Last year, the National Women's Law Center and the Rebecca Project for Human Rights issued report cards for each state, evaluating their policies regarding incarcerated mothers. The states were evaluated in several categories: prenatal care for pregnant inmates, the availability of prison nurseries, the use of community-based alternative sentencing programs to allow mothers to be with their children, and policies regarding the highly controversial use of shackles on pregnant women. Massachusetts received an unimpressive overall grade of C.
The commonwealth did receive high marks in two of the categories, winning As for both its prison nurseries and its community programs. The quality of prenatal care, however, only earned a C. And, most damningly, Massachusetts was one of just four states to earn an F for allowing women to be shackled during pregnancy and while giving birth (see "Mothers Behind Bars," June 24, 2010; "Not Your Ordinary Fundraiser," June 18, 2009). Another 32 states received Ds.
These policies affect only a small percentage of Massachusetts' prison and jail population; about 8,000 women are incarcerated in Massachusetts each year, according to a 2010 Wellesley College study. (Nationally, the figure is about 215,000, according to a 2008 report from the U.S. Bureau of Justice. Two-thirds of women behind bars are there for nonviolent drug or property offenses.)
Still, the incarceration rate for women has been growing steadily, here and nationally—the U.S. female prison population has grown by 400 percent since the introduction of mandatory minimum drug sentences in the 1980s, according to the report authors—and so, by extension, is the incarceration rate for mothers. According to the U.S. Bureau of Justice Statistics, 75 percent of incarcerated women are mothers, and 5 to 6 percent of women entering prison or jail are pregnant at the time.
This week, the state Legislature held a hearing on a bill that would improve the level of care given to pregnant women and new moms in Massachusetts' prisons and jails—improvements, argue advocates, that would address overly punitive policies and inadequate programs that unjustly hurt both the mothers and their children.
The bill, called "An Act Relative to Safe Pregnancies and Related Health Care for Female Inmates," is before the Joint Committee on the Judiciary. State Rep. Kay Khan (D-Newton) is the lead sponsor; its 30 co-sponsors include, from the Valley, Reps. Peter Kocot (D-Northampton), Stephen Kulik (D-Worthington), John Scibak (D-South Hadley) and Ellen Story (D-Amherst).
"The prison system was originally designed for male inmates, and now there are many women inmates... mostly for nonviolent crimes," Story said. "Many prisons are just not conscious of the different kinds of care and treatment that women prisoners should be given, especially when they're pregnant."
The bill calls for the Mass. Department of Correction to "develop appropriate standards of care for pregnant and postpartum inmates," something it now, shockingly, lacks. It would require that new female inmates be given a pregnancy test (a provision that might spark some concerns about privacy), and that every correctional facility have at least one medical staffer trained in pregnancy care, "which shall at a minimum include knowledge of prenatal nutrition, high-risk pregnancy, addiction and substance abuse during pregnancy, and childbirth education."
Pregnant women would be guaranteed medical care, including access to specialists if necessary; would be allowed at least one hour a day of "ambulatory movement"; would be provided a diet suitable for pregnancy, including prenatal vitamins; and would have access to prenatal classes and information about pregnancy and childbirth. Postpartum women would also be guaranteed health care and monitoring, including screening for postpartum depression; women who are depressed would be given "regular access to a mental health clinician."
Pregnant inmates would be allowed to draw up custody plans for their children, and "every effort" would be made to keep infants under the age of one with their mothers. In cases where that's not possible, moms who are expected to have custody of their kids once they're released would be guaranteed at least one visit a week. Women inmates would also have access to contraception before their release.
The proposed law would also ban the use of any kind of restraints on women while they are in labor, and would significantly limit their use on pregnant inmates. "Except in extraordinary circumstances," restraints would not be allowed on women after their first trimester or during postpartum recovery, and leg or waist restraints could never be used on pregnant or postpartum inmates.
The restraint of pregnant inmates has become an especially contentious issue in the wake of several high-profile cases of women being shackled to their hospital beds while giving birth. The practice strikes critics not only as inhumane and unhealthy—medical professionals advise that a laboring woman be mobile, for her health and that of her baby—but also as illogical and unnecessary. "As if a women during delivery would try to get up and run away," Story said. "For any women who's had a baby, the idea of being shackled during labor and delivery is a nightmare."
Some states have faced lawsuits for their shackling policies. In 2006, the Arkansas Department of Corrections was sued by Shawanna Nelson, who alleged violation of the Eight Amendment's guarantee against "cruel and unusual punishment." In 2003, Nelson, then 29, was sent to a state prison for passing bad checks. She was six months pregnant at the time of her arrest.
When Nelson went into labor, her suit alleged, correctional officers kept both her legs shackled for hours, removing the restraints only briefly for medical examinations and for the delivery of her son. According to the lawsuit, the restraints caused Nelson intense pain and mental anguish, resulted in torn stomach muscles and a hernia that later required surgery, and caused permanent injury to her hips.
Nelson won her suit in district court, but the defendants appealed, arguing that prison officials could not be expected to know that the practice of shackling was unconstitutional. The case, which was taken on by the ACLU, made its way to the 8th Circuit Court of Appeals. There a panel of that court initially rejected her suit, although the full appeals court later ruled that a jury could find her treatment unconstitutional and that she had a right to sue the prison guard who put the shackles on her.
In the opinion, Judge Diana E. Murphy wrote, "Existing constitutional protections, as developed by the Supreme Court and the lower federal courts and evidenced in [prison] regulations, would have made it sufficiently clear to a reasonable officer in September 2003 that an inmate in the final stages of labor cannot be shackled absent clear evidence that she is a security or flight risk." Since Nelson's lawsuit was first filed, similar suits have been filed in Washington and Illinois.
Sixteen states are now considering bills that would ban or restrict the use of restraints on pregnant inmates, the Daily Beast reported earlier this month.
Khan's safe-pregnancy bill will, no doubt, provoke sharp criticism from conservative factions. Certainly, the tone of readers' responses to the Daily Beast article, which took a strong position against shackling, was less than sympathetic, to say the least. "[Do] women consider their unborn babies when they do the crime?" one reader asked. "Why should we be concerned when she does the time in shackles?!"
In a 2008 article in the Journal of Perinatal Education on the needs of pregnant incarcerated women, Barbara Hotelling, chair of the nonprofit Coalition for Improving Maternity Services and former president of Lamaze International, noted that in some societies the loss of freedom is considered the primary punishment of people in prison. In the U.S., however, "prison conditions ... are often punitive and replicate the same societal misbehaviors the system is trying to eradicate."
And when punitive policies are applied to pregnant inmates, it's not just the woman who suffers—it's also her child, and the larger society. "With the growing number of incarcerated women who are pregnant, it is important to recognize that failing to provide preventive and curative health care for these women may cost more to society than funding programs that might improve attachment and parenting behaviors, facilitate drug rehabilitation, and reduce recidivism among this population," Hotelling wrote.
Story said the pending Massachusetts bill fits two important criteria for her: it would save money, and "it just seems like common sense." While it's unusual for a bill to pass the first time it's introduced in the Legislature, she noted, the effort will begin an important conversation about the treatment of mothers in prison. "That's an area that we do need to do a lot of work in," she said.