN125]
In Women Prisoners I, the trial court found the shackling
of pregnant women to be a violation of federal law. [FN126]
The trial court was correct in ordering the appellants to hire a
nurse midwife to provide services, establish a pre-natal clinic,
and arrange for obstetrical examinations within women's
prisons. [FN127] However, the United States Court of
Appeals for the District of Columbia Circuit made a grave
error in dissolving the injunction. [FN128] By doing so, the
Court of Appeals left D.C. without a strict anti-shackling
standard. [FN129] The Court of Appeals reasoned that
because courts have little experience in running a prison, they
should give deference to prison officials where possible.
[FN130] The court erred in making this ruling, as it created a
self-regulating system for prisons. [FN131] In vacating the
order for gynecological care, the Court of Appeals left
pregnant inmates defenseless against inhumane treatment and
improper medical care. [FN132] The court leaves the
regulation of caring for pregnant prisoners to local D.C. Code,
which has no formal provisions regarding shackling. [FN133]
As such, the Court of Appeals aided the furtherance of an
unconstitutional system by leaving the practice of shackling
unregulated and with no form of a legal check on the system.
[FN134]
C. Illinois, California, and New York Have All Outlawed
Shackling and Other States Should Follow Their Model and
Move Towards Passing Legislation that Also Outlaws
Shackling.

In addition to violating the Eighth Amendment's
prohibition against cruel and unusual punishment, shackling
also violates state statutes requiring a minimum standard of
care for prisoners. [FN135] Even worse than the minimal
number of state laws regulating the treatment of incarcerated
women during childbirth is the complete absence of a federal
law aimed at protecting pregnant women in prison. [FN136]
States such as California, Illinois, and New York, chose to
forego litigation in favor of a legislative solution. [FN137]
1. Other States Should Follow the Model Laid Out by the
Illinois Law and Enact Laws Banning Shackling.
In 2000, the Illinois legislature amended the state's
Unified Code of Corrections to add an anti-shackling
provision. [FN138] The revised statute clearly lays out the
standard that prohibits restraints on an inmate in labor during
any point of her transport or delivery. [FN139]
Unfortunately, despite the strict shackling prohibitions in
Illinois law, the practice is still widely used, and the case of
Latiana Walton is just one example of the gross disobedience
of these crucial laws. [FN140] Walton-- another non-violent
offender--had an arm and leg chained to her bed during labor,
and wrist handcuffed throughout the entire delivery. [FN141]
The Illinois Unified Code of Corrections clearly states that
when a pregnant inmate is brought to a hospital for the
purposes of giving birth, under no circumstances may
handcuffs, shackles, or restraints of any kind can be used
during labor. [FN142] The statute does allow for the posting
of a correctional officer immediately outside the delivery
room, but even this is disregarded, and corrections officers
often stay in the delivery room. [FN143]
The case of Latiana exhibits a gross violation of not only
Illinois state law regarding the minimum standard of care for
inmates and the use of shackles on pregnant inmates during
delivery, but also a person's constitutionally protected Eighth
Amendment right against cruel and unusual punishment.
[FN144]
Other states, such as Louisiana, which currently have no
legislation limiting the use of shackles on pregnant inmates
and allows restraints on inmates in the third trimester as well
as during transport and labor, should adopt the Illinois
standards. [FN145] Louisiana could easily adopt certain
provisions from the Illinois statute--such as prohibiting leg
irons on a woman in labor--making its current laws illegal.
[FN146] The legislative intent of the Illinois anti-shackling
legislation is to protect the well-being of the child and mother,
and to not inflict any undue pain or suffering caused by
shackling. [FN147] States such as Louisiana should strive to
enforce this objective within their own legislation. [FN148]
A clear example of where shackling caused undue pain
and suffering in Louisiana is the case of Joe Doe B., where
corrections officers left her in shackles after she went into
labor. [FN149] Under Illinois law, the Louisiana law is
unconstitutional, as Illinois strictly prohibits the use of
shackles during active labor. [FN150] Shackling during active
labor is unconstitutional because it serves no legitimate
purpose and causes undue pain and suffering. [FN151]

2. Other States Should Follow the Model Laid Out by
California Law and Enact Laws Banning Shackling.
In 2005, the California Legislature followed Illinois'
example by passing an anti-shackling provision. [FN152] The
legislature's decision to ban the practice of shackling prisoners
adheres to United Nations policy. [FN153] The legislature's
reliance on the United Nations policy against shackling shows
a clearer human rights standard than the legislation used in
Illinois. [FN154] The California statute states that once an
inmate is in labor, she shall not be shackled by the ankles,
wrists, or both, and that she will be transported in the least
restrictive way possible. [FN155]
California's statute can extend to a state like Minnesota,
which has no anti-shackling legislation. [FN156] Not only
does Minnesota have no legislation limiting the use of
shackling on pregnant inmates, but the state has a written
policy requiring that inmates be restrained during medical
procedures and be restrained to the bed with at least one set of
restraints at all times. [FN157] Minnesota has the least
progressive shackling laws of any state, requiring the use of
restraints during transportation and labor, and requiring an
officer inside the delivery room during delivery. [FN158] All
of these provisions should be illegal, and they could be in
Minnesota if the state adopted the regulations of the California
statute. [FN159] If, under California law, it is illegal to
shackle a woman during active labor, this standard should
apply to Minnesota, making the requirement under Minnesota
law that prisoners have at least one shackle during active labor
unconstitutional. [FN160] The Minnesota law flouts the
legislative intent of the California code, disregarding all
concepts of basic human dignity and civility, when in actuality
those same elements of humanity and decency can, and
should, be the driving force behind shackling legislation.
[FN161]
3. Other States Should Follow the Model Laid Out by
New York Law and Enact Laws Banning Shackling.
The New York law accomplishes the same goals as its
California and Illinois counterparts. [FN162] The bill allows
the cuffing of women by one wrist during transfer if they are
deemed a risk, but otherwise forbids any mechanical restraint
during transport when a woman is in labor and admitted to a
hospital for delivery or is recovering after giving birth.
[FN163] The justification for the Assembly bill was the
recognition that New York was still one of the many states
that permitted the shackling of pregnant inmates. [FN164] In
New York City, a 1990 consent decree agreement ended the
shackling of pregnant inmates, recognizing that the use of
mechanical restraints on a pregnant inmate constituted a cruel
and inhumane form of punishment and posed a serious risk to
both the mother and her unborn child. [FN165] While New
York recognized a need for cohesion in the laws of the entire
state, other states without shackling laws should recognize the
need to come in line with the necessary statutory provisions
outlined in other state laws. [FN166]
One such state that should take this step is Oklahoma, as
it currently has no legislation limiting the use of shackling on
pregnant inmates. [FN167] Oklahoma allows the shackling of
inmates during their third trimester, transport to the hospital
for childbirth, and during labor. [FN168] The legislative intent

of the New York bill easily applies to the statutes of
Oklahoma. [FN169] When persuasively applying the authority
of the New York bill, which clearly prohibits shackling during
active labor, the practices in Oklahoma - such as only
removing restraints during labor if the attending physician,
head of the medical facility, and head of the correctional
facility are all in agreement--should be illegal. [FN170]
All three pieces of model legislation described above
contain clauses that would allow prison officials or attending
physicians to mandate the use of limited physical restraints in
the case of a specific health or security risk. [FN171] The
legislators in Illinois, California, and New York, however,
have recognized an important policy paradigm shift: shackling
pregnant inmates should be a rare exception rather than the
norm, and the decision to use physical restraints on a woman
in active labor must be made carefully and for justifiable
reasons. [FN172]
IV. Policy Recommendations
Preemptive legislation banning the shackling of inmates
during labor and delivery is far superior to waiting until a legal
injury occurs. [FN173] Drafting legislation serves myriad
purposes, such as keeping an injury from occurring in the first
place, keeping cases out of the court system, and providing
national guidance. [FN174] Unfortunately, prisoners are
unpopular with the public, politically powerless, and often
legally unsophisticated. [FN175]
Sadly, in states where shackling is illegal, the wave of
lawsuits challenging shackling demonstrates that shackling
continues to be a prevalent practice despite the law. [FN176]
Circumstances like those in Illinois raise concerns about
drafting effective legislation in other states. [FN177] One
notable difference between the statutes of New York and
California versus Illinois, is that both New York and
California include provisions that would allow for the
shackling of a prisoner if it is deemed necessary for the safety
of the inmate, the staff, or the public, or if the prisoner is a
flight risk. [FN178]
States such as Pennsylvania and Georgia are currently
making strides towards establishing anti-shackling legislation.
[FN179] Under Pennsylvania's Senate Bill 1074, corrections
officers are still permitted to use restraints in extreme
situations. [FN180] This provision seems to be the mark of a
successfully enforced piece of anti-shackling legislation.
[FN181] While Georgia is not as far along as Pennsylvania, it
is moving towards drafting anti-shackling legislation. [FN182]
In order to draft successful shackling legislation that is
actually enforced, Georgia will have to specify that guards
may not use restraints during transportation or delivery, while
still allowing for some security provisions in extreme cases.
[FN183]
In October 2008, the Federal Bureau of Prisons issued a
new policy mandating that inmates in labor, delivery, or postdelivery recuperation shall not be placed in restraints unless
there are reasonable grounds to believe the inmate presents an
immediate, serious threat of hurting herself or others, or there

are reasonable grounds to believe the inmate presents an
immediate and credible risk of escape. [FN184] Similarly, in
April 2008, President Bush signed the Second Chance Act into
law, which requires that all federal correctional facilities
document and report the use of physical restraints on pregnant
female prisoners during pregnancy, labor, delivery, and postdelivery, and justify the use of the restraints with documented
security concerns. [FN185]
The current patchwork system of laws, regulations,
written, and unwritten policies has created an atmosphere of
confusion and noncompliance. [FN186] Even in states with
legislative bans on the practice of shackling, there have been
anecdotal reports that the practice continues to be employed
on women during labor and delivery. [FN187] It is not
uncommon for changes in department of corrections'
directives or policies to go uncommunicated to prison guards,
or for such policies to be applied with such discretion as to
essentially permit the practice in nearly all circumstances.
[FN188] It is clear that while great progress has been made in
the effort to end the shackling of incarcerated women during
labor and delivery in the past ten years, considerably more
needs to be done.
V. Conclusion
Women who have already been seriously physically
injured as a result of the use of shackles during pregnancy and
childbirth may still be able to use the court system to obtain
monetary damages. [FN189] However, in order to prevent
future injury or to simply protest the practice as a human
rights violation, female prisoners and their advocates will most
likely have to turn to alternative methods of relief. [FN190] In
Illinois, California, and New York, state legislatures have
severely limited the ability of prison officials to shackle
pregnant or birthing prisoners. [FN191] With the Eighth
Circuit's decision, there is now a federal standard declaring the
practice of shackling unconstitutional for violating the Eighth
Amendment. [FN192] Thus, the law of any state that allows
for the shackling of female inmates during labor or delivery is
unconstitutional under the Nelson standard. [FN193]
State departments of corrections and state legislators
should follow the example set by California, Illinois, and New
York and enact and implement state regulations and
legislation to protect pregnant inmates who give birth while
incarcerated, thus bringing the country in line with its
constitutional obligations. [FN194]
[FNa1]. Managing Editor, Vol. 20, American University
Journal of Gender, Social Policy & the Law; J.D. Candidate,
May 2012, American University, Washington College of Law;
B.A. 2009, Northwestern University. Thank you to my editor,
Sarah Comeau, for her continued guidance throughout the
writing process. A big thank you to the Journal staff,
especially J.P. Bodri, R. Roberti, and A. Fox, for their
unyielding patience, hard work, and dedication in preparing
this Article. Most of all, thank you to my family for their
steadfast love, support, and encouragement throughout the
years.
[FN1]. See Editorial, One Protection for Prisoners, N.Y.
Times, Oct. 14, 2009, at A30, available at http://

www.nytimes.com/2009/10/14/opinion/14wed3.html?_r=1
(defining shackling as the practice of placing women in leg
shackles, handcuffs, and a belly chain with a box that connects
the handcuffs and belly chain).
[FN2]. See Colleen Mastony, Childbirth in Chains, Chi. Trib.,
July 18, 2010, http://articles.chicagotribune.com/2010-0718/news/ct-met-shackled-mothers-20100718_1_shackleshandcuffs-labor (contending that most sheriff officials
consider labor to be only the moments immediately before
birth). But cf. Reviewed by Louise Chang MD, Normal Labor
and Delivery Process, WebMD, Feb. 1, 2010, at 1, available at
http://www.webmd.com/baby/guide/normal-labor-anddelivery-process (considering labor to begin whenever
contractions start, known as the latent stage).
[FN3]. See Rachel Roth, Pregnant, in Prison and Denied Care,
The Nation, Dec. 21, 2009, available at
http://www.thenation.com/article/pregnant-prison-and-deniedcare (recounting various situations in which prison officials
denied inmates proper medical attention during labor).
[FN4]. See generally Amnesty Int'l USA, Abuse of Women in
Custody: Sexual Misconduct and Shackling of Pregnant
Women A State-By-State Survey of Policies and Practices in
the USA (2001) [hereinafter Amnesty Int'l USA, Abuse of
Women in Custody] (giving state by state reports of statutes
outlining shackling policies).
[FN5]. See Mastony, supra note 2 (reporting that since 2008,
more than twenty former female inmates have filed lawsuits
against the Cook County Sheriff's office alleging incidents of
shackling while giving birth).
[FN6]. See Jane E. Allen, Shackled: Women Behind Bars
Deliver in Chains Federal Prisons Ban Practice, But 40 States
Still Allow Shackling of Incarcerated Pregnant Women, ABC
News Med. Unit, Oct. 21, 2010, at 3, available at
http://abcnews.go.com/Health/WomensHealth/pregnantshackled-women-bars-deliverchains/story?id=11933376&page=1 (noting that there are still
some legislative setbacks, like in California where Gov.
Schwarzenegger vetoed a statute that would have extended the
prohibition on shackling throughout an inmate's pregnancy).
[FN7]. See U.S. Const. amend. VIII (declaring it illegal to
inflict cruel or unusual punishment). See generally 583 F.3d
522 (8th Cir. 2009) (en banc) (holding that shackling inflicts
cruel and unusual punishment).
[FN8]. See Nelson v. Corr. Med. Servs., 583 F.3d at 531-32
(holding that shackling is cruel and unusual punishment under
the Constitution); see also Cal. Gov't Code § 845.6 (West
2011) (providing a statutory minimum standard of care for
prisoners); D.C. Code § 24-211.02 (2011) (providing a
minimum standard of care for prisoners); 745 Ill. Comp. Stat.
Ann. 10/4-105 (West 2011) (providing a statutory minimum
standard of care for prisoners); N.Y. Correct. Law § 508
(McKinney 2011).
[FN9]. See infra Part II (outlining that at the state level, no
legal or medical justification exists for the use of shackling).

[FN10]. See infra Part III (arguing that states allowing
shackling should recognize that it violates human decency,
and adopt the legislative intent of states with anti-shackling
legislation).
[FN11]. See infra Part IV (arguing that states like Tennessee
and Georgia should follow the California and New York
model to ensure that their shackling legislation is enforced).
[FN12]. See infra Part V (applying the standards set forth in
Estelle and Nelson, stating that shackling violates the Eighth
Amendment).
[FN13]. See Allen, supra note 6 (noting that the majority of
women in prison today are there for drug offenses or other
non-violent crimes).
[FN14]. Press Release, Amnesty Int'l USA, States Policies
Fail to Protect Women From Sexual Misconduct in Prison,
Allow Shackling During Pregnancy & Labor, Amnesty
International Finds (Mar. 2, 2006), available at http://
www.commondreams.org/cgibin/print.cgi?file=/news2006/0302-06.htm (stating how
doctors required that Samantha pace for several hours while in
labor with her ankles shackled leaving them raw).
[FN15]. See id. (recounting when the corrections officer
permanently appointed to stand guard in her room finally
removed the shackles).
[FN16]. See Mastony, supra note 2 (revealing how Latiana is
one of the twenty inmates to come forward since 2008 to
accuse Cook County of continuing to use these practices
contrary to Illinois law).
[FN17]. See id. (stating how the corrections officer removed
the shackles only ten minutes before the actual birth of
Latiana's son and then replaced them immediately afterward).
[FN18]. See id. (describing the unnecessary and excessive
pain Latiana experienced during her labor).
[FN19]. See id. (noting how the immediate replacement of the
shackles resulted in Latiana not being able to safely finish her
delivery).
[FN20]. See Roth, supra note 3 (illustrating the total lack of
regard for proper inmate care through repeatedly denied
requests for medical attention).
[FN21]. See id. (showing how in this case, the prisoner did not
even have the luxury of being shackled to a bed).
[FN22]. See id. (recounting that continued denial of medical
care on behalf of jail officials, even after diagnosis of fetal
death, caused staggering increase in threat of septic shock and
death).
[FN23]. See Mastony, supra note 2 (noting that because male
prisoners are shackled during any type of hospitalization,
including surgery, this practice was then applied to female

prisoners during childbirth).

(detailing the case of Shawanna Nelson).

[FN24]. See id. (noting that women in labor are a much lower
safety and flight risk than other prisoners).

[FN37]. See id. at 522 (noting that Nelson was incarcerated
for a non-violent offense).

[FN25]. See Adam Liptak, Prisons Often Shackle Pregnant
Inmates in Labor, N.Y. Times, Mar. 2, 2006, http://
www.nytimes.com/2006/03/02/national/02shackles.html?_
r=1&scp=1&sq=Adam+Liptak&st=nyt (arguing that shackling
laws that seek to protect security officers from a woman in
labor, who has no previous history of violence, is not a
legitimate justification for shackling her).

[FN38]. See id. at 525-26 (noting that the officer later testified
that Nelson remained shackled despite the fact that the officer
never felt threatened by her or thought Nelson presented a
escape risk).

[FN26]. See id. (noting an estimated five percent of women
incarcerated in state prisons and three percent of women
incarcerated in federal prisons are pregnant upon admission,
resulting in approximately 2,000 births per year).

[FN40]. See id. at 522 (assuming no security justification
existed for the restrains such as a history of violence).

[FN27]. See L. Mara Dodge, Whores and Thieves of the
Worst Kind: A Study of Women, Crimes, and Prisons, 18352000, 30 (2002) (describing female penitentiary inmates as
unredeemable).
[FN28]. See Matony, supra note 2 (aligning the origin of
shackling with the creation of gender neutral policies resulting
in the shackling of both male and female prisoners when being
transported to a hospital regardless of their condition).
[FN29]. See Dodge, supra note 27, at 30 (noting that women
have shorter, less violent criminal histories than men; while
more than half of male prisoners have committed two or fewer
offenses, compared to two-thirds of female prisoners); see also
Mastony supra note 2 (noting that most women in Cook
County are in jail for nonviolent crimes).
[FN30]. See id. (noting that men are twice as likely as women
to be violent recidivists).
[FN31]. See generally 93 F.3d 910, 913 (D.C. Cir. 1996)
(alleging violations of various statutory and constitutional
provisions such as sexual abuse of prisoners and inadequate
medical care).
[FN32]. See id. at 928 (quoting Inmates of Occoquan v. Barry,
844 F.2d 828, 836 (D.C. Cir. 1988)).
[FN33]. See id. at 932, 944 (vacating an order requiring prison
officials to develop a written protocol for prenatal care,
reasoning that the District Court did not have supplemental
jurisdiction as to this issue).
[FN34]. See Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 321 (reporting policies in D.C. based
on DOC responses to Amnesty International's surveys).
[FN35]. See Movement Builds to Stop Shackling Pregnant
Prisoners, Crime Rep., Aug. 31, 2009,
http://thecrimereport.org/2009/08/31/movement-builds-tostopshackling-pregnant-prisoners (noting that suggested limits
certainly do not carry the same effect as actual legislation).
[FN36]. See generally 583 F.3d 522 (8th Cir. 2009) (en banc)

[FN39]. See id. at 526 (noting that when a cervix has dilated
seven centimeters that is well into the final stages of labor).

[FN41]. See id. at 529 (noting how an Eighth Amendment
claim of deliberate indifference contains both a subjective and
objective component).
[FN42]. See id. at 532 (noting that the determination of
interference with medical care, or the infliction of unnecessary
suffering is an issue solely determined by the evidence in a
specific case).
[FN43]. See Allen, supra note 6 (stating that shackling not
only impedes a safe birth, but can cause immediate physical
pain like raw ankles or wrists).
[FN44]. See id. (noting the potential for serious damage to the
baby if the mother falls on her stomach).
[FN45]. See id. (listing consequences including, dropping of a
baby's heart rate, prohibiting the mother to change position to
increase blood flow, or impeding a timely emergency csection).
[FN46]. See Nelson, 583 F.3d at 529 (explaining that
shackling is inherently dangerous to both mother and child).
[FN47]. See id. at 526 (stating that shackling caused a severe
amount of pain and requiring additional surgery for both
injuries).
[FN48]. See Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 13 (identifying Illinois, as the first,
and New York, as the most recent, states to pass such
legislation).
[FN49]. See 55 Ill. Comp. Stat. Ann. 5/3-15003.6 (West 2011)
(prohibiting the use of shackles during the transportation of a
female prisoner prior to delivering a baby).
[FN50]. See Cal. Penal Code § 6030 (West 2011) (establishing
standards of health for pregnant women as well, such as a
balanced diet and prenatal health care provided by a doctor).
[FN51]. See N.Y. Correct. Law § 611 (McKinney 2011)
(providing the most recently drafted anti-shackling
legislation).
[FN52]. See, Mastony, supra note 2 (stating how inmates are

often met with distrust and disbelief when they inform officers
they are pregnant).

[FN65]. See id. (holding that serious medical needs of
prisoners cannot be ignored under the Eighth Amendment).

[FN53]. See 745 Ill. Comp. Stat. Ann. 10/4-105 (West 2011)
(applying this standard to the case of Latiana Watson where
the correctional officer arguably knew that Watson needed
medical care and that the shackles were impeding the proper
administration of medical care, the officer could be found to
have willfully and wantonly failed to take reasonable action by
removing the shackles).

[FN66]. See id. at 106 (stating that the Court is applying the
Eighth Amendment conditions of confinement standard of
deliberate indifference).

[FN54]. See id. (noting that an employee who disobeys the
requirement to summon medical care is liable for injury
proximately caused by lack of medical attention).
[FN55]. See Cal. Gov't Code § 845.6 (West 2011) (applying
persuasive authority such as the California statute, to a case
such as that of Joan S. in Wisconsin, the correctional officers
could be held liable for their blatant disregard for the health of
a prisoner if Wisconsin were to adopt shackling legislation).
[FN56]. See N.Y. Correct. Law § 508 (requiring that in-prison
treatment is insufficient to treat the prisoner).
[FN57]. See D.C. Code § 24-211.02 (2011) (applying this
standard to any case where shackling or lack of medical
attention interferes with the safety and efficiency of
childbirth).
[FN58]. See generally Estelle v. Gamble, 429 U.S. 97 (1976)
(holding that the Eighth Amendment ensures prisoners a
minimum standard of medical care).
[FN59]. See id. at 97 (stating that while the Court ultimately
found that deliberate indifference was not present, it did set
forth a strict legal standard that prison officials cannot
willfully deny prisoners care).
[FN60]. See id. at 103 (stating that in the most extreme cases
lack of attention to these medical needs can actually produce
physical torture or lingering death, and in less severe cases
may result in pain and suffering).
[FN61]. See id. at 102 (citing Jackson v. Bishop, 404 F.2d
571, 579 (8th Cir. 1968)) (stating that the elements of this
standard are broad and idealistic civilized standards, such as
dignity, humanity, and decency).
[FN62]. See id. at 104 (noting that this standard holds true
whether the indifference is manifested by a prison doctor in
response to a prisoner's needs, or by the prison guards
intentionally denying or delaying access to medical care).
[FN63]. See Turner v. Safley, 482 U.S. 78, 95 (1987) (holding
that the status of “prisoner” curbs some constitutional rights in
the interest of legitimate objectives such as deterrence of
crime, rehabilitation, and internal security and order).
[FN64]. See Estelle, 429 U.S. at 103 (noting that denying an
inmate medical care could result in pain and suffering which
would not serve a legitimate penological purpose).

[FN67]. See id. (reasoning that deliberate indifference and
willful disregard are both cruel and unusual, and therefore
synonymous for the purposes of medical care under the Eighth
Amendment).
[FN68]. See id. at 104 (noting that the infliction of such
unnecessary suffering is inconsistent with contemporary
standards of decency as manifested in modern legislation
codifying the common-law).
[FN69]. See id. (noting that so long as the shackling of a
prisoner is not an accident, any time that shackling of a
prisoner interferes with, denies, or delays a pregnant inmate's
access to medical care, under Estelle, it is a violation of the
Eighth Amendment).
[FN70]. See Roth, supra note 3 (recounting the case of an
inmate in Dubuque County Jail in Iowa where no one noticed
her giving birth).
[FN71]. See generally Estelle, 429 U.S. at 104 (noting that it is
a clear mark of human decency--which the Court lays out as a
necessary element of determining deliberate indifference--to
render assistance to a woman in labor).
[FN72]. See id. (noting that prisoners cannot care for
themselves by reason of their deprivation of liberty, and so
they depend on the state for proper care).
[FN73]. See id. (using the Supreme Court's standard that
wanton infliction of unnecessary pain violates the Eighth
Amendment, and holding that forcing a woman to give birth in
her cell alone clearly constitutes wanton infliction of
unnecessary pain).
[FN74]. See Roth, supra note 3 (recounting how Joan sought
medical attention for two weeks because she was near her due
date and leaking amniotic fluid).
[FN75]. See id. (stating that doctors told Joan that the death of
her fetus was a direct result of the loss of all her amniotic fluid
and that she was at severe risk of septic shock the longer the
dead fetus was inside her).
[FN76]. See id. (observing that prison guards were clearly
aware of Joan's medical condition and intentionally delayed
taking her to a hospital, preventing access to necessary
medical attention).
[FN77]. See id. (noting that such a severe infliction of pain
and suffering clearly violates the cruel and unusual
punishment provision proscribed by the Eighth Amendment).
[FN78]. See id. at 103 (applying the Estelle standard, the jail
officials' deliberate indifference to Joan's serious illness

constitutes cruel and unusual punishment, violating the Eighth
Amendment).

resulting in a hernia and dislocated hip).

[FN79]. See id. at 103 (noting that the pain and suffering Joan
experienced served no penological purpose).

[FN92]. See id. at 529 (applying the holding in Estelle that
denying or delaying a prisoner's access to medical care is cruel
and unusual punishment).

[FN80]. See Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 23 (stating that such measures
exacerbates the dangers of the childbearing process).

[FN93]. See id. at 529, 531 (stating that these actions resulted
in a wanton infliction of unnecessary pain in violation of the
Eighth Amendment).

[FN81]. See id. (providing that an obligation not to put
inmates in a situation of elevated risk or purposefully cause a
heightened and unnecessary amount of pain).

[FN94]. See Estelle, 429 U.S. at 103 (noting the obligation of
prison officials to ensure that the Constitutional rights of
prisoners remain intact during incarceration).

[FN82]. See Allen, supra note 6 (stating that if a woman has
been given epidural anesthesia, the numbness makes it
impossible for her to run off).

[FN95]. See Nelson, 583 F.3d at 526 (stating that shackling
caused Nelson unnecessary injuries, and that doctors could not
properly attend to her due to her restrains, thus inhibiting her
access to medical care).

[FN83]. See Nelson v. Corr. Med. Servs., 583 F.3d 522, 530
(8th Cir. 2009) (en banc) (noting the argument that the
shackling of inmates serves a security interest).
[FN84]. See Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 3 (arguing that there is no legitimate
punitive correlation between the original crime for which the
prisoner is incarcerated, and shackling her during childbirth).
[FN85]. See generally Nelson, 583 F.3d at 522 (upholding that
shackling violates the Constitution because it is an Eighth
Amendment violation and because it infringes on a prisoner's
constitutionally protected right to medical care).
[FN86]. See Nelson v. Corr. Med. Services, 104CV00037
JMM-JWC, 2007 WL 1703562, at *2-3 (E.D. Ark. June 11,
2007) (recalling how Nelson had repeatedly asked to be taken
to the hospital and the infirmary nurse denied her request),
rev'd in part, 533 F.3d 958 (8th Cir. 2008) and aff'd in part,
rev'd in part, 583 F.3d 522 (8th Cir. 2009).
[FN87]. See Nelson, 583 F.3d at 526. (explaining that as a
result of the shackles, every time Nelson experienced a labor
contraction her leg would cramp up and she would experience
severe pain, ultimately causing a dislocated hip).
[FN88]. See Estelle v. Gamble, 429 U.S. 97, 104 (1976)
(showing that Nelson suffered as a direct result of the
deliberate indifference of the prison officials).
[FN89]. See Nelson, 583 F.3d at 529 (noting the adequate
satisfaction of the objective and subjective tests, and that the
deliberate indifference to Nelson's medical needs caused cruel
and unusual punishment as proscribed by the Eighth
Amendment).
[FN90]. See Nelson, 2007 WL 1703562, at *2-3 (explaining
the importance in taking a woman to a hospital once she
reaches active labor to help ensure no delivery complications
occur).
[FN91]. See Nelson, 583 F.3d at 529 (declaring that the
officer's refusal to remove the shackles impeded with the
birthing process and caused severe undue pain and suffering,

[FN96]. See U.S. Equal Emp't Opportunity Comm'n., Fact
Sheet: The Family and Medical Leave Act, the Americans
with Disabilities Act, and Title VII of the Civil Rights Act of
1964 (July 6, 2000), available at http://
www.eeoc.gov/policy/docs/fmlaada.html (stating that while
pregnancy is not a disability under the ADA, it is considered a
serious condition under the Family and Medical Leave Act).
[FN97]. See generally Estelle, 429 U.S. at 97 (holding that
infringing on a prisoner's Constitutionally protected right to
medical care constitutes cruel and unusual punishment).
[FN98]. U.S. Const. amend. VIII; see also Estelle, 429 U.S. at
104 (noting that ignoring the medical needs of prisoners
causes undue pain and suffering, delays access to medical
care, and often inhibits necessary medical attention).
[FN99]. See Nelson v. Corr. Med. Servs., 583 F.3d 522, 53031 (8th Cir. 2009) (en banc) (supposing the security interest to
be the possibility of an inmate fleeing from the hospital while
in labor).
[FN100]. See id. (stating that there was no evidence in
Nelson's case to suggest that she would flee or pose a security
threat).
[FN101]. See id. at 533 (discussing the regulatory exception
that would potentially allow a corrections officer to shackle an
inmate after delivery if there is clear and convincing evidence
that she poses a serious safety risk to herself, hospital staff, or
the officer).
[FN102]. See id. at 531 (noting that Nelson was under the
supervision of an experienced correctional officer who was
equipped with a fire arm, and that this is a sufficient form of
security).
[FN103]. But cf. Turner v. Safley, 482 U.S. 78, 86, 91 (1987)
(noting however, that security and prevention of escape are
legitimate governmental interests).
[FN104]. Cf. Allen, supra note 6 (stating that the majority of
convictions of pregnant inmates are for non-violent crimes).

[FN105]. See Nelson, 583 F.3d at 529 (stipulating that there
must be clear and convincing evidence to satisfy these
elements).
[FN106]. See id. (stating that the elements involve a showing
of an excessive risk of substantial harm).
[FN107]. See id. (relying on the testimony given at trial by an
expert in the field of obstetrics and gynecology).
[FN108]. See id. (finding that the jury could find that Officer
Turensky knew of the risk to Nelson simply because of the
obviousness of the risk).
[FN109]. See id. at 526 (explaining that Nelson's injuries
prevent her from participating in many activities and that she
was advised not to have more children as a result of her
injuries).
[FN110]. See id. at 530 (observing no justification for
continuing to shackle after repeated requests on the part of
medical personnel to unshackle the prisoner).
[FN111]. See id. at 522 (noting that there needs to be clear and
convincing evidence of flight risk).
[FN112]. See id. (applying a standard of deliberate
indifference).
[FN113]. See Karen de Sá, Legislation Calls for an End to
Cuffing Women During Labor, Mercury News, Aug. 1, 2005,
available at http://
www.november.org/stayinfor/breaking3/ShacklingWomen.ht
ml (noting that contractions that are three minutes apart
constitute active labor).
[FN114]. See id. (stating that while the prisoner had an
emergency C-section, the baby still died).
[FN115]. See id. (noting that the shackles around the
prisoner's ankles seriously impeded her ability to walk, as she
was instructed to do so by her physician).
[FN116]. See Nelson, 583 F.3d at 522 (noting that it often
takes several hours to reach active labor, and as such prison
officials were deliberately indifferent to the prisoner's medical
needs if she did not arrive at the hospital until she was already
in active labor, meaning officials delayed her access to
medical care).

[FN120]. Compare Turner v. Safley, 482 U.S. 78, 90 (1987)
(holding that prison regulations may amount to a
constitutional violation if there are easy alternatives indicating
that the current regulation may be unreasonable), with
Amnesty Int'l USA, Not Part of My Sentence: Violations of
the Human Rights of Women in Custody 11-12 (1999) http://
www.amnesty.org/en/library/asset/AMR51/019/1999/en/7588
269a-e33d-11dd-808b-bfd8d459a3de/amr510191999en.pdf
(presenting clear alternatives for the amendment of policies
regarding state use of restraints during child birth that infringe
less upon the civil rights of pregnant prisoners).
[FN121]. See generally Women Prisoners v. D.C. Dep't of
Corr., 93 F.3d 910 (D.C. Cir. 1996) (noting that while the
main focus of the case was prison conditions, the court could
have left intact the lower court's ruling regarding the shackling
of female prisoners).
[FN122]. But see Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 321 (noting that D.C. still has no
legislation limiting the use of shackles on pregnant inmates).
[FN123]. See Women Prisoners, 93 F.3d at 931-32 (inhibiting
the establishment of an actual standard, rather than simply
leaving a potential remedy in such cases at the discretion of
the courts of the District of Columbia).
[FN124]. See id. (noting the reticence of the Court of Appeals
to establish a standard on a new and ambiguous law).
[FN125]. Cf. id. (making it more difficult for women who
have been shackled to seek a remedy because of the absence
of an actual standard).
[FN126]. See id. at 916 (reviewing the lower court's holding
that shackling violates the Eighth Amendment and the Civil
Rights Act of 1871, 42 U.S.C. § 1983 (2006)).
[FN127]. See id. at 923 (establishing these measures as
minimums in ob/gyn care in prisons).
[FN128]. See id. (stating that while these measures may be
highly desirable, the Supreme Court has warned against such
detailed orders because they circumvent the authority of local
legislatures).
[FN129]. See Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 321 (noting that D.C. has no
legislation limiting shackling).

[FN117]. See de Sá, supra note 113 (noting that Desiree was
under anesthesia as part of her emergency C-section, making it
impossible for her to flee the hospital).

[FN130]. See Women Prisoners III, 93 F.3d at 931-32
(regarding the running of the prisons, program
implementation, and prison upkeep).

[FN118]. See Nelson, 583 F.3d at 529 (noting that the pain
and restricted position of confinement caused by the shackles
brought unnecessary discomfort and humiliation upon
Nelson).

[FN131]. Cf. id. (assuming--incorrectly--that prisons will
always act in the best interest of the prisoner).

[FN119]. See id. at 531-32 (reasoning that the right to not be
shackled is constitutionally protected).

[FN132]. See id. (vacating the order of the trial court, and
leaving as recompense only the ability for appellees to renew
their arguments to the court regarding the substandard medical
care).

[FN133]. See Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 321 (ignoring D.C.'s lack of
legislation banning shackling).
[FN134]. See Women Prisoners, 93 F.3d at 931-32 (leaving
the regulation of the prisons up to the prison officials
themselves, basing the regulation of shackling on non-existent
D.C. law, and providing no legal remedy for clear Eighth
Amendment violations).
[FN135]. Compare Cal. Penal Code § 6030(e)-(f) (West 2011)
(calling for prenatal and postpartum care for pregnant inmates,
as well as prohibiting shackling of prisoners who are in labor),
with N.Y. Correc. Law § 611 (McKinney 2011) (prohibiting
restraints on prisoners who are in labor, except under
extraordinary circumstances, during which they may be cuffed
by one wrist); see also Liptak, supra note 25 (stating that the
New York law is very similar to those enacted by California
and Illinois).
[FN136]. See Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 328 (observing that there is no U.S.
Bureau of Prisons legislation nor an agency policy that bans
the shackling of pregnant inmates).
[FN137]. See Liptak, supra note 25 (commenting on a New
York bill similar to statutes enacted by California and Illinois,
that has subsequently been adopted).
[FN138]. See 730 Ill. Comp. Stat. 5/3-6-7 (West 2011) (stating
that when a pregnant female is brought to a hospital for the
purposes of delivering her baby, no shackles, handcuffs, or
restraints of any kind may be used).
[FN139]. See id. (noting the absence of language that allows
for shackling if a guard feels that the inmate is a security risk,
providing a much stricter anti-shackling standard).
[FN140]. See Mastony, supra note 2 (noting that Illinois
passed anti-shackling legislation in 1999, and twelve years
later, it is still disregarded).
[FN141]. See id. (stating that Walton's original charge was for
retail theft, and her incarceration stemmed from missing a
court date).
[FN142]. See 730 Ill. Comp. Stat. 5/3-6-7 (noting that
prohibitions on shackling apply during transportation to the
hospital and delivery).
[FN143]. See Mastony, supra note 2 (recounting the case of
Melissa Hall, an inmate who was not only shackled during
delivery, but also had a guard sitting in her room watching the
NBA finals during the entirety of her labor).
[FN144]. See id. (showing a willful disregard on the part of
the corrections officer since the officer repeatedly ignored the
doctor's request that Walton's shackles be removed).
[FN145]. See Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 137 (stating that Louisiana allows

four and five point restrains on pregnant inmates and allows
for the application of leg irons and handcuffs during delivery).
[FN146]. See id. (noting that the ACLU has filed a lawsuit in
Louisiana regarding the Orleans Parish Prison's policy of
keeping women shackled during labor).
[FN147]. Cf. 730 Ill. Comp. Stat. 5/3-6-7 (showing how a
revision of the full Unified Code of Corrections and the penal
code of Illinois exhibits a philosophical shift in the legislature,
the recognition of the barbarity of the practice, and the
necessity to implement anti-shackling provisions in all
sections of Illinois law).
[FN148]. See id. (allowing the pregnant prisoner to have the
freedom of movement she needs to deliver her baby while also
ensuring that she is adequately monitored by prison officers).
[FN149]. See Amnesty Int'L USA, Abuse of Women in
Custody, supra note 4, at 138 (noting that Louisiana policy is
to place a guard outside the delivery room door, which serves
the legitimate safety interest in question without causing
undue pain and suffering).
[FN150]. Cf. 730 Ill. Comp. Stat. 5/3-6-7; Amnesty Int'l USA,
Abuse of Women in Custody, supra note 4, at 112 (stating that
in addition to its anti-shackling efforts, Illinois also has
programs in place for inmate mothers and their infants where
the child can reside with the mother until he or she is one year
old).
[FN151]. See 730 Ill. Comp. Stat. 5/3-6-7 (showing the state's
obligatory interest in the care of prisoners by making the
Sherriff responsible for providing adequate personnel to
monitor the health of the inmate).
[FN152]. Cal. Penal Code § 5007.7 (West 2011); see Amnesty
Int'l USA, Abuse of Women in Custody, supra note 4, at 61
(showing that, prior to the implementation of the 2006 law,
California had no policy that prevented female prisoners from
being shackled to their hospital beds during labor and
throughout their hospital stay).
[FN153]. See Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 22 (recommending that pregnant
inmates taken to a hospital for the purposes of giving birth
shall not be shackled by the ankles, wrists, or both); see also
California Legislature Considering Bill That Would Ban
Shackling of Prison Inmates During Childbirth, Med. News.
Today, Aug. 2, 2005, http://
www.medicalnewstoday.com/releases/28474.php (noting that
the previous justification for shackling inmates during labor
was a public safety issue and to prevent their escape).
[FN154]. See California Legislature Considering Bill That
Would Ban Shackling of Prison Inmates During Childbirth,
supra note 153 (implying that United Nations standards are
synonymous with International Human Rights standards,
showing that the shift in legislation was morally motivated and
aimed to address the issue of human decency).
[FN155]. Compare Cal. Penal Code § 5007.7 (stating merely

that transportation must occur in the least restrictive way
possible, and suggesting a more flexible standard), with 730
Ill. Comp. Stat. 5/3-6-7 (specifying strictly that no restraints of
any kind be used during childbirth related transportation).

publish any administrative rules concerning pregnancy and
delivery).
[FN168]. See id. at 242 (noting that the state also requires the
presence of a corrections officer in the delivery room).

[FN156]. See Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 168-69 (elaborating that Minnesota
has no legislation limiting the use of shackling on pregnant
inmates during the third trimester and a policy that they are to
be shackled during labor).

[FN169]. See Assemb. B. 4105 (applying the reasoning that
too many states currently permit shackling of female prisoners
and the practice violates the code of human decency).

[FN157]. See id. at 168 (noting that, according to the
Minnesota Department of Corrections, there are no
administrative rules concerning pregnancy and delivery in
Minnesota).

[FN170]. Compare id., with Amnesty Int'l USA, Abuse of
Women in Custody, supra note 4, at 242 (applying the New
York statute to Oklahoma, it becomes apparent that the
legislative intent similarly applies to Oklahoma, as the New
York statute seeks to eliminate the prevalence of laws
permitting shackling).

[FN158]. See Minn. Stat. Ann. § 241.07 (West 2011) (noting
that officers will only partially remove shackles if requested
by a doctor, and that officers are authorized to refuse the
request all together).
[FN159]. See Cal. Penal Code § 5007.7.
[FN160]. See id.
[FN161]. See Minn. Stat. Ann. § 241.07 (noting that
Minnesota law dictates the use of full restraints--waist chain,
black box over handcuffs and leg irons--during transportation
of an inmate for the purpose of giving birth, which, when
viewed under California law is clearly unconstitutional).

[FN171]. Accord 730 Cal. Penal Code § 5007.7 (West 2011);
Ill. Comp. Stat. 5/3-6-7 (West 2011); Assemb. B. 4105
(addressing concerns of corrections officers who justify
shackling pregnant inmates in two major ways: 1) physical
restraints restrict prisoners' movements in a way that protects
medical personnel and prison officers, and 2) prisoners are
prevented from escaping).
[FN172]. See Assemb. B. 4105 (acknowledging the legitimate
justification of public safety).

[FN162]. See N.Y. Correct. Law § 611 (McKinney 2011)
(prohibiting the use of restraints of any kind from being used
during labor).

[FN173]. See Andrea Hsu, Difficult Births: Laboring and
Delivering in Shackles, NPR.org, July 16, 2010,
http://www.npr.org/templates/story/story.php?
storyId=128563037 (showing by a jury's award of $1 that
relief is not always easy to obtain for claims relating to
shackling of pregnant prisoners).

[FN163]. See id. (noting that the minimal restraint during
transport only applies if the inmate is a hazard to herself or
others, or is a flight risk).

[FN174]. See 730 Ill. Comp. Stat. 5/3-6-7 (2000) (noting that
legislation would most importantly prevent such a gross
violation of Constitutional rights).

[FN164]. See id. (recognizing that the practice served no
penological purpose as adequate safeguards could be
implemented without the shackling of the prisoner in addition
to the notion that if New York enacted anti-shackling
legislation that other states might follow suit); see also Pa.
House Panel Approves Anti-Shackling Bill, Pa Inquirer, Jan.
27, 2010, available at http://
www.prisonofficer.org/pennsylvania/10639-anti-shacklingbill.html (stating that the pending anti-shackling legislation in
Pennsylvania is a direct result of the New York anti-shackling
legislation).

[FN175]. See id. (citing reasons for why often prisoner
legislation is not often aggressively pursued).

[FN165]. See Assemb. B. 4105, 2007 Leg., 230th Sess. (N.Y.
2007) (recognizing a need for the laws of the entire state to
strive to achieve a unified purpose and have a similar
legislative intent).
[FN166]. See id. (noting that it would be easy for a state like
Oklahoma to follow in the footsteps of a state like New York
and mimic its shackling legislation).
[FN167]. See Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 241 (noting that Oklahoma does not

[FN176]. See Mastony, supra note 2 (reporting that since 2008
more than twenty former female inmates have filed lawsuits
against the Cook County Sheriff's Office alleging incidents of
shackling while giving birth).
[FN177]. See Allen, supra note 6 (recognizing that the
legislation needs to be enforced, and therefore needs to take
into consideration the justifications of the prisons such as
public safety).
[FN178]. See Cal. Penal Code § 5007.7 (West 2011); Assemb.
B. 4105 (providing that these provisions apply only in extreme
circumstances).
[FN179]. See Ctr. for Reproductive Rights, 2010 State
Legislative Wrap Up, available at
http://reproductiverights.org/en/feature/2010-state-legislativewrap-up (noting that Pennsylvania is actually in the process of
enacting an anti-shackling laws, whereas Georgia is still in the
beginning stages of building momentum for legislation).

[FN180]. See Pa. House Panel Approves Anti-Shackling Bill,
supra note 164 (stating that the Senate Judiciary Committee
endorsed the Healthy Birth for Incarcerated Women Act in a
unanimous vote).
[FN181]. See id. (claiming that because Pennsylvania had no
law banning the use of shackles, and so for the interest of
security purposes, shackling became a default practice).
[FN182]. See Rachel Roth, AMA Opposes Shackling Pregnant
Women in Labor, RH Reality Check, June 16, 2010, available
at http:// www.rhrealitycheck.org/node/13676 (noting that
activists are very vocally pressing the issue).
[FN183]. See Our Work: Congress Passes the Second Chance
Act, Rebecca Project for Human Rights,
http://www.rebeccaproject.org/index.php?option=com_
content&task=view&id=236&Itemid=152 (acknowledging the
need to allow for shackles in extreme circumstances where the
safety of others may be jeopardized and to potentially allow a
guard to be posted outside an inmate's room).
[FN184]. See id. (reporting a working relationship between
lawmakers and the Rebecca Project for Human Rights).
[FN185]. See Second Chance Act of 2008, Pub. L. No. 110199, 122 Stat. 657 (2008) (codified as amended at 42 U.S.C. §
17501 et seq. (Supp. 2008) (adding extra restrictions to
disincentivize the practice, such as ensuring that facilities
provide Congress with explanations regarding the reasons for
using restraints in particular instances).
[FN186]. Richard Winton, Jail Care for Women is Criticized,
L.A. Times, July 12, 2008, at B3 (noting that even though
California has a state law prohibiting the use of shackling of a
female inmate during childbirth, the Los Angeles County Jail
system has not implemented any policies to reflect the law,
and that leg chains, which are heavy but long enough to allow
the inmate to get to the bathroom, are often present during
childbirth).
[FN187]. See id. (detailing a special counsel's investigation of
the written policies of the Los Angeles jail system).
[FN188]. See Mastony, supra note 2 (noting the difficulty of
enforceability of state statutes prohibiting shackling during
childbirth due to differing interpretations of the word “labor”).
[FN189]. See Second Chance Act of 2008 (providing a much
needed form of relief to those that can no longer bring an
Eighth Amendment violation claim).
[FN190]. See Winton, supra note 186 (blaming a lack of relief
for those injured on a backlog in the court systems and the
complexity of stating a viable Eighth Amendment claim).
[FN191]. E.g., Cal. Penal Code § 5007.7 (West 2011); 730 Ill.
Comp. Stat. 5/3-6-7 (West 2011); N.Y. Correct. Law § 611
(McKinney 2011).
[FN192]. See generally Nelson v. Corr. Med. Servs., 583 F.3d

522 (8th Cir. 2009) (declaring shackling a form of cruel and
unusual punishment).
[FN193]. See id. at 534 (holding that it was unconstitutional to
shackle Nelson because the pain and suffering she experienced
as a result violated her Eighth Amendment rights).
[FN194]. See Amnesty Int'l USA, Abuse of Women in
Custody, supra note 4, at 24 (noting the obligation to be
sensitive to the pregnant inmate's health needs, and not inflict
cruel and unusual punishment).

20 AMUJGSPL 247
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