Does Shackling Incarcerated Women During Childbirth Violate the Eighth Amendment?

Without Strict Controls, a Practice That’s Hard to Stamp Out

To illustrate the inhumanity of shackling, consider these corrections practices that have been legally challenged by women:

1. During transportation from the correctional facility to the hospital for a medical visit, a pregnant woman was placed in leg shackles, handcuffs, and a belly chain with a box that connects the handcuffs and belly chain (Women Prisoners);
2. during transportation to the hospital, a pregnant woman in labor was placed on a stretcher with her wrists handcuffed together in front of her body and her legs restrained together (Villegas);
3. during labor, both of a woman’s legs were shackled to the hospital bed, preventing her from moving, stretching or even changing positions (Nelson);
4. immediately following an emergency caesarean section procedure, and before a woman could even feel her legs again, she was shackled to the hospital bed (Brawley); and
5. during postpartum recovery, a woman was restrained by a plastic cuff around her ankle, connected to a metal chain on one end and the hospital bed on the other (Mendiola-Martinez).

High levels of discretion for prison officials enable the practice of shackling to continue.

Currently, 27 states and Washington D.C. have laws in place that prohibit or restrict the practice of shackling pregnant incarcerated women, during transportation to the hospital, labor, delivery, or postpartum recovery (Arizona, California, Colorado, Connecticut, Delaware, Florida, Hawaii, Idaho, Illinois, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, Oklahoma, Pennsylvania, Rhode Island, Texas, Vermont, Virginia, Washington, and West Virginia). The laws generally prohibit the use of leg, ankle, and waist restraints, as well as handcuffs behind the back. However, most state laws provide an exception for either “necessity,” “extraordinary circumstances,” “compelling grounds,” substantial risk of harm (to herself or others) or the risk of escape.

Under most statutes, the prison official has discretion to make an “individualized determination” to apply shackles on a pregnant incarcerated woman during transportation, labor, delivery, and postpartum recovery. The state statutes confer discretion on prison officials to determine the type of restraint as long as they use the “least restrictive means necessary.” Some state statutes also require written documentation following the use of restraints.

The FIRST STEP Act

The FIRST STEP (Formerly Incarcerated Reenter Society Transformed Safely Transitioning Every Person) Act, signed by President Trump in 2018, limits shackling of pregnant incarcerated women in federal prisons. In particular, it prohibits federal prisons from (i) using restraints around the ankles, legs, or waist; (ii) restraining a prisoner’s hands behind her back; (iii) using 4-point restraints; and (iv) attaching a prisoner to another prisoner.

However, the act has exceptions. Like similar state laws, restraints may be used if a prison official decides that the incarcerated pregnant woman is an “immediate and credible” flight risk or poses an “immediate and serious” threat.

Importantly, the FIRST STEP Act only applies to federal prisons and does not protect pregnant women in state and local facilities. Moreover, this act confers substantial discretion on prison officials about the use of restraints.

Eighth Amendment Section 1983 Claims Based on Shackling of Incarcerated, Incarcerated Pregnant Women

The Eighth Amendment’s ban on cruel and unusual punishment prevents government officials from acting with deliberate indifference to a prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104 (1976) (holding that “deliberate indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain.’”) A prison official acts with deliberate indifference toward an incarcerated prisoner if one “knows of and disregards a serious medical need or a substantial risk to an inmate’s health or safety.” Nelson v. Correctional Medical Services, 583 F.3d 522, 528 (8^th Cir. 2009).

Although the Supreme Court has not addressed the practice of shackling incarcerated pregnant women, federal courts have held shackling during certain periods of labor and pregnancy to constitute cruel and unusual punishment in violation of the Eighth Amendment.

Women Prisoners of D.C. Department of Corrections v. District of Colombia, 877 F.Supp. 634 (D.D.C. 1994) was the first federal case to address shackling pregnant inmates. In that class action, the district court held that “[w]hile a woman is in labor and shortly thereafter, . . . shackling is inhumane.” Id. at 668. Particularly, the physical limitations on a woman in the third trimester of pregnancy and the pain involved in delivery make complete shackling redundant and unacceptable in light of the risk of injury to a woman and baby. There, the district court held the prison officials liable, explaining that a prison official who shackles a woman in labor acts with “deliberate indifference . . . since the risk of injury to women prisoners is obvious.” Id. at 669.

In Nelson v. Correctional Medical Services, 583 F.3d 522, 529 (8^th Cir. 2009), the Eighth Circuit held that shackling practices violated the Eighth Amendment. There, the plaintiff’s legs were both shackled to the opposite sides of her hospital bed well into the final stage of labor and prevented her from moving her legs, stretching, or changing positions. Id. at 525–26. In that case, the plaintiff’s expert testified that shackling “‘is inherently dangerous to both the mother and the unborn fetus and that it may interfere with the response required ‘to avoid potentially life-threatening emergencies for both the mother and the unborn fetus.’” Id. at 529. The Eighth Circuit found that the prison official imposing these restrictions acted with deliberate indifference in using these restraints, with the shackling amounting to a violation of the Eighth Amendment. The prison officials were not facing an emergency situation but nevertheless subjected the inmate to a substantial risk of physical harm: the unnecessary pain caused by the shackles and restricted position. The inmate had a right not to be shackled unless she was likely a security or flight risk.

Likewise, in Villegas v. Metropolitan Government of Nashville, 709 F.3d 563, 574 (6^th Cir. 2013), the Sixth Circuit found that “the shackling of pregnant detainees while in labor offends contemporary standards of human decency such that the practice violates the Eighth Amendment’s prohibition against the ‘unnecessary and wanton infliction of pain’—i.e., it poses a substantial risk of serious harm.” Id. at 574.

A federal trial court came to a similar conclusion in Brawley v. Washington, 712 F.Supp. 2d 1208 (W.D. Wash. 2010). In that case, the plaintiff’s expert testified that shackles on the plaintiff while in labor exposed her to a serious risk of harm and injury. The district court found that, in addition to the expert testimony, “[c]ommon sense” and the defendant’s own policy, which prohibited restraints during labor and delivery “tells us that it is not good practice to shackle women to a hospital bed while they are in labor.” Id.

These federal courts have found that shackling women in labor exposes them to a risk so grave that it amounts to an Eighth Amendment violation. Additionally, the injuries caused by the restraints in these cases—such as permanent hip injury, torn stomach muscles, an umbilical hernia, and injured and deformed hips, see Nelson, 583 F.3d at 526—show the seriousness of risks posed by shackling.

However, although courts have found shackling during certain periods of labor and pregnancy to violate the Eighth Amendment, Women Prisoners, 877 F.Supp. at 669 (during the third trimester of pregnancy), Nelson, 583 F.3d at 531–32 (during labor), Villegas, 709 F.3d at 574 (during labor), and Brawley, 712 F.Supp. at 1219 (during labor), they have stopped short of finding the practice always unconstitutional. Rather, courts have accepted that shackling may be necessary for a female prisoner with “a history of assaultive behavior or escapes.” Women Prisoners, 877 F.Supp. at 646; see Nelson, 583 F.3d at 534 (holding that the inmate had a right not to be shackled unless she was likely a security or flight risk.). Similarly, the Sixth Circuit reasoned that “the right to be free from shackling during labor is not unqualified.” Villegas, 709 F.3d at 574.

Cruel and Unusual Punishment

It is cruel and unusual punishment to shackle an incarcerated pregnant woman during labor and delivery. While state and federal laws, policies, and guidelines justify using restraints to prevent “extraordinary circumstances,” my research uncovered no instances of women who are in labor, delivery, or postpartum recovery either escaping or causing harm to guards or medical staff. Without strict controls, shackling will continue. Despite some state legislation and policies prohibiting or restricting the shackling of pregnant incarcerated women, many states have no legislation or policies addressing the issue. The goal should be to create uniform standards to ensure that the rights afforded an incarcerated pregnant woman are not dependent on the state and/or facility where she is confined.

Nakea Barksdale is a 2020 J.D. candidate at Rutgers Law School.

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