In his recent State of the Union speech, President Donald Trump touted the success of recent criminal justice reform legislation. Specifically, he was talking about the First Step Act, which passed with overwhelming bipartisan support before Trump signed it into law. Essentially, the Act focuses on modestly altering federal prison sentences and reentry practices. However, the Act also contains provisions to improve prison conditions, including an important ban on the practice of shackling women during childbirth. Yet, despite being hailed as a win for incarcerated women, the federal shackling ban has key weaknesses that threaten to undermine its mission.
To be sure, this shackling provision takes critical steps to address the increasingly important issue of childbirth practices in prison. Indeed, the number of women in jails and prison is increasing at an alarmingly rapid rate, bringing along with it a drastic increase in motherhood behind bars. While a majority of incarcerated people in the United States are men, the percentage of women in prison increased by 757% between 1977 and 2004, a number approximately twice as great as the increase in incarcerated men during the same period. Of these women, between 3 and 5% are pregnant at the time of admission.
Women who are pregnant or give birth in jail or prison face substantial obstacles to their health, including the harmful and degrading practice of shackling women during the third trimester and during and immediately after childbirth. Beyond being demeaning and unnecessary, shackling poses an egregious risk of harm to both incarcerated women and their children.
Any form of restraint vastly increases the risk of accidentally tripping and falling, which could harm the woman and the fetus. Freedom from restraint is especially critical during labor and delivery, during which women must be free to move in order to successfully manage pain and deliver the child. Furthermore, shackling interferes with women’s ability to hold and breastfeed their children after birth, which are key aspects of the postpartum bonding process. Perhaps most importantly, shackling women in labor interferes with the medical staff’s ability to appropriately assist in childbirth or conduct sudden emergency procedures, which one doctor stated “can be the difference between life or death.”
For good reason, the shackling of incarcerated women has been the subject of activism, medical advocacy, and litigation for decades. Thus, it comes as no surprise that the shackling provision has been hailed as a win for incarcerated women. Unfortunately, the First Step Act follows in the footsteps of many failed state-level efforts to ban the practice. Namely, the act contains broad exceptions that validate the irrational logic behind the practice and threaten to swallow the rule.
The text of the shackling provision provides: “…beginning on the date on which pregnancy is confirmed by a healthcare professional, and ending at the conclusion of postpartum recovery, a prisoner…shall not be placed in restraints.” However, subsection (b) allows for two major exceptions to this general rule: when (i) the woman “is an immediate and credible flight risk that cannot reasonably be prevented by other means;” or (ii) “poses an immediate and serious threat of harm to herself or others that cannot reasonably be prevented by other means.”
These broad exceptions for flight and security risk perfectly mirror the two irrational reasons shackling proponents typically cite for engaging in the practice in the first place: fear that incarcerated women in labor are (1) a flight risk, and (2) a security risk. These concerns have a questionable basis in reality. The vast majority of incarcerated women are non-violent offenders, and there have been no reported escape attempts among pregnant, incarcerated women who were not restrained during childbirth. Furthermore, among the states and cities that have imposed shackling restrictions, none have documented any instances of women in labor escaping or causing harm. Even in the extremely rare case a woman poses a genuine flight or security risk, these concerns are outweighed by the unacceptable risk of harm shackling poses to both women and their children. Including these exceptions reifies the practice’s purported motivation and harms women.
Importantly, these exceptions rest upon racist assumptions about motherhood in prison. Loyola Law School Professor, Priscilla Ocen, explains in her piece, Punishing Pregnancy: Race, Incarceration and the Shackling of Pregnant Prisoners, “The use of restraints on pregnant prisoners rests on an assumption that incarcerated women are dangerous as individuals and as mothers.” She further notes, “This presumption rests on stereotypes of female prisoners informed by prior regimes of racialized punishments that viewed Black women as lacking in maternal instincts, driven by sexual desires, and physically threatening.” These racist attitudes inform the belief that it is necessary to have exceptions for flight and security risks. Thus, these exceptions both reflect and entrench racist attitudes towards female prisoners.
Not only do exceptions for flight and safety risks codify the rationale behind shackling – they render the rule ineffective as well. This is demonstrated by the failure of state-level bans that include the same exceptions. For example, California and Illinois were two of the first states to ban shackling, but they both included exceptions for flight or security risks. In California, “[b]ecause of the exceptions built into the statute, the legislature’s intent has gone unenforced in critical respects.” Indeed, it appears that prisons narrowly construe the law in a way that allows them to continue the practice of shackling women. Similarly, since the passage of the Illinois statute, more than twenty former female inmates have filed lawsuits against the Cook County Sheriff’s Office alleging shackling violations. The First Step Act’s shackling ban is vulnerable to the same forces as these failed legislative attempts.
The Act’s shackling exceptions are overbroad and threaten to undermine Congress’s intent to end the demeaning, inhumane, and dangerous practice of shackling incarcerated women. They also act to validate and entrench the irrational logic shackling defenders give for the practice. Although the ban is a step in the right direction, it does not go far enough. The only way to ensure the protection of incarcerated pregnant women is to issue a flat ban with no exceptions. Until then, the Act will fail to defend women from the barbarism of shackling.