Punishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners

74 Pages Posted: 4 Oct 2011 Last revised: 8 Oct 2014

Priscilla A Ocen

Loyola Law School Los Angeles

Date Written: October 3, 2011

Abstract

The shackling of pregnant women prisoners during labor and childbirth is endemic within women’s penal institutions in the United States. This article interrogates the factors that account for the pervasiveness of this practice and suggests doctrinal innovations that may be leveraged to prevent its continuation. At a general level, it asserts that we cannot understand the persistence of shackling without understanding how historical constructions of race and gender operate structurally to both motivate and mask its use. More specifically, this article contends that the shackling of pregnant prisoners during labor and childbirth can best be understood through an analysis that centers Black women and foregrounds the historical devaluation, regulation and punishment of Black women’s exercise of reproductive capacity in the context of slavery, convict leasing and chain gangs in the South. The regulation and punishment of Black women within these oppressive systems reinforced and reproduced stereotypes of Black women as deviant and dangerous, and these images in turn animate harsh practices against all women prisoners. Moreover, this article asserts that current jurisprudence concerning the Eighth Amendment, which is the primary constitutional vehicle for challenging conditions of confinement, is insufficient to combat this problem at the structural level. This is so because of its focus on the subjective intentions of prison officials at the individual level and because of its omission of any consideration of how race underlies institutional practices. Instead, this article suggests an expanded reading of the Eighth Amendment and the 'evolving standards of decency' language that undergirds the 'cruel and unusual punishments' clause. This expanded reading, which this article refers to as the 'antisubordination approach,' draws upon Justice Harlan’s oft-cited dissent in Plessy v. Ferguson and his underappreciated reading of the Thirteenth Amendment therein to argue that conditions of confinement which result from or are related to repudiated mechanisms of racial domination should be deemed cruel and unusual punishment.

Keywords: race, gender, incarceration

Suggested Citation

Ocen, Priscilla A, Punishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners (October 3, 2011). California Law Review, Vol. 100, 2012. Available at SSRN: https://ssrn.com/abstract=1937872

Priscilla A. Ocen (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States

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