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  • Writer's pictureJ. L. Day

Indiana Races to the Front with Progressive Prison Legislation

On March 10th, 2022, Governor Eric Holcomb of Indiana signed HB1294, known also by the catchy name:

Governor of Indiana and Winner of the 2021 "Ted Cruz Honorary Bad Beard" Award: Eric Holcomb, Credit: AP Photo/Darron Cummings

"Restraint of pregnant inmates; pregnancy from certain sex offenses". In this law, Indiana determined that shackling pregnant inmates to beds while giving birth was a bad call. Obviously, this is a means for celebration. In 2022, Indiana finally took its first bright-eyed steps into future.

Never mind that the bill still allows for the shackling of some pregnant inmates "if an individualized determination is made by the correctional facility that restraints are reasonably necessary for the legitimate safety and security needs of the pregnant inmate, staff, other inmates, or the public." Now, we all know that Indiana legislators would not be so callous as to leave something like this entirely up to the correctional facilities who have been shackling pregnant inmates for decades with no apparent qualms. They very narrowly define those who the correctional facility may shackle as a pregnant inmate who "presents an immediate danger to the pregnant inmate or to others" or " a substantial flight risk and cannot be contained by any other reasonable means". All the correctional facility has to do is determine if they feel that the inmate may be dangerous or want to leave the facility. Certainly, no correctional officer would assume the worst about inmates. Thankfully, Indiana's legislators made clear that only "the least restrictive restraints necessary" are to be used in those instances. That is all they wrote on the subject, as there is no possibility for misinterpretation.

Pregnant Inmate Shackling in America

“She would have used the umbilical cord to scale the walls if those shackles didn't stop her.” - A cop, probably; Credit: The Guardian/Molly Crabapple

Despite some progresses in recent years, the United States is still well behind where it should be ("where it should be" is here defined as: "not shackling people who are giving birth ever because that is so clearly draconian and inhumane"). The First Step Act of 2018 prohibited the use of shacking in federal facilities, excepting in cases similar to those discussed in the Indiana bill. (Admittedly, the federal bill is much clearer in its definition of when such restrains can and can not be used.) However, this bill did not address the practice in state or local facilities. As of May 2022, over twelve states still had no restrictions concerning the shackling of pregnant inmates. Unsurprisingly, attempts to pass such restrictions in states are opposed by correctional officer unions on the grounds that outlawing the practice is unsafe for officers and presents a flight concern. Strangely, they feel this way despite the fact that there is no record of a pregnant inmate escaping while unshackled. They must have missed that. Despite the continued use of the practice, we have no specific data showing how many pregnant inmates are shackled. A federal bill introduced in 2018 that would have required the collection such data never made it to the floor. The data we do know, however, is terrifying. A 2018 study found that almost 83% of nurses who worked in hospital perinatal units said that their inmates were shackled "sometimes to all of the time" [emphasis mine]. What is more, "[o]nly 7.4%... of participants correctly identified whether their states had shackling laws." And, this study also found that only 3% of those nurses "correctly identified the conditions under which shackling may ethically take place (risk of flight, harm to self, or harm to others)." So... that's cool.

Dehumanization and the Invisible Woman

Ideally, this post would address public opinion on the practice. But, there is no public opinion data to be found and that is very surprising, at first. But, further consideration leads one to think about how seldom one hears about the problems faced by inmates. The dehumanization of inmates not only degrades and destroys the individual, it fosters the creation of a system that believes that shackling to a bed a pregnant mother giving birth is in the best interest of society (aka "the real people"). What is more, the invisibility of women in the United States legal system compounds the already near-invisible issue of inmate treatment. Pregnant inmates hit the double whammy of being female and a prisoner. Even when the horrors of such a practice are acknowledged, as in the case of the Indiana law, the restrictions still come with the caveat that shacking is sometimes justified. What is more, the practice—in any capacity—continues mostly unacknowledged by a public, press, and political elite unconcerned with the problems of (female) inmates.

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