































 33 

SHACKLING PREGNANT PRISONERS:  
CRUEL AND UNUSUAL OR JUSTIFIED AND NECESSARY? 

 
Caroline Ring 

 
INTRODUCTION 
 
 Childbirth can be one of the most painful experiences of a woman’s life.  Labor can last 

for several hours, and even with anesthetics and hospital amenities intended to make the mother 

more comfortable, the entire process is still draining and distressing.  Giving birth as an 

incarcerated woman often deprives the mother of these basic benefits and worsens such 

suffering.  Throughout the course of their pregnancies, most expecting mothers in prison are 

already experiencing higher risks due to stress and lack of adequate prenatal nutrition and care.  

To make matters worse, the delivery of the child—including transportation, labor, and 

recovery—will often involve the mother being restrained.  Her legs may be bound together, her 

arms and feet may be shackled to a hospital bed, or her stomach may have a chain over it 

moments before birth or days after a Cesarean-section.  It is difficult to imagine this kind of 

punishment as being commonplace, but in reality it has happened to thousands of women all over 

the country, despite being illegal in many states. 

The current lack of overarching federal legislation banning such practices coupled with 

the weak enforcement of existing state laws and local policies leaves many pregnant inmates 

suffering unnecessarily, and arguably, unconstitutionally.  Shackling may seem inhumane, but in 

some instances it may also seem necessary.  Is the use of restraints on incarcerated pregnant 

women really unconstitutional, violating the Eighth Amendment and its protection against the 

infliction of “cruel and unusual punishments”?93  Does constitutionality depend on the type of 

restraints and the circumstances under which they are used?  Or are such practices actually 

                                                      
93 U.S. Const. amend. VIII. 



 34 

justified in order to prevent possible escape and to ensure that unrestrained prisoners do not harm 

themselves or others? 

 This paper will examine the use of restraints on incarcerated pregnant women and various 

cases and arguments regarding its constitutionality.  The current legal position that many states 

take (or choose not to take) will be discussed first, along with these laws’ effectiveness and the 

implications of states not having legislation on the matter.  Then, the paper will look at the 

reasoning against shackling women before, during, or after labor, founded on case law that 

establishes when restraints and their resulting harm violate women’s rights.  Following the 

argument against restraints, this paper will weigh opposing arguments that claim restraints are 

justified and necessary, either under certain conditions or at all times.  Finally, the paper will 

conclude with a consideration of the future problems that this controversial issue raises.  Is the 

use of shackles on pregnant inmates truly cruel and unusual punishment, or is it the price that 

incarcerated women must pay for past actions and for present safety? 

HISTORY 

Eighteen states have laws prohibiting or restricting the shackling of pregnant prisoners, 

twenty-four states have enacted anti-shackling policies, and eight states have no regulations 

addressing the matter.94  However, the states where there are laws and policies intended to 

prohibit or limit the use of restraints do not always fully implement or enforce such rules.  Given 

the number of lawsuits brought against prison officials or correctional facilities by former 

inmates claiming to be unjustly restrained, even in states where shackling is illegal, it seems as if 

no state has 100% effective anti-shackling legislation.  Mistreatment may be the worst in states 

with no legislation at all, with nothing in place to protect inmates’ rights and wellbeing during 

                                                      
94 Leonie Stoute, “Break Every Chain: Bringing an End to the Unconstitutional Shackling of Pregnant Inmates,” 60 
Howard L.J. 749, 759 (2017). 



 35 

pregnancy and childbirth.  Illinois became the first state to prohibit shackling in 2000, declaring 

that during transport “no handcuffs, shackles, or restraints of any kind may be used…[and] under 

no circumstances may leg irons or shackles or waist shackles be used on any pregnant prisoner 

who is in labor.”95  New York96 and California97 also passed anti-shackling legislation, but these 

laws have exceptions that allow for the use of restraints at the discretion of prison officials if 

they identify undefined “risks.” These caveats allow for the possibility of subjectivity and human 

error in determining the appropriate times, if there are any, to use shackles and chains on 

pregnant women.  Surveys show that even under circumstances where use of restraints would be 

prohibited, the laws are ignored.  In New York, twenty-three out of twenty-seven women 

surveyed were shackled despite the law, and in California, only twenty-one out of the fifty-five 

counties were in compliance with the anti-shackling legislation that had been put in place.98  

In addition, the inconsistencies between policies in different towns and counties in the 

same state, the vagueness of the language used in laws, and the lack of effective enforcement in 

many prisons create confusion and noncompliance.  Oftentimes both the officers and the 

prisoners do not entirely understand the full extent of the laws and policies in place.  Despite the 

lack of uniform anti-shackling legislation that all states and their corrections departments must 

follow, some federal changes have been made in recent years.  In 2007, the U.S. Marshals 

Services established policies and procedures stating that restraints should not be used when a 

woman is in labor, delivery, or recovery.99  The following year, the Federal Bureau of Prisons 

ended the practice of shackling pregnant inmates in all federal correctional facilities, but this 

                                                      
95 730 Ill. Comp. Stat. § 5/3-6-7 
96 N.Y. Correct. Law § 611 
97 Cal. Penal Code § 6030 
98 Leonie Stoute, “Break Every Chain: Bringing an End to the Unconstitutional Shackling of Pregnant Inmates,” 60 
Howard L.J. 749, 769-771 (2017). 
99 U.S. Marshals Service, Restraining Devices § 9.1(D)(3)(e) (2010) 



 36 

does not pertain to state and local prisons.100  These federal measures acknowledge shackling’s 

potential to violate constitutional rights, but still do not address the discrepancies between 

different states’ laws and the lack of accountability for officers who allow harmful restraints to 

be used without just cause.  There are undoubtedly many more instances of illegal or unjust 

shackling in prisons that have not been and may never be brought to light in lawsuits. 

ANALYSIS 

The constitutionality of shackling has come into question before.  In Hope v. Pelzer, the 

Supreme Court ruled that the unnecessary and wanton infliction of pain constitutes cruel and 

unusual punishment forbidden by the Eighth Amendment.101  In this case, a man was shackled to 

a hitching post on two occasions for several hours without water, access to a bathroom, or 

protection from the sun.  Despite a lack of emergency or potential threat, officers still subjected 

him to a substantial risk of physical harm, unwarranted pain caused by the cuffs and 

confinement, and discomfort and humiliation.  Because the officers clearly disregarded Hope’s 

safety and knowingly inflicted unnecessary and gratuitous pain on him, the Supreme Court 

decided that this was an obvious violation of Hope’s constitutional right to protection from cruel 

and unusual punishment.  Any reasonable person would not see this kind of treatment as 

deserved unless there was valid penological justification, but there was no excuse in this case.  

The risk of harm was deemed to be obvious, and this case and its ruling established the 

“deliberate indifference” standard that was later applied to cases specifically pertaining to 

pregnant inmates. 

Years after Hope v. Pelzer was decided, a woman named Shawanna Nelson filed a 

lawsuit against the Arkansas prison where she was incarcerated for a nonviolent offense when 

                                                      
100 U.S. Dep’t of Just., Escorted Trips § 570.40 (2008) 
101 Hope v. Pelzer, 536 U.S. 730, 731 (2002) 



 37 

she was pregnant with her second child.  She claimed that she was shackled to her hospital bed 

during the final stages of labor, thus violating her Eighth Amendment rights.  The Eighth 

Amendment standard for conditions of confinement and medical care asks, did the defendant act 

with “deliberate indifference” by disregarding risk and inflicting unnecessary and wanton pain?  

Defined in Hope v. Pelzer, this definition was reiterated and revised in Nelson v. Corr. Med. 

Servs.  A prison official is deliberately indifferent if he or she knows of and disregards a serious 

medical need or a substantial risk to an inmate’s health or safety.102  If a risk is obvious and an 

official imposes physical restraints that perpetuate this risk and cause further harm, then there is 

a clear constitutional violation. 

In this case, Officer Turensky witnessed Nelson’s severe contractions even before 

reaching the hospital, disregarded orders from her boss not to handcuff the prisoner, and ignored 

medical personnel’s requests that restraints be removed.  Nelson was clearly in pain, which was 

only exacerbated by the shackles, and was in no condition to flee, so therefore she was not an 

escape risk.  In fact, Officer Turensky testified that the nonviolent offender never did anything to 

suggest that she was a flight risk or presented any other threat, yet Nelson was still shackled until 

moments before entering the delivery room.103  Nelson’s inability to move, stretch, or change 

positions during labor caused mental anguish, permanent hip injury and deformity, torn stomach 

muscles, an umbilical hernia, sciatic nerve damage, and lifelong physical suffering that 

subsequently prevented her from sitting or standing for extended periods of time, engaging in 

everyday activities without pain, and having additional children.  The court decided, based on 

case law and the “deliberate indifference” standard, that there is substantial evidence of Officer 

Turensky’s general awareness of the risk of harm associated with shackling and the unnecessary 

                                                      
102 Nelson v. Corr. Med. Servs., 583 F.3d 522, 525 (8th cir. 2009) 
103 Id. at 526 



 38 

suffering, discomfort, and humiliation that she caused to Nelson.  Turensky knew that restraints 

would interfere with medical care and aggravate pain, and there was no threat, emergency 

situation, or penological justification that warranted such treatment.  Therefore, the use of 

restraints on Nelson was a violation of her Eighth Amendment rights and an example of cruel 

and unusual punishment. 

There are many lawmakers and citizens who argue that the use of restraints on pregnant 

inmates is not unconstitutional and should be either allowed or at least unregulated.  Some claim 

that shackling is necessary to ensure that incarcerated women do not try to escape during labor.  

As an act of desperation, some women may take advantage of this opportunity to flee when they 

are not physically in a prison or under restraints.  Furthermore, proponents of shackling contend 

that the practice is needed to prevent incarcerated women from hurting themselves, the officers, 

or the other patients around them.  While statistics show that the majority of female prisoners are 

nonviolent offenders and no escape attempts have been reported among pregnant inmates who 

were not shackled during childbirth (most likely because they are in too much pain to move or 

flee), people still have concerns about safety and security.104 

CONCLUSION AND PERSONAL STATEMENT 

Some people may be able to justify these beliefs, but they are predominantly unfounded 

and perpetuate the harmful stigmas around incarcerated women.  Simply put, restraints on 

women during labor do more harm than they could ever do good, serving no legitimate purpose 

and causing undue pain and suffering.  Handcuffs, leg shackles, and belly chains prevent both 

mothers and children from getting proper medical care, and deliberate indifference that leads to 

deprivation of such care is unconstitutional.  Tests to check for life-threatening conditions during 

                                                      
104 Leonie Stoute, “Break Every Chain: Bringing an End to the Unconstitutional Shackling of Pregnant Inmates,” 60 
Howard L.J. 749, 758 (2017). 



 39 

pregnancy cannot be properly administered; immobility prohibits sufficient pain management, 

successful cervical dilation, and an overall successful vaginal delivery; the risk of falling is 

increased; and recovery exercises are significantly limited.105  This practice is demeaning, 

unnecessary, and harmful.  There is still not enough legislation or enforcement, although over the 

past two decades anti-shackling laws have slowly become more numerous and more extensive.  

In September 2018, a bipartisan group of Congresswomen introduced a bill in the House of 

Representatives that codifies the current Federal Bureau of Prisons policy, outlawing the 

shackling of pregnant women in federal prisons and banning restraints during the pregnancy and 

in the weeks after birth.106  The First Step Act, introduced in the Senate in November 2018, also 

bans the shackling of pregnant inmates, forbidding restraints around the ankles, legs, or waist 

even if the circumstances warrant an exception in which restraints must be used for safety.107  

Judges, lawmakers, and prison officials have a duty to respect and protect the unalienable 

constitutional rights of inmates.  Nelson v. Corr. Med. Servs. laid the foundation for future 

progress by expanding on the precedent set in Hope v. Pelzer and ruling that shackling during 

labor and delivery violates the Eighth Amendment when officers act with indifference, interfere 

with care, or inflict unnecessary suffering. 

Mistreatment occurs far too often as the laws and policies that do exist are rarely 

followed as they should be.  Thus, both state and federal lawmakers must continue to use 

precedent to actively create strong, clear legislation that strictly prohibits these practices before 

more women and their unborn children are put at risk.  It does not depend on the type of 

                                                      
105 Leonie Stoute, “Break Every Chain: Bringing an End to the Unconstitutional Shackling of Pregnant Inmates,” 60 
Howard L.J. 749, 753-754 (2017). 
106 Jouvenal, Justin. “Bipartisan Bill Would Outlaw Shackling of Pregnant Inmates in Federal Prisons.” The 
Washington Post, WP Company, 13 Sept. 2018. 
107 United States, Cong. Senate. First Step Act of 2018. 115th Cong., 2nd sess. S. 3649. § 4322. 



 40 

restraints, the point at which shackles are used, or an individual officer’s discretion.  Based on 

the risks to human life and unnecessary harm associated with the practice, the careless and 

unjustified shackling of pregnant prisoners is unconstitutionally cruel and unusual punishment. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 55 

                                                                                                                                                                            
Schuster, Adam. “Illinois Bonds Once Again Rated Just above Junk.” Illinois Policy Institute , 

10 Apr. 2018, http://www.illinoispolicy.org/illinois-bonds-once-again-rated-just-above-
junk/. 

Schuster, Adam. “Tax Hikes vs. Reform: Why Illinois Must Amend Its Constitution to Fix the 
Pension Crisis.” Illinois Policy Institute, July 2018, 
https://www.illinoispolicy.org/reports/tax-hikes-vs-reform-why-illinois-must-amend-its-
constitution-to-fix-the-pension-crisis/. 

Supreme Court of Illinois. Ann B. Jorgenson et al., Appelees, v. Rod R. Blagojevich, Governor, 
et al., Appellants. 20 May 2004. 
http://www.illinoiscourts.gov/Opinions/SupremeCourt/2004/May/Opinions/Html/97624.
htm 

Supreme Court of Illinois. City of Chicago v. C. & NW RY. CO. 18 Nov. 1954. 
https://law.justia.com/cases/illinois/supreme-court/1954/33316-5.html 

Supreme Court of Illinois. In Re PENSION REFORM LITIGATION (Doris Heaton Et Al., 
Appellees, v. Pat Quinn, Governor, State of Illinois, Et Al., Appellants). 8 May 2015. 
http://www.illinoiscourts.gov/Opinions/SupremeCourt/2015/118585.pdf 

Supreme Court of Illinois. Roger Kanerva et al., Appellants, v. Malcolm Weems et al., Appellees. 
3 July 2014. https://law.justia.com/cases/illinois/supreme-court/2014/115811.html 

The State of Illinois Retirement Systems: Funding History and Reform Proposals, A Civic 
Federation Issue Brief. The Civic Federation, 30 Sept. 2008, 
http://www.civicfed.org/file/4885/download?token=lMDN2Dol. 

The State of Illinois. The General Assembly. Public Act 098-0599. 2013. 
http://www.ilga.gov/legislation/publicacts/98/PDF/098-0599.pdf 

“These U.S. States Are the Most Fiscally Stable.” U.S. News & World Report, U.S. News & 
World Report, 2018, http://www.usnews.com/news/best-states/rankings/fiscal-stability. 

U.S. Constitution. Art. I, Sec. 10. https://www.archives.gov/founding-docs/constitution-transcript 
Walstrum, Thomas. “The Illinois Budget Crisis in Context: A History of Poor Fiscal 

Performance.” Monetary Goals and Strategy - Federal Reserve Bank of Chicago, 2016, 
www.chicagofed.org/publications/chicago-fed-letter/2016/365. 

 
SHACKLING PREGNANT PRISONERS: CRUEL AND UNUSUAL OR JUSTIFIED 
AND NECESSARY? 
730 Ill. Comp. Stat. § 5/3-6-7 
Cal. Penal Code § 6030 
Hope v. Pelzer, 536 U.S. 730 (2002) 
Jouvenal, Justin. “Bipartisan Bill Would Outlaw Shackling of Pregnant Inmates in Federal 
Prisons.” The Washington Post, WP Company, 13 Sept. 2018. 
Leonie Stoute, “Break Every Chain: Bringing an End to the Unconstitutional Shackling of 

Pregnant Inmates,” 60 Howard L.J. 749 (2017) 
Nelson v. Corr. Med. Servs., 583 F.3d 522 (8th cir. 2009) 



 56 

                                                                                                                                                                            
N.Y. Correct. Law § 611 
U.S. Const. amend. VIII. 
U.S. Dep’t of Just., Escorted Trips § 570.40 (2008) 
U.S. Marshals Service, Restraining Devices § 9.1(D)(3)(e) (2010) 
United States, Cong. Senate. First Step Act of 2018. 115th Cong., 2nd sess. S. 3649. § 4322 
 
POTENTIAL FEDERAL REGULATION OF COVENANTS TO NOT COMPETE 
Alexander Hamilton (1788). Federalist 78.  
Application Group v. Hunter (1998) 
CALI ORB §16600 
Catherine L. Fisk + (Fall, 1998). ARTICLE: Removing the 'Fuel of Interest' from the 'Fire of 

Genius': Law and the Employee-Inventor, 1830-1930. 65, 1127. 
Charles Graves * (Winter, 2010). ARTICLE: Analyzing the Non-Competition Covenant as a 

Category of Intellectual Property Regulation. Hastings Science & Technology Law 
Journal, 3, 69. 

David A. Linehan* (2012). ARTICLE: Due Process Denied: The Forgotten Constitutional Limits 
on Choice of Law in the Enforcement of Employee Covenants Not to Compete. Utah 
Law Review, 2012, 209.  

Justice Louis Brandeis in New State Ice co. v. Liebmann (1932). 
Katherine V.W. Stone* (February, 2001). ARTICLE:The New Psychological Contract: 

Implications of the Changing Workplace for Labor and Employment Law. UCLA Law 
Review, 48, 519. 

Melissa Ilyse Rassas* (Winter, 2009). Comment: Explaining the Outlier: Oregon's New Non-
Compete Agreement Law & the Broadcasting Industry. University Of Pennsylvania 
Journal Of Business Law, 11, 447.  

ORS §653.295 
Perry v. Moran (1987)  
Phillip D. Thomas + (2018). ARTICLE: Would California Survive the MOVE Act?: A 

Preemption Analysis of Employee Noncompetition Law. University of Chicago Legal 
Forum, 2017, 823 

Starr, Evan and Prescott, J.J. and Bishara, Norman D, Noncompetes in the U.S. Labor Force 
(September 12, 2018). U of Michigan Law & Econ Research Paper No. 18-013.  

Sharon K. Sandeeri + and Elizabeth A. Rowe ++ (2017). ARTICLE: DEBATING EMPLOYEE 
NON-COMPETES AND TRADE SECRETS. Santa Clara High Technology Law 
Journal, 33, 438. 

The U.S. Treasury Department (2007) Antitrust Guidelines and Policy Statements § 114.  
U.S. Department of the Treasury Office of Economic Policy (March 2016). Non-compete 

contracts: economic effects and policy implications 
Viva R. Moffat* (2012). ARTICLE: Making Non-Competes Unenforceable. Arizona Law 

Review, 54, 939. 


