Using international human rights mechanisms to stop the shackling of incarcerated pregnant women in the United States

Brian Citro is a Clinical Lecturer in Law and a Clinic Fellow in the International Human Rights Clinic at the University of Chicago Law School. Here he reports on current efforts to advocate for a federal ban on the shackling of detained and incarcerated women during pregnancy.

When LaDonna Hopkins went into labor in an Illinois prison, she was placed in handcuffs, a chain was strapped across her stomach to which her handcuffs were linked, and leg irons were locked onto her ankles. When she arrived at the hospital to give birth to her child, she was met by hospital staff with looks of disgust and hidden away in an isolated room for her delivery.  In her testimony to the Illinois House of Representatives, LaDonna described her experience of giving birth as demoralising, uncomfortable and frightening. The shackling of incarcerated pregnant women such as LaDonna is a human rights violation that occurs regularly in the United States.

The International Human Rights Clinic at the University of Chicago Law School, in partnership with the ACLU National Prison Project and Chicago Legal Advocacy for Incarcerated Mothers (CLAIM) recently submitted a ‘shadow’ report on the practice of shackling in the United States to the United Nations Human Rights Committee (the Committee). 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.

The report of the International Human Rights Clinic at the University of Chicago Law School, the ACLU National Prison Project and Chicago Legal Advocacy for Incarcerated Mothers is available here.