Tweet
Authorities say an inmate in Georgia gave birth to a child in her jail cell and the baby later died at a hospital. Clayton County sheriff's spokesman Capt. Brian Crisp said Saturday the birth is under investigation. He says authorities are not releasing any more information about the birth or the woman.
Sheriff Kem Kimbrough tells WSB-TV that the mother and baby were taken to a hospital, where the child died. Kimbrough says his office is looking into whether jail staff did anything wrong. Representatives of Southern Regional Hospital declined to release any information, citing federal privacy laws. The rights of this inmate has been violated and the matter could lead to drastic measures.
GIVING BIRTH IN SHACKLES: A CONSTITUTIONAL AND HUMAN RIGHTS VIOLATION
DANA L. SICHEL
*
Introduction ...............................................................................................223
Background................................................................................................224
I. Where and How Shackling Is Happening .............................................224
II. Effects of Shackling on Women’s Physical and Mental Health ..........226
III. Shackling Affects a Significant Number of American Women
Each Year ................................................................................227
IV. Legislative Efforts to Ban Shackling in California, Illinois, and
New York ................................................................................228
Analysis .....................................................................................................231
I. Shackling Violates the U.S. Constitution ...............................................231
II. Human Rights Law is Persuasive Authority .........................................237
III. Shackling Violates International Human Rights ................................239
A. Broad Protections for Pregnancy and Maternity...................................239
B. Right to the Highest Attainable Standard of Health..............................243
C. Right to Integrity and Security of Person..............................................249
D. Right to Dignity and Freedom from Cruel, Inhumane, and
Degrading Treatment or Punishment.................................250
Conclusion .................................................................................................255
INTRODUCTION
United States prisons commonly shackle and chain pregnant inmates to a
hospital bed during childbirth.
1
This practice violates the U.S. Constitution
as well as internationally recognized standards of human rights. Prisons
are obligated to provide for prisoners’ health and medical treatment under
*
J.D., Georgetown University Law Center, 2007. The author practices business
litigation in Philadelphia, Pennsylvania.
1. See, e.g., Julie B. Ehrlich & Lynn M. Paltrow, Jailing Pregnant Women Raises
Health Risks, WOMEN’S ENEWS, Sept. 9, 2006, http://www.womensenews.org/article
.cfm/dyn/aid/2894 (last visited Nov. 3, 2007).
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 16:2
the Constitution’s prohibition on cruel and unusual punishment under the
Eighth Amendment as well as under international human rights law.
2
International law provides for broad protections for women throughout
pregnancy and delivery, the rights to the highest attainable standard of
health, the right to security of person, and the right to be free from torture
and inhumane or degrading treatment, all of which are violated by this
practice.
3
In fact, the Committee on Torture, the enforcement body to the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, has explicitly informed the U.S. that its prisons
are violating women’s human rights by shackling pregnant inmates during
childbirth. The country’s various legislative bodies should look to
international human rights as an indication of how American law should
protect its pregnant prisoners. United States federal and state prisons,
departments of corrections, and state legislatures should prohibit this
inhumane and dehumanizing treatment of female prisoners, and bring the
country in line with both its constitutional and international obligations to
the pregnant prison population.
BACKGROUND
I. Where and How Shackling Is Happening
The vast majority of states remain silent on the practice of shackling
pregnant inmates during childbirth. Forty-eight out of fifty states lack
legislation that protects imprisoned pregnant women.
4
While in labor,
incarcerated women are typically shackled or chained to the hospital bed,
by the ankle, wrist, or both.
5
Warnice Robinson, an inmate convicted of
shoplifting in Illinois, a state that has since prohibited the shackling of
pregnant inmates during childbirth, told Amnesty International USA
(“Amnesty”) that
2. U.S. CONST. amend. VIII.
3. See U.N. Comm. on the Elimination of Discrimination Against Women,
General Recommendation 24, Women and Health (Twentieth Session, 1999), U.N.
Doc. A/54/38 at 5 (1999), reprinted in Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, ¶ 27, U.N. Doc.
HRI/GEN/1/REV.6 at 271 (2003), available at http://www1.umn.edu/humanrts
/gencomm/gener124/htm [hereinafter CEDAW] (articulating that women’s unique
biological needs require them to have greater medical protection than men).
4. Amnesty Int’l, Abuse of Women in Custody: Sexual Misconduct and Shackling
of Pregnant Women, http://www.amnestyusa.org/women/custody/keyfindings_
restraints.html (last visited Sept. 23, 2007) [hereinafter Amnesty Int’l, Abuse of Women
in Custody] (listing Illinois and California as the only two states that have legislation
regulating the restraint of pregnant women in prison).
5. See id. (stating that women are often restrained without regard to whether they
have a history of violence).
2008] GIVING BIRTH IN SHACKLES 225
[g]iving birth while incarcerated was one of the most horrifying
experiences of my life. At the hospital I was shackled to a metal bed
post by my right ankle throughout seven hours of labor, although a
correctional officer was in the room with me at all times . . . . Imagine
being shackled to a metal bedpost, excruciating pains going through my
body, and not being able to adjust myself to even try to feel any type of
comfort, trying to move and with each turn having hard, cold metal
restraining my movements.
6
Another inmate, Maria Jones, told Amnesty that
[b]ecause I was shackled to the bed, they couldn’t remove the lower part
of the bed for the delivery, and they couldn’t put my feet in the stirrups.
My feet were still shackled together, and I couldn’t get my legs apart.
The doctor called for the officer, but the officer had gone down the hall.
No one else could unlock the shackles, and my baby was coming but I
couldn’t open my legs.
7
Similarly, Samantha Luther, an inmate in Wisconsin, was forced to give
birth while her ankles were shackled approximately eighteen inches apart.
8
Her shackles were not removed until just before the actual birth.
9
Samantha described that “[i]t was so humiliating. My ankles were raw.”
10
Due to the lack of legislative and regulatory protection for pregnant female
prisoners in the United States, these stories, unfortunately, are quite
common.
Not only do the vast majority of states lack legislation on this prison
practice, twenty-three state corrections departments and the Federal Bureau
of Prisons expressly allow the use of restraints on pregnant inmates during
childbirth.
11
Amnesty reported that in Alabama, “often two extremities are
restrained.”
12
In Louisiana, Amnesty found that the state permits the use of
leg irons, while the state of Nevada typically employs only wrist restraints,
and New Hampshire allows “one foot to be shackled to the bed during
labor.”
13
Women in Michigan told Amnesty in 1998 “that they were
6. Amnesty Int’l, Not Part of My Sentence: Violations of the Human Rights of
Women in Custody, Section IV: Restraints, http://www.amnesty.org/ailib/intcam/
women/report5.html (last visited Sept. 24, 2007) [hereinafter Amnesty Int’l, Not Part
of My Sentence].
7. Id.
8. See Amnesty Int’l, Abuse of Women in Custody, supra note 4 (noting that
although Samantha remained shackled, she was required to pace in order to induce
labor).
9. See id. (explaining that the shackles were finally removed right before the
actual birth so that Samantha could push).
10. Id.
11. See id. (noting that state policies vary on when, during labor, a woman may be
shackled and in what manner).
12. Id.
13. Amnesty Int’l, Abuse of Women in Custody, supra note 4
See More:
Authorities say an inmate in Georgia gave birth to a child in her jail cell and the baby later died at a hospital. Clayton County sheriff's spokesman Capt. Brian Crisp said Saturday the birth is under investigation. He says authorities are not releasing any more information about the birth or the woman.
Sheriff Kem Kimbrough tells WSB-TV that the mother and baby were taken to a hospital, where the child died. Kimbrough says his office is looking into whether jail staff did anything wrong. Representatives of Southern Regional Hospital declined to release any information, citing federal privacy laws. The rights of this inmate has been violated and the matter could lead to drastic measures.
GIVING BIRTH IN SHACKLES: A CONSTITUTIONAL AND HUMAN RIGHTS VIOLATION
DANA L. SICHEL
*
Introduction ...............................................................................................223
Background................................................................................................224
I. Where and How Shackling Is Happening .............................................224
II. Effects of Shackling on Women’s Physical and Mental Health ..........226
III. Shackling Affects a Significant Number of American Women
Each Year ................................................................................227
IV. Legislative Efforts to Ban Shackling in California, Illinois, and
New York ................................................................................228
Analysis .....................................................................................................231
I. Shackling Violates the U.S. Constitution ...............................................231
II. Human Rights Law is Persuasive Authority .........................................237
III. Shackling Violates International Human Rights ................................239
A. Broad Protections for Pregnancy and Maternity...................................239
B. Right to the Highest Attainable Standard of Health..............................243
C. Right to Integrity and Security of Person..............................................249
D. Right to Dignity and Freedom from Cruel, Inhumane, and
Degrading Treatment or Punishment.................................250
Conclusion .................................................................................................255
INTRODUCTION
United States prisons commonly shackle and chain pregnant inmates to a
hospital bed during childbirth.
1
This practice violates the U.S. Constitution
as well as internationally recognized standards of human rights. Prisons
are obligated to provide for prisoners’ health and medical treatment under
*
J.D., Georgetown University Law Center, 2007. The author practices business
litigation in Philadelphia, Pennsylvania.
1. See, e.g., Julie B. Ehrlich & Lynn M. Paltrow, Jailing Pregnant Women Raises
Health Risks, WOMEN’S ENEWS, Sept. 9, 2006, http://www.womensenews.org/article
.cfm/dyn/aid/2894 (last visited Nov. 3, 2007).
JOURNAL OF GENDER, SOCIAL POLICY & THE LAW [Vol. 16:2
the Constitution’s prohibition on cruel and unusual punishment under the
Eighth Amendment as well as under international human rights law.
2
International law provides for broad protections for women throughout
pregnancy and delivery, the rights to the highest attainable standard of
health, the right to security of person, and the right to be free from torture
and inhumane or degrading treatment, all of which are violated by this
practice.
3
In fact, the Committee on Torture, the enforcement body to the
Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, has explicitly informed the U.S. that its prisons
are violating women’s human rights by shackling pregnant inmates during
childbirth. The country’s various legislative bodies should look to
international human rights as an indication of how American law should
protect its pregnant prisoners. United States federal and state prisons,
departments of corrections, and state legislatures should prohibit this
inhumane and dehumanizing treatment of female prisoners, and bring the
country in line with both its constitutional and international obligations to
the pregnant prison population.
BACKGROUND
I. Where and How Shackling Is Happening
The vast majority of states remain silent on the practice of shackling
pregnant inmates during childbirth. Forty-eight out of fifty states lack
legislation that protects imprisoned pregnant women.
4
While in labor,
incarcerated women are typically shackled or chained to the hospital bed,
by the ankle, wrist, or both.
5
Warnice Robinson, an inmate convicted of
shoplifting in Illinois, a state that has since prohibited the shackling of
pregnant inmates during childbirth, told Amnesty International USA
(“Amnesty”) that
2. U.S. CONST. amend. VIII.
3. See U.N. Comm. on the Elimination of Discrimination Against Women,
General Recommendation 24, Women and Health (Twentieth Session, 1999), U.N.
Doc. A/54/38 at 5 (1999), reprinted in Compilation of General Comments and General
Recommendations Adopted by Human Rights Treaty Bodies, ¶ 27, U.N. Doc.
HRI/GEN/1/REV.6 at 271 (2003), available at http://www1.umn.edu/humanrts
/gencomm/gener124/htm [hereinafter CEDAW] (articulating that women’s unique
biological needs require them to have greater medical protection than men).
4. Amnesty Int’l, Abuse of Women in Custody: Sexual Misconduct and Shackling
of Pregnant Women, http://www.amnestyusa.org/women/custody/keyfindings_
restraints.html (last visited Sept. 23, 2007) [hereinafter Amnesty Int’l, Abuse of Women
in Custody] (listing Illinois and California as the only two states that have legislation
regulating the restraint of pregnant women in prison).
5. See id. (stating that women are often restrained without regard to whether they
have a history of violence).
2008] GIVING BIRTH IN SHACKLES 225
[g]iving birth while incarcerated was one of the most horrifying
experiences of my life. At the hospital I was shackled to a metal bed
post by my right ankle throughout seven hours of labor, although a
correctional officer was in the room with me at all times . . . . Imagine
being shackled to a metal bedpost, excruciating pains going through my
body, and not being able to adjust myself to even try to feel any type of
comfort, trying to move and with each turn having hard, cold metal
restraining my movements.
6
Another inmate, Maria Jones, told Amnesty that
[b]ecause I was shackled to the bed, they couldn’t remove the lower part
of the bed for the delivery, and they couldn’t put my feet in the stirrups.
My feet were still shackled together, and I couldn’t get my legs apart.
The doctor called for the officer, but the officer had gone down the hall.
No one else could unlock the shackles, and my baby was coming but I
couldn’t open my legs.
7
Similarly, Samantha Luther, an inmate in Wisconsin, was forced to give
birth while her ankles were shackled approximately eighteen inches apart.
8
Her shackles were not removed until just before the actual birth.
9
Samantha described that “[i]t was so humiliating. My ankles were raw.”
10
Due to the lack of legislative and regulatory protection for pregnant female
prisoners in the United States, these stories, unfortunately, are quite
common.
Not only do the vast majority of states lack legislation on this prison
practice, twenty-three state corrections departments and the Federal Bureau
of Prisons expressly allow the use of restraints on pregnant inmates during
childbirth.
11
Amnesty reported that in Alabama, “often two extremities are
restrained.”
12
In Louisiana, Amnesty found that the state permits the use of
leg irons, while the state of Nevada typically employs only wrist restraints,
and New Hampshire allows “one foot to be shackled to the bed during
labor.”
13
Women in Michigan told Amnesty in 1998 “that they were
6. Amnesty Int’l, Not Part of My Sentence: Violations of the Human Rights of
Women in Custody, Section IV: Restraints, http://www.amnesty.org/ailib/intcam/
women/report5.html (last visited Sept. 24, 2007) [hereinafter Amnesty Int’l, Not Part
of My Sentence].
7. Id.
8. See Amnesty Int’l, Abuse of Women in Custody, supra note 4 (noting that
although Samantha remained shackled, she was required to pace in order to induce
labor).
9. See id. (explaining that the shackles were finally removed right before the
actual birth so that Samantha could push).
10. Id.
11. See id. (noting that state policies vary on when, during labor, a woman may be
shackled and in what manner).
12. Id.
13. Amnesty Int’l, Abuse of Women in Custody, supra note 4
See More:
