8th Circuit Decision On Shackling Pregnant Women

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In a case out of Arkansas called Nelson v. Correctional Medical Services, 2008 WL 2777423 (8th Cir. 2008), the Eighth Circuit concluded that the shackling of a pregnant inmate laboring to deliver a baby did not constitute an Eighth Amendment violation.    The practice of shackling pregnant and laboring prisoners has been criticized by legal commentators.   See Geraldine Doetzer, Hard Labor: The Legal Implications of Shackling Female Inmates During Pregnancy and Labor, 14 Wm & Mary J. Women & L. 363 (2008);   and Dana L. Sichel, Giving Birth in Shackles: A Constitutional and Human Rights Violation, 16 Am. U.J. Gender Soc. Policy & L. 223 (2007).   It also has been denounced by human rights organizations including Amnesty International (AI), which published a 2006 report entitled Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women.     Nonetheless, according to Amnesty International, only two states, California and Illinois, have passed legislation prohibiting the practice, and only five jurisdictions bar such restraint as a matter of department of corrections policy.   The AI Report says that 23 states and the U.S. Bureau of Prisons  specifically permit the shackling of prisoners laboring to deliver babies.   At the time of the AI report, the New York Times ran a story by Adam Litpak, featuring the plaintiff in Nelson, an Arkansas prisoner named Ms. Shawanna Nelson.  Adam Liptak,  Prisons Often Shackle Pregnant Inmates in Labor, New York Times, March 2, 200.   The Amnesty report and Times article described the medical complications and pain that can occur if a pregnant woman is shackled during labor.   But the most trenchant critique was by the husband of a Wisconsin inmate, quoted in the Times story, who said: “It is unbelievable that in this day and age a child is born to a woman in shackles.   It sounds like something from slavery 200 years ago.”

–Giovanna Shay

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