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"One might have hoped that, by this hour, the very sight of chains on black flesh, or the very sight of chains, would be so intolerable a sight for the American people, and so unbearable a memory, that they would themselves spontaneously rise up and strike off the manacles. But, no, they appear to glory in their chains; now, more than ever, they appear to measure their safety in chains and corpses." - James Baldwin1
The draconian practice of shackling pregnant women is a scourge on the human rights of incarcerated persons, particularly women of color.2 An approach to abolishing the practice that intricately supplements current Eighth Amendment methodology with other legal frameworks while improving deficient legislation may provide unique and unexplored pathways to remedy. Understanding how shackling incarcerated women in labor adversely affects intersectional identities of women based on race, class, immigration status, and gender identity or expression can anchor the expansion of jurisprudence around prisoners' rights.
This Note will explore how these frameworks, from international human rights to a critical race lens, can provide an understanding of the issue of shackling pregnant prisoners. It will seek to demonstrate how anti-shackling laws, when they do exist, actually serve to bolster the practice of shackling by way of a highly discretionary "extraordinary circumstances" loophole. Part I will explore the current state of shackling in U.S. prisons, jails, and detention centers and how the history of female confinement has led us here. Part II explains how current laws and policies regarding shackling end up promoting, rather than restraining, prison officials engaged in shackling pregnant prisoners through discretionary loopholes. Part III looks to the courts to see how judges have shaped Eighth Amendment jurisprudence on shackling in recent years. Lastly, Part IV attempts to map new approaches for advocacy groups dealing with individuals who have been-or are facing the prospect of being-shackled during pregnancy, particularly during labor, delivery, or post-partum recovery. It outlines an approach that combines impact litigation, improved state and federal legislation, and grassroots organizing, working interdependently, to bring about the eradication of the insidious practice of shackling pregnant women.
I. How Shackling Operates In U.S. Prisons, Jails, And Detention Centers
In April 2013, just two months into a one-year sentence at the Milwaukee County...