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Legal Issues Unique to Female Offenders
By Robert Winters, JD, Professor, School of Criminal Justice, Purdue Global University
Published: 11/17/2014

Womancuffed sm As the U.S. prison population grows, inevitably the number of incarcerated women grows with it. At the end of 2013 about 200,000 women were incarcerated in the U.S., and of that number about five percent entering local and state facilities were pregnant, with slightly lower pregnancy rates at intake in the federal system. Surprisingly, there are no reliable nationwide statistics on the number of births to incarcerated females, but the number is easily several thousand annually. Given this state of affairs, legal issues unique to females have become increasingly significant for correctional professionals.

A particularly sensitive issue, and one that has garnered extensive media and international attention, is the use of restraints on pregnant inmates. Restraints used during childbirth have been roundly condemned, with public opposition from groups ranging from the American Medical Association, the American Congress of Obstetricians and Gynecologists (ACOG), and the National Commission on Correctional Health Care (NCCHC) to the American Bar Association, Amnesty International, and the American Civil Liberties Union. The United Nations even formally notified the U.S. in 2006 that employing restraints during childbirth violates the United Nations Convention Against Torture. Over the past decade numerous jurisdictions have established prohibitions on the policy, including the U.S. Marshal Service, the Bureau of Prisons (BOP), and over 20 states.

Policies on the use of restraints at other points during pregnancy are less clear-cut. American Correctional Association policies prohibit the use of waist restraints at any time during pregnancy and place extensive restrictions on the use of leg and electronic restraints. California Assembly Bill 2530, passed in September 2012, forbids the use of leg restraints, waist chains, or handcuffing behind the back on an inmate who is pregnant or recovering from delivery. The use of ankle or wrist restraints is limited, and if employed must be removed upon the direction of any medical professional caring for the offender.

Many policies—including the aforementioned one in California—include “necessity” exceptions when the inmate is deemed a flight or security risk. However, most medical professionals dispute the notion that a women in labor or recovering from childbirth (generally for 48 hours afterward) is physically capable of posing such a risk, particularly if a correctional officer is present to supervise the offender (which is normally the case).

A related issue is prenatal care for pregnant offenders. The Rebecca Project for Human Rights claimed in a 2010 study that 38 states provided “inadequate prenatal care,” but of those nearly half—15—objected to information or analysis in the report. At present 34 states have policies on prenatal care for pregnant offenders, and several agencies and organizations have adopted minimum standards in this area including the BOP, NCCHC, ACOG, and the American Public Health Association. In fact, some studies suggest that both mother and child benefit from prenatal care provided during incarceration given that many of these women struggle with poverty, substance abuse, or both outside of the correctional system. On the other hand, such prenatal care presents its own set of challenges to correctional health care providers since offenders tend to suffer more high-risk pregnancies, including complications such as drug withdrawal once incarcerated.

At the other end of the spectrum for pregnant offenders is the elective non-therapeutic abortion—that is, one performed for non-medical reasons. While women unquestionably have the right to such an abortion with no interference from government, the exercise of that right in a correctional setting faces complications. The U.S. Supreme Court has not chosen to hear any of a number of cases involving this issue, so legal precedent is currently a patchwork of state and lower-level federal court decisions. For the most part cases have rejected various barriers to elective abortion, especially policies requiring pregnant inmates to obtain a court order in order to have an abortion, and a Missouri Department of Corrections policy that outright forbade transport of female offenders away from the facility for non-therapeutic abortions was likewise overturned as unconstitutional. On the other hand, some cases have upheld certain restrictions, such as a Louisiana requirement that inmates obtain a judge’s approval for any elective medical procedure.

Generally speaking, a significant concern with court order and judicial approval requirements has been the time required for the process; since most jurisdictions prohibit late-term abortions, by the time an offender discovers she is pregnant and initiates the process to obtain an elective abortion, it may be too late to do so when approval finally comes. Another sticking point is funding for the procedure. Many states prohibit the use of public funds for elective abortions, and the Supreme Court has upheld similar bans on federal money, so agencies often require the inmate to pay for the procedure and in some cases for transportation and security costs as well. For the most part such requirements have been affirmed by the courts.

The question of facilitating contact and visitation between female inmates and their children has been problematic especially given that there are a limited number of women’s correctional facilities, meaning agencies typically have few options for housing an offender relatively close to her family. Some agencies do have programs for what is typically called “intensive visitation,” and providing technological alternatives such as Skype or other forms of teleconferencing is feasible for nearly any facility. Reduced telephone costs for calls to children are another option. Studies suggest that strong family contacts are an important component of successful reentry, and reduced recidivism is certainly in the public interest.

This overview only scratches the surface of female-specific legal issues. It is important to note that while fairness in the treatment of female offenders is simply “the right thing to do,” the issues explored here have all generated significant litigation, most of it claiming Fifth and Eighth Amendment violations (in the case of suits against the federal government) or under Title 42, USC Section 1983, which is based on the Fourteenth Amendment application of those amendments to the states. Correctional officials can also be sued personally in some cases. As such, there are very real practical incentives for addressing these issues.

Corrections.com author, Robert Winters, holds a Juris Doctorate degree and is a Professor with Kaplan University. He is also a member of the National Criminal Justice Association and serves as a Western Regional Representative, a member of the National Advisory Board and their National Elections Committee.

Other articles by Winters


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