Assemblyman N. Nick Perry
Albany, NY 12248
Senator Velmanette Montgomery
711 Legislative Office Building
Albany, New York 12247
Re: New York Senate Bill 1290-A/New York Assembly Bill 3373-A
Dear Senator Montgomery, Assemblyman Perry and Members of the New York State Legislature,
Human Rights Watch writes to express our strong support for NYS 1290, which would restrict the shackling of women in New York state prisons in transportation for childbirth, during labor and delivery, and in the post-natal recovery period.[i] Shackling of women in these circumstances represents a grave health risk and an unacceptable and unnecessary affront to women's dignity. By passing NYS 1290, the New York state legislature would join a growing community of medical authorities, international bodies, and penal systems that have come out against this dangerous practice and in favor of ensuring the human rights and constitutional rights of women in state custody. We urge you to vote in favor of this important legislation.
Women who are shackled are at risk for injury during transportation to medical appointments, can suffer added pain during delivery, and may be deprived of appropriate care during examinations and delivery.[ii] Officials from the American College of Obstetricians and Gynecologists have stated that "physical restraints have interfered with the ability of physicians to safely practice medicine by reducing their ability to assess and evaluate the physical condition of the mother and the fetus ... thus, overall putting the lives of women and unborn children at risk."[iii] This risk is heightened by the fact that the pregnancies of women in custody are usually already high-risk.[iv] In addition, the humiliation brought on by the shackling is inflicted on a population with a high incidence of past sexual or physical abuse.[v] Finally, it is inflicted without a persuasive security justification: The large majority of women in prison are there on account of convictions for non-violent offenses,[vi] and those jurisdictions that have restricted the use of shackles have not reported security problems.[vii]
For these reasons and others, human rights bodies have increasingly come to the conclusion that the shackling of pregnant women cannot be reconciled with basic human rights principles, including those enunciated in treaties the US has ratified, such as the Convention against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR). Both the Committee against Torture and the Human Rights Committee, which monitor compliance with CAT and ICCPR respectively, have criticized the continuing use of shackles on women during childbirth in the United States.[viii] Adding to the international consensus against the practice, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment has condemned the use of shackling during exams or delivery, characterizing it as "completely unacceptable, and could certainly be qualified as inhuman and degrading treatment."[ix] More broadly, under the United Nations Standard Minimum Rules for the Treatment of Prisoners, shackling of any prisoner-much less one due the special care associated with pregnancy-is prohibited barring exceptional circumstances.[x]
Shackling is also at odds with a growing body of domestic law and standards that protect the right of prisoners to freedom from cruel and unusual punishment. While the constitutionality of shackling pregnant women has not been conclusively litigated to date,[xi] the practice reflects a disregard for women's health and safety that is inconsistent with existing precedent. In Estelle v. Gamble, the landmark case defining custodial responsibility for medical care, the US Supreme Court held that the eighth amendment prohibits "deliberate indifference" on the part of detention authorities to a "serious medical need" of a prisoner in their custody.[xii] At the state level, legislatures in Illinois, California, Vermont, and New Mexico have enacted measures to restrict shackling,[xiii] and legislatures in other states are moving to do the same.[xiv] The Federal Bureau of Prisons revised its policies in October 2008 to ban the shackling of pregnant prisoners in almost all instances.[xv]
A movement is building to put a stop to the unjustified health risk and degrading treatment inherent in the practice of shackling pregnant women. With your vote for NYS 1290, New York can join in the leadership of that movement and stand up for the rights and dignity of women behind bars.
Women's Rights Division
Human Rights Watch
[i] The bill referenced is S. 1290-A, 232nd Leg. Sess., Reg. Sess. (N.Y. 2009), http://assembly.state.ny.us/leg/?bn=S01290&sh=t (accessed May 11, 2009)[Senate version] and A. 3373, 232nd Leg. Sess., Reg. Sess. (N.Y. 2009) http://assembly.state.ny.us/leg/?bn=A03373&sh=t (accessed May 11, 2009)[Assembly version].
[ii] Amnesty International, Abuse of Women in Custody: Sexual Misconduct and the Shackling of Pregnant Women - An Updated State-by-State Survey of Policies and Practices in the USA, (New York: AI, 2006), http://www.amnestyusa.org/violence-against-women/abuse-of-women-in-custo... (accessed May 11, 2009).
[iii] Letter from Ralph Hale, MD, executive vice president, American College of Obstetricians and Gynecologists (ACOG), to Malika Saada Saar, executive director, The Rebecca Project for Human Rights, June 12, 2007 (citing ACOG District X testimony supporting a legislative prohibition on shackling in California). The American Public Health Association also objects to the practice of shackling of women during delivery. American Public Health Association (APHA) Task Force on Correctional Health Care Standards, Standards for Health Services in Correctional Institutions, 3rd ed. (Washington, DC: APHA, 2003), p. 108, para. 6.
[iv] Jennifer G. Clarke et al., "Reproductive Health Care and Family Planning Needs Among Incarcerated Women," American Journal of Public Health, vol. 96(5) (May 2006), pp. 834-839.
[v] National Commission on Correctional Health Care (NCCHC), Position Statement: Women's Health (Adopted by the NCCHC Board of Directors, September 25, 1994; Revised: October 9, 2005), http://www.ncchc.org/resources/statements/womenshealth2005.html (accessed May 11, 2009).
[vi] National Institute of Corrections (NIC), US Department of Justice, Gender-Responsive Strategies: Research Practice and Guiding Principles for Women Offenders (Washington, DC: NIC, 2003), www.nicic.org/pubs/2003/018017.pdf (accessed May 11, 2009), p. 4.
[vii] Adam Liptak, "Prisons Often Shackle Pregnant Inmates in Labor," New York Times, March 2, 2006, available at http://www.nytimes.com/2006/03/02/national/02shackles.html?_r=2&pagewant... (accessed May 11, 2009).
[viii] United Nations Committee against Torture, "Consideration of Reports Submitted by States Parties under Article 19 of the Convention, Conclusions and recommendations of the Committee against Torture, United States of America," CAT/C/USA/CO/2, July 25, 2006, http://daccessdds.un.org/doc/UNDOC/GEN/G06/432/25/PDF/G0643225.pdf?OpenE... (accessed May 11, 2009), para. 33; United Nations Human Rights Committee, "Consideration of Reports Submitted by States Parties under Article 40 of the Covenant, Conclusions of the Human Rights Committee, United States of America," CCPR/C/USA/CO/3/Rev.1, December 18, 2006, http://daccessdds.un.org/doc/UNDOC/GEN/G06/459/61/PDF/G0645961.pdf?OpenE... (accessed May 11, 2009), para. 33.
[ix] European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), "10th General Report on the CPT's Activities covering the period of 1 January to 31 December 1999," CPT/Inf (2000) 13, Strasbourg, August 18, 2000, http://www.cpt.coe.int/EN/annual/rep-10.htm#_Toc490017789 (accessed May 11, 2009), para. 27.
[x] United Nations Standard Minimum Rules for the Treatment of Prisoners (Standard Minimum Rules), adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and approved by the Economic and Social Council by its resolution 663 C (XXIV) of July 31, 1957, and 2076 (LXII) of May 13, 1977, rule 33. Use of restraints are prohibited in all cases except where necessary during a transfer of a prisoner and for medical reasons.
[xi] A federal case challenging the constitutional permissibility of shackling a prisoner during childbirth is currently pending. The entire US Court of Appeals for the Eighth Circuit granted a rehearing in the case after a three-judge panel of that court held that the practice did not constitute deliberate indifference to the prisoner's serious medical need. Nelson v. Correctional Medical Services, 533 F.3d 958 (8th Cir. 2008) (vacated pending rehearing en banc).
[xii] Estelle v. Gamble, 429 U.S. 97, 104 (1976).
[xiii] Cal. Penal Code § 3423 (West 2006); 730 Ill. Comp. Stat. Ann. 125/17.5 (West 2000); Vt. Stat. Ann. tit. 28, § 801(a) (2006), cited in Dana Sussman, "Bound by Injustice: Challenging the Use of Shackles on Incarcerated Pregnant Women," The Cardozo Journal of Law and Gender, (publication pending). Legislation restricting the shackling of pregnant women was passed by the New Mexico legislature and was signed by the governor on April 2, 2009. S.B. 423, 2009 Reg. Sess. (N.M. 2009), http://legis.state.nm.us/Sessions/09%20Regular/final/SB0423.pdf (accessed May 11, 2009).
[xiv] See S.B. 839, 87th Leg. Sess., Reg. Sess. (Ark. 2009), http://assembly.state.ny.us/leg/?bn=S01290&sh=t (accessed May 11, 2009); H.B. 1490, 186th Leg. Sess., Reg. Sess. (Mass. 2009), http://www.mass.gov/legis/bills/house/186/ht01pdf/ht01490.pdf (accessed May 11, 2009); H.B. 127, 161st Leg. Sess., Reg. Sess. (N.H. 2009), http://www.gencourt.state.nh.us/legislation/2009/hb0127.html (accessed May 11, 2009); H.B. 1437/S.B. 1209, 106th Leg. Sess., Reg. Sess. (Tenn. 2009), http://wapp.capitol.tn.gov/apps/BillInfo/Default.aspx?BillNumber=HB1437 (accessed May 11, 2009); H.B. 3653/H.B. 3654, 81st Leg. Sess., Reg. Sess. (Tex. 2009), http://www.legis.state.tx.us/tlodocs/81R/billtext/pdf/HB03654E.pdf (accessed May 11, 2009), cited in Dana Sussman, "Bound by Injustice: Challenging the Use of Shackles on Incarcerated Pregnant Women," The Cardozo Journal of Law and Gender, (publication pending).
[xv] Federal Bureau of Prisons, US Department of Justice, "Program Statement: Escorted Trips," No. 5538.05, October 6, 2008, sec. 11.