Estados Unidos: should a pregnant person ever go to prison?

Siwatu-Salama Ra knew it was time to go to the hospital. As the early stages of her labor began on a day in late May 2018, officers placed handcuffs on her wrists and led her into the transport van. She arrived to the hospital and to a delivery room where, inside, armed guards would wait all day and night and watch her give birth.

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Pregnancy and birth are the only routine functions of the human body that can kill a person. Everything from poor diet to air pollution can harm a developing fetus. For the mother, so much can go wrong, and stresses that a human body could usually handle—like a spike in blood pressure—can be dangerous and even fatal while the body’s resources are devoted to carrying a child to term.

Pregnancy is a particular hazard in the US, where mothers die immediately before, during, or after labor more often than in any other developed country. For every 100,000 babies born in the US, 17 mothers die. The next-worse rate among developed countries is in the UK, where nine women die per 100,000 live births.

That ratio is worse still for black women in the US, who are three to four times as likely to die from pregnancy-related causes—either during birth, or directly before or after—compared to white women in the country, according to the US Centers for Disease Control.

How prison fits into that matrix of risk is not well-studied, but we can state the obvious: Prison, at the very least, is stressful. And emotional stress during pregnancy is associated with every negative pregnancy outcome imaginable, including premature birth, lower birth weight, and impaired neurological development—each of which separately increase the likelihood of an infant dying.

That clear risk raises a complicated legal question: should any pregnant person go to prison?

The Eighth Amendment to the US Constitution makes “cruel and unusual punishment” illegal. Informally, the standard for whether something is truly an Eighth Amendment issue is whether or not it “shocks the conscience,” says Corene Kendrick, a staff attorney at the Prison Law Office, a California-based non-profit that has brought a number of constitutional suits against state prison systems. Incarcerating a pregnant woman just doesn’t do that, at least not within the US legal landscape, and so no one has been able to argue that pregnancy alone is enough to make an Eighth Amendment case.

A medical case, however, might be stronger. Right now, much of the debate around incarceration in the US is focused on immigrants detained at the country’s border with Mexico. Physicians have been among the professional groups most vocally opposed to the current policies. “I think every effort must be made to prevent pregnant women from going to detention,” says Alan Shapiro, a pediatrician and co-founder of Terra Firma, an organization that provides medical and legal services to undocumented children. “Prison or detention itself is a trauma. It’s not a therapeutic environment, it’s an environment that creates more stress.” The unavoidable hardship of being a prisoner threatens the health of mother and fetus, says Shapiro. And then comes the ultimate punishment: child separation.

In most cases in the US, an infant is taken from its incarcerated mother within 24 to 48 hours after giving birth, and given to either a family member or to the foster system, if there is no family member willing to take the child or if the state decides the willing family member is “unfit” to care for them.

The research is clear on this point: The damage of separation, psychologically, amounts to trauma. Trauma during childhood in general is estimated to be associated with roughly 30% of all psychological disorders experienced as an adult. But the trauma of separation is particularly insidious.

Charles Nelson, a pediatrics professor at Harvard Medical School, studied children in Romanian orphanages who were separated from their parents in the first two years of their life. He found that by the time they were eight years old, the parts of their brain responsible for cognitive performance, emotion, attention, and sensory processing had grown less than those of their counterparts in local families. They scored lower on IQ tests. They were at markedly higher risk of an ADHD diagnosis. They appeared not to have a normal response to stress—they seemed numb in situations that should have induced their flight-or-fight response. “If you think of the brain as a lightbulb,” Nelson told the Washington Post in June 2018, “it’s as though there was a dimmer that had reduced them from a 100-watt bulb to 30 watts.”

Meanwhile, in 2006, the Australian government found that Aboriginal children separated from their parents—a national policy that lasted well into the 1960s—were almost twice as likely to be arrested as adults, more than twice as likely to have a gambling addiction or live with someone who does, and about 60% more likely to abuse alcohol or live with someone who does.

For those who give birth in the US prison system, all but a handful lucky enough to get into one of the few residential prison nursery programs in the country will have their infants removed within a day or two.

Women are the fastest-growing demographic of the US prison population. The number of incarcerated women in the US rose by nearly 400% in the last three decades (a rate over twice as high as the rate for men), from about 42,000 women in 1985 to about 210,000 in 2015.

And roughly 60% of them are mothers to children under 18. (About half of men in prison are fathers.)

Newborns aren’t the only children exposed to separation trauma. In total, 1.7 million children in the US faced separation from their parents due to prison sentences as of 2007, the last date for which the US Bureau of Justice Statistics has published an estimate. Roughly a quarter of those children are under four years old, and more than half are under nine.

That year, more than 2% (pdf) of all children in the US had a parent in prison. A Hispanic child was more than two and a half times more likely than a white child to have a parent in prison, according to the Bureau of Justice Statistics. Black children, meanwhile, were seven and a half times more likely. Put another way, one in 15 black children had a parent in prison.

The lack of a parent, especially in a child’s earliest years, may also mean a lack of an emotional buffer between a child and any hardship they experience in the world, and diminished ability to respond normally to stress. The longer the parent is absent, the worse the toll. “At some point, if the exposure to stress is chronic, and the buffer is not there, then the child’s physiology is always at this level of stress. Then we call that ‘toxic stress,’” Shapiro, the pediatrician, says. “It can lead to psychological and physical problems… [like] diabetes, high blood pressure, possibly even cancer.”

But before the separation comes months of pregnancy, and then birth, which “are normal physiological occurrences but are definitely fraught with potential dangers,” Shapiro says. For prison to not pose an additional medical threat to that process, “close monitoring must occur in exactly the same way in a detention center that it would be in a community,” he says. But it often doesn’t. US prisons are required to offer women prenatal care, but there are no federal standards, so what exactly is offered, and how, varies depending on location. In 2004, the last year for which data are available, just 54% of pregnant women in US prisons got some kind of prenatal care, according to the Bureau of Justice Statistics.

Postnatal care can be just as critical.

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