Innocent Until Born: Why Prisons Should Stop Shackling Pregnant Women to Protect the Child

Abstract

The practice of American prisons to shackle and otherwise restrain incarcerated, pregnant women is problematic for several reasons. Such practices include shackling, chaining, and handcuffing pregnant inmates during their third trimester, transportation to/from medical facilities, labor and delivery, and postpartum recovery. Current discourse on this topic focuses primarily on how the practices invade the woman’s civil liberties, Eighth Amendment right against cruel and unusual punishment, and international human rights. Recent case law vindicates policy rationales for such practices — safety of others, safety of the woman herself, and securing flight risks. What these discussions oversee and this paper confronts the State’s interests in fetal rights and then, after birth, the child’s rights as a constitutionally protected person. Shifting the shackling discussion to protecting the child, this paper argues that shackling policies should be banned in all American institutions.