Mothers Behind Bars in the United States: A Human Rights Issue

11/10/2010 05:05 pm ET | Updated May 25, 2011
  • Malika Saada Saar Executive Director and Co-Founder , Human Rights Project for Girls (Rights4Girls); Special Counsel on Human Rights for The Raben Group

Last week, the Rebecca Project for Human Rights and the National Women's Law Center released a State by State Report Card on the conditions of maternal confinement. And what we found out about the challenges and indignities endured by incarcerated mothers in the United States should concern all of us who are committed to women's rights and human rights.

Mothers behind bars are invisible to most of us. (The Report Card also uses the term mother because these are women who have decided to continue their pregnancies to term and plan to give birth. While some women may place their children for adoption, they remain birth mothers to their children). To the extent they are thought of at all, they are caricatured as the ultimate bad mother who has violated the basic maternal commitment to care for her children by engaging in wrongful criminal activities. But, in truth, mothers' pathways to incarceration are complex, and often rooted in issues of sexual and physical violence.

Most incarcerated women, including mothers behind bars, were first victims of violence. The shared narrative arc of incarcerated women and mothers behind bars is that of repeated experiences of brutal sexual and physical victimization, generally begun during girlhood. In the absence of access to mental health services, many of these vulnerable mothers turned to self-medicating with illegal substances. Rather than being treated for trauma, depression, addiction, and the other indelible injuries of violence, these mothers have been displaced into the criminal justice system.

Twenty-five years ago, the presence of women -- especially mothers -- was an aberration in the criminal justice system. Following the introduction of mandatory sentencing to the federal drug laws in the mid-1980s, the number of women in prison has risen by 400 percent. The percentage of females incarcerated for drug offenses now surpasses that of males. Most of these women are non-violent, first-time offenders.

This relatively recent phenomenon of criminalizing mothers for trauma and addiction, precipitated by the war on drugs and mandatory minimums, as well as the dearth of programs for pregnant and parenting mothers, have wreaked havoc on family stability and children's well-being. Most incarcerated mothers have minor children and were, before their incarceration, the primary caretakers of their children. Maternal incarceration wrongly leaves the child behind, without recognition of a child's fundamental need for his or her mother.

Prison rules and regulations, harsh and dehumanizing for all who are confined, were originally developed to serve an overwhelmingly male population convicted of violent crimes. The system has been largely unresponsive to changes that would better meet the needs of and rehabilitate the overwhelmingly non-violent population of incarcerated women, including those who are pregnant and parenting. Unsurprisingly, the system also generally fails to account for the needs of the children left behind.

Unfortunately, discourse on criminal justice policy, review of conditions of confinement, alternative sentencing, and re-entry reform tend to either ignore or marginalize the significance of the growing number of incarcerated women, especially those who are parenting. Similarly, the Federal Bureau of Prisons (BOP) and state departments of corrections (DOC) have yet to fully recognize the distinct gender -- and family -- specific considerations of incarcerating pregnant women and mothers with minor children. There are few prison-based programs specifically designed for pregnant and parenting women. The inadequacy of services for these women is not limited to incarceration settings, but affects women at every point in their involvement with the criminal justice system. Pre-trial diversion and release services, court-sentenced alternatives and re-entry programs for mothers are restricted in number, size, and effectiveness because the system was developed to serve men.

Overall grades: Averaging the grades for prenatal care, shackling, and family-based treatment as an alternative to incarceration, twenty-one states received either a D or F, both of which are considered failing grades. Twenty-two states received a grade of C, and seven received a B. The highest overall grade of A- was earned by one state -- Pennsylvania.

Prenatal care: 38 states received failing grades (D/F) for their failure to institute adequate policies, or any policies at all, requiring that incarcerated pregnant women receive adequate prenatal care, despite the fact that many women in prison have higher-risk pregnancies:

• 43 states do not require medical examinations as a component of prenatal care.
• 41 states do not require prenatal nutrition counseling or the provision of appropriate nutrition to incarcerated pregnant women.
• 34 states do not require screening and treatment for women with high risk pregnancies.
• 48 states do not offer pregnant women screening for HIV.
• 45 states do not offer pregnant women advice on activity levels and safety during their pregnancies.
• 44 states do not make advance arrangements for deliveries with particular hospitals.
• 49 states fail to report all incarcerated women's pregnancies and their outcomes.

Shackling: Thirty-six states received failing grades (D/F) for their failure to comprehensively limit, or limit at all, the use of restraints on pregnant women during transportation, labor and delivery and postpartum recuperation.

There has been a recent increase in states adopting laws that address shackling, now totaling ten. Of the states without laws to address shackling.

• 22 states either have no policy at all addressing when restraints can be used on pregnant women or have a policy which allows for the use of dangerous leg irons or waist chains.
• When a pregnant woman is placed in restraints for security reasons, 11 states either allow any officer to make the determination or do not have a policy on who determines whether the woman is a security risk.
• 31 states do not require input from medical staff when determining whether restraints will be used.
• 24 states do not require training for individuals handling and transporting incarcerated persons needing medical care or those dealing with pregnant women specifically, or have no policy on training.
• 31 states do not have a policy that holds institutions accountable for shackling pregnant women without adequate justification.
• 34 states do not require each incident of the use of restraints to be reported or reviewed by an independent body.

Family-Based Treatment as an Alternative to Incarceration: Seventeen states received a failing grade (F) for their lack of adequate access to family-based treatment programs for non-violent women who are parenting.

• 17 states have no family-based treatment programs, while 34 states make such programs available.
• Of the 34 states with family-based treatment programs, 32 offered women the option to be sentenced to these programs in lieu of prison, while two did not.

Prison Nurseries: 38 states received failing grades (D/F) for failing to offer prison nurseries to new mothers who are incarcerated. While a far less preferred option than alternative sentencing, prison nursery programs still provide some opportunity for mother-child bonding and attachment.

• 38 states do not offer any prison nursery programs.
• Of the 13 states that do offer such programs, only two allow children to stay past the age of two.
• Three of the 13 programs offer therapeutic services for both mother and child.