03/14/2014 12:14 pm ET Updated May 14, 2014

An Illegal and Inhuman Practice: We Must Stop Shackling of Pregnant Incarcerated Women

With only 5 percent of the world's population, the United States has 25 percent of the world's incarcerated persons. As members of a society that has the highest rate of incarceration, it is our moral and ethical duty to question the treatment of individuals behind prison walls. For one, we must ask, how is it that pregnant incarcerated women are still being shackled during labor?

Reports of pregnant women, in Massachusetts and other states being shackled during their transport, delivery and postpartum recovery are alarming. Michelle, who was held in a Massachusetts correctional facility, recalls the horrors of being taken to the hospital for delivery in shackles. Michelle, a non-violent offender, who was accompanied by two guards one of whom was armed, and held in a secure part of the hospital, was shackled to her bed for over 18 hours while in labor. "After I delivered, I was immediately hand cuffed and ankle cuffed in order to go to the bathroom and shower," Michelle stated.

Michelle's story is only one of the many of such occurrences. According to a 2013 study, 18 states have enacted laws imposing restrictions on this practice. Although this is a progression from a total absence of laws, these laws are not fully comprehensive. They usually give correctional officers the authority to determine whether there exist "exceptional circumstances" for shackling. This discretion is highly problematic because there is inadequate or no oversight of whether shackling was necessary. Therefore, pregnant incarcerated women are left at the mercy of their guards.

On March 13-14, 2014, the United Nations Human Rights Committee will be reviewing the United State's compliance with the International Covenant on Civil and Political Rights (ICCPR). The United States ratified the treaty in 1992, making a commitment to protect individual liberties and respect human dignity. When ratifying this convention the United States made a reservation that it is only bound to prevent cruel, inhuman or degrading treatment or punishment so far as the United States Constitution prohibits it. Despite this reservation, the United States is in violation of Articles 10 and 7 of the ICCPR as a number of federal courts have found shackling of women during birth to be in violation of the 8th Amendment of the United States Constitution.

In 2006, the UN Human Rights Committee raised concern about the shackling of pregnant incarcerated women during childbirth and recommended the prohibition of this practice. In 2010, the United States responded by stating that the Federal Bureau of Prison "no longer engages in the practice of shackling of pregnant women during transportation, labor, and delivery, except in the most extreme circumstances." In addition, the report stated that various states have taken measures to restrict this practice.

The change in federal policies, assuming that they are actually enforced, is not sufficient as most incarcerated women are held in state facilities. According to the 2012 Bureau of Justice Statistics' report, out of the total number of incarcerated women in the United States, 14,049 were held in federal facilities and 94,723 in state facilities. So despite federal regulations, there are still thousands of incarcerated women in state facilities that are subject to shackling during prenatal, labor, and postpartum care.

In addition to the ICCPR, shackling of pregnant incarcerated women during labor is also in violation of the UN Convention Against Torture (CAT), which defines torture as "any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for . . . an act [she] or a third person has committed." The CAT requires signatories to take measures to prevent torture and inhuman or degrading treatment or punishment. The United States ratified this treaty in 1994.

Shackling of pregnant incarcerated women during labor violates the CAT because it inflicts severe mental and emotional pain. Moreover, shackling is discriminatory and punitive in nature as it is often solely decided based on the woman's incarceration status without independent determination of risk of flight or her being a threat to herself or others.

In addition to the violation of international treaties, shackling of pregnant incarcerated women also violates the United States Constitution. A number of federal courts have found the practice to violate the 8th Amendment's prohibition of cruel and unusual punishment. Treatment of 8th Amendment claims in medical and non-medical cases is an intricate landscape of legal complexities. However, at the risk of oversimplification, in a 1976 case, Estelle v. Gamble, the Supreme Court held that "deliberate indifference to prisoner's serious medical needs," is a violation of the 8th Amendment.

Building on this ground work, in 1994, in Farmer v. Brennan, the Supreme Court held that a prison official is deliberately indifferent if the officer "knows of and disregards" a serious medical need or a substantial risk to an inmate's health or safety. Furthermore, in 2002, in Hope v. Pelzer, the Supreme Court ruled that there was an 8th Amendment violation where guards acted with deliberate indifference to the incarcerated persons' health and safety by restraining them "despite the clear lack of an emergency situation" and in a way "that created a risk of particular discomfort and humiliation."

Relying on this line of cases, federal courts in Nelson v. Correctional Medical Services, Women Prisoners of D.C. v. District of Columbia, and Brawley v. Washington have held that shackling women during and after labor is "antithetical to human dignity," and in violation of the 8th Amendment.

Nevertheless, in two recent Virginia and Arizona cases, federal courts have dismissed such suits not because the practice is constitutional, but rather because the officials had immunity for their actions.

This patchwork of federal decisions shows why we need state laws to regulate this practice. Without clear and established laws, the fate of pregnant incarcerated women lies in the hands of correctional officers, and an unpredictable piecemeal of federal decisions. In order to ensure uniformity against this inhuman treatment of incarcerated women enactment of laws provides the best protective mechanism. Having clear established laws will also present courts with defined parameters to interpret and assess the violation of individual rights and liberties.

Moreover, the fact that many states do not have laws dealing with this issue is dangerous not only for pregnant women, but also confusing for healthcare providers. For instance, in the absence of clear laws, Massachusetts' physicians often struggle between following Department of Health guidelines and the "invisible" policies relayed by correctional officers. MCI-Framingham, the state's only women's facility, has repeatedly delayed and effectively denied public records requests for their policies. "Not knowing what the laws are inhibits physicians from providing quality care," said a physician who previously assisted incarcerated women and who chooses to remain anonymous. She added that in the absence of clear guidelines pregnant women depend on their physicians to advocate on their behalf, and demand that correctional officers remove their shackles.

In the last few weeks, Massachusetts has become the newest state to start tackling the issue of shackling of pregnant incarcerated women. On February 20, 2014, Governor Patrick issued an emergency regulation to end shackling of pregnant incarcerated women during labor, which will expire 90 days after the day of its issuance.

Currently, there is an anti-shackling bill pending in the Massachusetts Senate Ways and Means Committee. When this bill comes up for a vote it is imperative for Senators to understand the need to ban shackling and establish clear guidelines for treatment of incarcerated pregnant women, not only during labor, but also during prenatal care and postpartum recovery. It is crucial for them to recognize that there are other modes of protection against the alleged risk of flight or danger. A majority of incarcerated women are non-violent offenders and the risk of flight during labor and postpartum recovery is exceptionally low.

Consequently, legislators in Massachusetts and any other state must question the actual necessity of this degrading and harmful practice and create alternative means to meet correctional facilities' security concerns (i.e. hiring adequate number of personnel for monitoring and placing guards immediately outside of the delivery room.) It is essential for our legislators to see these women as who they are: humans and mothers to be.

Our laws and morality should not stop at prison doors. We must demand that our lawmakers take an active stand in opposing this cruel and inhuman treatment and to uphold the United States' commitment under international treaties and our own constitution.