There are now more women behind bars than at any other point in U.S. history. This rampant incarceration has a devastating impact on families. Most of these women, unseen and largely forgotten, are mothers. Unfortunately, pregnant women, mothers behind bars and their children are subject to federal and state correctional policies that fail to recognize their distinct needs or honor their families. The Rebecca Project and the National Women’s Law Center collaborated on a Report Card, which analyzes federal and state policies on prenatal care, shackling, alternative sentencing programs and prison nurseries, and grades states on whether their policies help or harm mothers behind bars in these key areas.
Averaging the grades for prenatal care, shackling, and family-based treatment as an alternative to incarceration [1], twenty-one states received a failing grade of either a D or F. Twenty-two states received a grade of C, and seven received a B. The highest overall grade of A- was earned by one state—Pennsylvania.
Prenatal care: Pregnant women who are imprisoned, like other women, need high quality health care. Failure to comport with nationally recognized standards for prenatal care results in poor health outcomes for children born to women who are imprisoned [2]. Thirty-eight states received failing grades (D/F) for their failure to institute adequate policies, or any policies at all, requiring that pregnant women receive adequate prenatal care, despite the fact that many women in prison have higher-risk pregnancies.
- Forty-three states do not require medical examinations as a component of prenatal care.
- Forty-one states do not require prenatal nutrition counseling or the provision of appropriate nutrition to pregnant women behind bars.
- Thirty-four states do not require screening and treatment for women with high risk pregnancies.
- Forty-eight states do not offer pregnant women screening for HIV.
Shackling: Restraints make it difficult for doctors to adequately assess the condition of the mother and the fetus, and to provide prompt medical intervention when necessary. Restraints also make the process of labor and delivery more painful [3]. The Federal Bureau of Prisons (BOP) in September 2008 ended shackling pregnant inmates as a matter of routine in all federal correctional facilities [4]. State legislatures and departments of corrections have begun to take actions against shackling, yet a great deal of work remains. Thirty-six states received failing grades (D/F) for their failure to comprehensively limit, or limit at all, the use of restraints on pregnant women during transportation, labor and delivery and postpartum recuperation. Ten states have statutes to limit shackling, while other state departments of correction address this issue in policy [5]. Of the states without laws to address shackling:
- Twenty-two states either have no policy at all addressing when restraints can be used on pregnant women or have a policy which allows for the use of dangerous leg irons or waist chains.
- When a pregnant woman is placed in restraints for security reasons, eleven states either allow any officer to make the determination or do not have a policy on who determines whether the woman is a security risk.
- Thirty-one states do not require input from medical staff when determining whether restraints will be used.
- Twenty-four states do not require training for individuals handling and transporting incarcerated persons needing medical care or those dealing with pregnant women specifically, or have no policy on training.
Alternatives to Incarceration: Family-Based Treatment: Studies have long established that women have a lower risk of violence and community harm, thus women are often the ideal prison population for community-based alternative sentencing programs. Because maternal incarceration is very destabilizing to a family’s health and stability, programs that allow mothers with minor children to be sentenced to community-based facilities are far better suited for this population. Moreover, it is less costly than incarceration and achieves better outcomes than those achieved by maternal incarceration and a child’s placement in foster care. Seventeen states received a failing grade (F) for having no family-based treatment programs for non-violent women who are parenting.
- Seventeen states have no family-based treatment programs, while thirty-four states make such programs available.
- Of the thirty-four states with family-based treatment programs, thirty-two offered women sentencing to these programs in lieu of prison, while two did not.
Prison Nurseries: Thirty-eight states received failing grades (D/F) for failing to offer prison nurseries to new mothers who are behind bars. While a far less preferred option than alternative sentencing, prison nursery programs still provide some opportunity for mother-child bonding and attachment. The Report Card does not factor prison nurseries into the states’ overall composite grade.
- Thirty-eight states do not offer any prison nursery programs.
- Of the thirteen states that do offer such programs, only two allow children to stay past the age of two.
- Three of the thirteen programs offer therapeutic services for both mother and child.
To read the full Mothers Behind Bars report, please visit www.nwlc.org/mothersbehindbars.
[1] The same characteristics that render women eligible for participation in a prison nursery program, including being convicted of a non-violent offense, are very similar to those that would render them eligible for alternative sentencing, if states chose to make such an option available. Therefore the Report Card does not factor prison nurseries into the states’ overall composite grade, although it acknowledges the states which have these programs.
[2] Nat’l Comm’n on Corr. Health Care, Position Statements, Women’s Health Care in Correctional Settings (rev. 2005), available at http://www.ncchc.org/resources/statements/womenshealth2005.html.
[3] Letter from Ralph Hale, Executive Vice President, American Coll. of Obstetricians and Gynecologists, to Malika Saada Saar, Executive Director, The Rebecca Project for Human Rights (June 12, 2007) (on file with author) (calling for an end to the practice of shackling women in labor and delivery due to the potential harm posed to the woman and unborn child), available at http://www.acog.org/departments/underserved/20070612SaarLTR.pdf.
[4] Fed. Bureau of Prisons, No. 5538.05, Program Statement, Escorted Trips (2008), available at http://www.bop.gov/policy/progstat/5538_005.pdf
[5] California, Colorado, Illinois, New Mexico, New York, Pennsylvania, Texas, Vermont, Washington and West Virginia have enacted laws prohibiting the practice of shackling pregnant women. Statutes ensure more consistency of enforcement, and are therefore greatly preferable to DOC policies.