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Bans on Shackling Pregnant Women Don't Work; New York Must Do Something Else


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A federal lawsuit filed this month alleges police in the Bronx kept a pregnant woman shackled while she gave birth in February. Allegedly, doctors at Montefiore Medical Center warned that shackling a woman in labor poses high danger to a fetus, but the cops cited a manual that they said allowed them to do it.

If you’re thinking shackling pregnant women during childbirth should just be banned to prevent this barbaric practice, you’re wrong. Shackling pregnant inmates is already prohibited in New York.  

Securing metal clasps around a pregnant woman’s ankles has been illegal in the state for almost ten years.

In 2009, New York became the sixth state to ban restraints during birth when then-Governor David Paterson signed the Anti-Shackling Law, which prohibits shackling during labor, delivery, and recovery. When it was amended in 2015, the law prohibited shackling of women eight weeks post-partum and while being transported in custody.

The problem is that few police or corrections officers appear to obey this law. The Corrections Association of New York, a reform and advocacy organization, interviewed 27 women who gave birth while in custody of the New York Department of Corrections and Community Supervision after the 2009 shackling ban went into effect. A full 85% of them said they had been shackled while pregnant in flagrant violation of state statute.

Aside from the fact that the practice is inhumane and impedes normal labor and delivery - women need to move around for pain management and cervical dilation for vaginal deliveries -  the health effects of shackling women are harmful for both mother and child. Shackles all but destroy prompt and uninhibited diagnosis of vaginal bleeding, and being able to discern preterm labor pain from other treatable conditions.

Some may call it fortuitous that such a lawsuit was filed right now, when shackling of pregnant women is getting increased scrutiny. A ban on shackling is a provision of the federal FIRST STEP Act, the contentious prison and sentencing reform bill passed by the House of Representatives and pending before the Senate.

Back in September, when the Senate version of the FIRST STEP Act remained unknown, three female Representatives (Karen Bass (D-CA), Mia Love (R-UT) and Katherine Clark (D-MA)) introduced the Pregnant Women in Custody Act of 2018, which would have created a national standard of care for pregnant women in all federal prisons and required the Department of Justice to collect health data on that population. Last year, an anti-shackling plank was included in the Dignity for Incarcerated Women Act (sponsored by Democratic Sens. Cory Booker, Kamala Harris, Elizabeth Warren, and Richard Durbin). The Pregnant Women in Custody Act and the Dignity Act were never voted on in committee, much less in the larger chamber.

But even if these bills had been made law and applied to all incarcerated women, not just federal prisoners, officers probably would have ignored them. What’s happened in New York proves that even codified prohibitions of this conduct don’t prevent it.

The risk of litigation -- other women suing like Jane Doe is -- has little hope of curbing these abuses. For one, Jane Doe isn’t incarcerated now so she doesn’t have to clear those monumental hurdles to file a lawsuit in federal court imposed on inmates by Prison Litigation Reform Act. Women who are shackled during pregnancy must exhaust internal remedies before their claims of civil and human rights violations can be presented in federal court. Those tasks, on top of nursing (if in a facility that has a nursery) or wrestling with the separation from their children, are often insurmountable for new mothers. Besides, officers are often indemnified by their employers - and your tax dollars.

Since bans alone won’t cut it to stop officers from shackling women, more needs to be done, like amending the Anti-Shackling Law by criminalizing this conduct so that individual guards face some accountability.

Dangers hide in the criminalization of any activity, namely the chance of unjust prosecution and conviction. That risk might be higher in paramilitary systems like law enforcement, where officers of lower rank must follow the orders of supervisors or risk discipline or termination.

But those risks are minor enough that they can’t be fairly weighed against the prospect of physical harm and death for a mother and her newborn from shackling.

As long as there is little to no consequence for officers who break this law, we will continue to put women and children in harm’s way. A ban on shackling women needs to be more than symbolism or a moral stance. When it’s still happening despite the fact that it’s unlawful, we need legal force to create practical effect.

Next month, Democrats will control both houses of the New York State Legislature; Republicans won’t be able to block meaningful criminal justice reform. Amending the Anti-Shackling Law to include accountability for officers who continue these human rights violations is essential to any positive change in New York correctional culture.

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Chandra Bozelko is the Vice President of the National Society of Newspaper Columnists and member of the junior board of the Women’s Prison Association. On Twitter @aprisondiary.

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