By Kathy Greenier, Director, Patricia M. Arnold Women’s Rights Project, ACLU of Virginia
Mothers Behind Bars, a new report by The Rebecca Project for Human Rights and The National Women’s Law Center surveyed states’ prenatal care, policies on shackling during childbirth, and family-based alternatives to jail time in prison.  Virginia received a grade of F-plus.  The number of women in prison has reached an all time high and few get the services they need.  As a result, the consequences for women and their families are devastating.  There has been a huge increase of women in prison for the first time (largely for non-violent offenses), a result of their bearing a disproportionate burden in the “war on drugs.”  Most of these incarcerated women are mothers.[1] Correctional facilities are legally obligated to meet incarcerated women’s appropriate health care needs and end abusive practices all too commonly employed when handling pregnant women, but Virginia has failed to do so.
Punitive sentencing policies for non-violent offenders in the “war on drugs” are responsible for much of the increase in women in prison.  The criminal justice system penalizes women’s drug use and addiction, especially that of mothers, instead of providing solutions in the form of drug treatment programs.[2] When incarcerated, women face a lack of services to address their unique health care needs.  Further, incarcerated pregnant women are all too often subjected to shackling during labor and delivery.  Women in correctional facilities have a constitutional right to certain pregnancy related medical care and shackling pregnant women during labor and delivery is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment.  Unfortunately, Virginia has failed to limit or end the barbaric practice of shackling.
As for women’s health care in prison, the Rebecca Project and National Women’s Law Center did not find any policies regarding Virginia’s prenatal care for women in correctional facilities when conducting their survey.  Inquiries by the ACLU-VA found limited state policies.  State policy requires that inmates at the Virginia Correctional Center for Women will be transferred to the Fluvanna Correctional Center for Women upon becoming pregnant, for pregnancy care.  An OB/GYN Specialist from the University of Virginia (UVA) provides pre-natal care at Fluvanna.  The specialist has discretion to decide the number of visits a woman receives, and when in labor the inmate is transferred to UVA for delivery.  If there are complications during a woman’s pregnancy, she is housed in the correctional center’s infirmary.
The Virginia Code states that such “a system shall be established whereby pregnant inmates may obtain obstetrical, medical, and social services,”[3] and the Department of Corrections (DOC) spokesman Larry Traylor told the Virginia Pilot that “pregnant women receive both normal and high-risk pregnancy care.”[4] However, the ACLU-VA has previously received reports from individual women in prison stating that their facility denied them pre-natal care.  Clearly, whether the above policies are appropriate, or not, standards that provide for women’s needs must be followed and enforced.
Shockingly, Virginia does not have a statute, and the Department of Corrections (DOC) does not at all limit, the use of shackles on pregnant women during transportation, labor and delivery and postpartum recuperation.  Even more egregious is the fact that DOC does not require training for individuals handling or transporting incarcerated persons needing medical care or for those dealing with pregnant women specifically.  While DOC requires each incident of the use of restraints to be reported and reviewed by an independent body, and does consider medical staff input when applying restraints, the DOC policy does not include consequences for individuals and/or the institution when the use of restraints was unjustified.[5]
“Family based treatments as an alternative to incarceration” are community based programs that allow women and their children to stay together while receiving comprehensive services for the treatment of drug addiction and mental health needs.  These programs provide stability for a family when a mother is incarcerated, and maximizes their success in healing.  Despite the fact that these treatment centers are “less costly than incarceration and achieves better outcomes than those achieved by maternal incarceration and a child’s placement in foster care,”[6] Virginia does not have a family based treatment center.
Establishing family treatment centers as alternatives to prison sentences and ensuring appropriate pre-natal care are both important goals to strive for.  Stopping the shackling of incarcerated pregnant women during labor and delivery is an issue advocates here have tackled previously, and should tackle again.  The ACLU-VA has been looking at this issue for some time.  While the Virginia DOC claims that they do not shackle incarcerated pregnant women, a lack of transparency about their actual policy is troubling.  One must ask, if DOC does not shackle pregnant inmates, why would it oppose a law that merely reinforces existing policy?
Incarcerated women often go unnoticed by the public at large.  However, advocates and others must take a stand to address the needs of incarcerated mothers and pregnant women.  This often unseen population demands special attention given the difficult nature of reaching out from behind bars.  Further, protecting the rights and promoting assistance for women in prison serves not just them, but their families, and the larger society.

[1] The Rebecca Project for Human Rights and The National Women’s Law Center, Mothers Behind Bars, p. 5.
[2] See the ACLU’s Report, Caught in the Net: The Impact of Drug Policies on Women and Families.
[3] 6 VAC 15-31-260.
[4] Report:  VA Fails In Treatment of Moms Behind Bars, The Virginian Pilot, October 21, 2010.
[5] Mothers Behind Bars, p. 17.
[6] Id at 12.