Rebecca Brodie sits in her suburban Massachusetts home, talking on the phone with me while her family member sits nearby, filming the interview. The oldest female correctional facility in the United States, MCI-Framingham, is just a short eight-minute drive away. “When I conceived my third child earlier this year, it really hit home for me because everywhere I go I pass the prison,” Brodie explained. “I have all these choices and opportunities: who do I want in the room with me, do I want a water birth, or a home birth? Obviously the incarcerated women can’t make these choices.”
The proximity of the women’s prison and Brodie’s pro-bono legal work with incarcerated women is what inspired the protest she’s planning for December, when her third child is born. If all goes according to plan, she’ll be laboring and delivering her baby in metal restraints that restrict her arms and legs. She’s planning to simulate the same conditions that many incarcerated pregnant women face when delivering in state prisons and jails, including some of the women housed at the prison right by her home.
Putting an end to the shackling of incarcerated pregnant women during childbirth is a cause that has gained steam in recent years. “In the first part of the [past] decade, only three states had ever taken action on this issue. There wasn’t really a national movement recognizing this as a human rights issue,” explains Amy Fettig of the ACLU Prison Project. “That’s really changed in the last three years.”
Four states (Idaho, Hawaii, Rhode Island and Nevada) passed laws this legislative year banning the practice, bringing the total number of states with bans on the books to only 14. In addition, only five state corrections departments (including the District of Columbia) have written policies that stipulate no restraints should be used during labor and birth, according to The Rebecca Project for Human Rights.
Women who are locked up when they give birth often end up delivering at local hospitals, transported by prison guards who ultimately decide when and if a woman will be shackled. During transport, in the vehicle, walking through the hospital and even in the delivery room, some women are shackled by their legs and/or arms. While statistics on how many women are shackled during labor is not available, we do know that in 2007, an estimated 2,200 pregnant women were incarcerated and more than 1,300 babies were born in prison, according to the Rebecca Project. Few people will defend the practice publicly, and lawyers and doctors alike have condemned it as unsafe.
In states that have already passed laws restricting the practice, advocates are also realizing that they need more legislation to make sure new rules are enforced and to address the use of restraints during transport, when a mother is in labor. “We’re seeing a second generation of anti-shackling laws because fears about what might happen when you don’t shackle pregnant women were completely immaterial,” says Fettig. “They are going back and seeking to improve their own laws.”
In California, for instance, lawmakers banned the practice of shackling during labor and delivery in 2006. Now, a second piece of legislation addressing shackling during transport is waiting on Gov. Jerry Brown’s desk for a signature or a veto, with a deadline of Oct. 8. Former Gov. Arnold Schwarzenegger vetoed the same legislation last fall. Advocates were hopeful that it would be signed this time around, but three last-minute opposition letters from the sheriff’s offices of Sonoma and Alameda Counties, as well as the California State Sherriff’s Association, are putting its passage in jeopardy. Tamaya Garcia from the Center for Young Women’s Development, a driving force behind the effort, says last year there was little official opposition to the bill.
The arguments in favor of shackling prisoners usually come down to two points: flight risk and safety of the surrounding officers and medical professionals. For people who’ve been in labor or worked with women in labor, these arguments usually get no more than a laugh, as they find it hard to imagine a woman in labor getting very far, or posing a danger to anyone else. “I’m sure you can create your own visual about a woman eight centimeters dilated and in labor. The chances of her getting up and running away are pretty slim,” said Jeanne Conry, a district chair of American Congress of Obstetricians and Gynecologists in a recent article in the Daily Beast. These arguments also ignore the fact that the majority of women in prison are there for non-violent crimes.
Marianne Bullock, cofounder of the Massachusetts-based Prison Birth Project, offers an anecdote from across the country illustrating why shackling during transport is an acute problem. As a doula who has been working within a Springfield prison for the last four years, Bullock and the other members of the Prison Birth Project see exactly how incarcerated pregnant women are treated. Even though their facility doesn’t shackle women during childbirth, shackles are still used during transport, especially postpartum. Bullock recounts one woman that she supported during labor who ended up with a full episiotomy (an incision to widen the vaginal opening) to deal with her baby’s shoulder dystocia.
“Twenty-four hours later she was shackled foot-to-foot and walked out of the hospital,” she remembered. “It’s so dangerous to have a woman walking shackled, with who knows how many stitches.”
Brodie says she feels a connection with the women at MCI-Framingham, and that she thinks if a few things had gone differently in her own life, she could have ended up behind bars, too. “It really just sat with me that no one is listening to [the women being shackled],” Brodie explained. “Maybe people would listen better if it was a white, blond-haired blue-eyed chick from the suburbs.”
Brodie is right to point out her race, considering that the women she is protesting on behalf of are less likely to look like her. According to the Correctional Association of New York, nationally, African-American women are incarcerated at three times the rate for white women; Latina women at almost 1.6 times the rate for white women.
The phenomenon of mass incarceration of women is a relatively new one, and particularly at the high numbers we’re seeing today. According to the Valley Advocate, “the U.S. female prison population has grown by 400 percent since the introduction of mandatory minimum drug sentences in the 1980s. According to the U.S. Bureau of Justice Statistics, 75 percent of incarcerated women are mothers, and 5 to 6 percent of women entering prison or jail are pregnant at the time.” But corrections departments have done little to deal with these demographic realities. “Women have always been an afterthought in criminal justice,” says Fettig. “[Shackling] is most likely a practice that arose simply because that’s what’s done with [transporting] male prisoners as standard practice.”
Brodie’s plans, and the documentary she’s making to accompany it, are sure to raise controversy. Already the recipient of hate mail, Brodie says that not everyone supports her efforts. “I’ve had other groups who’ve said, ‘We’re afraid you’re going to make it look easy, and hurt the cause.’ ” A number of times during our conversation she explained that she’s not excited about the prospect of being shackled during labor. “The idea of having to [labor] with my arms tied together or my arms tied to the bed, does not sound appealing. It doesn’t sound like a pleasant experience to me, and I’m very concerned. While I sit around and worry about that, on the other hand, I can’t continue to get up in the morning, get in my minivan and drive to my law school and teach and talk about standing up for things and just go buy a new stroller and baby blankets.”
Bullock and her fellow Prison Birth Project members have joined the legislative efforts against shackling in Massachusetts. Last month they testified at a hearing for a new bill that would set a number of standards for the care of pregnant women in prison, including outlawing the use of restraints except in “extraordinary circumstances.” The group has already had success working to defeat two other pieces of legislation—one trying to set mandatory minimum sentences for sex work and the other trying to require inmates to pay a daily fee to stay in jail. But this effort looks like it might be more of a challenge. At the hearing last week, only four people testified about the anti-shackling bill, when other bills earlier that day, including new mandatory minimum laws, had seen a packed house. That’s where Bullock sees the value of Brodie’s protest. “You can send out a press release saying that you’re testifying at the statehouse and you don’t always get it picked up,” she explained. “But when a lawyer decides to shackle herself when she gives birth, that gets people’s attention.”
And attention is what this bill seems to need. The legislators at the hearing told the advocates that if shackling is really happening, they should get an executive order from the governor to stop it. Similar initiatives addressing shackling have been introduced in previous legislative sessions, but none have ever made it to a vote. Advocates, including Gavi Wolfe from the Massachusetts ACLU, say this is the first year that there is a coordinated effort behind the bill. “I think that by sharing information with the committee about the experience of pregnant women in Massachusetts correctional facilities, we have the ability to really move the conversation,” says Wolfe.
What may be driving the new momentum behind these anti-shackling bills is a November 2009 win at the Eight Circuit Court of Appeals on behalf of Shawanna Nelson, a woman who sued after being shackled during labor while she was incarcerated for writing bad checks. Nelson’s legs were restrained to opposite sides of the bed, and she says she experienced serious injuries as a result. After initially ruling against her, an appeal lead by the ACLU resulted in a decision that the prison officer had in fact violated her constitutional rights. This legal decision, alongside statements from groups like the American College of Obstetrics and Gynecology condemning the practice, give advocates more tools for their state level fights. Also supporting their efforts is the fact that federal prisons already have a policy banning the practice.
“[Shackling] gets these one-minute spots on the New York Times, when an immigrant woman is shackled and wins a lawsuit,” explained Bullock of the nationwide effort to ban the practice. “What I’m really excited about is building a more sustained effort with incarcerated and previously incarcerated people to work on legislation.” Brodie hopes her protest and documentary can help build support for such a movement. “I want to do something that may be dangerous because other women are being forced to go through it,” she explains. “I am not the story,” she says. “My birth will be over and I’ll go back to my life.”