Babies Behind Bars

Babies Behind Bars: The Rights and
Liabilities of Babies and Mothers

The United States incarcerates more women than any other country. Of the women incarcerated in the United States, 90% are single mothers. Throughout the country, 1.5 million children under the age of 18 have a mother or father in prison. These statistics speak for themselves. Imprisoned mothers have become an ever-growing problem that must be addressed by correctional institutions.

In response to this growing problem, several states have specific statutory laws that guide the correctional institutions as to their duties and set forth the rights of the incarcerated mother and baby. While the specifics of each state's program relating to incarcerated mothers and their babies differ, the general concept of keeping the mother and baby together for a period of time after birth remains the common theme.

Most state statutes make no mention whatsoever of pregnant inmates and how to care for the incarcerated mother and her child. In those states that do not have statutes relating to pregnant inmates, many of them deal with only 3 issues: (1) allowing the pregnant inmate to give birth in an outside hospital; (2) determining custody of the child after birth; and (3) termination of parental rights.

Three states that have very detailed and thorough statutes relating to pregnant inmates and incarcerated mothers of young children are New York, California, and Illinois. The laws in these states are a good indication of the progression of the law throughout the country. Even where there are not specific statutory laws regarding this issue, in all states, pregnant inmates are provided with prenatal care and are usually sent to an outside medical facility to deliver the baby.

New York

In New York, newborn babies may return to the correctional facility with their mother, unless the chief medical officer of the institution certifies that the mother is physically unfit to care for the baby. If the baby does not return to the correctional institution with the mother, family members may take custody of the baby. If no family is available, the public welfare department takes custody of the baby. A newborn can remain with the mother in the correctional facility until the baby is one year of age. A baby that is housed with his or her mother can be removed from the correctional facility at any time by the officer in charge of the institution.

New York also has a program for incarcerated women who have a "nursing" child under the age of one at home. In this situation, the "nursing" child may remain with the mother and go to the correctional institution with the mother, as long as the mother is considered to be physically fit to care for the child. However, if an incarcerated woman has a child or children over the age of one, and the mother cares for the child or children exclusively, the child or children are referred to public welfare.

California

California has set up community treatment programs where female inmates with one or more children under the age of 6 and inmates who give birth while in prison are eligible to participate. The program allows for eligible women and their children to be released from the prison to a public or private facility that is suitable for their specific needs.

California also has the Pregnant and Parenting Women's Alternative Sentencing Program Act. This program was developed to help treat incarcerated mothers and pregnant inmates who suffer from alcohol and/or drug addictions. Certain eligibility requirements for this program exist: the mother can never have been convicted of a violent crime, she cannot have a violent background, and she cannot be serving over a three year sentence. The Director of the Department of Corrections then makes the final decision. If a woman is eligible to be accepted into this program, she is allowed to have one child live with her in the alternative sentencing setting that is run by the Department of Corrections.

One major difference between California's statutory law and all other states is the provision regarding pediatric medical care. According to the statute, the California Department of Corrections provides pediatric care consistent with accepted medical standards. In addition, the cost of the medical care provided to incarcerated mothers and their children is paid for by the correctional institutions and the funds allocated to them by the Department of Corrections. This includes the cost of an incarcerated woman giving birth in an outside hospital.

Illinois

Illinois also has several laws and programs that are unique. A law was recently passed that prohibits the use of handcuffs, shackles, or restraints on a pregnant inmate during transport to the hospital for the purposes of delivering her baby, and it prevents the use of restraints during the actual delivery of the baby. In addition, work release programs are available for non-violent pregnant offenders and non-violent female offenders who have children under the age of six.

The Director of the Illinois Department of Corrections may determine that there are special reasons why a newborn child should remain with the mother until the child is 6 years of age. Based on this determination, the Illinois Department of Corrections has the authority to establish a Women's & Children's Pre-Release Community Supervision Program to provide housing and services to eligible female inmates and their newborn and young children. The determination as to who is eligible for this program is made by the Director of the Illinois Department of Corrections.

Many issues impact the determination of whether a state should develop programs for incarcerated mothers and their children. Problems that face many incarcerated mothers and pregnant inmates and create a need for such programs are:

Lack of sufficient medical care available to the pregnant inmates;
No special diet available for the pregnant inmates;
Pregnant inmates being denied necessary exercise;
Inappropriate work assignments being forced on pregnant inmates;
Drug and alcohol addicted pregnant inmates dealing with withdrawal symptoms without consideration for the fetus;
Female inmates being immediately separated from their newborn child;
Failure to transfer a pregnant inmate in labor to the hospital in a timely manner; and
Newborns and other children being placed in foster care where incarcerated parents can lose their parental rights.

In contrast, there are many problems created by incarcerated mothers and pregnant inmates that prevent states from developing such programs, including:

Security risks for the children;
Management problems;
Liability insurance for the children in the facility;
Medical treatment and costs of treatment for the children in the facility;
Adverse effects of prison on normal childhood development;
Determination of who has final authority to decide whether an infant can stay with the mother in prison;
Determination of how pregnant inmates within the county jail setting should be treated and whether the jail inmates can be treated differently from the prison inmates; and
The incarcerated mother may not be interested in being a good mother.

The laws discussed above reveal that many states feel the benefit to the children of being with their incarcerated mother outweighs the liability and cost issues to the correctional facilities. However, no matter what state a correctional facility is located in, the most important factor is a well established program with clear guidelines. It is important that both the incarcerated mothers and the correctional staff understand their rights and duties.