Mothers and Mothers-to-be in Prison

Article by Julia Lutsky and Brigette Sarabi

Well over half the women in prisons and jails are mothers of children under 18. Two-thirds of the mothers in state prisons and half of those in federal prisons lived with their children prior to incarceration; almost three-quarters of those on probation have small children.

Pregnant women often enter prison: in 1997-98 more than 2,200 pregnant women were imprisoned and more than 1,300 babies were born in prison. Forty states take the children from their mothers either immediately after they are born or when the mother leaves the hospital facility. There are exceptions, however: In California, an eligible pregnant woman is housed with her infant from the time it is born and she may keep the infant with her until she is released from prison. This is a start, but the program providing this service had only 94 places in 1997 while 436 pregnant women were incarcerated and 381 babies were born to women in prison. Illinois had a program in which 15 qualified women prisoners could be placed for up to two years but, again, 120 pregnant women were incarcerated and 51 babies were born. New York, Nebraska and South Dakota have similar programs. The Federal Bureau of Prisons has programs for qualified pregnant prisoners in which they may stay for three months after the birth of their children. All of this is a start, but hardly enough.

There is, however, a darker side of the treatment meted out to pregnant women prisoners. Amnesty International has always decried the use of shackles and chains in the transport of any prisoners. It conducted a legislative study on the shackling of pregnant women in custody and a survey of the policies followed by all the state Departments of Correction. The 40 jurisdictions which responded to the survey revealed that only one state (Illinois) bans the shackling of pregnant women when they are taken to the hospital for delivery. A minimum of 34 states may require the restraint of prisoners en route to the hospital to deliver. Nineteen jurisdictions allow for women to be restrained during labor and/or birth. Four states actually have written policies requiring prisoners to be restrained during medical procedures - without distinguishing pregnant women or those in labor (Connecticut, Louisiana, Oklahoma and Minnesota).

Speaking of her correspondence with women prisoners, Bonnie Kerness, Associate Director of the Criminal Justice Program at American Friends Service Committee in New Jersey says, “Women have reported the inappropriate use of restraints on pregnant and sick prisoners. The reports of giving birth while being handcuffed and shackled are horrible, including one woman whose baby was coming at the same time the guard who had shackled her legs was on a break somewhere else in the hospital.”

There are more, many more, restrictions and restraints that may be, or are required to be, placed on prisoners when they are pregnant or in labor. Amnesty International holds that such restraints can “rarely be justified in terms of security measures.” Shackling a woman in labor endangers her as well as her unborn child, the organization contends, and is a violation of international standards. One might add that it is a violation of human dignity as unworthy of the one who inflicts it as the one(s) who suffer it.

All jurisdictions allow for the termination of parental rights of those incarcerated; the pertinent law may refer specifically to imprisonment or more generally to adoption or foster care. The passage in 1997 of the federal Adoption and Safe Families Act (ASFA) has resulted in a heartbreaking increase in the number of incarcerated mothers whose parental rights are being terminated. This is because ASFA forces states to move quickly to terminate parental rights in certain circumstances, for example, in most cases where a child is in foster care for 15 of the past 22 months. It is this push toward termination of parental rights based strictly on a 15-month timeline that has a huge impact on incarcerated mothers. Even for mothers serving a relatively short sentence of, for example, 24 months, meeting the new time frame may be impossible. The result? Permanent loss of a child to foster care or adoption.

Even if an incarcerated mother still has a right to contact with her children, circumstances are likely to prevent her from active parenting. Because women’s prisons are very often located in rural areas far from the cities where many women lived, their children have little chance to visit. More than half the children of prisoners did not visit their mothers while the mothers were imprisoned. In addition, the high cost of collect phone calls from prison are a financial burden that few of the caregivers for the children of incarcerated mothers can afford, thus making contact between incarcerated women and their children even more difficult. A 1993 House study points out that children’s psychological well being can be severely damaged by early separation from their mothers and that a strong relationship between mother and child often enables a prisoner to participate successfully in, and benefit from, rehabilitation programs and thus decreases recidivism.

This article originally appeared in Justice Matters Summer 2003.