In recent years the use of restraints on pregnant women under correctional custody has become a much debated topic among national, state and local corrections policymakers, healthcare professionals, and inmate advocacy groups. Policies, operating procedures, and practices pertaining to the use of restraints (e.g., flex cuffs, handcuffs, ankle cuffs, belly chains) on pregnant women in custody vary considerably within and across federal, state, and local jurisdictions and agencies. The appropriateness and safety of their use with pregnant women while housed in a correctional facility, during transport to and from medical facilities, and during labor, delivery, and post-partum have come under scrutiny.
Rising Interest in Reform
A number of factors have contributed to a rising interest in reform including an increased interest in gender-responsive and trauma-informed practices in corrections, changing human rights standards around the world, and an increasing number of legal cases surrounding the use of restraints on pregnant women inmates.
- A growing body of research supports the use of different approaches with women inmates who have different pathways into the justice system, experience and respond to correctional custody differently, and represent different levels of security risk within institutions than men.
- International pressure to change restraints policies and practices has come from the United Nations Committee against Torture. In 2006, they stated that shackling during childbirth was a violation of the United Nations Convention against Torture and urged the U.S. to adopt measures to conform with international standards. In 2010, the United Nations adopted the Bangkok Rule 24 which stated that “instruments of restraint shall never be used on women during labour, during birth and immediately after birth”.
- A growing body of case law on this topic has also heightened its importance as an issue for correctional agencies. The most notable rulings include two courts finding that using restraints on a woman during labor and delivery (without a compelling safety reason for doing so) violates her Eighth Amendment right to be free from cruel or unusual punishment. See Nelson v. Correctional Medical Services [583 F.3d 522, 8th Cir., 2009] and Women Prisoners of DC Department of Corrections v. District of Columbia [877 F. Supp. 634, 1994]).
- Attention to this issue has developed in concert with an increasing interest in providing trauma-informed services to persons involved in behavioral health, healthcare, and corrections systems. In the early 2000’s, the Substance Abuse and Mental Health Services Association, in partnership with the National Association of State Mental Health Program Directors, called for the elimination of the use of seclusion and restraint in the behavioral healthcare field.
- Over the years, a growing number of national associations and advocacy organizations, as well as a number of national medical associations (e.g., see ACOG, NCCHC) have also voiced their opposition to the use of restraints on pregnant women inmates. In 2015 a joint statement of a number of organizations and led by the American Psychological Association was released on the federal role in restricting the use of restraints with women and girls.
A growing number of states and federal authorities introduced or passed legislation prohibiting the use of restraints during labor and delivery and limiting its use on women inmates during pregnancy (e.g., during transport to medical appointments and immediately following delivery).
- According to an APA report, 37 states and the District of Columbia, via statute or policy, prohibit or strictly limit shackling during, pregnancy, labor, childbirth, recovery, or a subset of these stages. The District of Columbia, U.S. Bureau of Prisons, and the U.S. Marshalls Service have also enacted policy limiting the use of restraints during labor and delivery.
- In 2015, 8 states considered bills to restrict the use of restraints on incarcerated pregnant women (ACOG).
While current legislation and federal policies generally prohibit the use of restraints during labor and delivery, this is assumed to occur in the absence of “a significant security or flight risk.” These prohibitions generally allow for the use of restraints if there is an individualized determination that such a risk is present.
Federal Efforts to Support Policy Development
Efforts at the federal level have also garnered ongoing interest in this topic.
- The U.S. Department of Justice, Office of Justice Programs convened a National Symposium on the Use of Restraints on Pregnant Women Behind Bars in 2010 to consider this issue further. The Symposium offered an opportunity for a broad range of stakeholders (criminal justice and corrections, medical experts, human rights advocates) to develop a shared understanding of the history and consequences of the use of restraints and advance the national dialogue and action in this area.
- In response to this pivotal meeting, the DOJ and SAMHSA co-sponsored the convening of a national task force on this topic. The National Task Force on the Use of Restraints with Pregnant Women Under Correctional Custody, a diverse group of national, state and local corrections, medical and advocacy agency representatives, met in August 2012 to develop a best practices statement regarding the use of restraints with pregnant women and girls under correctional custody. The Best Practices Statement provides jail and prison administrators with a set of principles and recommendations for developing and/or revising policy in this area.
- In follow up, the NRCJIW has supported a number of presentations at national conferences and conducted a national webinar in December 2015 to provide an update on the current status of laws, policies, and practices and lead a discussion on the challenges of implementation.
- In January 2016, the American Psychological Association in conjunction with five national partner organizations, released a joint statement calling on Congress and the Department of Justice to work with state and local governments to restrict the use of restraints on incarcerated women and girls during pregnancy, labor and postpartum recovery.
Implementing Policies and Practices on the Non-Use of Restraints with Incarcerated Pregnant Women, Webinar Recording: http://cjinvolvedwomen.org/webinars/nrcjiw-december-15-webinar/lib/playback.html
Implementing Policies and Practices on the Non-Use of Restraints with Incarcerated Pregnant Women Presentation Slides: http://cjinvolvedwomen.org/wp-content/uploads/2015/12/Restraints-Webinar-handout-12-14-15.pdf
Best Practices in the Use of Restraints with Pregnant Women and Girls Under Correctional Custody: http://cjinvolvedwomen.org/wp-content/uploads/2015/09/Best-Practices-Use-of-Restraints-Pregnant.pdf
End the Shackling of Incarcerated Women and Adolescents during Pregnancy, Labor, and Recovery: https://www.apa.org/about/gr/issues/women/shackling-incarcerated-women.pdf
2015 State Legislation Tally: https://www.acog.org/-/media/Departments/State-Legislative-Activities/2015ShacklingTally.pdf?la=en
Video: It’s Time For New York To End Shackling: Women Share Their Stories: https://www.youtube.com/watch?v=63bTTnkSy6M
Incarcerated Childbirth and Broader “Birth Control”: Autonomy, Regulation, and the State (Deborah Ahrens): http://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=4121&context=mlr
Joint Statement on the Federal Role in Restricting the Use of Restraints on Incarcerated Women and Girls during Pregnancy, Labor, and Postpartum Recovery: http://www.apa.org/about/gr/pi/news/2015/joint-statement.pdf
Reproductive Injustice: The State of Reproductive Health Care for Women in New York State Prisons: http://www.correctionalassociation.org/wp-content/uploads/2015/03/Reproductive-Injustice-FULL-REPORT-FINAL-2-11-15.pdf
American College of Obstetricians and Gynecologists (2011). Health Care for Pregnant and Postpartum Incarcerated Women and Adolescent Females. Washington DC: American College of Obstetricians and Gynecologists, Committee on Health Care for Underserved Women: http://www.acog.org/Resources-And-Publications/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/Health-Care-for-Pregnant-and-Postpartum-Incarcerated-Women-and-Adolescent-Females
Stop Shackling: A Report Written on the Policies of California’s Counties on the Use of Restraints on Pregnant Women in Labor: http://www.prisonerswithchildren.org/pubs/stop_shackling.pdf
ASCA Survey Results: Restraints on Females During Labor: http://www.asca.net/system/assets/attachments/2460/2010_ASCA_Survey_Restraints_on_Females_During_Labor.pdf?1300115896
National Organizations Ask Feds to Address Use of Restraints on Incarcerated Pregnant Women and Adolescents: http://cjinvolvedwomen.org/featured-news/national-organizations-ask-feds-to-address-use-of-restraints-on-incarcerated-pregnant-women-and-adolescents/
New York Bans ‘Barbaric’ Practice of Shackling Pregnant Inmates: http://www.huffingtonpost.com/entry/shackling-pregnant-inmates-new-york_us_567ab103e4b0b958f658c559
Handcuffed While Pregnant: http://www.nytimes.com/2015/09/23/opinion/handcuffed-while-pregnant.html?_r=1
U.S. Prisons and Jails Are Threatening the Lives of Pregnant Women and Babies: http://inthesetimes.com/article/18410/u.s.-prisons-are-threatening-the-lives-of-pregnant-mothers-and-newborns