Shackling of Pregnant Prisoners in the United States

Shadow Report to the U.N. Committee Against Torture

The IHR Clinic, in partnership with the ACLU National Prison Project, Chicago Legal Advocacy for Incarcerated Mothers and independent scholar and consultant Rachel Roth, researched and drafted a report on the shackling of pregnant prisoners in the United States. The report was submitted to Commission Against Torture in September 2014. The shadow report, titled "The Shackling of Incarcerated Pregnant Women” is available here.

The report represents the views of a community of lawyers, practitioners and activists working to eliminate the practice of shackling pregnant prisoners in the United States. In this sense, it is part of a larger effort to build both a national and international coalition towards the same end.

The practice of shackling incarcerated pregnant women in the United States persists, despite the fact that it violates the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment (CAT) and the Eighth Amendment to the U.S. Constitution. Shackling during pregnancy, labor, delivery and post-partum recovery can pose substantial medical risks to the health of the woman and her fetus. These include increased risk of falling and injury, delay in the event that an emergency operation is needed, interference with medical professionals’ ability to act, and discomfort and humiliation.

The IHR Clinic submitted a report to the UN Human Rights Committee in September 2013 on the shackling of incarcerated pregnant women. That report called on the Committee to urge the United States to enact federal legislation banning shackling of detained and incarcerated women during pregnancy, including, at a minimum, the third trimester, transport to medical facilities, labor, delivery and postpartum recovery. In response to the Human Rights Committee, the United States issued a periodic report in 2013, in which it emphasized the role of policies, rather than legislation, in regulating the shackling of pregnant women. It noted that the federal and state governments, the American Correctional Association, the Federal Bureau of Prisons, the Department of Homeland Security, the Department of Justice, and Immigration and Customs Enforcement have adopted policies regulating the shackling of pregnant women.

The Shadow Report asserts that federal legislation, not simply policy, is necessary in order for the United States to comply with international human rights standards. The recently adopted U.N. Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (also known as the Bangkok Rules) state that restraints shall never be used on women during labor, birth, or immediately after birth. The policies some states and bodies have put in place do not comply with this standard. Further, the policies do not comply with the U.N. Standard Minimum Rules for the Treatment of Prisoners.

Some states have implemented anti-shackling laws, but those laws are, in general, insufficient to satisfy CAT’s prohibition on cruel, inhuman or degrading treatment. The practice of shackling incarcerated pregnant women violates Article 16 of CAT, and implements Articles 10 and 11. Article 16 requires the United States to prevent acts of cruel, inhuman or degrading treatment or punishment when committed by a public official or one acting in an official capacity. Because the Sixth Circuit held that shackling pregnant women while in labor violates the Eighth Amendment of the U.S. Constitution, the United States has a responsibility to prevent its occurrence under CAT. Article 10 of CAT requires law enforcement officials be trained and educated on what qualifies as cruel, inhuman or degrading treatment or punishment under CAT. Therefore, states must inform correctional officers that the shackling of pregnant women violates the prohibition against cruel, inhuman or degrading treatment or punishment. Article 11 requires systematic review of the treatment of persons under arrest. The United States, therefore, is required to review laws and policies at all levels to ensure that in law and in fact, the shackling of incarcerated pregnant women is in compliance with Article 16 of CAT.

The Shadow Report presents a recommendation for a comprehensive anti-shackling law. Twenty-one states currently have anti-shackling laws, but not all provide comprehensive protection against shackling. Further, six states have neither laws nor policies that regulate the use of restraints on incarcerated pregnant women. The Report recommends legislation include the following provisions: prohibition of the use of restraints, exceptions in extraordinary circumstances, details on the type of restraints allowed, notice of the law to female prisoners and medical professionals, training requirements, medical staff supremacy, and required reporting when restraints are used.

The report urges the CAT Committee to ask the United States the following questions:

  • Does the United States intend to enact a federal law prohibiting shackling of incarcerated women during the second and third trimesters of pregnancy, during labor and delivery, and for six weeks postpartum, including any time in transport to medical facilities or court?
  • How does the United States intend to encourage those U.S. states that do not have anti-shackling laws in place to enact comprehensive anti-shackling legislation?
  • Does the United States intend to enact requirements at the federal level and to encourage states to enact requirements for the training of correctional and law enforcement officials and personnel on the prohibition of shackling pregnant women, and for reporting of incidents of use of restraints on women who are pregnant, in labor, or post-partum?
  • Does the United States intend to review existing state laws and policies regulating the use of restraints on pregnant women to ensure they are comprehensive, do not contain broad exceptions, and are fully implemented?

The report urges the Committee recommend that the United States:

  • Enact federal legislation to prohibit the practice of shackling incarcerated women in the United States during the second and third trimesters of pregnancy, during labor and delivery, and for six weeks postpartum, including any time in transport to medical facilities or court.
  • Conduct a federal investigation into the practice of shackling incarcerated pregnant women at the federal, state, and local levels.
  • Create a federal oversight body to receive reports on and to investigate incidents of shackling pregnant women.

Shadow Report to the U.N. Human Rights Committee

The IHR Clinic, in partnership with the ACLU National Prison Project and Chicago Legal Advocacy for Incarcerated Mothers, researched and drafted a report on the shackling of pregnant prisoners in the United States. The report was submitted to the UN Human Rights Committee in September 2013 prior to the Committee's Fourth Periodic Review of the United States in October 2013. The report, titled "The Shackling of Incarcerated Pregnant Women: A Human Rights Violations Committed Regularly in the United States," is available here.

The report represents the views of a community of lawyers, practitioners and activists working to eliminate the practice of shackling pregnant prisoners in the United States. In this sense, it is part of a larger effort to build both a national and international coalition towards the same end.

As a party to the International Covenant on Civil and Political Rights (the ICCPR), the United States must submit reports to the Committee every five years describing its compliance with the treaty. The Committee will question representatives from the United States in October about the most recent report it submitted. In reviewing past reports from the United States, the Committee expressed concern about ‘the shackling of detained women during childbirth’. In fact, in 2006 the Committee recommended that the United States ‘prohibit the shackling of detained women during childbirth’. More recently, in March 2013, the Committee requested further clarification as to whether the United States intends to ‘prohibit the shackling of detained pregnant women during transport, labor, delivery and post-delivery, under all circumstances.’

The shadow report argues that the shackling of pregnant prisoners constitutes cruel, inhuman or degrading treatment or punishment prohibited under article 7 of the ICCPR. It also contends that the practice infringes the right to be free from discrimination in article 2 and 26 of the ICCPR because it disproportionately impacts women of color, who are significantly overrepresented in United States prisons. The report further recalls the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules), which explicitly states: ‘Instruments of restraint shall never be used on women during labour, during birth and immediately after birth.’ (Rule 24). Additionally, the report points out that shackling pregnant prisoners violates the Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishment. It notes that in 2013 a United States Federal Court of Appeals held that the shackling of pregnant detainees during labor poses a substantial risk of serious harm and ‘offends contemporary standards of human decency such that the practice violates the Eighth Amendment’s prohibition against the ‘unnecessary and wanton infliction of pain’.

Despite the fact that the United States government has expressed a desire to prohibit the shackling of pregnant prisoners at some points during pregnancy and post-pregnancy, the practice persists.  In 2008, the United States adopted a federal anti-shackling policy. However, the policy only applies to prisons and detention centers operated by the federal government. More than 86% of prisoners in the United States are in state prisons to which the policy does not apply. Currently, only 18 states have legislation in place that restricts the use of restraints on pregnant inmates, 24 states limit the use of restraints on pregnant inmates only through institutional policies, and 8 states do not have any form of regulation at all. Moreover, there are a number of gaps in existing state policies and many laws and policies are not properly implemented.

The shadow report asserts that the justifications commonly offered for shackling pregnant prisoners are unpersuasive. It observes that claims that unshackled pregnant women present a significant risk of flight or harm to themselves or others are unfounded. It points out that instances of pregnant prisoners attempting to escape or cause harm have not been reported in states that have restricted the use of restraints on pregnant women. Given the physical and mental rigors of labor and childbirth, this should be unsurprising. The report notes that in rare cases where safety or flight concerns are legitimate, measures are in place to safeguard the public and medical staff. In most cases, correctional officers accompany pregnant women to the delivery room and are stationed immediately outside.  In addition, the report explains that exceptions to prohibitions on shackling, which allow pregnant women to be shackled for legitimate safety reasons with the permission of attending physicians, provide sufficient safeguards against flight and security risks.

The shadow report calls upon the Committee to urge the United States to enact federal legislation banning shackling of detained and incarcerated women during pregnancy, including, at a minimum, the third trimester, transport to medical facilities, labor, delivery and postpartum recovery. Because the United States is responsible under international law for the actions of its 50 states, the report recommends that the Committee urge the United States government to instruct the 32 states that have not enacted similar legislation to do so immediately.