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The Health Births for Incarcerated Women Act takes effect July 1, 2014. This law prohibits the use of a physical restraints on an inmate while the inmate is in labor or during delivery in certain circumstances. But don’t sit back, there is still work ahead! You should know, that during the last hours of the bill process important provisions were removed that would require outside documentation and monitoring of implementation of the law. Also removed from the bill was clear language protecting women in pretrial detention (jails) across the state. Without clear directives for both medical and correctional staff, transparency and accountability in progress on implementation, and protections for each and every detained or incarcerated women across the state, we cannot stop!
Guest post by Rachel Roth
I was thrilled to have a front-row seat at the State House in Boston when Governor Deval Patrick signed a bill to change the way that pregnant women in jail and prison are treated.
The room was packed with at least 100 policymakers, legislative staffers, and advocates who support an end to shackling. After he signed the bill, Governor Patrick said, “It blows my mind that I have to sign a law for that.”
Advocates in Massachusetts have been trying to get this issue on the public’s radar for years. This legislative session, we took a page from the playbook of our friends in Maryland and wrote a petition to raise awareness and demonstrate support for change. After we testified in favor of the bill at a hearing in December, we launched the petition and used action alerts and social media to spread the word.
Although no one spoke out publicly against the bill, as happened in Maryland, we knew that corrections officials were expressing their opposition behind the scenes. We pressed the argument that shackling pregnant women is unsafe, unnecessary, and inhumane. That argument became even more powerful when women who knew firsthand what it’s like to be shackled during labor got involved and started speaking out for change.
Michelle described being shackled to the hospital bed by her wrist and her ankle during 18 hours of labor. Kenzie described being shackled with handcuffs and ankle restraints as she slid around the backseat of a police car, trying with all her might not to push. She had her baby minutes after arriving at the hospital because the jail staff ignored her when she said she was in labor. Kenzie was shackled to the bed throughout her entire postpartum hospital stay, and both Michelle and Kenzie were shackled on the way back to prison.
What we got in our new statute
The new Massachusetts law, which went into effect immediately, sets strict limits on shackling and also guarantees minimum standards of care for pregnant women in the state prison and in all county jails.
The bill bans the use of any restraints on women during labor and childbirth. There are no exceptions. The bill bans the use of waist chains and leg irons on women who are pregnant or who have given birth. There are no exceptions.
The bill allows the use of handcuffs in front of a woman’s body during the 2nd and 3rd trimesters of pregnancy and during postpartum recovery only if a woman presents an immediate threat of harm to herself or others or a credible risk of escape that cannot be controlled in other ways.
The bill requires the state prison and county jails to provide prenatal and postpartum care, including mental health care, and to have on staff at least one medical professional who is trained in pregnancy care. The bill also requires appropriate nutrition, vitamins, and supplements, at least one hour a day to walk or exercise, and maternity clothes.
What we wish we got
The final version of the bill deleted an important provision on oversight that would have required annual reports documenting incidents of shackling. The reports would have been filed with the Legislature and made available to the public. Some type of oversight is critical to see whether these laws are working. Research in California and Texas found many county jails that never even wrote policies to comply with state statutes against shackling. In Illinois, dozens of women in labor were illegally shackled the Cook County Jail in Chicago, despite a state law on the books for more than a decade.
And on the very day that we celebrated our new law in Massachusetts, the ACLU of Pennsylvania called on the state Attorney General to do something about repeated violations of their 2010 statute against shackling.
Looking to the future
I wish that passing a law were enough to secure women’s right to be free from shackling during pregnancy, childbirth, and postpartum recovery. But experience tells us it is just one step. The coalitions we formed in Massachusetts, Maryland, and other states need to stay active and find ways to monitor the impact of the laws we worked so hard to achieve.
We should also see our campaigns against shackling as part of a larger struggle to reduce the impact of the criminal justice system on women’s lives. We can apply our tried-and-true advocacy skills to other issues, like repealing mandatory minimum sentences, shifting public policy to treat drug use as a public health challenge instead of a crime, and reforming the bail system so that most people go home before and during their trial. The more we can do to keep women out of prison and jail in the first place, the less we have to worry about the harm that women will experience inside the walls.About Rachel Roth: Rachel Roth is a writer, consultant, and advocate for reproductive justice, rights, and health. Much of her work focuses on the impact of imprisonment on women’s lives and the need for new drug policies and criminal justice policies. She lives in the Boston area and is the author of the book Making Women Pay: The Hidden Costs of Fetal Rights.
This post adapts content originally published at MomsRising.
Reproductive justice scholar, Rachel Roth, shares the latest update on the national fight to ban shackling pregnant incarcerated women. In her most recent Mom’s Rising blog post, Maryland Advances Bill against Shackling, she celebrates Maryland’s progress and gives an overall update on national advances. Read Rachel’s post here: https://www.momsrising.org/blog/maryland-advances-bill-against-shackling/
Maryland Moving Forward Network (MMFN), a statewide network supporting progressive environmental and social campaigns has taken on the the shackling issue in Maryland. On March 3rd they launched their campaign and petition opposing the practice of shackling pregnant incarcerated women. The campaign included twitter, facebook, and email blasts reaching tens of thousands of individuals around the state of Maryland. In just several days 1,000 people signed the petition. The signatures that they collect will be combined with previously gathered signatures to forward to lawmakers to encourage policy change in the State of Maryland. A lively conversation, with supporters of change as well as those who fear change, is ongoing on the MMFN facebook page.
According to Rachel Roth’s post in Mom’s Rising today, Massachusetts Governor Deval Patrick announced plans to issue emergency regulations to put a stop to the shackling of pregnant women in labor.
Legal Services for Prisoners with Children (LSPC) released its report, “No More Shackles: A report on the written policies of California’s counties under the new law that limits the use of restraints on pregnant prisoners.”
In 2012, LSPC worked with Assembly Majority Leader Toni Atkins to enact legislation that prohibits the most dangerous forms of restraint from being used on any pregnant incarcerated woman (Penal Code §3407). This new law bans leg irons, waist chains, and handcuffs behind the back, and Governor Brown signed it September 28, 2012.
In March 2013, LSPC embarked on a project to determine whether all 58 California counties had written new policies on the shackling of pregnant prisoners to comply with the 2012 legislation. The report explains the new statute, describes LSPC’s efforts to obtain documentation from the counties, outlines our findings, and makes recommendations for additional legislation, regulation, and research.
The report verifies that 21 counties have policies in total compliance with the law. However, they are concerned that almost two-thirds of the counties in California, 34 of 58, still have written policies that do not fully comply with the law one year after it went into effect.
Guest Post by Lisa Piccinini, student in the Gender Violence Clinic at the University of Maryland Francis King Carey School of Law
The House Judiciary Committee heard testimony yesterday on House Bill 27, the Healthy Births for Incarcerated Women Act. The hearing garnered an Associated Press article that was published widely. Delegate Mary Washington began the hearing by explaining the general premise of the bill—that restraints should never be used on a pregnant woman or during postpartum recovery. She explained that the bill would also establish reporting requirements and allow for exceptions only through an individualized determination made by the sheriff or managing official of the correctional facility.
Numerous witnesses asked the Committee to issue a favorable report, including members of the medical community, the NAACP, on-the-ground activists, state employee representatives, and the legal community. Several witnesses praised the bill for preventing unnecessary trauma and protecting the humanity of inmates. A representative from the NAACP argued that this bill not only “protects the human dignity of all incarcerated pregnant women and girls,” but also protects the disproportionate number of women of color that are affected by the practice. A witness from the State Medical Society joined others in noting that the bill strikes an appropriate balance between the safety and health of the inmate and child and the safety of the public at large. Still others noted the importance of allowing a woman free movement during the actual delivery process, as well as the inability of a woman to run or flee during labor.
Throughout the hearing, witnesses and members of the Committee made clear their opposition to shackling pregnant women, particularly during labor. Even witnesses requesting amendments were quick to note their overall support of the bill and their willingness to work with Delegate Washington on improving the bill. Some suggested amendments included, for example, allowing medical personnel to request the use of restraints in certain cases and including language protecting medical personnel from liability in the event that a non-restrained inmate causes harm to others or flees. Other questions and concerns focused on why a law is needed to replace the already existing Department of Public Safety and Correctional Services policy, how often shackling actually occurs, and whether the legal standard set by the bill is high enough.
Regarding whether a law is needed, witnesses noted how easily a policy can be changed, and that the bill is substantively different than the policy. For example, the bill puts the onus on management instead of correctional officers to determine when restraints should be used. The Delegate agreed to supply the Committee with more information specifying the differences between the current policy and the proposed bill.
Overall, the bill enjoyed support from Committee members and witnesses alike in today’s hearing.
A recent post by Rachel Roth, national reproductive justice scholar and activist, talks about Maryland’s upcoming legislative efforts to stop the harmful practice of shackling pregnant women during transport, labor, delivery, and postpartum recovery in a Moms Rising piece Maryland 2.0: Activists Gear Up for New Campaign against Shackling.