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Nationwide, States Move to Ban Shackling

Posted: Feb 22, 2012

PHOENIX, Ariz. – A movement to ban the use of shackling women detainees while pregnant or in labor is growing across the United States. And it’s drawing support from conservatives and progressives alike, who denounce the practice as tantamount to torture.

Lawmakers from both sides of the political aisle in states as far ranging as Arizona, Florida, Iowa and Massachusetts have gotten behind bills either to curb or prohibit the use of restraints on female prisoners, fueling a larger nationwide trend.

The American Civil Liberties Union (ACLU) has long decried the practice as a violation of the U.S. Constitution’s Eighth Amendment prohibition against “cruel and unusual punishment.” In states where there are no policies restricting their use, however, the shackling of pregnant women during labor or post partum is “done as a matter of routine,” said Alexa Kolbi-Molinas, a staff attorney for the ACLU’s Reproductive Freedom Project.

“Really, what you want to see is that the default is pregnant women are not shackled in this circumstance unless there is a documented security risk,” Kolbi-Molinas stressed.

14 States Ban Practice

Since 2010, the number of states with laws banning some form of the practice has more than doubled to 14, according to the ACLU. The states are: California, Colorado, Hawaii, Idaho, Illinois, New Mexico, Nevada, New York, Pennsylvania, Rhode Island, Texas, Vermont, Washington and West Virginia.

In none of these states have there been “documented instances of a women in labor or delivery escaping or causing harm to themselves,” said Kolbi-Molina.

For women’s rights advocates, the threat extends beyond the mother’s health to that of their unborn baby. According to ACLU statements, even while a woman is not in labor “handcuffs and ankle shackles can prevent a pregnant woman from breaking a fall or impede her ability to protect herself if she trips or loses her balance.”

Lisa Marie Cookingham is an Arizona obstetrician working in Maricopa County. During a hearing on a proposed bill seeking to ban the practice statewide, she recalled once delivering a baby for a detained woman six-and-a-half months pregnant at the time.

“When I asked guards to please take the shackles off they refused my request,” said Cookingham. After much pleading they complied, though the baby was born with an irregular heartbeat, something she attributes to the premature birth and the delayed delivery.

While groups like the American College of Obstetricians and Gynecologists have also spoken out against such shackling, lawmakers in Florida continue to wrestle with the issue. Last year, the state’s Department of Corrections opposed a measure that would have banned the practice.

Nationwide, however, there’s been support from correctional institutions and jails to regulate shackling. In 2008, the Federal Bureau of Prisons barred the shackling of pregnant inmates in federal prisons except when necessary for security concerns.

Kolbi-Molina applauds that policy and says it should serve as a model for states.

“In general what you want to see in these policies is limitations on shackling not only during labor and delivery, but during transport, including post-partum recovery while at the hospital,” she added.

Immigrants, Minorities Most Vulnerable

The debate has recently spilled over into the rapidly expanding network of immigrant detention centers.

As recently as 2010, U.S. Immigration and Customs Enforcement (ICE) did not maintain a specific policy on the practice of shackling. Today the use of restraints in medical circumstances, including those involving pregnant women, is restricted beyond extraordinary circumstances, when their use must be documented and approved by medical personnel.

Even though there are no national data on the number of women incarcerated during pregnancy, the Bureau of Justice estimated in 2007 that roughly five percent of all women in state prison and six percent in county jails are pregnant. Women of color and immigrant women make up a significant portion of both groups.

“It’s an issue about health and dignity, and it disproportionately affects Latinas and women of color,” said Veronica Vayetti Flores, policy research specialist at the National Institute for Reproductive Rights, an advocacy group that also supports the ban on shackling.

This issue of shackles first came to Vayetti’s attention through the 2008 case of Juana Villegas, an undocumented immigrant detained in a routine traffic stop in Nashville, Tenn. Villegas was nine months pregnant at the time. Officers transported her from the county jail to a nearby hospital in shackles after she went into labor. She eventually delivered her baby while in restraints.

Villegas was later awarded $200,000 in compensation by a federal judge after she sued the county for damages suffered during her detainment.

In Arizona, increasingly punitive laws against undocumented immigrants brought the issue of shackling to the attention of conservative state lawmakers. Senate Bill 1184, sponsored by State Sen. Linda Gray, a Republican, would prohibit correctional facilities from using restraints on pregnant inmates during their third trimester or who are in labor.

The bill makes an exception in cases where the detainee represents a credible flight risk or when medical staff request the use of restraints.

A similar bill is moving through Arizona’s House of Representatives, sponsored by Republican Cecil Ash.

Authorities in Massachusetts, meanwhile, are expanding anti-shackling through a Democratic-sponsored bill that seeks to include minimum standards on pregnancy and childcare-related education.

In California rights advocates are looking to enhance existing laws.

“We have examples that show the current law is not being followed,” said Valery Small Navarro, a senior legislative advocate for the ACLU. The organization is working to expand California’s current restriction on the shackling of pregnant detainees beyond transportation to labor and post-partum recovery.

ACLU is also pushing to restrict the use of certain types of restraints when needed for security reasons.

Cruel, Unusual and Unconstitutional

Shackling has been deemed a violation of the Eighth Amendment in several court rulings, while a slew of recent lawsuits, including one filed in December by Miriam Mendiola of Arizona, could add fuel to the movement to ban the practice altogether.

Like Juana Villegas, Mendiola was detained by police officers in Maricopa County. She was later transported in shackles to a nearby hospital, where she was given a C-section while still restrained.

Her case could get a boost from a 2009 ruling by the Eighth Circuit Court of Appeals, which found that the use of shackling on an Arkansas woman violated her civil rights.

From an international perspective, the practice of shackling of this kind is universally condemned as torture. In 2006 the United Nations Committee Against Torture alerted the U.S. government that shackling during childbirth is a violation of the United Nations Convention Against Torture. The U.S. is a signatory to that treaty and was urged to comply.

“For a while there wasn’t much movement on this,” said Kolbi-Molinas, who added that once it gained traction in several states, a consensus soon emerged. “Everybody should be able to agree that this is a dangerous and unnecessary practice,” she said.

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