Journal articles on the topic 'Punishments without incarceration'

The carceral state is everywhere. Legal and social science scholars are increasingly using the carceral state concept to criticize various aspects, or even the entirety, of the United States. But despite how popular and common this term has become in writings about mass incarceration, criminal processes and punishments, and other forms of social control, the definition, conceptualization, and theorization of the carceral state are far from settled. This Article analyzes and contributes to this discussion by highlighting the diversity and fluidity of ideas surrounding the carceral state. Although the term often appears without an express definition, the limited ones that do exist vary in their construction. There are also multiple perspectives on the carceral state’s characteristics, including its composition, relationship with the prison-industrial complex, its age, size, and form. Also, while many prominent scholars agree that its discriminatory actions and effects are defining features of the carceral state, notable differences remain in how this discrimination is framed. This decentralized and varied understanding impacts both the theoretical development and practical applications of the carceral state concept. Rather than converging into a single, cohesive theory, multiple interpretations of the carceral state persist and will likely continue to do so. While this diversity of perspectives offers advantages, it also presents challenges in achieving the necessary consensus to dismantle the carceral state and build a noncarceral one.


 
 It is hard to remember a time when New Zealand has not been draconian in its attitudes towards punishment. A national desire seemingly exists for a high level of incarceration whose effect, at the very least, is a systemic and needless waste of human potential. This desire sees a rising number of prisoners locked within a dehumanising and persistently expensive prison system. An effective response to this problem requires that the prevailing ‘populist’ understanding of punishment be abandoned. Ultimately, it will require imagining a society that is without prisons. Prior to that stage being reached, however, an interim strategy of ‘decarceration’ is needed, one which reduces the levels of imprisonment such that the abolition of prisons becomes feasible. This involves the reform of elements within New Zealand’s criminal justice system that proceed incarceration: the police, the courts, and sentencing in particular. Reforming these elements requires a serious engagement with the well-documented racial bias that characterises the operation of those fields.
 
 

The priority tasks of modern Russian penitentiary policy include the development of an effective system of enforcing criminal punishments and other criminal law measures. The implementation of this multi-faceted task is impossible without taking into consideration the personal traits of convicts sentenced to incarceration. When prisoners spend time in a correctional institution and are forced to enter its specific environment, they acquire social and personal attitudes that, unfortunately, are more often negative than positive. In the current article the authors examine problems connected with identifying the traits that characterize the personality of a convict as a specific criminological category. They attempt to present their own concept of researching the signs (primarily, penitentiary ones) of the formation of destructive personality traits in convicts. The realization of this task includes studying those features and characteristics of a convicts personality that possess the meaning and content highlighting the value and systemic essence of this personality. The authors believe that a multi-level criminological concept would be most suitable for such research, this concept should make it possible to study the whole structure of a convicts personality in a comprehensive way, and it is the motivation of a convicts behavior. A convict, just like any person, possesses a complex of leading motives that comprise the essence of his personality and determine his behavior. When researching the motivation of criminal behavior, it is possible to trace the interconnection of internal and external factors, study the methods and conditions of a specific crime, the personality of a criminal. At present, the researchers in the penitentiary field and the employees of the penitentiary institutions agree that it is necessary to conduct special research of the formation of an integrated system of specific factors that influence the motivation of convicts and cause the destruction of personality traits, which is typical of places of confinement. The authors believe that a characteristic feature of the socio-psychological element of a convicts personality is the disruption in the development of his sphere of motivation and senses as one of the factors of its formation.

This article is excerpted from Rachel Porter, Sophia Lee, and Mary Lutz's 100-page report of the same name originally published by the Vera Institute of Justice in 2002. The report assesses the operation of the alternatives to incarceration (ATI) program for dealing with defendants accused of felonies. This research has shown that the ATI system represents a valuable sentencing option in the city. The criminal justice system in New York City includes a unique network of alternatives to incarceration: a coordinated set of programs to which judges may send criminal offenders instead of sentencing them to jail. The programs balance punishment and treatment for felony offenders without compromising public safety, and they have the potential to reduce reoffending.

Scholars now recognize life imprisonment without parole (LWOP) as a defining feature of contemporary American punishment. As LWOP becomes topical, it draws attention to a significant, more general phenomenon: the growth of state-sanctioned policies and practices by which prisoners face the remainder of their lives in prison. This article seeks to expand perspectives on contemporary punishment by looking closely at how lifetime incarceration took shape historically in different political projects and penal systems. Drawing from primary materials and a comprehensive review of secondary historical literature, I examine modes of perpetual penal confinement: combinations of sanctions and practices that result in holding people in state custody permanently. Interpreting classic penological paradigms anew, the article illuminates the significant role that perpetual confinement has played in influential theories of criminal justice and shows how it has proved a versatile tool for social control and prison administration across diverse penal schemes, largely because of its unique temporal character. The article concludes with a diagnosis of contemporary American punishment, suggesting that LWOP—beyond being a cruel and exclusionary penalty—is symptomatic of a system in which imprisonment until death has become uniquely ordinary.

This article examines the origins of US mass incarceration. Although it is clear that changes in policy and practice are the proximate drivers of the prison boom, researchers continue to explore—and disagree about—why crime control policy and practice changed in ways that fueled the growth of incarceration in all 50 states. One well-known account emphasizes the centrality of racial and electoral politics. This article more fully explicates the racial politics perspective, describes several friendly amendments to it, and explores a range of arguments that challenge it in more fundamental ways. In the end, we maintain that although mass incarceration has many drivers, it cannot be explained without reference to the centrality of racial politics; the importance of the crime issue to the GOP electoral strategy that emerged in the wake of the civil rights movement; and the nature of the decentralized, two-party electoral system in the United States.

One of the most disturbing aspects of examining the extensive capital punishment debate, with its clear indications of discriminatory practices, ambiguous judicial directives, undeniable miscarriages of justice, controversial statistical data, and inept, inconsistent and/or unjust implementation, is the constantly gnawing thought that if this is the situation vis-à-vis what is considered the most extreme penalty with its special super due process, then what is happening in the cases of lesser penalties. These latter cases of petty thieves sentenced to years of incarceration for relatively minor delinquencies, of accused inadequately defended without appeals being lodged within the judicial system or public interest shown, of compulsory life imprisonment without parole, no doubt reflect all of the faults and errors of capital punishment.

Issues such as prison overcrowding, a growing realization that prisons cannot rehabilitate, and the belief that many inmates could be adequately managed in less intrusive and costly settings, have led Israeli scholars and practitioners, in the last four decades, to devote efforts to the development of alternative sanctions to imprisonment. Specifically, the focus has been on the development and elaboration of alternative sanctions that match the severity of punishment to the seriousness of the crime.Intermediate sanctions (also called “alternative sanctions,” “alternatives to imprisonment,” or “community-based sanctions”) have been proposed as “ways to manage the burgeoning numbers of offenders without sacrificing public safety.” These punishment options are considered to fall on a continuum between traditional probation supervision and traditional incarceration.

The current study evaluates the effectiveness of Alternatives to Incarceration (ATI) programs in the federal criminal justice system across thirteen federal districts, particularly their impact on post-program recidivism. It explores the development and expansion of ATI programs, which offer defendants charged in federal court the opportunity to participate in a formal judge-led multi-disciplinary team program that emphasizes community-based rehabilitative approaches that target root causes of criminal behavior. These programs emphasize treatment over punishment while holding defendants accountable using proscribed protocols of sanctions and incentives. Depending on the rules of the individual program, defendants who successfully complete the program receive a reduced or non-incarcerate sentence, or have their charges dismissed. The study utilizes data from the participating districts to compare the outcomes of ATI participants with those of matched counterparts who did not participate in the programs. In addition to examining outcomes of defendants while on pretrial supervision, the study examines re-arrests for new criminal behavior one, two, and three years after defendants’ exit from the program. The results highlight the potential effectiveness of ATI programs in reducing both pretrial detention and post-sentence incarceration without expense to community safety. We emphasize the need for further research to validate and generalize the findings and suggest that ATI programs, given sufficient resources and policy support, could play a significant role in transforming the criminal justice system by prioritizing rehabilitation over incarceration.

From the beginning of its colonial settlement in Kenya, the British administration criminalized Kenyans. Even now, colonial modes of punishment, incarceration, closure, interrogation, curfew, confiscation, separation, displacement, and detention without trial are deeply embedded in the spatial and ideological arrangements of post-colonial Kenya. Initially assumed to herald a rupture from colonial modes of criminalization and punishment, the post-colonial period instead normalized them. Through ethnographic, scholarly, and visual encounters, the paper engages five interconnecting structures that engendered the legacy of a seamless system of control, containment, and punishment evident in the ‘afterlives’ of empire. These are settler colonialism, violence, racism, colonial corporeality, and capitalism. The paper attends to the violence and brutality that endures in the very geographies that were the urban targets of colonial siege and links the carceral practices of settler colonialism and the everyday post-colonial governance of Nairobi’s poor neighbourhoods, encounters with the debris and ruination of empire found in the material and spatial fabric of Mathare. We take up a critical encounter with colonial files to both discern the continuity and lineage of carceral practices and to disrupt the authorial totality and continuity the colonial archive files assembled. The paper includes archival and authored photographs:

In the United States, racialized people are disproportionately selected for punishment. Examining punishment discourses intersectionally unearths profound, unequal distinctions when controlling for the variety of victims’ identities within the punishment regime. For example, trans women of color are likely to face the harshest of realties when confronted with the prospect of punishment. However, missing from much of the academic carceral literature is a critical perspective situated in racialized epistemic frameworks. If racialized individuals are more likely to be affected by punishment systems, then, certainly, they are the foremost experts on what those realities are like. The Black Lives Matter hashtag came about during the aftermath of the George Zimmerman non-verdict in the killing of Trayvon Martin, and it helped to cultivate the organization which turned into a multiracial international movement in defense of Black dignity and humanity. While Black Lives Matter was initially inspired by police violence, it has expanded its reach to include causes beyond police malpractice and brutality. This special issue of The Prison Journal seeks to merge principles associated with Black Lives Matter (as noted on their website) with critical issues endemic to community reentry after incarceration and the racialized and gendered impediments it produces. The empirical pieces included are qualitative to reflect the epistemologies of the affected, as we believe that narratives more powerfully capture these hard-to-reach (or deviant in comparison to the norm) perspectives. This special issue includes articles that critically foreground the voices of formerly incarcerated citizens (including some who are mothers and fathers) and reentry service providers. Importantly, it provides suggestions for new directions in reimagining a more democratic and racially equitable society without current punishment regimes.

The elderly prison population continues to rise along with higher rates of dementia behind bars. To maintain the detention of this elderly population, federal and state prisons are creating long-term care units, which in turn carry a heavy financial burden. Prisons are thus gearing up to become nursing homes, but without the proper trained staff and adequate financial support. The costs both to taxpayers and to human dignity are only now becoming clear. This article squarely addresses the second dimension of this carceral practice, that is the cost to human dignity. Namely, it sets out why indefinitely incarcerating someone with dementia or other neurocognitive disorders violates the Eighth Amendment of the United States Constitution’s prohibition on cruel and unusual punishment. This conclusion derives from the confluence of two lines of U.S. Supreme Court precedent. First, in Madison v. Alabama, the Court recently held that executing someone (in Madison’s case someone with dementia) who cannot rationally understand their sentence amounts to cruel and unusual punishment. Second, in line with Miller v. Alabama, which puts life without parole (LWOP) sentences in the same class as death sentences due to their irrevocability, this holding should be extended to LWOP sentences. Put another way, this article explains why being condemned to life is equivalent to death for someone whose neurodegenerative disease is so severe that they cannot rationally understand their punishment.

<p><em><span style="font-family: Times New Roman;"><span style="font-size: medium;">A punitive approach to criminal sentencing is profoundly counterintuitive in circumstances where incarceration and criminal labelling expedites, rather than prevents, recidivism. In a bid to avoid physical contact offences some paedophiles self-manage with low-level offending, such as viewing child exploitation material. These individuals are child sex offenders who may be receptive to rehabilitation with therapeutic assistance, yet are punished in a system deficient of genuine rehabilitation methodology. Therapeutic jurisprudence approaches for paedophiles have seen great success in international jurisdictions. This article contends that it </span><span style="font-size: medium;">is not without merit as an alternative for Australian sentencing practices. </span><span style="font-size: medium;"> </span></span></em></p>

As a sentencing scholar, Judge Frankel’s boldness and willingness to dream big about creating a different sentencing system have inspired me throughout my career. His willingness to call for reconstructing the sentencing system is an appeal that still rings true today. Despite the many changes in the United States since Frankel wrote Criminal Sentences: Law Without Order, the need for systemic changes to criminal punishment remains. Questions about why we are punishing the way we punish who we punish are central to today’s advocacy against mass incarceration. Seventeen years ago when I read Law Without Order at the start of my academic career, I accepted Judge Frankel’s challenge to “not close the topic along with the book.” And, inspired by his confident approach to pitch an entirely new sentencing dream, my proposal to address current racial disparities in criminal punishment – an antiracist reconstruction of sentencing laws and practices – is one that may need time before it is widely accepted. My concept of “Reconstruction Sentencing” has antiracism as it’s foundation. Just as antiracism requires the belief that “racial groups are equals in all their apparent differences,” Reconstruction Sentencing requires adopting the premise that “racially disparate sentencing outcomes rooted in racial bias are racist and must be eliminated through law and policy.” It is the type of proposal that is in line with the bold recognition of the need for massive change that Judge Frankel inspires.

Five models of sentencing were assessed with respect to their impact on the decisions of young offenders to recidivate. The five sentencing models tested were fairness, deterrence, chronic offender lifestyle, special needs, and procedural rights. A sample of 400 incarcerated young offenders from the Vancouver, British Columbia, metropolitan area were asked questions regarding their attitudes toward these sentencing models and their intentions to recidivate after serving a period of incarceration. Principal components analyses suggested that although these models do not function independently, two composite models do shed some light on the issues that young offenders consider when contemplating their decisions and intentions to recidivate. Despite the ability of these models to predict half of the explained variance in young offenders’ decisions regarding recidivism, a majority of the sample appeared to not be affected exclusively by cost-benefit analysis, punishment, or reintegrative motivations. The authors conclude that without additional variables and even higher predictive validity, it is premature for policy makers to focus on any single model of sentencing in constructing juvenile justice laws.

The problem of child sexual abuse (CSA) is a crucial point of entry into abolition-feminist conversations about justice and punishment, healing and repair. The popular belief that the “child sex offender” is uniquely irredeemable, eternally depraved and dangerous can trouble abolition-feminist efforts to address the devastating harm of CSA without reproducing the violence of prison and punishment. It also forces us to return to the question of “what to do with the dangerous few?” A familiar “tough on crime” refrain, this question mystifies the social, economic, and political conditions that nurture interpersonal violence. It also illustrates how centering our attention on “the monster in our midst” feeds an attachment to the mistaken belief that sexual harm is locatable in individual, bad people; that it is fixable by criminal law, and, in short, that justice and repair can be measured by the number of years one is sentenced to live behind bars. Miguel Piñero’s 1972 play “Short Eyes” exposes the failure of our attempts to incarcerate our way out of child sexual abuse and opens a literary-artistic space in which to explore the roots of violence and the abuse of power. The play dramatizes the particular ways in which the incarceration of those deemed the worst of the worst does not alleviate suffering or promote safety; rather, it prevents us from getting to the root of even the most horrific forms of abuse and from fully engaging, confronting and, finally, interrupting the daily, quotidian acts of sexual violence that are hiding in plain sight.

Attributing the criminal action belonging to a person is called accusation. A person who is charged with a crime is called an accused. No any accused can be considered convict or guilty without an evidence. Allegations are always made on the basis of suspicion and different other circumstantial evidence. Imposition of punishment on the basis of accusation is never justified in any Divine or Man made Law. The decision based on a mere claim without any evidence is prohibited in Islamic Shari'ah.So when a person is charged with a crime ,it is imperative to investigate him properly.Until the investigation is done, neither the accused can be declared guilty nor the claim can be considered true. A strong justice system is necessary for state stability. Pakistan is an Islamic country. So it is a constitutional requirement to establish an Islamic justice system in the country. Under existing laws, the police have absolute power to arrest any respectable citizen on mere suspicion. It is a common practice in Pakistan that the accused is imprisoned on the bases of a trivial accusation. Whereas in Shari'ah, it is absolutely impermissible to detain a dignitary on the base of a mere allegation. Apparently, Incarceration of accused in prevailing laws is seemed to be in conflict with Sharia.. Therefore, A critical study on the legal status of the detention of an accused is necessary in the context of Shariah.

Serial killers are present all over the globe. Their acts shock and—not surprisingly—anger the public. This study will—for the first time in Hungary—focus on serial killers convicted in Hungary by analyzing their crimes and their behavior during incarceration.This paper has the as-yet unprecedented aim of providing a general picture about serial killers on the “other side” of the prison bars, and within the prisons themselves. Besides dealing with the life and activities of the serial killers before their incarceration on international level, it will also put forward a comprehensive picture about the origin and meaning of the term “serial killer”, all the while discussing the general attributes of those who belong to this category. The study will also provide an overview about the main ideas on making distinctions and conducting classification into different types and examines the issues that are related to female serial killers.We will also analyze the actions of serial killers incarcerated within Hungarian prisons and evaluate their behaviour within the institution in order to predict their likely conduct using a completely novel risk assessment procedure.Our study also has a second part in which we will address the peculiarities pertaining to the punishment of life without parole, especially as 67% of the currently incarcerated Hungarian serial killers have received this sanction for their deeds.

The article discusses studies on models of incarceration in Polish prisons. The object of the study was to determine if resocialisation model of this punishment dominates in practice, or other models, including official-formal of ostensible resocialisation, dominate and what are the factors determining this. Analysis of this problem was based on opinions by prison personnel and convicts from three prisons in the district of Greater Poland Voivodeship. Disscussion is opened by a critical reflection how much the resocialisation model suits modern penitentiary policy and to what degree it is reflected in current executory provisions of law. Discussion stars with a polemics with an opinion, quite common in Polish penitentiary literature, that incarceration should be based on this particular model as it is better than other ones. Resocialisation model does not take into account diversified needs of influence on prisoners. Some of them do not need improvement (e.g. unintentional, accidental perpetrators). Others, because of their already shaped negative personality traits will never be fit to come back to the society (e.g. perpetrators of most grave crimes of the highest degree of demorali-zation). In the end of theoretical discussion of various model of work with convicts during incarceration, the author draws one’s attention to the fact that provisions of executory criminal law can reflect resocialisation conceptions only to a limited degree. Practical model of penitentiary influence is hence not a uniform and clear pedagogical model but has an eclectic character. It is demonstrated that from such point of view, assessment of work of prisons based on the criterion if and how much they resocialise, is based on wrong premises. They are criticized in the article. In the second part of the article the author discusses the results of the empirical studies. It starts with the description of used research method and a general characteristic of the re-spondent group. The research was conducted in June and July 2010. It consisted in collecting opinions in questionnaires and in focus interviews with prisoners and prison staff. The groups were chosen in a random manner (132 prison officers and 350 prisoners) and they were representative for the population of the imprisoned in the regional authority of detention centres. Presentation of the most significant conclusions of the research starts with the fact that vast majority of convicts were imprisoned in a normal system had in practice a decisive influence on content and type of penitentiary influence. This system does not require corrective influence and thus penitentiary work concentrated on ensuring that the imprisoned are placed in conditions at least compliant with recommendations of European Prison Rules. In practice these conditions are included in prison rules. Most of all, they concern living space and prison regimen conditions without focus on education and correction work.

Over thirty years ago the United States Supreme Court upheld an Oregon statute that allowed sentencing courts, with a number of important procedural safeguards, to impose on indigent criminal defendants the obligation to repay the cost of their court appointed attorneys. The practice of ordering recoupment or contribution (application fees or co-pays) of public defender attorney's fees is widespread, although collection rates are unsurprisingly low. Developments since the Court's decision in Fuller v. Oregon show that not only is recoupment not cost-effective, but it too easily becomes an aspect of punishment, rather than legitimate cost recovery. In a number of jurisdictions, defendants are ordered to repay the cost of their attorney regardless of their ability to pay and without any notice or opportunity to be heard. Many are ordered to pay as a condition of probation or parole, which means they pay under threat of incarceration. In these jurisdictions, recoupment violates the Sixth Amendment, as well as the Due Process and Equal Protection Clauses. Constitutional problems are exacerbated by the potential for ethical violations: public defenders may have conflicts of interest when they are required to both submit bills to the court and object to those bills on behalf of their clients. And too often defendants are not warned at the outset that they may be responsible for attorney's fees or how those fees will be calculated. In any other context, a client is entitled under the ethical rules to a clear statement of the basis for the fee at the time the lawyer is engaged. In addition, the thirty years since Fuller have verified that recoupment is bad policy because it imposes punishing debt without real fiscal benefit. It is time to abandon practices that penalize defendants for being poor and exercising their right to counsel.

This paper examined corruption violence against women in Zambia and Lesotho by highlighting how they mitigate its effects without being acknowledged as abettors and heroines of it. Of particular concern is the existence of corruption violence against women through mental and physical abuse, trauma and incarceration. This is depicted in the day to day conversations and female punishment and arrests by the state prosecutors and prison warders in Zambia and Lesotho. The women persecution has nothing to do with the level of education or professional training of the prosecutor or prison warders but the political patronage of the prosecutor. Nevertheless, corruption-violence of any form against women is not only a violation of the constitutional rights in the context of Zambia and Lesotho but also a denial of dignity, liberty and equality enshrined in the global Universal Declaration of Human Rights of the United Nations. Sandra Bartky’s “discursive patriarchal power” provided the theoretical framework guiding this article. In agreement with Bartky’s patriarchal power which coerces women to adhere to oppressive norms of femininity, perpetuates-corruption-violence on women has material effects on their bodies and therefore, forces them to modify their behavior to abettors. This infers that the body of women becomes a site of struggle, and often resistance, for both femininity and intimate partner. Methodologically, this article is based on library research though the large part of it involves interviews with those perceived as heroines and abettors of corruption-violence and how they negotiate it and suffer internal trauma and sexually abused silently. The paper throws some light on facets of restorative justice so that justice does not only apply to the victim only but the perpetrator too in order to promote human rights for all affected by corruption-violence.

Gennem årtier er det lykkedes at fastholde billedet af Grønland som landet uden fængsel. Baggrunden for det fængselsløse samfund skal findes i den grønlandske kriminallov fra 1954, hvor fængsler ingen plads havde i kriminalloven – og i Grønland. Båndet mellem skyld og straf var brudt, og foranstaltninger skulle vælges ud fra det, som tjente gerningsmandens genindtræden i samfundet bedst. Frem for afsoning i fængsler, skulle landets dømte afsone i åbne anstalter, så de kunne bevare deres tilknytning til det omkringliggende samfund. I 2017 skal Grønland have sit første fængsel – eller lukkede anstalt, som den kaldes, og med dette bliver Grønland som landet uden fængsel endelig fortid. Men allerede før det første fængsel er opført, bringer landet med et fangetal på 309 indsatte pr. 100.000 indbyggere sig ind på en 33. plads over de mest straffende lande i verden. Artiklen undersøger, hvorvidt hverdagslivet i de grønlandske anstalter adskiller sig fra hverdagslivet i fængsler for herigennem at kunne vurdere, om der er tale om sammenligning af vidt forskellige enheder, når Grønland inddrages i international statistik over fangebefolkninger.
 
 
 ENGELSK ABSTRACT:
 
 Annemette Nyborg Lauritsen: The Great Greenlandic Incarceration 
 
 The image of Greenland as the country without prisons has been successfully maintained for decades. This is due to the Greenlandic criminal code from 1954. Prisons had no place in this criminal code – nor in Greenland. The link between guilt and punishment was broken and measures were to be chosen based on what best served the re-entry of the offender into society. Instead of serving a sentence in prison, the country’s offenders were to serve in open institutions in order to retain the connection to the surrounding community. 
 Now Greenland is expected to open its first prison in 1917, and the idea of Greenland as the country without prisons will be history. However even before the first prison is built, Greenland ranks as the 33rd most punishing country in the world with 309 inmates per 100,000 inhabitants. The article examines how everyday life in Greenlandic institutions for convicts differs from everyday life in prisons, in order to assess whether the comparison is carried out between widely different units when Greenland is included in international statistics of prison populations.
 
 Keywords: imprisonment, resocialization, criminology, social anthropology.

Abstract Most convicted offenders serve their sentences under “community supervision” at home instead of in prison. Under supervision, however, a technical rule violation such as not paying fees can result in incarceration. Rule violations account for 25% of prison admissions nationally and are significantly more common among black offenders. I test whether technical rules are effective tools for identifying likely reoffenders and deterring crime and examine their disparate racial impacts using administrative data from North Carolina. Analysis of a 2011 reform reducing prison punishments for technical violations on probation reveals that 40% of rule breakers would go on to commit crimes if spared harsh punishment. The same reform also closed a 33% black-white gap in incarceration rates without substantially increasing the black-white reoffending gap. These effects combined imply that technical rules target riskier probationers overall, but disproportionately affect low-risk black offenders. To justify black probationers’ higher violation rate on efficiency grounds, their crimes must be roughly twice as socially costly as that of white probationers. Exploiting the repeat-spell nature of the North Carolina data, I estimate a semiparametric competing-risks model that allows me to distinguish the effects of particular types of technical rules from unobserved probationer heterogeneity. Rules related to the payment of fees and fines, which are common in many states, are ineffective in tagging likely reoffenders and drive differential impacts by race. These findings illustrate the potentially large influence of ostensibly race-neutral policies on racial disparities in the justice system.

Prison healthcare reform and litigation have emerged as critical sites of social and political struggle in early twenty-first century punishment. In the case of Arizona, privatization of its prison healthcare system maintained commitments to cheap and mean punishment in the wake of economic crisis, which led to an ongoing class-action lawsuit over prisoners’ rights violations. By conducting a case study of Arizona's prison healthcare crisis, this article mobilizes important interventions in the theoretical accounts of late mass incarceration and the penal state. Not only did Arizona's brand of penal austerity anticipate the scaling back of social services across the state, but effectively subjected prisoners to a perpetual deferment of care. Drawing upon this sociopolitical context, I elaborate a theory of penal extraction whereby care capacity is not only removed from the prison, but the prisoner's life becomes like an exhaustible resource.

The United States is unique among rich countries in the world in its level of contemporary mass incarceration, a massive social change that has reshaped the nature of inequality and social mobility. We have more than tripled the number of prison facilities since 1970. Despite employing nearly 450,000 corrections officers, occupying a land mass of roughly 600 square miles, and costing conservatively $30 billion to build, this massive public works project has transformed the American countryside virtually unnoticed, with nearly 70% of U.S. facilities being built in rural communities. We suggest that mass incarceration—more than 2 million locked up annually—was not possible without the transformation of the American countryside through the prison boom—the increase from roughly 500 to nearly 1700 carceral facilities. There is a longstanding belief that the rural town leaders and politicians responsible for the prison boom are almost exclusively white, male, Republicans. We explore the political, social, and economic influences of prison building across states, regions, and cities/towns. Using multilevel modeling, we find that racial and economic disadvantage predicts prison building in towns, and party affiliation of state legislatures predicts prison building across different periods of the prison boom. While others find a link between Republican Party strength in state legislatures and mass incarceration, our findings suggest that prison building, like other types of punishment, results from bipartisan political support for the state's ability to punish. We conclude by advancing an expanded theoretical approach to the prison boom.

AbstractThis essay defends the moral permissibility, as a form of punishment, of banishment, namely the exclusion by a state of a citizen from its territory. I begin by outlining the prima facie case for banishment, consider for whom it may be appropriate, and acknowledge constraints on its permissibility. I then defend banishment against the main objections in the literature to banishment or the related measure of denationalization (stripping citizens of their citizenship): impermissible permanency; excessive severity; ineffectiveness; unfairness to those who are punished and the creation of two classes of citizens; unfairness among states; and that banishment without denationalization is incompatible with the nature of citizenship. I adopt a ‘cantilever strategy’: if incarceration is permissible notwithstanding a certain objection, so is banishment. In concluding, I sympathetically discuss the view that, despite the moral permissibility of banishment, the power to banish should not be instituted because of the risk of abuse.

The release of Hakamada Iwao from death row in March 2014 after 48 years of incarceration provides an opportunity to reflect on wrongful convictions in Japanese criminal justice. My approach is comparative because this problem cannot be understood without asking how Japan compares with other countries: to know only one country is to know no country well. Comparison with the United States is especially instructive because there have been many studies of wrongful conviction there and because the U.S. and Japan are the only two developed democracies that retain capital punishment and continue to carry out executions on a regular basis. On the surface, the United States seems to have a more serious problem with wrongful convictions than Japan, but this gap is more apparent than real. To reduce the problem of wrongful convictions in Japanese criminal justice, reformers must confront a culture of denial that makes it difficult for police, prosecutors, and judges to acknowledge their own mistakes.

This article addresses one of the many issues of Nigerian prisons conditions utilizing helpful equity activity against the conventional criminal equity framework, which puts much accentuation on the awaiting trials and the accused person in the prison facilities and subsequently making prison population to increase. The re-integrative Rehabilitation theory was utilized to support the discussion. Logically, to reestablish equity is to correct offenders and degenerates, and re-set up and revivify repelled connections and breakdown of law and order in society. Rehabilitation is a developing non-caretaker, non-reformatory and humanistic procedure for the treatment not punishment of offenders without recourse to legal battle that often results in remanding one party in prison custody. Considering the encompassing merits of rehabilitation justice, there is an urgent need to officially integrate this alternative to incarceration intervention programme into the Nigerian legal system, as this will go a long way in decongesting the seemingly overpopulated correctional institutions in Nigeria. The rehabilitation/restorative justice facilitators, victims and their families, offenders and their families, and ‘community’ as a sole owner of every individual living in it, collectively strive to restore justice, order, security, property, and core values in Nigeria.

Justice is often delayed in India’s criminal justice system, leading to dire consequences for undertrial prisoners, overcrowded prisons, and inadequate rehabilitation. Despite constitutional guarantees under Article 21, thousands of prisoners remain incarcerated without conviction due to prolonged trials. As per Prison Statistics India 2022, 75.5% of India’s prison population comprises undertrials, a sharp increase from previous years. Delayed trials not only violate human rights but also contribute to prison overcrowding, leading to inhumane living conditions and inadequate access to rehabilitation programs. The Supreme Court, in Hussainara Khatoon v. State of Bihar (1980), reaffirmed that a speedy trial is integral to the right to life and liberty, yet judicial vacancies, frequent adjournments, and police inefficiencies continue to obstruct timely justice. Overcrowding strains prison infrastructure, further diminishing the effectiveness of correctional programs and increasing recidivism. This paper critically examines the systemic inefficiencies causing delays in criminal trials and their cascading effects on prisoners, the penal system, and societal reintegration. It also proposes judicial, procedural, and policy reforms, including enhanced judge-population ratios, fast-track courts, alternative dispute resolution mechanisms, and improved investigative procedures. Urgent interventions are necessary to uphold justice and ensure that incarceration serves its intended purpose—rehabilitation, not indefinite punishment.

From the mid-twentieth century, state and public conceptions of deviance and crime control have turned increasingly punitive (Hallett 115; Hutchinson 138). In a Western context, criminal justice has long been retributive, prioritising punishment over rehabilitation (Wenzel et al. 26). Within that context, there has been an increase in punitiveness—understood here as a measure of a punishment’s severity—the intention of which has been to help restore the moral imbalance created by offending while also deterring future crime (Wenzel et al. 26). Entangled with the global spread of neoliberal capitalism, punitiveness has become internationally pervasive to a near-hegemonic degree (Sparks qtd. in Jennings et al. 463; Unnever and Cullen 100).The punitive turn has troubling characteristics. Punitive policies can be expensive, and increased incarceration stresses the criminal justice system and leads to prison overcrowding (Hutchinson 135). Further, punitiveness is not only applied unequally across categories such as class, race, and age (Unnever and Cullen 105-06; Wacquant 212) but the effectiveness of punitive policy relative to its costs is contested (Bouffard et al. 466, 477; Hutchinson 139). Despite this, evidence suggests public demand is driving punitive policymaking, but that demand is only weakly related to crime rates (Jennings et al. 463).While discussion of punitiveness in the public sphere often focuses on measures such as boot camps for young offenders, increased incarceration, and longer prison sentences, punitiveness also has a darker side. Our research analysing discussion taking place on a large, regional, crime-focused online forum reveals a startling degree and intensity of violence directed at offenders and related groups. Members of the discussion forum do propose unsurprising measures such as incarceration and boot camps, but also an array of violent alternatives, including beating, shooting, dismemberment, and conversion into animal food. This article draws on our research to explore why discussion of punitiveness can be so intensely violent.Our research applies thematic analysis to seven discussion threads posted to a large regional online forum focused on crime, made between September and November 2017. One discussion thread per week of the study period was purposively sampled based on relevance to the topic of punitiveness, ultimately yielding 1200 individual comments. Those comments were coded, and the data and codes were reiteratively analysed to produce categories, then basic, organising, and global themes. We intended to uncover themes in group discussion most salient to punitiveness to gain insight into how punitive social interactions unfold and how those who demand punitiveness understand their interactions and experiences of crime. We argue that, in this online forum, the global theme—the most salient concept related to punitiveness—is a “subaltern citizenship”. Here, a clear division emerges from the data, where the group members perceive themselves as “us”—legitimate citizens with all attendant rights—in opposition to an external “them”, a besieging group of diverse, marginalised Others who have illegitimately usurped certain rights and who victimise citizens. Group members often deride the state as too weak and untrustworthy to stop this victimisation. Ironically, the external Others perceived by the group to hold power are themselves genuinely marginalised, though the group does not recognise or see that form of marginalisation as legitimate. In this essay, to preserve the anonymity of the forum and its members, we refer to them only as “the Forum”, located in “the City”, and refrain from direct quotes except for commonly used words or phrases that do not identify individuals.It is also important to note that the research described here deliberately focused on a specific group in a specific space who were concerned about specific groups of offenders. Findings and discussion, and the views on punitiveness described, cannot be generalised to the broader community. Nor do we suggest these views can be considered representative of all Forum members as we present here only a limited analysis of some violent discourse emerging from our research. Likewise, while our discussion often centres on youth and other marginalised groups in the context of offending, we do not intend to imply that offending is a characteristic of these groups.Legitimate CitizenshipCommonly, citizenship is seen as a conferred status denoting full and equal community membership and the rights and responsibilities dictated by community values and norms (Lister 28-29). Western citizenship norms are informed by neoliberal capitalist values: individual responsibility, an obligation to be in paid employment, participation in economic consumption, the sanctity of ownership, and that the principal role of government is to defend the conditions under which these norms can freely thrive (Walsh 861-62). While norms are shaped by laws and policy frameworks, they are not imposed coercively or always deployed consciously. These norms exist as shared behavioural expectations reproduced through social interaction and embodied as “common sense” (Kotzian 59). As much as Western democracies tend to a universalist representation of one, undifferentiated citizenship, it is clear that gender, race, sexual orientation, religion, ethnicity, and migrant status all exist in different relationships to citizenship as an identity category. Glass ceilings, stolen generations, same-sex marriage debates, and Australian Government proposals to strip citizenship from certain types of criminal offender all demonstrate that the lived experience of norms surrounding citizenship is profoundly unequal for some (Staeheli et al. 629-30). An individual’s citizenship status, therefore, more accurately exists on a spectrum between legitimacy—full community membership, possessing all rights and living up to all associated responsibilities—and illegitimacy—diminished membership, with contested rights and questionable fulfilment of associated responsibilities—depending on the extent of their deviation from societal norms.Discussing punitiveness, Forum members position themselves as “us”, that is, legitimate citizens. Words such as “we” and “us” are used as synonyms for society and for those whose behaviours are “normal” or “acceptable”. Groups associated with offending are described as “they”, “them”, and their behaviours are “not normal”, “disgusting”, “feral”, and merit the removal of “them” from civilisation, usually to “the middle of nowhere” or “the Outback”. Possession of legitimate citizenship is implicit in assuming authority over what is normal and who should be exiled for failing the standard.Another implicit assumption discernible in the data is that Forum members perceive the “normal we” as good neoliberal citizens. “We” work hard, own homes and cars, and take individual responsibility. There is a strong imputation of welfare dependency among offenders, the poor, and other suspect groups. Offending is presented as something curable by stripping offenders or their parents of welfare payments. Members earn their status as legitimate citizens by adhering to the norms of neoliberal citizenship in opposition to potential offenders to whom the benefits of citizenship are simply doled out.Forum members also frame their citizenship as legitimate by asserting ownership over community spaces and resources. This can be seen in their talking as if they, their sympathetic audience, and “the City” are the same (for example, declaring that “the City” demands harsher punishments for juvenile offenders). There are also calls to “take back” the streets, the City, and Australia from groups associated with offending. That a space can and should be “taken back” implies a pre-existing state of control interrupted by those who have no right to ownership. At its most extreme, the assertion of ownership extends to a conviction that members have the right to position offenders as enemies of the state and request that the army, the ultimate tool of legitimate state violence, be turned against them if governments and the criminal justice system are too “weak” or “soft” to constrain them.The Illegitimate OtherThroughout the data, perceived offenders are spoken of with scorn and hatred. “Perceived offenders” may include offenders and their family, youths, Indigenous people, and people of low socioeconomic status, and these marginalised groups are referenced so interchangeably it can be difficult to determine which is being discussed.Commenting on four “atsi [sic] kids” who assaulted an elderly man, group members asserted “they” should be shot like dogs. The original text gives no antecedents to indicate whether “they” is meant to indicate youths, Indigenous youths, or offenders in general. However, Australia has a colonial history of conflating crime and indigeneity and shooting Indigenous people to preserve white social order (Hill and Dawes 310, 312), a consequence of the tendency of white people to imagine criminals as black (Unnever and Cullen 106). It must be noted that the racial identity of individual Forum members is unknown. This does constitute a limitation in the original study, as identity categories such as race and class intersect and manifest in social interactions in complex ways. However, that does not prevent analysis of the text itself.In the Forum’s discursive space, “they” is used to denote offenders, Indigenous youths, youths, or the poor interchangeably, as if they were all a homogeneous, mutually synonymous “Other”. Collectively, these groups are represented as so generally hopeless that they are imagined as choosing to offend so they will be sentenced to the comforts of “holiday camp” prisons where they can access luxuries otherwise beyond their reach: freedom from addicted parents, medical care, food, television, and computers. A common argument, that crime is an individual choice, is often based on the idea that prison is a better option for the poor than going home. As a result, offending by marginalised offenders is reconstructed as a rational choice or a failure of individual responsibility rather than a consequence of structural inequality.Further, parents of those in suspect populations are blamed for intergenerational maintenance of criminality. They are described as too drunk or drugged to care, too unskilled in parenting due to their presumed dreadful upbringing, or too busy enjoying their welfare payments to meet their responsibility to control their children or teach them the values and skills of citizenship. Comments imply parents probably participated in their children’s crimes even when no evidence suggests that possibility and that some groups simply cannot be trusted to raise disciplined children owing to their inherent moral and economic dissipation. That is, not just offenders but entire groups are deemed illegitimate, willing to enjoy benefits of citizenship such as welfare payments but unwilling or unable to earn them by engaging with the associated responsibilities. This is a frequent argument for why they deserve severely punitive punishment for deviance.However, the construction of the Other as illegitimate in Forum discussions reaches far beyond imagining them as lacking normative skills and values. The violence present on the Forum is startling in its intensity. Prevalent within the data is the reduction of people to insulting nicknames. Terms used to describe people range from the sarcastic— “little darlings”—through standard abusive language such as “bastards”, “shits”, “dickheads”, “lowlifes”, to dehumanising epithets such as “maggots”, “scum”, and “subhuman arsewipes”. Individually and collectively, “they” are relentlessly framed as less than human and even less than animals. They are “mongrels” and “vermin”. In groups, they are “packs”, and they deserve to be “hunted” or just shot from helicopters. They are unworthy of life. “Oxygen thieves” is a repeated epithet, as is the idea that they should be dropped out at sea to drown. Other suggestions for punishment include firing squads, lethal injections, and feeding them to animals.It is difficult to imagine a more definitive denial of legitimacy than discursively stripping individuals and groups of their humanity (their most fundamental status) and their right to existence (their most fundamental right as living beings). The Forum comes perilously close to casting the Other as Agamben’s homo sacer, humans who live in a “state of exception”, subject to the state’s power but excluded from the law’s protection and able to be killed without consequence (Lechte and Newman 524). While it would be hyperbole to push this comparison too far—given Agamben had concentration camps in mind—the state of exception as a means of both excluding a group from society and exercising control over its life does resonate here.Themes Underlying PunitivenessOur findings indicate the theme most salient to punitive discussion is citizenship, rooted in persistent concerns over who is perceived to have it, who is not, and what should be done about those Others whose deviance renders their citizenship less legitimate. Citizenship norms—real or aspirational—of society’s dominant groups constitute the standards by which Forum members judge their experiences of and with crime, perceived offenders, the criminal justice system, and the state. However, Forum members do not claim a straightforward belonging to and sharing in the maintenance of the polity. Analysis of the data suggests Forum members consider their legitimate citizenship tainted by external forces such as politics, untrustworthy authorities and institutions, and the unconstrained excess of the illegitimate Other. That is, they perceive their citizenship to be simultaneously legitimate and undeservedly subaltern.According to Gramsci, subaltern populations are subordinate to dominant groups in political and civil society, lulled by hegemonic norms to cooperate in their own oppression (Green 2). Civil society supports the authority of political society and, in return, political society uses the law and criminal justice system to safeguard civil society’s interests against unruly subalterns (Green 7). Rights and responsibilities of citizenship reside within the mutual relationship between political and civil society. Subalternity, by definition, exists outside this relationship, or with limited access to it.Forum members position themselves as citizens within civil society. They lay emphatic claim to fulfilling their responsibilities as neoliberal citizens. However, they perceive themselves to be denied the commensurate rights: they cannot rely on the criminal justice system to protect them from the illegitimate Other. The courts are “soft”, and prisons are “camps” with “revolving doors”. Authorities pamper offenders while doing nothing to stop them from hurting their victims. Human rights are viewed as an imposition by the UN or as policy flowing from a political sphere lacking integrity and dominated by “do gooders”. Rights are reserved only for offenders. Legitimate citizens no longer even have the right to defend themselves. The perceived result is a transfer of rights from legitimate to illegitimate, from deserving to undeserving. This process elides from view the actual subalterns of Australian society—here, most particularly Indigenous people and the socioeconomically vulnerable—and reconstructs them as oppressors of the dominant group, who are reframed as legitimate citizens unjustly made subaltern.The Violence in PunitivenessOn the Forum, as in the broader world, a sense of “white victimisation”—the view, unsupported by history or evidence, that whites are an oppressed people within a structure systematically doling out advantage to minorities (King 89)—is a recurrent legitimising argument for punitiveness and vigilantism. Amid the shrinking social safety nets and employment precarity of neoliberal capitalism, competitiveness increases, and white identity forms around perceived threats to power and status incurred by “losing out” to minorities (Sacks and Lindholm 131). One 2011 study finds a majority of white US citizens believe themselves subject to more racism than black people (King 89). However, these assumptions of whiteness tend to be spared critical examination because, in white-dominated societies, whiteness is the common-sense norm in opposition to which other racial categories are defined (Petray and Collin 2). When whiteness is made the focus of critical questioning, white identities gain salience and imaginings of the “dark other” and besieged white virtues intensify (Bonilla-Silva et al. 232).With respect to feelings of punitiveness, Unnever and Cullen (118-19) find that the social cause for punitiveness in the United States is hostility towards other races, that harsh punishments, including the death penalty, are demanded and accepted by the dominant group because they are perceived to mostly injure “people they do not like” (Unnever and Cullen 119). Moreover, perception that a racial group is inherently criminal amplifies more generalised prejudices against them and diminishes the capacity of the dominant group to feel empathy for suffering inflicted upon them by the criminal justice system (Unnever and Cullen 120).While our analysis of the Forum supports these findings where they touch on crimes committed by Indigenous people, they invite a question. Why, where race is not a factor, do youths and the socioeconomically disadvantaged also inspire intensely violent punitiveness as described above? We argue that the answer relates to status. From this perspective, race becomes one of several categories of differentiation from legitimate citizenship through an ascription of low status.Wenzel, Okimoto, and Cameron (29) contend punitiveness, with respect to specific offences, varies according to the symbolic meaning the offence holds for the observer. Crimes understood as a transgression against status or power inspire a need for “revenge, punishment, and stigmatisation” (Wenzel et al. 41) and justify an increase in the punitiveness required (Wenzel et al. 29, 34). This is particularly true where an offence is deemed to make someone unfit for community membership, such that severe punishment serves as a symbolic marker of exile and a reaffirmation for the community of the violated values and norms (Wenzel et al. 41). Indeed, as noted, Forum posts regularly call for offenders to be removed from society, exiled to the outback, or shipped beyond Australia’s territorial waters.Further, Forum members’ perception of subaltern citizenship, with its assumption of legitimate citizenship as being threatened by undeserving Others, makes them view crime as implicitly a matter of status transgression. This is intensified by perception that the political sphere and criminal justice system are failing legitimate citizens, refusing even to let them defend themselves. Virulent name-calling and comparisons to animals can be understood as attempts by the group to symbolically curtail the undeservedly higher status granted to offenders by weak governments and courts. More violent demands for punishment symbolically remove offenders from citizenship, reaffirm citizen values, and vent anger at a political and criminal justice system deemed complicit, through weakness, in reducing legitimate citizens to subaltern citizens.ConclusionsIn this essay, we highlight the extreme violence we found in our analysis of an extensive online crime forum in a regional Australian city. We explore some explanations for violent public punitiveness, highlighting how members identify themselves as subaltern citizens in a battle against undeserving Others, with no support from a weak state. This analysis centres community norms and a problematic conception of citizenship as drivers of both public punitiveness and dissatisfaction with crime control policy and the criminal justice system. We highlight a real dissonance between community needs and public policy that may undermine effective policymaking. That is, evidence-based crime control policies, successful crime prevention initiatives, and falling crime rates may not increase public satisfaction with how crime is dealt with if policymakers pursue those measures without regard for how citizens experience the process.While studies such as that by Wenzel, Okimoto, and Cameron identify differences in status between legitimate citizens and offenders as amplifiers of punitiveness, we suggest the amplification may be mediated by the status relationship between legitimate citizens and authority figures within legitimate society. The offender and their crime may not contribute as much to the public’s outrage as commonly assumed. Instead, public punitiveness may predominantly arise from the perception that the political sphere, media, and criminal justice system respond to citizens’ experience of crime in ways that devalue the status of legitimate citizens. At least in the context of this regional city, this points to something other than successful crime control being integral to building more effective and satisfactory crime control policy: in this case, the need to rebuild trust between citizens and authority groups.ReferencesBonilla-Silva, Eduardo, Carla Goar, and David G. Embrick. “When Whites Flock Together: The Social Psychology of White Habitus.” Critical Sociology 32.2-3 (2006): 229–253.Bouffard, Jeff, Maisha Cooper, and Kathleen Bergseth. “The Effectiveness of Various Restorative Justice Interventions on Recidivism Outcomes among Juvenile Offenders.” Youth Violence and Juvenile Justice 15.4 (2017): 465–480.Green, Marcus. “Gramsci Cannot Speak: Presentations and Interpretations of Gramsci’s Concept of the Subaltern.” Rethinking Marxism 14.3 (2002): 1–24.Hallett, Michael. “Imagining the Global Corporate Gulag: Lessons from History and Criminological Theory.” Contemporary Justice Review 12.2 (2009): 113–127.Hill, Richard, and Glenn Dawes. “The ‘Thin White Line’: Juvenile Crime, Racialised Narrative and Vigilantism—A North Queensland Study.” Current Issues in Criminal Justice 11.3 (2000): 308–326.Hutchinson, Terry. “‘A Slap on the Wrist’? The Conservative Agenda in Queensland, Australia.” Youth Justice 15.2 (2015): 134–147.Jennings, Will, Stephen Farrall, Emily Gray, and Colin Hay. “Penal Populism and the Public Thermostat: Crime, Public Punitiveness, and Public Policy.” Governance: An International Journal of Policy, Administration, and Institutions 30.3 (2017): 463–481.King, Mike. “The ‘Knockout Game’: Moral Panic and the Politics of White Victimhood.” Race & Class 56.4 (2015): 85–94.Kotzian, Peter. “Good Governance and Norms of Citizenship: An Investigation into the System- and Individual-Level Determinants of Attachment to Civic Norms.” American Journal of Economics and Sociology 73.1 (2014): 58–83.Lechte, John, and Saul Newman. “Agamben, Arendt and Human Rights: Bearing Witness to the Human.” European Journal of Social Theory 15.4 (2012): 522–536.Lister, Ruth. “Citizenship: Towards a Feminist Synthesis.” Feminist Review 57 (1997): 28–48.Petray, Theresa L., and Rowan Collin. “Your Privilege is Trending: Confronting Whiteness on Social Media.” Social Media + Society 3.2 (2017): 1–10.Sacks, Michael A., and Marika Lindholm. “A Room without a View: Social Distance and the Structuring of Privileged Identity.” Working through Whiteness: International Perspectives. Ed. Cynthia Levine-Rasky. Albany, NY: State U of New York P, 2002. 129-151.Staeheli, Lynn A., Patricia Ehrkamp, Helga Leitner, and Caroline R. Nagel. “Dreaming the Ordinary: Daily Life and the Complex Geographies of Citizenship.” Progress in Human Geography 36.5 (2012): 628–644.Unnever, James D., and Francis T. Cullen. “The Social Sources of Americans’ Punitiveness: A Test of Three Competing Models.” Criminology 48.1 (2010): 99–129.Wacquant, Loïc. “Crafting the Neoliberal State: Workfare, Prisonfare, and Social Insecurity.” Sociological Forum 25.2 (2010): 197–220.Walsh, James P. “Quantifying Citizens: Neoliberal Restructuring and Immigrant Selection in Canada and Australia.” Citizenship Studies 15.6-7 (2011): 861–879.Wenzel, Michael, Tyler Okimoto, and Kate Cameron. “Do Retributive and Restorative Justice Processes Address Different Symbolic Concerns?” Critical Criminology 20.1 (2012): 25–44.

Photo by 14825144 © Alita Xander | Dreamstime.com ABSTRACT The US government's approach to the War on Drugs has created laws to deter people from using illicit drugs through negative punishment. These laws have not controlled illicit drug use, nor has it stopped the opioid pandemic from growing. Instead, these laws have created a negative bias surrounding addiction and have negatively affected particularly vulnerable patient populations, including pregnant women with substance use disorder and newborns with neonatal abstinence syndrome. This article highlights some misconceptions and underscores the challenges they face as they navigate the justice and healthcare systems while also providing possible solutions to address their underlying addiction. INTRODUCTION Pregnant women with substance use disorder require treatment that is arguably for the benefit of both the mother and the fetus. Some suggest that addiction is a choice; therefore, those who misuse substances should not receive treatment. Proponents of this argument emphasize social and environmental factors that lead to addiction but fail to appreciate how chronic substance use alters the brain’s chemistry and changes how it responds to stress, reward, self-control, and pain. The medical community has long recognized that substance use disorder is not simply a character flaw or social deviance, but a complex condition that requires adequate medical attention. Unfortunately, the lasting consequences of the War on Drugs have created a stigma around addiction medicine, leading to significant treatment barriers. There is still a pervasive societal bias toward punitive rather than rehabilitative approaches to addiction. For example, many women with substance use disorder lose custody of their baby or face criminal penalties, including fines and jail time.[1] These punitive measures may cause patients to lose trust in their physicians, ultimately leading to high-risk pregnancies without prenatal care, untreated substance misuse, and potential lifelong disabilities for their newborns.[2] As a medical student, I have observed the importance of a rehabilitative approach to addiction medicine. Incentivizing pregnant women with substance use disorder to safely address their chronic health issues is essential for minimizing negative short-term and long-term outcomes for women and their newborns. This approach requires an open mind and supportive perspective, recognizing that substance use disorder is truly a medical condition that requires just as much attention as any other medical diagnosis.[3] BACKGROUND The War on Drugs was a government-led initiative launched in 1970 by President Richard M. Nixon with the aim of curtailing illegal drug use, distribution, and trade by imposing harsher prison sentences and punishments.[4] However, it is worth noting that one can trace the roots of this initiative back further. In 1914, Congress enacted the Harrison Narcotics Tax Act to target the recreational use of drugs such as morphine and opium.[5] Despite being in effect for over four decades, the War on Drugs failed to achieve its intended goals. In 2011, the Global Commission on Drug Policy released a report that concluded that the initiative had been futile, as “arresting and incarcerating tens of millions of these people in recent decades has filled prisons and destroyed lives and families without reducing the availability of illicit drugs or the power of criminal organizations.”[6] One study published in the International Journal of Drug Policy in the same year found that funding drug law enforcement paradoxically contributed to increasing gun violence and homicide rates.[7] The Commission recommended that drug policies focus on reducing harm caused by drug use rather than solely on reducing drug markets. Recognizing that many drug policies were of political opinion, it called for drug policies that were grounded in scientific evidence, health, security, and human rights.[8] Unfortunately, policy makers did not heed these recommendations. In 2014, Tennessee’s legislature passed a “Fetal Assault Law,” which made it possible to prosecute pregnant women for drug use during pregnancy. If found guilty, pregnant women could face up to 15 years in prison and lose custody of their child. Instead of deterring drug use, the law discouraged pregnant women with substance use disorder from seeking prenatal care. This law required medical professionals to report drug use to authorities, thereby compromising the confidentiality of the patient-physician relationship. Some avoided arrest by delivering their babies in other states or at home, while others opted for abortions or attempted to go through an unsafe withdrawal prior to receiving medical care, sacrificing the mother's and fetus's wellbeing. The law had a sunset provision and expired in 2016. During the two years this law was in effect, officials arrested 124 women.[9] The fear that this law instilled in pregnant women with substance use disorder can still be seen across the US today. Many pregnant women with substance use disorders stated that they feared testing positive for drugs. Due to mandatory reporting, they were not confident that physicians would protect them from the law.[10] And if a woman tried to stop using drugs before seeking care to avoid detection, she often ended up delaying or avoiding care.[11] The American College of Obstetricians and Gynecologists (ACOG) recognizes the fear those with substance use disorders face when seeking appropriate medical care and emphasizes that “obstetric–gynecologic care should not expose a woman to criminal or civil penalties, such as incarceration, involuntary commitment, loss of custody of her children, or loss of housing.”[12] Mandatory reporting strains the patient-physician relationship, driving a wedge between the doctor and patient. Thus, laws intended to deter people from using substances through various punishments and incarceration may be doing more harm than good. County hospitals that mainly serve lower socioeconomic patients encounter more patients without consistent health care access and those with substance use disorders.[13] These hospitals are facing the consequences of the worsening opioid pandemic. At one county hospital where I recently worked, there has been a dramatic increase in newborns with neonatal abstinence syndrome born to mothers with untreated substance use disorders during pregnancy. Infants exposed to drugs prenatally have an increased risk of complications, stillbirth, and life-altering developmental disabilities. At the hospital, I witnessed Child Protective Services removing two newborns with neonatal abstinence syndrome from their mother’s custody. Four similar cases had occurred in the preceding month. In the days leading up to their placement with a foster family, I saw both newborns go through an uncomfortable drug withdrawal. No baby should be welcomed into this world by suffering like that. Yet I felt for the new mothers and realized that heart-wrenching custody loss is not the best approach. During this period, I saw a teenager brought to the pediatric floor due to worsening psychiatric symptoms. He was born with neonatal abstinence syndrome that neither the residential program nor his foster family could manage. His past psychiatric disorders included attention deficit disorder, conduct disorder, major depressive disorder, anxiety disorder, disruptive mood dysregulation disorder, intellectual developmental disorder, and more. During his hospitalization, he was so violent towards healthcare providers that security had to intervene. And his attitude toward his foster parents was so volatile that we were never sure if having them visit was comforting or agitating. Throughout his hospital course, it was difficult for me to converse with him, and I left every interview with him feeling lost in terms of providing an adequate short- and long-term assessment of his psychological and medical requirements. What was clear, however, was that his intellectual and emotional levels did not match his age and that he was born into a society that was ill-equipped to accommodate his needs. Just a few feet away from his room, behind the nurses’ station, were the two newborns feeling the same withdrawal symptoms that this teenager likely experienced in the first few hours of his life. I wondered how similar their paths would be and if they would exhibit similar developmental delays in a few years or if their circumstance may follow the cases hyped about in the media of the 1980s and 1990s regarding “crack babies.” Many of these infants who experienced withdrawal symptoms eventually led normal lives.[14] Nonetheless, many studies have demonstrated that drug use during pregnancy can adversely impact fetal development. Excessive alcohol consumption can result in fetal alcohol syndrome, characterized by growth deficiency, facial structure abnormalities, and a wide range of neurological deficiencies.[15] Smoking can impede the development of the lungs and brain and lead to preterm deliveries or sudden infant death syndrome.[16] Stimulants like methamphetamine can also cause preterm delivery, delayed motor development, attention impairments, and a wide range of cognitive and behavioral issues.[17] Opioid use, such as oxycodone, morphine, fentanyl, and heroin, may result in neonatal opioid withdrawal syndrome, in which a newborn may exhibit tremors, irritability, sleeping problems, poor feeding, loose stools, and increased sweating within 72 hours of life.[18] In 2014, the American Association of Pediatrics (AAP) reported that one newborn was diagnosed with neonatal abstinence syndrome every 15 minutes, equating to approximately 32,000 newborns annually, a five-fold increase from 2004.[19] The AAP found that the cost of neonatal abstinence syndrome covered by Medicaid increased from $65.4 million to $462 million from 2004 to 2014.[20] In 2020, the CDC published a paper that showed an increase in hospital costs from $316 million in 2012 to $572.7 million in 2016.[21] Currently, the impact of the COVID-19 pandemic on the prevalence of newborns with neonatal abstinence syndrome is unknown. I predict that the increase in opioid and polysubstance use during the pandemic will increase the number of newborns with neonatal abstinence syndrome, thereby significantly increasing the public burden and cost.[22] In the 1990s, concerns arose about the potentially irreparable damage caused by intrauterine exposure to cocaine on the development of infants, which led to the popularization of the term “crack babies.”[23] Although no strong longitudinal studies supported this claim at the time, it was not without merit. The Maternal Lifestyle Study (NCT00059540) was a prospective longitudinal observational study that compared the outcomes of newborns exposed to cocaine in-utero to those without.[24] One of its studies revealed one month old newborns with cocaine exposure had “lower arousal, poorer quality of movements and self-regulation, higher excitability, more hypertonia, and more nonoptimal reflexes.”[25] Another study showed that at one month old, heavy cocaine exposure affected neural transmission from the ear to the brain.[26] Long-term follow up from the study showed that at seven years old, children with high intrauterine cocaine exposure were more likely to have externalizing behavior problems such as aggressive behavior, temper tantrums, and destructive acts.[27] While I have witnessed this behavior in the teenage patient during my pediatrics rotation, not all newborns with intrauterine drug exposure are inevitably bound to have psychiatric and behavioral issues later in life. NPR recorded a podcast in 2010 highlighting a mother who used substances during pregnancy and, with early intervention, had positive outcomes. After being arrested 50 times within five years, she went through STEP: Self-Taught Empowerment and Pride, a public program that allowed her to complete her GED and provided guidance and encouragement for a more meaningful life during her time in jail. Her daughter, who was exposed to cocaine before birth, had a normal childhood and ended up going to college.[28] From a public health standpoint, more needs to be done to prevent the complications of substance misuse during pregnancy. Some states consider substance misuse (and even prescribed use) during pregnancy child abuse. Officials have prosecuted countless women across 45 states for exposing their unborn children to drugs.[29] With opioid and polysubstance use on the rise, the efficacy of laws that result in punitive measures seems questionable.[30] So far, laws are not associated with a decrease in the misuse of drugs during pregnancy. Millions of dollars are being poured into managing neonatal abstinence syndrome, including prosecuting women and taking their children away. Rather than policing and criminalizing substance use, pregnant women should get the appropriate care they need and deserve. I. Misconception One: Mothers with Substance Use Disorder Can Get an Abortion If an unplanned pregnancy occurs, one course of action could be to terminate the pregnancy. On the surface, this solution seems like a quick fix. However, the reality is that obtaining an abortion can be challenging due to two significant barriers: accessibility and mandated reporting. Abortion laws vary by state, and in Tennessee, for instance, abortions are banned after six weeks of gestation, typically when fetal heart rhythms are detected. An exception to this is in cases where the mother's life is at risk.[31] Unfortunately, many women with substance use disorders are from lower socioeconomic backgrounds and cannot access pregnancy tests, which could indicate they are pregnant before the six-week cutoff. If a Tennessee woman with substance use disorder decides to seek an abortion after six weeks, she may need to travel to a neighboring state. However, this is not always a feasible option, as the surrounding states (WV, MO, AR, MI, AL, and GA) also have restrictive laws that either prohibit abortions entirely or ban them after six weeks. Moreover, she may be hesitant to visit an obstetrician for an abortion, as some states require physicians by law to report their patients' substance use during pregnancy. For example, Virginia considers substance use during pregnancy child abuse and mandates that healthcare providers report it. This would ultimately limit her to North Carolina if she wants to remain in a nearby state, but she must go before 20 weeks gestation.[32] For someone who may or may not have access to reliable transportation, traveling to another state might be impossible. Without resources or means, these restrictive laws have made it incredibly difficult to obtain the medical care they need. II. Misconception Two: Mothers with SUD are Not Fit to Care for Children If a woman cannot take care of herself, one might wonder how she can take care of another human being. Mothers with substance use disorders often face many adversities, including lack of economic opportunity, trauma from abuse, history of poverty, and mental illness.[33] Fortunately, studies suggest keeping mother and baby together has many benefits. Breastfeeding, for example, helps the baby develop a strong immune system while reducing the mother’s risk of cancer and high blood pressure.[34] Additionally, newborns with neonatal abstinence syndrome who are breastfed by mothers receiving methadone or buprenorphine require less pharmacological treatment, have lower withdrawal scores, and experience shorter hospital stays.[35] Opioid concentration in breastmilk is minimal and does not pose a risk to newborns.[36] Moreover, oxytocin, the hormone responsible for mother-baby bonding, is increased in breastfeeding mothers, reducing withdrawal symptoms and stress-induced reactivity and cravings while also increasing protective maternal instincts.[37] Removing an infant from their mother’s care immediately after birth would result in the loss of all these positive benefits for both the mother and her newborn. The newborns I observed during my pediatrics rotation probably could have benefited from breastfeeding rather than bottle feeding and being passed around from one nurse to the next. They probably would have cried less and suffered fewer withdrawal symptoms had they been given the opportunity to breastfeed. And even if the mothers were lethargic and unresponsive while going through withdrawal, it would still have been possible to breastfeed with proper support. Unfortunately, many believe mothers with substance use disorder cannot adequately care for their children. This pervasive societal bias sets them up for failure from the beginning and greatly inhibits their willingness to change and mend their relationship with their providers. It is a healthcare provider’s duty to provide non-judgmental care that prioritizes the patient’s well-being. They must treat these mothers with the same empathy and respect as any other patient, even if they are experiencing withdrawal. III. Safe Harbor and Medication-Assisted Treatment Addiction is like any other disease and society should regard treatment without stigma. There is no simple fix to this problem, given that it involves the political, legal, and healthcare systems. Punitive policies push pregnant women away from receiving healthcare and prevent them from receiving beneficial interventions. States need to enact laws that protect these women from being reported to authorities. Montana, for example, passed a law in 2019 that provides women with substance use disorders safe harbor from prosecution if they seek treatment for their condition.[38] Medication-assisted treatment with methadone or buprenorphine is the first line treatment option and should be available to all pregnant women regardless of their ability to pay for medical care.[39] To promote continuity of care, health officials could include financial incentives to motivate new mothers to go to follow-up appointments. For example, vouchers for groceries or enrollment in the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) may offset financial burdens and allow a mother to focus on taking care of her child and her recovery. IV. Mandated Substance Abuse Programs Although the number of people sentenced to state prisons for drug related crimes has been declining, it is still alarming that there were 171,300 sentencings in 2019.[40] Only 11 percent of the 65 percent of our nation’s inmates with substance use disorder receive treatment, implying that the other 89 percent were left without much-needed support to overcome their addiction.[41] It is erroneous to assume that their substance use disorder would disappear after a period without substance use while behind bars. After withdrawal, those struggling with substance use disorder may still have cravings and the likelihood of relapsing remains high without proper medical intervention. Even if they are abstinent for some time during incarceration, the underlying problem persists, and the cycle inevitably continues upon release from custody. In line with the recommendations by Global Commission on Drug Policy and the lessons learned from the failed War on Drugs, one proposed change in our criminal justice system would be to require enrollment and participation in assisted alcohol cessation programs before legal punishment. Policy makers must place emphasis on the safety of the patient and baby rather than the cessation of substance use. This would incentivize people to actively seek medical care, restore the patient-physician relationship, and ensure that they take rehabilitation programs seriously. If the patient or baby is unsafe, a caregiver could intervene while the patient re-enrolls in the program. Those currently serving sentences in prisons and jails can treat their substance use disorder through medication assisted treatment, cognitive behavioral therapy, and programs like Self Taught Empowerment and Pride (STEP). Medication assisted treatment under the supervision of medical professionals can help inmates achieve and maintain sobriety in a healthy and safe way. Furthermore, cognitive behavioral therapy can help to identify triggers and teach healthier coping mechanisms to prepare for stressors outside of jail. Finally, multimodal empowerment programs can connect people to jobs, education, and support upon release. People often leave prisons and jail without a sense of purpose, which can lead to relapse and reincarceration. Structured programs have been shown to decrease drug use and criminal behavior by helping reintegrate productive individuals into society.[42] V. Medical Education: Narcotic Treatment Programs and Suboxone Clinics Another proactive approach could be to have medical residency programs register with the Drug Enforcement Administration (DEA) as Narcotic Treatment Programs and incorporate suboxone clinics into their education and rotations. Rather than family medicine, OB/GYN, or emergency medicine healthcare workers having to refer their patients to an addiction specialist, they could treat patients with methadone for maintenance or detoxification where they would deliver their baby. Not only would this educate and prepare the future generation of physicians to handle the opioid crisis, but it would allow pregnant women to develop strong patient-physician relationships. CONCLUSION Society needs to change from the mindset of tackling a problem after it occurs to taking a proactive approach by addressing upstream factors, thereby preventing those problems from occurring in the first place. Emphasizing public health measures and adequate medical care can prevent complications and developmental issues in newborns and pregnant women with substance use disorders. Decriminalizing drug use and encouraging good health habits during pregnancy is essential, as is access to prenatal care, especially for lower socioeconomic patients. Many of the current laws and regulations that policy makers initially created due to naïve political opinion and unfounded bias to serve the War on Drugs need to be changed to provide these opportunities. To progress as a society, physicians and interprofessional teams must work together to truly understand the needs of patients with substance use disorders and provide support from prenatal to postnatal care. There should be advocation for legislative change, not by providing an opinion but by highlighting the facts and conclusions of scientific studies grounded in scientific evidence, health, security, and human rights. There can be no significant change if society continues to view those with substance use disorders as underserving of care. Only when the perspective shifts to compassion can these mothers and children receive adequate care that rehabilitates and supports their future and empowers them to raise their children. - [1] NIDA. 2023, February 15. Pregnant People with Substance Use Disorders Need Treatment, Not Criminalization. https://nida.nih.gov/about-nida/noras-blog/2023/02/pregnant-people-substance-use-disorders-need-treatment-not-criminalization [2] Substance Use Disorder Hurts Moms and Babies. National Partnership for Women and Families. June 2021 [3] All stories have been fictionalized and anonymized. [4] A History of the Drug War. Drug Policy Alliance. https://drugpolicy.org/issues/brief-history-drug-war [5] The Harrison Narcotic Act (1914) https://www.druglibrary.org/Schaffer/library/studies/cu/cu8.html [6] The War on Drugs. The Global Commission on Drug Policy. Published June 2011. https://www.globalcommissionondrugs.org/reports/the-war-on-drugs [7] Werb D, Rowell G, Guyatt G, Kerr T, Montaner J, Wood E. Effect of drug law enforcement on drug market violence: A systematic review. Int J Drug Policy. 2011;22(2):87-94. doi:10.1016/j.drugpo.2011.02.002 [8] Global Commission on Drug Policy, 2011 [9] Women NA for P. Tennessee’s Fetal Assault Law: Understanding its impact on marginalized women - New York. Pregnancy Justice. Published December 14, 2020. https://www.pregnancyjusticeus.org/tennessees-fetal-assault-law-understanding-its-impact-on-marginalized-women/ [10] Roberts SCM, Nuru-Jeter A. Women’s perspectives on screening for alcohol and drug use in prenatal care. Womens Health Issues Off Publ Jacobs Inst Womens Health. 2010;20(3):193-200. doi:10.1016/j.whi.2010.02.003 [11] Klaman SL, Isaacs K, Leopold A, et al. Treating Women Who Are Pregnant and Parenting for Opioid Use Disorder and the Concurrent Care of Their Infants and Children: Literature Review to Support National Guidance. J Addict Med. 2017;11(3):178-190. doi:10.1097/ADM.0000000000000308 [12] Substance Abuse Reporting and Pregnancy: The Role of the Obstetrician–Gynecologist. https://www.acog.org/en/clinical/clinical-guidance/committee-opinion/articles/2011/01/substance-abuse-reporting-and-pregnancy-the-role-of-the-obstetrician-gynecologist [13] R. Ghertner, G Lincoln The Opioid Crisis and Economic Opportunity: Geographic and Economic Trends. ASPE. Office of Assistant Secretary for Planning and Evaluation. DHHS Revised September 11, 2018 https://aspe.hhs.gov/reports/economic-opportunity-opioid-crisis-geographic-economic-trends [14] Midon, M. Z., Gerzon, L. R., & de Almeida, C. S. (2021). Crack and motor development of babies living in an assistance shelter. ABCS Health Sciences, 46, e021215-e021215. And for example, see Crack Babies: Twenty Years Later : NPR https://www.npr.org/templates/story/story.php?storyId=126478643 [15] Williams JF, Smith VC, the Committee on Substance Abuse. Fetal Alcohol Spectrum Disorders. Pediatrics. 2015;136(5):e20153113. doi:10.1542/peds.2015-3113 [16] CDC Tobacco Free. Smoking During Pregnancy. Centers for Disease Control and Prevention. Published April 11, 2022. https://www.cdc.gov/tobacco/basic_information/health_effects/pregnancy/index.htm [17] Abuse NI on D. What are the risks of methamphetamine misuse during pregnancy? National Institute on Drug Abuse. https://nida.nih.gov/publications/research-reports/methamphetamine/what-are-risks-methamphetamine-misuse-during-pregnancy [18] CDC. Basics About Opioid Use During Pregnancy | CDC. Centers for Disease Control and Prevention. Published July 21, 2021. https://www.cdc.gov/pregnancy/opioids/basics.html [19] Honein MA, Boyle C, Redfield RR. Public Health Surveillance of Prenatal Opioid Exposure in Mothers and Infants. Pediatrics. 2019;143(3):e20183801. doi:10.1542/peds.2018-3801 [20] Winkelman TNA, Villapiano N, Kozhimannil KB, Davis MM, Patrick SW. Incidence and Costs of Neonatal Abstinence Syndrome Among Infants with Medicaid: 2004–2014. Pediatrics. 2018;141(4):e20173520. doi:10.1542/peds.2017-3520 [21] Strahan AE, Guy GP Jr, Bohm M, Frey M, Ko JY. Neonatal Abstinence Syndrome Incidence and Health Care Costs in the United States, 2016. JAMA Pediatr. 2020;174(2):200-202. doi:10.1001/jamapediatrics.2019.4791 [22] Ghose R, Forati AM, Mantsch JR. Impact of the COVID-19 Pandemic on Opioid Overdose Deaths: a Spatiotemporal Analysis. J Urban Health Bull N Y Acad Med. 2022;99(2):316-327. doi:10.1007/s11524-022-00610-0 [23] Mayes LC, Granger RH, Bornstein MH, Zuckerman B. The Problem of Prenatal Cocaine Exposure: A Rush to Judgment. JAMA. 1992;267(3):406-408. doi:10.1001/jama.1992.03480030084043 [24] NICHD Neonatal Research Network. The Maternal Lifestyle Study. clinicaltrials.gov; 2016. https://clinicaltrials.gov/ct2/show/study/NCT00059540 [25] Lester BM, Tronick EZ, LaGasse L, et al. The maternal lifestyle study: effects of substance exposure during pregnancy on neurodevelopmental outcome in 1-month-old infants. Pediatrics. 2002;110(6):1182-1192. doi:10.1542/peds.110.6.1182 [26] Lester BM, Lagasse L, Seifer R, et al. The Maternal Lifestyle Study (MLS): effects of prenatal cocaine and/or opiate exposure on auditory brain response at one month. J Pediatr. 2003;142(3):279-285. doi:10.1067/mpd.2003.112 [27] Bada HS, Bann CM, Bauer CR, et al. Preadolescent behavior problems after prenatal cocaine exposure: Relationship between teacher and caretaker ratings (Maternal Lifestyle Study). Neurotoxicol Teratol. 2011;33(1):78-87. doi:10.1016/j.ntt.2010.06.005 [28] N, P, R. Crack Babies: Twenty Years Later. NPR. Published May 3, 2010. https://www.npr.org/templates/story/story.php?storyId=126478643 [29] Miranda L, Dixon V, September CRP on, 30, 2015. How States Handle Drug Use During Pregnancy http://projects.propublica.org/graphics/maternity-drug-policies-by-state [30] NCDAS: Substance Abuse and Addiction Statistics [2023]. NCDAS. https://drugabusestatistics.org/ [31] (Tenn. Code Ann. § 39-15-216). [32] Institute G. Interactive Map: US Abortion Policies and Access After Roe. https://states.guttmacher.org/policies/ [33] Whitesell M, Bachand A, Peel J, Brown M. Familial, Social, and Individual Factors Contributing to Risk for Adolescent Substance Use. J Addict. 2013;2013:579310. doi:10.1155/2013/579310 [34] CDC. Five Great Benefits of Breastfeeding. Centers for Disease Control and Prevention. Published July 27, 2021. https://www.cdc.gov/nccdphp/dnpao/features/breastfeeding-benefits/index.html [35] Welle-Strand GK, Skurtveit S, Jansson LM, Bakstad B, Bjarkø L, Ravndal E. Breastfeeding reduces the need for withdrawal treatment in opioid-exposed infants. Acta Paediatr. 2013;102(11):1060-1066. doi:10.1111/apa.12378 [36] Ilett KF, Hackett LP, Gower S, Doherty DA, Hamilton D, Bartu AE. Estimated dose exposure of the neonate to buprenorphine and its metabolite norbuprenorphine via breastmilk during maternal buprenorphine substitution treatment. Breastfeed Med Off J Acad Breastfeed Med. 2012;7:269-274. doi:10.1089/bfm.2011.0096 [37] Pedersen CA, Smedley KL, Leserman J, et al. Intranasal Oxytocin Blocks Alcohol Withdrawal in Human Subjects. Alcohol Clin Exp Res. 2013;37(3):484-489. doi:10.1111/j.1530-0277.2012.01958.x [38] Montana SB0289. https://leg.mt.gov/bills/2019/billhtml/SB0289.htm [39] Mullins N, Galvin SL, Ramage M, Gannon M, Lorenz K, Sager B, Coulson CC. Buprenorphine and Naloxone Versus Buprenorphine for Opioid Use Disorder in Pregnancy: A Cohort Study. J Addict Med. 2020 May/Jun;14(3):185-192. doi: 10.1097/ADM.0000000000000562. PMID: 31567599. [40] Drug Related Crime Statistics [2023]: Offenses Involving Drug Use. NCDAS. https://drugabusestatistics.org/drug-related-crime-statistics/ [41] Association APH. Online only: Report finds most U.S. inmates suffer from substance abuse or addiction. Nations Health. 2010;40(3):E11-E11. [42] Principles of Drug Addiction Treatment: A Research-Based Guide (Third Edition) | NIDA Archives. Published January 17, 2018. http://archives.nida.nih.gov/publications/principles-drug-addiction-treatment-research-based-guide-third-edition

Introduction The social roles of alcohol consumption are rich and varied, with different types of alcoholic beverages reflecting important symbolic and cultural meanings. Sparkling wine is especially notable for its association with secular and sacred celebrations. Indeed, sparkling wine is rarely drunk as a matter of routine; bottles of such wine signal special occasions, heightened by the formality and excitement associated with opening the bottle and controlling (or not!) the resultant fizz (Faith). Originating in England and France in the late 1600s, sparkling wine marked a dramatic shift in winemaking techniques, with winemakers deliberately adding “fizz” or bubbles to their product (Faith). The resulting effervescent wines were first enjoyed by the social elite of European society, signifying privilege, wealth, luxury and nobility; however, new techniques for producing, selling and distributing the wines created a mass consumer culture (Guy). Production of Australian sparkling wines began in the late nineteenth century and consumption remains popular. As a “new world” country – that is, one not located in the wine producing areas of Europe – Australian sparkling wines cannot directly draw on the same marketing traditions as those of the “old world”. One enterprising company, Treasury Wine Estates, markets a range of wines, including a sparkling variety, called 19 Crimes, that draws, not on European traditions tied to luxury, wealth and prestige, but Australia’s colonial history. Using Augmented Reality and interactive story-telling, 19 Crimes wine labels feature convicts who had committed one or more of 19 crimes punishable by transportation to Australia from Britain. The marketing of sparkling wine using convict images and convict stories of transportation have not diminished the celebratory role of consuming “bubbly”. Rather, in exploring the marketing techniques employed by the company, particularly when linked to the traditional drink of celebration, we argue that 19 Crimes, while fun and informative, nevertheless romanticises convict experiences and Australia’s convict past. Convict Heritage and Re-Appropriating the Convict Image Australia’s cultural heritage is undeniably linked to its convict past. Convicts were transported to Australia from England and Ireland over an 80-year period between 1788-1868. While the convict system in Australia was not predominantly characterised by incarceration and institutionalisation (Jones 18) the work they performed was often forced and physically taxing, and food and clothing shortages were common. Transportation meant exile, and “it was a fierce punishment that ejected men, women and children from their homelands into distant and unknown territories” (Bogle 23). Convict experiences of transportation often varied and were dependent not just on the offender themselves (for example their original crime, how willing they were to work and their behaviour), but also upon the location they were sent to. “Normal” punishment could include solitary confinement, physical reprimands (flogging) or hard labour in chain gangs. From the time that transportation ceased in the mid 1800s, efforts were made to distance Australia’s future from the “convict stain” of its past (Jones). Many convict establishments were dismantled or repurposed with the intent of forgetting the past, although some became sites of tourist visitation from the time of closure. Importantly, however, the wider political and social reluctance to engage in discourse regarding Australia’s “unsavoury historical incident” of its convict past continued up until the 1970s (Jones 26). During the 1970s Australia’s convict heritage began to be discussed more openly, and indeed, more favourably (Welch 597). Many today now view Australia’s convicts as “reluctant pioneers” (Barnard 7), and as such they are celebrated within our history. In short, the convict heritage is now something to be celebrated rather than shunned. This celebration has been capitalised upon by tourist industries and more recently by wine label 19 Crimes. “19 Crimes: Cheers to the Infamous” The Treasury Wine Estates brand launched 19 Crimes in 2011 to a target population of young men aged between 18 and 34 (Lyons). Two limited edition vintages sold out in 2011 with “virtually no promotion” (19 Crimes, “Canadians”). In 2017, 19 Crimes became the first wine to use an Augmented Reality (AR) app (the app was later renamed Living Wines Labels in 2018) that allowed customers to hover their [smart] phone in front of a bottle of the wine and [watch] mugshots of infamous 18th century British criminals come to life as 3D characters who recount their side of the story. Having committed at least one of the 19 crimes punishable by exile to Australia, these convicts now humor and delight wine drinkers across the globe. (Lirie) Given the target audience of the 19 Crimes wine was already 18-34 year old males, AR made sense as a marketing technique. Advertisers are well aware the millennial generation is “digitally empowered” and the AR experience was created to not only allow “consumers to engage with 19 Crimes wines but also explore some of the stories of Australia’s convict past … [as] told by the convicts-turned-colonists themselves!” (Lilley cited in Szentpeteri 1-2). The strategy encourages people to collect convicts by purchasing other 19 Crimes alcohol to experience a wider range of stories. The AR has been highly praised: they [the labels] animate, explaining just what went down and giving a richer experience to your beverage; engaging both the mind and the taste buds simultaneously … . ‘A fantastic app that brings a little piece of history to life’, writes one user on the Apple app store. ‘I jumped out of my skin when the mugshot spoke to me’. (Stone) From here, the success of 19 Crimes has been widespread. For example, in November 2020, media reports indicated that 19 Crimes red wine was the most popular supermarket wine in the UK (Lyons; Pearson-Jones). During the UK COVID lockdown in 2020, 19 Crimes sales increased by 148 per cent in volume (Pearson-Jones). This success is in no small part to its innovative marketing techniques, which of course includes the AR technology heralded as a way to enhance the customer experience (Lirie). The 19 Crimes wine label explicitly celebrates infamous convicts turned settlers. The website “19 Crimes: Cheers to the Infamous” incorporates ideas of celebration, champagne and bubbles by encouraging people to toast their mates: the convicts on our wines are not fiction. They were of flesh and blood, criminals and scholars. Their punishment of transportation should have shattered their spirits. Instead, it forged a bond stronger than steel. Raise a glass to our convict past and the principles these brave men and women lived by. (19 Crimes, “Cheers”) While using alcohol, and in particular sparkling wine, to participate in a toasting ritual is the “norm” for many social situations, what is distinctive about the 19 Crimes label is that they have chosen to merchandise and market known offenders for individuals to encounter and collect as part of their drinking entertainment. This is an innovative and highly popular concept. According to one marketing company: “19 Crimes Wines celebrate the rebellious spirit of the more than 160,000 exiled men and women, the rule breakers and law defying citizens that forged a new culture and national spirit in Australia” (Social Playground). The implication is that by drinking this brand of [sparkling] wine, consumers are also partaking in celebrating those convicts who “forged” Australian culture and national spirit. In many ways, this is not a “bad thing”. 19 Crimes are promoting Australian cultural history in unique ways and on a very public and international scale. The wine also recognises the hard work and success stories of the many convicts that did indeed build Australia. Further, 19 Crimes are not intentionally minimising the experiences of convicts. They implicitly acknowledge the distress felt by convicts noting that it “should have shattered their spirits”. However, at times, the narratives and marketing tools romanticise the convict experience and culturally reinterpret a difficult experience into one of novelty. They also tap into Australia’s embracement of larrikinism. In many ways, 19 Crimes are encouraging consumers to participate in larrikin behaviour, which Bellanta identifies as being irreverent, mocking authority, showing a disrespect for social subtleties and engaging in boisterous drunkenness with mates. Celebrating convict history with a glass of bubbly certainly mocks authority, as does participating in cultural practices that subvert original intentions. Several companies in the US and Europe are now reportedly offering the service of selling wine bottle labels with customisable mugshots. Journalist Legaspi suggests that the perfect gift for anyone who wants a sparkling wine or cider to toast with during the Yuletide season would be having a customisable mugshot as a wine bottle label. The label comes with the person’s mugshot along with a “goofy ‘crime’ that fits the person-appealing” (Sotelo cited in Legaspi). In 2019, Social Playground partnered with MAAKE and Dan Murphy's stores around Australia to offer customers their own personalised sticker mugshots that could be added to the wine bottles. The campaign was intended to drive awareness of 19 Crimes, and mugshot photo areas were set up in each store. Customers could then pose for a photo against the “mug shot style backdrop. Each photo was treated with custom filters to match the wine labels actual packaging” and then printed on a sticker (Social Playground). The result was a fun photo moment, delivered as a personalised experience. Shoppers were encouraged to purchase the product to personalise their bottle, with hundreds of consumers taking up the offer. With instant SMS delivery, consumers also received a branded print that could be shared so [sic] social media, driving increased brand awareness for 19 Crimes. (Social Playground) While these customised labels were not interactive, they lent a unique and memorable spin to the wine. In many circumstances, adding personalised photographs to wine bottles provides a perfect and unique gift; yet, could be interpreted as making light of the conditions experienced by convicts. However, within our current culture, which celebrates our convict heritage and embraces crime consumerism, the reframing of a mugshot from a tool used by the State to control into a novelty gift or memento becomes culturally acceptable and desirable. Indeed, taking a larrikin stance, the reframing of the mugshot is to be encouraged. It should be noted that while some prisons were photographing criminals as early as the 1840s, it was not common practice before the 1870s in England. The Habitual Criminals Act of 1869 has been attributed with accelerating the use of criminal photographs, and in 1871 the Crimes Prevention Act mandated the photographing of criminals (Clark). Further, in Australia, convicts only began to be photographed in the early 1870s (Barnard) and only in Western Australia and Port Arthur (Convict Records, “Resources”), restricting the availability of images which 19 Crimes can utilise. The marketing techniques behind 19 Crimes and the Augmented app offered by Living Wines Labels ensure that a very particular picture of the convicts is conveyed to its customers. As seen above, convicts are labelled in jovial terms such as “rule breakers”, having a “rebellious spirit” or “law defying citizens”, again linking to notions of larrikinism and its celebration. 19 Crimes have been careful to select convicts that have a story linked to “rule breaking, culture creating and overcoming adversity” (19 Crimes, “Snoop”) as well as convicts who have become settlers, or in other words, the “success stories”. This is an ingenious marketing strategy. Through selecting success stories, 19 Crimes are able to create an environment where consumers can enjoy their bubbly while learning about a dark period of Australia’s heritage. Yet, there is a distancing within the narratives that these convicts are actually “criminals”, or where their criminal behaviour is acknowledged, it is presented in a way that celebrates it. Words such as criminals, thieves, assault, manslaughter and repeat offenders are foregone to ensure that consumers are never really reminded that they may be celebrating “bad” people. The crimes that make up 19 Crimes include: Grand Larceny, theft above the value of one shilling. Petty Larceny, theft under one shilling. Buying or receiving stolen goods, jewels, and plate... Stealing lead, iron, or copper, or buying or receiving. Impersonating an Egyptian. Stealing from furnished lodgings. Setting fire to underwood. Stealing letters, advancing the postage, and secreting the money. Assault with an intent to rob. Stealing fish from a pond or river. Stealing roots, trees, or plants, or destroying them. Bigamy. Assaulting, cutting, or burning clothes. Counterfeiting the copper coin... Clandestine marriage. Stealing a shroud out of a grave. Watermen carrying too many passengers on the Thames, if any drowned. Incorrigible rogues who broke out of Prison and persons reprieved from capital punishment. Embeuling Naval Stores, in certain cases. (19 Crimes, “Crimes”) This list has been carefully chosen to fit the narrative that convicts were transported in the main for what now appear to be minimal offences, rather than for serious crimes which would otherwise have been punished by death, allowing the consumer to enjoy their bubbly without engaging too closely with the convict story they are experiencing. The AR experience offered by these labels provides consumers with a glimpse of the convicts’ stories. Generally, viewers are told what crime the convict committed, a little of the hardships they encountered and the success of their outcome. Take for example the transcript of the Blanc de Blancs label: as a soldier I fought for country. As a rebel I fought for cause. As a man I fought for freedom. My name is James Wilson and I fight to the end. I am not ashamed to speak the truth. I was tried for treason. Banished to Australia. Yet I challenged my fate and brought six of my brothers to freedom. Think that we have been nearly nine years in this living tomb since our first arrest and that it is impossible for mind or body to withstand the continual strain that is upon them. One or the other must give way. While the contrived voice of James Wilson speaks about continual strain on the body and mind, and having to live in a “living tomb” [Australia] the actual difficulties experienced by convicts is not really engaged with. Upon further investigation, it is also evident that James Wilson was not an ordinary convict, nor was he strictly tried for treason. Information on Wilson is limited, however from what is known it is clear that he enlisted in the British Army at age 17 to avoid arrest when he assaulted a policeman (Snoots). In 1864 he joined the Irish Republican Brotherhood and became a Fenian; which led him to desert the British Army in 1865. The following year he was arrested for desertion and was convicted by the Dublin General Court Martial for the crime of being an “Irish rebel” (Convict Records, “Wilson”), desertion and mutinous conduct (photo from the Wild Geese Memorial cited in The Silver Voice). Prior to transportation, Wilson was photographed at Dublin Mountjoy Prison in 1866 (Manuscripts and Archives Division), and this is the photo that appears on the Blanc de Blancs label. He arrived in Fremantle, Western Australia on 9 January 1868. On 3 June 1869 Wilson “was sentenced to fourteen days solitary, confinement including ten days on bread and water” (photo from the Wild Geese Memorial cited in The Silver Voice) for an unknown offence or breach of conduct. A few years into his sentence he sent a letter to a fellow Fenian New York journalist John Devoy. Wilson wrote that his was a voice from the tomb. For is not this a living tomb? In the tomb it is only a man’s body is good for the worms but in this living tomb the canker worm of care enters the very soul. Think that we have been nearly nine years in this living tomb since our first arrest and that it is impossible for mind or body to withstand the continual strain that is upon them. One or the other must give way. (Wilson, 1874, cited in FitzSimons; emphasis added) Note the last two lines of the extract of the letter have been used verbatim by 19 Crimes to create their interactive label. This letter sparked a rescue mission which saw James Wilson and five of his fellow prisoners being rescued and taken to America where Wilson lived out his life (Reid). This escape has been nicknamed “The Great Escape” and a memorial was been built in 2005 in Rockingham where the escape took place. While 19 Crimes have re-created many elements of Wilson’s story in the interactive label, they have romanticised some aspects while generalising the conditions endured by convicts. For example, citing treason as Wilson’s crime rather than desertion is perhaps meant to elicit more sympathy for his situation. Further, the selection of a Fenian convict (who were often viewed as political prisoners that were distinct from the “criminal convicts”; Amos) allows 19 Crimes to build upon narratives of rule breaking by focussing on a convict who was sent to Australia for fighting for what he believed in. In this way, Wilson may not be seen as a “real” criminal, but rather someone to be celebrated and admired. Conclusion As a “new world” producer of sparkling wine, it was important for 19 Crimes to differentiate itself from the traditionally more sophisticated market of sparkling-wine consumers. At a lower price range, 19 Crimes caters to a different, predominantly younger, less wealthy clientele, who nevertheless consume alcoholic drinks symbolic to the occasion. The introduction of an effervescent wine to their already extensive collection encourages consumers to buy their product to use in celebratory contexts where the consumption of bubbly defines the occasion. The marketing of Blanc de Blancs directly draws upon ideas of celebration whilst promoting an image and story of a convict whose situation is admired – not the usual narrative that one associates with celebration and bubbly. Blanc de Blancs, and other 19 Crimes wines, celebrate “the rules they [convicts] broke and the culture they built” (19 Crimes, “Crimes”). This is something that the company actively promotes through its website and elsewhere. Using AR, 19 Crimes are providing drinkers with selective vantage points that often sensationalise the reality of transportation and disengage the consumer from that reality (Wise and McLean 569). Yet, 19 Crimes are at least engaging with the convict narrative and stimulating interest in the convict past. Consumers are being informed, convicts are being named and their stories celebrated instead of shunned. Consumers are comfortable drinking bubbly from a bottle that features a convict because the crimes committed by the convict (and/or to the convict by the criminal justice system) occurred so long ago that they have now been romanticised as part of Australia’s colourful history. The mugshot has been re-appropriated within our culture to become a novelty or fun interactive experience in many social settings. For example, many dark tourist sites allow visitors to take home souvenir mugshots from decommissioned police and prison sites to act as a memento of their visit. The promotional campaign for people to have their own mugshot taken and added to a wine bottle, while now a cultural norm, may diminish the real intent behind a mugshot for some people. For example, while drinking your bubbly or posing for a fake mugshot, it may be hard to remember that at the time their photographs were taken, convicts and transportees were “ordered to sit for the camera” (Barnard 7), so as to facilitate State survelliance and control over these individuals (Wise and McLean 562). Sparkling wine, and the bubbles that it contains, are intended to increase fun and enjoyment. Yet, in the case of 19 Crimes, the application of a real-life convict to a sparkling wine label adds an element of levity, but so too novelty and romanticism to what are ultimately narratives of crime and criminal activity; thus potentially “making light” of the convict experience. 19 Crimes offers consumers a remarkable way to interact with our convict heritage. The labels and AR experience promote an excitement and interest in convict heritage with potential to spark discussion around transportation. The careful selection of convicts and recognition of the hardships surrounding transportation have enabled 19 Crimes to successfully re-appropriate the convict image for celebratory occasions. References 19 Crimes. “Cheers to the Infamous.” 19 Crimes, 2020. 14 Dec. 2020 <https://www.19crimes.com>. ———. “The 19 Crimes.” 19 Crimes, 2020. 14 Dec. 2020 <https://www.19crimes.com/en-au/the-19-crimes>. ———. “19 Crimes Announces Multi-Year Partnership with Entertainment Icon Snoop Dogg.” PR Newswire 16 Apr. 2020. 15 Dec. 2020 <https://www.prnewswire.com/news-releases/19-crimes-announces-multi-year-partnership-with-entertainment-icon-snoop-dogg-301041585.html>. ———. “19 Crimes Canadians Not Likely to Commit, But Clamouring For.” PR Newswire 10 Oct. 2013. 15 Dec. 2020 <https://www.prnewswire.com/news-releases/19-crimes-canadians-not-likely-to-commit-but-clamouring-for-513086721.html>. Amos, Keith William. The Fenians and Australia c 1865-1880. Doctoral thesis, UNE, 1987. <https://hdl.handle.net/1959.11/12781>. Barnard, Edwin. Exiled: The Port Arthur Convict Photographs. Canberra: National Library of Australia, 2010. Bellanta, Melissa. Larrikins: A History. University of Queensland Press. Bogle, Michael. Convicts: Transportation and Australia. Sydney: Historic Houses Trust of New South Wales, 2008. Clark, Julia. ‘Through a Glass, Darkly’: The Camera, the Convict and the Criminal Life. PhD Dissertation, University of Tasmania, 2015. Convict Records. “James Wilson.” Convict Records 2020. 15 Dec. 2020 <https://convictrecords.com.au/convicts/wilson/james/72523>. ———. “Convict Resources.” Convict Records 2021. 23 Feb. 2021 <https://convictrecords.com.au/resources>. Faith, Nicholas. The Story of Champagne. Oxford: Infinite Ideas, 2016. FitzSimons, Peter. “The Catalpa: How the Plan to Break Free Irish Prisoners in Fremantle Was Hatched, and Funded.” Sydney Morning Herald 21 Apr. 2019. 15 Dec. 2020 <https://www.smh.com.au/entertainment/books/the-catalpa-how-the-plan-to-break-free-irish-prisoners-in-fremantle-was-hatched-and-funded-20190416-p51eq2.html>. Guy, Kolleen. When Champagne Became French: Wine and the Making of a National identity. Baltimore, Maryland: Johns Hopkins UP, 2007. Jones, Jennifer Kathleen. Historical Archaeology of Tourism at Port Arthur, Tasmania, 1885-1960. PhD Dissertation, Simon Fraser University, 2016. Legaspi, John. “Need a Wicked Gift Idea? Try This Wine Brand’s Customizable Bottle Label with Your Own Mugshot.” Manila Bulletin 18 Nov. 2020. 14 Dec. 2020 <https://mb.com.ph/2020/11/18/need-a-wicked-gift-idea-try-this-wine-brands-customizable-bottle-label-with-your-own-mugshot/>. Lirie. “Augmented Reality Example: Marketing Wine with 19 Crimes.” Boot Camp Digital 13 Mar. 2018. 15 Dec. 2020 <https://bootcampdigital.com/blog/augmented-reality-example-marketing-wine-19-crimes/>. Lyons, Matthew. “19 Crimes Named UK’s Favourite Supermarket Wine.” Harpers 23 Nov. 2020. 14 Dec. 2020 <https://harpers.co.uk/news/fullstory.php/aid/28104/19_Crimes_named_UK_s_favourite_supermarket_wine.html>. Manuscripts and Archives Division, The New York Public Library. "John O'Reilly, 10th Hussars; Thomas Delany; James Wilson, See James Thomas, Page 16; Martin Hogan, See O'Brien, Same Page (16)." The New York Public Library Digital Collections. 1866. <https://digitalcollections.nypl.org/items/510d47dc-9768-a3d9-e040-e00a18064a99>. Pearson-Jones, Bridie. “Cheers to That! £9 Bottle of Australian Red Inspired by 19 Crimes That Deported Convicts in 18th Century Tops List as UK’s Favourite Supermarket Wine.” Daily Mail 22 Nov. 2020. 14 Dec. 2020 <https://www.dailymail.co.uk/femail/food/article-8933567/19-Crimes-Red-UKs-favourite-supermarket-wine.html>. Reid, Richard. “Object Biography: ‘A Noble Whale Ship and Commander’ – The Catalpa Rescue, April 1876.” National Museum of Australia n.d. 15 Dec. 2020 <https://www.nma.gov.au/__data/assets/pdf_file/0015/2553/NMA_Catalpa.pdf>. Snoots, Jen. “James Wilson.” Find A Grave 2007. 15 Dec. 2020 <https://www.findagrave.com/memorial/19912884/james-wilson>. Social Playground. “Printing Wine Labels with 19 Crimes.” Social Playground 2019. 14 Dec. 2020 <https://www.socialplayground.com.au/case-studies/maake-19-crimes>. Stone, Zara. “19 Crimes Wine Is an Amazing Example of Adult Targeted Augmented Reality.” Forbes 12 Dec. 2017. 15 Dec. 2020 <https://www.forbes.com/sites/zarastone/2017/12/12/19-crimes-wine-is-an-amazing-example-of-adult-targeted-augmented-reality/?sh=492a551d47de>. Szentpeteri, Chloe. “Sales and Marketing: Label Design and Printing: Augmented Reality Bringing Bottles to Life: How Treasury Wine Estates Forged a New Era of Wine Label Design.” Australian and New Zealand Grapegrower and Winemaker 654 (2018): 84-85. The Silver Voice. “The Greatest Propaganda Coup in Fenian History.” A Silver Voice From Ireland 2017. 15 Dec. 2020 <https://thesilvervoice.wordpress.com/tag/james-wilson/>. Welch, Michael. “Penal Tourism and the ‘Dream of Order’: Exhibiting Early Penology in Argentina and Australia.” Punishment & Society 14.5 (2012): 584-615. Wise, Jenny, and Lesley McLean. “Pack of Thieves: The Visual Representation of Prisoners and Convicts in Dark Tourist Sites.” The Palgrave Handbook of Incarceration in Popular Culture. Eds. Marcus K. Harmes, Meredith A. Harmes, and Barbara Harmes. Switzerland: Palgrave Macmillan, 2020. 555-73.

Photo by Manny Becerra on Unsplash Abstract This paper argues that EMTALA and state laws governing abortion access do conflict and that federal law should preempt state law to the extent of the conflict. This paper’s purpose is to give a brief overview of the legal issues, identify practical issues and dangers associated with restrictive abortion laws, and contextualize preemption in the current political moment. The topic here is medical emergency – this paper does not address abortion for either nonmedical or nonemergency reasons. Lastly, this paper is designed to appeal to those in many disciplines, including bioethics, and provide a primer on the relevant legal concepts for those not practicing law. Much of it reads as an explainer addressing many intertwined laws and arguments. Introduction The Emergency Medical Treatment and Labor Act (EMTALA)[1] appears to conflict with restrictive state abortion laws. Generally, federal law preempts state law in matters where they conflict.[2] State abortion laws should be unenforceable when they conflict with EMTALA, i.e., specifically when abortions are needed to stabilize patients. We argue that EMTALA preempts restrictive state abortion laws when the medical intervention required to stabilize the patient is an abortion. In Moyle v. Idaho,[3] addressing the issue of whether EMTALA preempted the restrictive Idaho abortion law, the Supreme Court sent the case back to the lower courts, but the justices addressed many of the relevant issues: whether the laws conflict, preemption and the Supremacy Clause, the Spending Clause, and various interpretations of EMTALA and Idaho’s abortion law.[4] This paper’s purpose is to give a brief overview of the legal issues, identify practical issues and dangers associated with restrictive abortion laws, and contextualize preemption in the current political moment. The topic here is medical emergency – this paper does not address abortion for either nonmedical or nonemergency reasons. Lastly, this paper is designed to appeal to those in many disciplines, including bioethics, and provide a primer on the relevant legal concepts for those not practicing law. Much of it reads as an explainer addressing many intertwined laws and arguments. What Does EMTALA Require? EMTALA requires emergency departments to screen patients to determine whether they are experiencing a medical emergency. EMTALA defines medical emergency as follows, “a person is having a medical emergency if they are in labor or suffering from a condition that, without immediate attention, could be reasonably expected to place their health in serious jeopardy, seriously impair their bodily function, or cause serious dysfunction to an organ.”[5] Once screened, if an emergency medical condition is present, the hospital must stabilize, or if stabilization is not possible in the facility, transfer the patient. EMTALA caselaw covers what level and type of screening and stabilization meets the rigor of the law. When a hospital cannot stabilize the person, a timely transfer is imperative. EMTALA requires hospitals to stabilize patients when “the absence of immediate medical attention could be reasonably expected to either result in a serious health risk, or seriously threaten bodily functions or organs.”[6] Stabilize is defined as providing treatment necessary “to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility, or . . .to deliver (including the placenta).”[7] Medical literature demonstrates that abortion may be necessary for life-threatening complications of pregnancy, including sepsis. Therefore, EMTALA requires hospitals to provide abortions if the physician determines that terminating the pregnancy is required to stabilize the patient.[8] Many scholars, lawyers, and healthcare providers take the position that abortion can be medically necessary and that EMTALA should ensure abortions to stabilize, providing a robust body of ethics, legal, and medical literature.[9] Has Violating EMTALA Harmed Women? Since restrictive state abortion laws became enforceable after Dobbs v. Jackson Women’s Health,[10] twelve states enacted (or began to enforce) severely restrictive abortion laws.[11] State policies vary concerning exceptions for saving the life of the mother and for pregnancies resulting from rape and incest.[12] Beyond the twelve states that nearly ban abortion, 15 states have restrictive laws prohibiting abortion after various gestational stages.[13] In Georgia, at least two women have died due to the restrictive law. One attempted a medical abortion at home and did not go to the hospital out of fear they would not treat her. The other “languished” in the hospital while doctors refused to perform dilation and curettage despite sepsis.[14] In Florida, women were denied abortion care and received risky substandard care. One was sent home with antibiotics after preterm premature rupture of membranes, i.e., after her “water broke” before she was full term.[15] She almost died, losing significant blood when the miscarriage occurred in her own bathroom.[16] Restrictive abortion laws have led to sub-standard care including inappropriate discharges resulting in severe outcomes including sepsis.[17] Infections grow quickly and the need for an abortion can become dire as sepsis is described as “a race against time.”[18] There are many personal stories – yet it has been difficult to aggregate the numbers. ProPublica has tried to track how many women have died or suffered serious medical harm due to a lack of timely abortions during medical emergencies.[19] Yet states have not been properly tracking deaths and other physical harms due to delays in emergency abortion care. Additionally, many women have driven themselves or been transferred and airlifted to neighboring states without restrictive laws.[20] In Moyle v. United States, Justice Kagan noted that, “To ensure appropriate medical care, the State’s largest provider of emergency services had to airlift pregnant women out of Idaho roughly every other week, compared to once in all of the prior year (when the injunction was in effect).”[21] However, when time is of the essence, stabilization must be local.[22] Delays in providing care can cause hemorrhage, loss of the uterus, infertility, or death.[23] A 2022 study on the impact of Texas’s six-week abortion ban in two hospitals found significantly worse outcomes arose when all patients in preterm labor with at least one clinical indication for induction of labor were treated with state-required “expectant management” rather than induction. Expectant care or expectant management means waiting for the miscarriage to finish on its own and may involve bed rest, examination by ultrasound, and antibiotics. [24] Fifty-seven percent of those with ruptured membranes experienced “a serious maternal morbidity,” such as infection or hemorrhage.[25] EMTALA requires abortion when its delay could damage the uterus and fallopian tubes.[26] Additional emergencies that may require emergency treatment include premature rupture of membranes, ectopic pregnancy, incomplete miscarriage,[27] sepsis, molar pregnancy, and pre-eclampsia. States have ethical obligations to protect citizens experiencing emergencies and should avoid imposing barriers that prevent others from assisting. A floor based on constitutional or federal law had offered protection prior to Dobbs v. Jackson Women’s Health Organization.[28] Ethical obligations of doctors in emergencies may conflict with restrictive state laws arising after Dobbs.[29] Obligations of government to the people are thwarted by restrictive laws at the state level and by a failure of EMTALA enforcement or hard law[30] to clarify or codify a specific right to emergency abortions. What is Preemption? Preemption is the idea that a law of a higher authority will govern rather than a law of the lesser authority. It generally applies when laws conflict. The Constitution includes the Supremacy Clause, which states that the Constitution, federal laws, and treaties are the “supreme Law of the Land.”[31] The breadth of preemption law covers the ways in which the federal government, including administrative agencies, can set floors and ceilings for state laws, can take over certain subject matters (like the FDA governs approval of prescription drugs), and must prevail over conflicting state and local laws, including state constitutions. However, preemption is not absolute; it requires that the federal law is within Congress’ authority,[32] and cannot unconstitutionally infringe on states’ rights. The “presumption against preemption” holds that courts should not assume federal laws governing areas normally left to states, i.e., state police powers, do preempt.[33] Preemption cases look at the validity of the federal law rather than focusing on the state law exclusively. What is the Basis for EMTALA's Preemption of State Law? EMTALA contains a preemption clause which states, “The provisions of this section do not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.”[34] Therefore, the law is not ambiguous; preemption is explicit rather than implied. EMTALA preempts state law when it conflicts with it. EMTALA should govern as per the Supremacy Clause and the breadth and depth of Supreme Court cases on preemption. It seems to be a clear express preemption and yet somehow the Fifth Circuit concluded the opposite, prioritizing state law over federal, and issued an injunction against enforcement of EMTALA when such enforcement requires an abortion to stabilize the patient in violation of Texas’ abortion ban.[35] Does the Preemption Clause Apply to Restrictive State Abortion Laws? Impossibility Preemption. State and federal law are most obviously in conflict when “compliance with both federal and state regulations is a physical impossibility.” Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43 (1963). The paradigmatic case of “impossibility preemption” occurs when, as in the FLSA overtime example, a federal statute says “private entities must do X” and a state law says “private entities may not do X.” When that occurs, the Supremacy Clause plainly voids the state law.[36] The state laws prohibit actions that EMTALA compels. Any other reading of the state laws and EMTALA would limit either EMTALA or the state law. If EMTALA were read to never require abortion, then there would be no conflict, but the ability of EMTALA to effectively require screening and stabilization would be undermined. State laws would endanger women seeking abortion care for things like sepsis. Moyle v. United States Procedural History Moyle v. United States is currently the best indication of where the Supreme Court stands on EMTALA and abortion. Idaho’s law bans abortion except to prevent death.[37] There is an exception for cases of rape and incest, and the law imposes a paper trail to validate those legal abortions. The US District Court issued an injunction against enforcement of the Idaho law when it conflicts with EMTALA. The Ninth Circuit Court of Appeals declined to stay the injunction. Then, the Supreme Court granted certiorari (before the Ninth Circuit heard the appeal), staying the injunction for months earlier in 2024. (This means from January to June Idaho was permitted to enforce its strict abortion law. To comply with EMTALA without violating Idaho’s criminal law, Idaho hospitals arranged airlifts for patients in need of abortions to stabilize them. In many cases, they did not provide abortions to those patients presenting with medical emergencies for which an abortion would be the standard of care and a stabilizing procedure.) The Supreme Court heard arguments but, at the end of June, decided that certiorari was improvidently granted. Therefore, the injunction against Idaho’s law was reinstated. Justice Jackson suggests that the Supreme Court will need to face the preemption issue at some point.[38] The disparity between the Fifth and Ninth Circuit courts indicates the need for resolution. In the meantime, the Department of Justice has dropped the Biden-era case against Idaho.[39] Do EMTALA and Idaho Law Conflict? Does EMTALA Ever Require Abortion? The Supreme Court decision that certiorari was improvidently granted in the Idaho case touched on the relevant preemption issues. Justice Kagan wrote a statutory analysis, joined by Justice Jackson and Justice Sotomayor. Idaho argues that EMTALA never calls on doctors to violate state laws. Kagan notes that Idaho’s argument is unlikely to succeed on the merits given that EMTALA and the Idaho law conflict: EMTALA requires a Medicare-funded hospital to offer an abortion when needed to stabilize a medical condition that seriously threatens a pregnant woman’s life or health. See 42 U. S. C. §1395dd. Idaho allows abortions only when “necessary to prevent” a pregnant woman’s “death.” Idaho Code Ann. §18–622(2)(a)(i) (Supp. 2023).[40] Kagan responds to Justice Alito’s position that EMTALA never requires abortion. Justice Kagan’s analysis notes the importance of stabilizing patients and preventing loss of fertility and other serious harms. (Justice Jackson wrote on her own as well, suggesting the Court keep the case rather than withdraw its grant of certiorari.) Do Other Federal Laws or Recent Amendments Alter or Limit EMTALA's Requirements? Justice Alito’s dissent, joined by Justices Thomas and Gorsuch, suggests a reading of EMTALA that does not require abortion to stabilize women even if the woman would face grave harm or death. He suggests the Hyde Amendment indicates EMTALA was not meant to require abortion. The Hyde Amendment is a 1977 law that prohibits federal funding for abortion except when the pregnant person is endangered by the pregnancy or when the pregnancy is the result of rape or incest.[41] He also notes the word abortion is not in the law – this implies he would expect all emergency procedures from appendectomy to IV antibiotics to be listed. His interpretation is a deviation from common sense and legal interpretations. Alito refers to EMTALA’s provisions for the unborn. EMTALA was revised to ensure that women could seek emergency care for fetal distress even if there is not a risk to the pregnant women themselves. As Kagan noted, this is not a “tacit withdrawal” of the otherwise well accepted requirement to treat women in need of abortions to avoid serious harm or bodily/organ injury. The references to the unborn child extend the rights of the pregnant woman to seek care, allowing women to protect the fetus and seek medical care on its behalf. Other references to the unborn similarly extend consideration to the fetus in decisions to facilitate transfers of women in labor. While considering the fetus is often the priority of the woman seeking care, “dual stabilization” is not always possible and arguably not always an appropriate goal.[42] Might EMTALA Violate the Spending Clause? Justice Alito further entertains claims that the Spending Clause should prevent EMTALA from placing binding conditions on Idaho as Idaho was not a party to it. He uses the language of contracts about the federal law. He suggests that EMTALA has ambiguity in violation of the Spending Clause. He complicates his assertions by discussing the right to refuse and distinguishing it from the right to demand care that violates the law. EMTALA itself creates an obligation to provide stabilizing care – that patients may refuse or demand care is not relevant to the statute. Justice Barrett’s concurrence, joined by Justices Kavanaugh and Roberts, also suggests an open issue about whether EMTALA can preempt state law as it imposes on private businesses. She is open to Alito’s view of the Spending Clause. Questioning the very validity of the federal law rather than focusing solely on the state law in question is a way of approaching the preemption issue. Unconstitutional federal laws should not preempt state laws.[43] If EMTALA’s obligations imposed on states are invalid under the Spending Clause because states were “not party” to the agreement between hospitals that accept Medicare and the federal government, then all other provisions afforded by EMTALA could be invalidated as well. This would greatly impact the ability of the public to obtain emergency medical care. It is noteworthy that six justices seem to entertain the idea that EMTALA potentially violates the Spending Clause. Is the State Law Ambiguous? Justice Barrett’s concurrence suggests that a broad reading of Idaho’s law does not require death to be imminent. Rather the law allows a liberal interpretation of performing an abortion to prevent death. Her reading of “abortion to prevent the death of the mother” seems to interpret Idaho’s law to mean that if a doctor were to think death would eventually result there is wide discretion to go ahead with an abortion. The number of airlifts out of Idaho suggests doctors do not feel so free to interpret the criminal law loosely. Idaho could clarify its law if it does intend a loose interpretation. Amending the law, enacting additional laws, or through the state court system, Idaho could clarify that emergency abortions are acceptable and that the “saving a life” exception does not require waiting until the patient is on the brink of death or until a fetal heartbeat or cardiac rhythm stops. Executive Actions After Dobbs v. Jackson Women’s Health shifted abortion lawmaking to the states,[44] President Biden signed an executive order that noted the intention to take “action to protect healthcare service delivery and promote access to critical reproductive healthcare services, including abortion.”[45] In July 2022, the Department of Health and Human Services (HHS) issued a guidance reiterating the obligation to continue to treat pregnant patients or patients experiencing pregnancy loss.[46] In 2023, HHS issued a reminder letter after research found violations in Missouri and Kansas.[47] In 2024, following the Supreme Court’s opinions removing its grant of certiorari in Moyle v. Idaho, the White House reiterated its plans to continue EMTALA enforcement, noting that EMTALA may require abortion in certain circumstances.[48] CMS, HHS, and the White House have expressed intention to promote enforcement of EMTALA. So far, the Trump administration has left EMTALA intact. Yet, as noted, the Department of Justice is not pursuing ongoing EMTALA cases concerning emergency abortion and restrictive state laws. Preemption and Politics The political moment is giving rise to questions about federalism and preemption when state and federal laws clash. The current administration is characterized by a mission to reduce executive agencies’ size and scope. The “DOGE” organization threatens to eliminate the bureaucracy, a sign that letting state law stand when it conflicts with federal law may be the favored position. However, the Trump administration may be inconsistent about preemption for various reasons. A president wanting to invoke presidential power may use federal law to control states. And a president prioritizing any particular legislative agenda item may ignore preemption when an existing federal law blocks a state law that is consistent with his agenda. While it is doubtful that a Trump executive action would have the tone and substance of Bidens’, it is possible that having already extracted the votes he needed to be elected, Trump has no reason to weigh in on abortion at all. It is unclear, but not necessarily unlikely, that a Trump HHS would continue to issue letters enforcing EMTALA. Robert F. Kennedy, Jr. was pro-choice and may be unlikely to change his stance as he acclimates to his role as secretary of HHS. Should the Definition of Abortion be Universal and Exclusive? Several states have changed the definition of abortion to exclude the removal of embryo/fetus for ectopic pregnancy, miscarriage, or molar pregnancy or have codified exceptions to their restrictive laws.[49] For example, a 2023 Texas bill provides an affirmative defense for ectopic pregnancy and premature rupture of membranes.[50] Tennessee passed a similar law allowing abortion for ectopic pregnancies and miscarriage management. There is no evidence that states wish to treat ectopic pregnancies as viable ones and prevent standard-of-care medical treatment. The lack of clarity around miscarriage care[51] leads to confusion. States have placed blame on doctors for misinterpreting the law and failing to provide emergency abortions.[52] A definition of abortion that excludes nonviable or low survival chance pregnancies is seen as a creative way to avoid complying with strict laws. While a common sense definition of abortion could exclude evacuating a fetus without a heartbeat, it would be difficult to narrow it enough to exclude removing a fetus that has a heartbeat but is not expected to survive post-birth or until full term or will not survive due to ruptured membranes or genetic anomalies. Without clarity and a universal definition of abortion across law and medicine and among states, doctors have seemingly “played it safe” by risking women’s lives rather than risking prosecution. Why Do Doctors Go Along? A fear of prosecution, having to defend oneself in court, a guilty verdict, incarceration, and loss of license are at the root of denying or delaying abortion in emergencies. In some instances, physicians who were willing to provide necessary abortions were prevented from doing so by hospital lawyers.[53] The uncertainty about definitions and exceptions leads to a fear of legal action. Hospital emergency departments fear that a legal system may interpret “to prevent death” very narrowly. When restrictive state laws went into effect, the laws provided little guidance to hospitals and providers. Hospitals and doctors note a lack of clarity about how close to death the patient must be for an abortion to be permissible under the state’s law. It is possible that doctors and hospitals are being overly cautious – interpreting the laws narrowly themselves. Clarification as to whether doctors can treat women earlier and do not need to wait for death to be imminent or for a fetal heartbeat or cardiac rhythm to stop would be helpful. There are no known cases of doctors being prosecuted for violating state restrictive abortion laws when the doctor performed the abortion based on the patient’s emergency medical condition.[54] It appears the fear of criminal prosecution is a deterrent.[55] The Hippocratic Oath appears inconsistent with denying care to women in need and at risk of serious complications and death. Rather than approaching EMTALA violations as a failure by doctors, much of the literature blames the restrictive laws, the uncertainty, and the fear of liability as if they justify the failure to provide care.[56] Possibly, if a prosecutor brought charges, some doctors would win cases, receive light to no sentences, perhaps community service, or even get clemency. Doctors have many legal and ethics theories on their side: avoiding violating federal law; a crime of necessity; benevolence/beneficence; acting as Good Samaritans and deserving immunity; conscientiously objecting to the law; rules of statutory construction for ambiguous laws; striking down the law as ambiguous or arbitrary and capricious.[57] The prison sentences built into the laws have not yet been tested in the courts. Will Travel Bans for Abortion Care Contribute to EMTALA Noncompliance? Several Texas counties adopted laws to prohibit travel for abortions. These laws create a cause of action that anyone can bring against someone traveling for an abortion. They are considered “abortion trafficking” laws. Idaho and Tennessee have laws prohibiting accompanying a minor out of state for an abortion. There is an assumption that these laws prevent healthcare practitioners from recommending out-of-state abortions or facilitating travel or appointments.[58] Dicta from Justice Kavanaugh in Dobbs suggested that the right (found in caselaw) to interstate travel makes travel bans unconstitutional.[59] Nonetheless, the fear caused by a travel ban could have a chilling effect on seeking emergency care out of state. Travel bans also would conflict with EMTALA as providing a transfer to a facility for emergency care is a foundational part of the law. Shield laws in states providing abortions may bar states from prosecuting people traveling for abortions.[60] Privacy of health information continues to be important if states were to attempt to prosecute those leaving for abortion.[61] Is the Reason for an Abortion a Consideration? A law that targets the reason for an abortion may better reflect the religious nature and political priority of those supporting state restrictive abortion laws. Some anti-abortion-legality literature condemns all abortion, as do some religious organizations. However, 92 percent of Democrats, 89 percent of independents, and 79 percent of Republicans support access to abortion during pregnancy-related emergencies and miscarriage.[62] Some members of anti-abortion-legality groups approve of abortions to save women and to prevent serious medical harm – they approve of the abortions compelled by EMTALA – but they do not approve of abortion for other reasons. A state could say abortion to prevent any medical harm of which the person bears a substantially elevated risk (e.g., ruptured membrane, preeclampsia, unexplained significant bleeding) is permissible. This can be comparable to rape and incest provisions – those exceptions concern extenuating circumstances beyond the patient’s control. Generally, the laws with exceptions for medical emergencies that threaten the life or health of the patient are examples of laws based on the reason for abortion care. Who is the Most Impacted by Restrictive Abortion Laws During Emergencies? These laws target biological women exclusively. The sex gap itself is a form of discrimination. Women in positions of vulnerability, whether by location, income, race, or ethnicity are worse off. People from rural areas, people with low incomes, and people from marginalized communities who traditionally struggle to access health care seek care in emergency departments more often than those with high incomes and reliable health insurance.[63] The poor will be affected by restrictive abortion laws more than the wealthy, who have a higher likelihood of traveling to access safe abortion care. Nonetheless, the danger cuts across all income groups in that dire emergencies develop quickly and regardless of income, people with impending sepsis may run out of time. Some people/groups do have an elevated risk: Those with the least money and resources;[64] Those with less access to transportation;[65] Those without health insurance;[66] Those living in rural communities;[67] Undocumented immigrants;[68] and, Those with disproportionately more maternal mortality (e.g., Black women) than other groups.[69] The Black population is high in many of the states with the most restrictive laws. Other than the District of Columbia, Mississippi and Louisiana have the highest proportions of Black Americans at 38 percent and 33 percent, respectively.[70] Black and Hispanic women are more likely to experience pregnancy complications. Texas has a large Hispanic population[71] deeply impacted by the strict laws. When groups have faced significant past discrimination, including racism, they arguably should be protected. While they do not necessarily require special treatment to make up for the past, there are strong ethics-based arguments to ensure that populations that have experienced racism and other discrimination be ensured of equal treatment, ethically speaking, and equal protection under the law. In bioethics, the principle of justice is used to prevent preying upon the vulnerable and to establish practical ways to ensure and promote fairness.[72] State abortion laws are an injustice in that the denial of emergency care would not be the same across the board – instead, these denials of care directly impact women only and disproportionately impact historically and currently vulnerable groups. Big Takeaways Doctors and hospitals will likely continue to face uncertainty in the short term. States and the Supreme Court may weigh in on EMTALA, preemption, and state law. In the long run, Congress can make a law protecting abortion rights; states can provide guidance defining abortion; and additional bills like Texas 3058 can clarify which emergency services are excluded from prohibitions on abortion. There are continuing risks to those potentially requiring emergency abortions: The Spending Clause arguments could invalidate EMTALA despite the tenuous reasoning. The Supreme Court will continue to be imbalanced and politicized. States could begin enforcing the laws/prosecuting practitioners. However, some checks on state power remain: The right to interstate travel is likely to remain intact. Nonprofit organizations provide safe and reliable interstate travel and accommodations. Referendums, grassroots campaigns, and bad publicity may lead to the repeal of restrictive state laws. HHS may continue to provide guidance suggesting EMTALA will be enforced. And other strategies have not been satisfactorily tried: Lawsuits challenging state laws based on racial disparity/discrimination rather than preemption will likely continue, and states may resolve them differently, based on state constitutions. Arguments based on equal protection for gender were unaddressed in Dobbs.[73] Providers of abortion could perform all emergency care required by EMTALA, forcing states to choose to prosecute or not and forcing state judicial systems to become even more involved. Conclusion Arguments abound on both sides of the issue contributing to some legal uncertainty. This explainer set forth some of the disputes concerning the law. However, EMTALA should preempt state law when the two conflict. The conflict is narrow. In cases where an abortion is needed as life-saving care or to prevent significant injury or organ damage, hospitals should provide stabilizing abortion. Regardless of EMTALA and state laws, saving lives and preventing harm is an ethical duty in the field of medicine. Despite Spending Clause challenges and Justice Alito’s tenuous reasoning, EMTALA should be enforced. It should survive constitutional challenges and protect those providing all sorts of emergency care to people in need. - [1] 42 U. S. C. §§1395dd. (Medicare-participating hospitals with an emergency department are required to screen patients for medical emergencies and provide stabilizing treatment before transferring or discharging the patient, irrespective of an individual's ability to pay.) [2] For more about the preemption doctrine, which stems from the Supremacy Clause, see Congressional Research Service (2019) Federal Preemption: A Legal Primer. https://crsreports.congress.gov/product/pdf/R/R45825/1; Clark, B. (2003) The Supremacy Clause as a Constraint on Federal Power. 71 Geo. Wash. L. Rev. 91. https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1474&context=faculty_publications (suggests federal law that “exceeds the scope” of congressional authority should be subject to judicial review – the Supremacy Clause refers to federal laws properly enacted with congressional authority; argues that judicial review should not be limited to review of the state law in preemption cases; it should include review of whether the federal law was properly enacted.) [3] Moyle v. United States, 603 U.S.___ (2024). https://www.oyez.org/cases/2023/23-726 [4] Idaho Statutes Title 18 Crimes and Punishments Chapter 6 Abortion and Contraceptives. https://legislature.idaho.gov/statutesrules/idstat/title18/t18ch6/sect18-622/ [5] 42 U.S.C. § 1395dd(e) (2018). [6] Moyle v. United States, 603 U.S. ___ (2024)/United States v. Idaho, quoting and citing EMTALA, 42 U. S. C. §§1395dd(b)(1), (e)(1)(A). https://supreme.justia.com/cases/federal/us/603/23-726/ [7] 42 U.S.C. § 1395dd(e)(3)(A) [8] Biden-Harris Administration Reaffirms Commitment to EMTALA Enforcement (2024). HSS Press Release. https://www.hhs.gov/about/news/2024/07/02/biden-harris-administration-reaffirms-commitment-emtala-enforcement.html [9] For example, Rapazzo, N. (2023). Emergency Room to the Courtroom: Providing Abortion Care Under EMTALA and State Abortion Bans, 128 DICK. L. REV. 325. https://ideas.dickinsonlaw.psu.edu/dlr/vol128/iss1/9; Macklin, A., Michael, J., and Sakimoto, K. (2023). Between EMTALA and State Abortion Restrictions: The Post-Dobbs Dilemma. American Health Law. https://www.americanhealthlaw.org/content-library/connections-magazine/article/b7a49aa7-ec78-48dd-b254-be04e2db46f7/between-emtala-and-state-abortion-restrictions-the [10] Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022). https://supreme.justia.com/cases/federal/us/597/19-1392/ [11] See Abortion in the United States Dashboard, KFF. https://www.kff.org/womens-health-policy/dashboard/abortion-in-the-u-s-dashboard/(Alabama, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Mississippi, Oklahoma, South Dakota, Tennessee, Texas, and West Virginia.) [12] Policy Tracker: Exceptions to State Abortion Bans and Early Gestational Limits (2025). KFF. https://www.kff.org/womens-health-policy/dashboard/exceptions-in-state-abortion-bans-and-early-gestational-limits/ (8 states have no rape or incest exception; 6 states have no health exception.) [13] For maps categorizing states various ways, see https://states.guttmacher.org/policies/ (uses five categories of state law); https://reproductiverights.org/maps/abortion-laws-by-state/ (12 “illegal”; additional 11 “hostile”); https://www.cnn.com/us/abortion-access-restrictions-bans-us-dg/index.html (13 states ban; 7 have a 6 to 18 week limit.); https://www.kff.org/womens-health-policy/dashboard/abortion-in-the-u-s-dashboard/ (12 ban; 6 limit between 6 and 12 weeks; four states have a limit between 18 and 22 weeks gestation.) [14] Surana, K. (2024). Afraid to Seek Care Amid Georgia’s Abortion Ban, She Stayed at Home and Died. ProPublicahttps://www.propublica.org/article/candi-miller-abortion-ban-death-georgia; https://www.propublica.org/series/life-of-the-mother [15] Pre-labor rupture of membranes occurs when the fetal membranes rupture before the onset of labor contractions, if this occurs before 37 weeks gestation. The pre-labor rupture increases the risk of complications such as intra-amniotic infection and placental abruption. Dayal, S., Jenkins, S., Hong, P. (2024). Preterm and Term Pre-labor Rupture of Membranes (PPROM and PROM). StatPearls Publishing. https://www.ncbi.nlm.nih.gov/books/NBK532888/ [16] Kitchener, C., et al. (2023). Two Friends Were Denied Care after Florida Banned Abortion. One Almost Died., Washington Post. https://www.washingtonpost.com/politics/2023/04/10/pprom-florida-abortion-ban [17] Chernoby, K. and Acunto, B. (2024). Pregnancy Complications After Dobbs: The Role of EMTALA, Western Journal of Emergency Medicine. Vol. 25, https://escholarship.org/uc/item/5j81n18f [18] Santhanam, L. (2022). How abortion bans will likely lead to more deadly infections. PBS. https://www.pbs.org/newshour/health/how-abortion-bans-will-likely-lead-to-more-deadly-infections [19] Surana, K., Elba, M., et al. (2024). Are Abortion Bans Across America Causing Deaths? The States That Passed Them Are Doing Little to Find Out. ProPublica. https://www.propublica.org/article/abortion-bans-deaths-state-maternal-mortality-committees# [20] Cohen, D., Donley, G. & Rebouché, R. (2023). The New Abortion Battleground, Columbia Law Review, Vol 123, 1 (2023) https://columbialawreview.org/content/the-new-abortion-battleground/; Goodwin, M., Whelan, A., and Gostin, L. (2024) The Supreme Court and the Emergency Medical Treatment and Labor Act—A Dangerous Time for Us All. JAMA. https://jamanetwork.com/journals/jama/article-abstract/2823760 [21] Moyle v. United States, 603 U.S. ___ (2024)/United States v. Idaho, (Kagan, conc.) [22] Goodwin, Whelan, and Gostin, 2024. [23] Cohen, Donley, and Rebouché, 2023. [24] Nanda, K., Lopez, L., Grimes, D., Peloggia, A., Nanda, G. (2012). Expectant care versus surgical treatment for miscarriage. Cochrane Database Syst Rev. https://pmc.ncbi.nlm.nih.gov/articles/PMC6464924/ [25] Nambiar, A., Patel S., et al. (2022). Maternal morbidity and fetal outcomes among pregnant women at 22 weeks’ gestation or less with complications in 2 Texas hospitals after legislation on abortion. Research Letters. American Journal of Obstetrics and Gynecology. https://doi.org/10.1016/j.ajog.2022.06.060; see also Simmons-Duffin, S. (2023) In Oklahoma, a Woman Was Told to Wait until She’s “crashing” for Abortion Care. NPR. https://www.npr.org/sections/health-shots/2023/04/25/1171851775/oklahoma-woman-abortion-ban-study-shows-confusion-at-hospitals [26] Cohen, Donley, and Rebouché, 2023. [27] Cohen, Donley, and Rebouché, 2023. [28] 597 U.S. ___ (2022) https://supreme.justia.com/cases/federal/us/597/19-1392/ [29] Giubilini, A., Schuklenk, U., Minerva, F., & Savulescu, J. (2024). Conscientious commitment, professional obligations and abortion provision after the reversal of Roe v Wade. Journal of Medical Ethics. 50(5), 351-358. https://jme.bmj.com/content/50/5/351.abstract; additionally, some physicians wish to never perform abortions and may find that Roe v. Wade violated their own values – in such cases conscientious objection was generally available to them as long as proper care for pregnant women could be obtained. [30] The term hard law is generally used in international human rights and means legally binding instruments rather than guidances. [31] Constitution of the United States (Article VI, Clause 2). [32] Schweitzer, D. (2011). The Law of Preemption. National Association of Attorneys General. https://www.naag.org/wp-content/uploads/2020/10/The-Law-of-Preemption-2d-ed.-FINAL.pdf [33] Wyeth v. Levine. 555 U.S. at 555 (2009). https://casetext.com/case/wyeth-v-levine-2/ [34] 42 U.S.C. § 1395dd(f). [35] Texas v. Becerra, No. 23-10246 (5th Cir. 2024). https://law.justia.com/cases/federal/appellate-courts/ca5/23-10246/23-10246-2024-01-02.html# [36] Schweitzer, D. (2011). The Law of Preemption. National Association of Attorneys General. https://www.naag.org/wp-content/uploads/2020/10/The-Law-of-Preemption-2d-ed.-FINAL.pdf [37] Idaho Statutes Title 18 Crimes and Punishments, Chapter 6, Abortion and Contraceptives. https://legislature.idaho.gov/statutesrules/idstat/title18/t18ch6/sect18-622/ (abortion is permissible when it is necessary to prevent the death of the woman.) [38] Moyle v. United States. 603 U.S. ___ (2024) https://supreme.justia.com/cases/federal/us/603/23-726/ [39]Ollstein, A. (2025). Trump admin moves to drop fight over emergency abortions, reversing Biden admin stance. Politico. https://www.politico.com/news/2025/03/04/trump-emergency-abortions-00211399 [40] Moyle v. United States. [41] Salganicoff, A., Sobel, L., Gomez, I. (2024). The Hyde Amendment and Coverage for Abortion Services Under Medicaid in the Post-Roe Era. KFF. https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services-under-medicaid-in-the-post-roe-era/ [42] Tobin-Tyler, E., Brown, B. (2024). The Medical, Ethical and Legal Case Against Dual Stabilization. JAMA Intern Med. doi:10.1001/jamainternmed.2024.7078 (clinicians face difficulty if they need to equally protect fetus and patient, i.e., provide “dual stabilization”.) [43] Clark, B. (2003). The Supremacy Clause as a Constraint on Federal Power. Geo. Wash. L. Rev. Vol. 71, 91. https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=1474&context=faculty_publications (suggests federal law that “exceeds the scope” of congressional authority should be subject to judicial review – the Supremacy Clause refers to federal laws properly enacted with congressional authority; argues that judicial review should not be limited to review of the state law in preemption cases; it should include review of whether the federal law was properly enacted.) [44] Dobbs v. Jackson Women's Health Organization, 597 U.S. 215 (2022). https://supreme.justia.com/cases/federal/us/597/19-1392/ [45] Executive Order 14076. Protecting Access to Reproductive Healthcare Services, Federal Register (2022). https://www.federalregister.gov/documents/2022/07/13/2022-15138/protecting-access-to-reproductive-healthcare-services [46] Chernoby, K. and Acunto, B., 2024; Reeder, R. (2023). EMTALA Preemption of State Laws Restricting Emergency Abortions. St. Louis U. J. Health Law & Policy, Vol 17, 337. https://scholarship.law.slu.edu/jhlp/vol17/iss2/7/ [47]HHS Secretary Xavier Becerra Statement on EMTALA Enforcement. HHS archives. https://public3.pagefreezer.com/browse/HHS.gov/02-01-2024T03:56/https://www.hhs.gov/about/news/2023/05/01/hhs-secretary-xavier-becerra-statement-on-emtala-enforcement.html (Kansas has a ban after 22 weeks) [48] Biden-Harris Administration Reaffirms Commitment to EMTALA Enforcement. HHS. https://public3.pagefreezer.com/browse/HHS.gov/02-01-2025T05:49/https://www.hhs.gov/about/news/2024/07/02/biden-harris-administration-reaffirms-commitment-emtala-enforcement.html (“In 2022, CMS issued guidance to reaffirm that EMTALA requires providers offer necessary stabilizing care for patients suffering emergency medical conditions, which might include abortion care in certain situations. Today’s letter reinforces previous letters from Secretary Becerra and Administrator Brooks-LaSure to hospital and provider associations reminding them of their obligations under EMTALA.” Press release includes letter to hospitals and other medical providers.) [49] Donley, G. and Kelly, C. (2024). Abortion Disorientation. Duke Law Journal, Vol. 74, 1. https://scholarship.law.pitt.edu/fac_articles/587 (“Thirteen abortion-hostile states have changed the definition of abortion since Dobbs, eleven of which have added at least one definitional exclusion, most commonly for ectopic pregnancy, miscarriage, or molar pregnancy.”); Felix, M., Sobel, L., and Salganicoff, A. (2024). A Review of Exceptions in State Abortion Bans: Implications for the Provision of Abortion Services. Women’s Health Policy. KFF https://www.kff.org/womens-health-policy/issue-brief/a-review-of-exceptions-in-state-abortions-bans-implications-for-the-provision-of-abortion-services/ [50] Texas Bill 3058 https://legiscan.com/TX/bill/HB3058/2023 (enacted in 2023). [51] Ranji, U., Salganicoff, A., Sobel, L. (2024). Dobbs-era Abortion Bans and Restrictions: Early Insights about Implications for Pregnancy Loss. Women’s Health Policy. KKF. https://www.kff.org/womens-health-policy/issue-brief/dobbs-era-abortion-bans-and-restrictions-early-insights-about-implications-for-pregnancy-loss/ [52] Donley and Kelly, 2024. [53] Rappazzo, N. (2023). Emergency Room to the Courtroom: Providing Abortion Care under EMTALA and State Abortion Bans Comments, Dickinson Law Review, 128, 325, p. 333; Kitchener, C. (2023). Two Friends Were Denied Care after Florida Banned Abortion. One Almost Died. Washington Post. https://www.washingtonpost.com/politics/2023/04/10/pprom-florida-abortion-ban [54] Margaret Carpenter, a New York physician was indicted and charged with prescribing abortion pills to a person in Louisiana which has a near total abortion ban and was fined $100,000.00 by a Texas judge for sending abortion pills to a person in Texas. However, the charges and sanctions are not related to the provision of emergency medical care and thus do not raise possibility of conflict with EMTALA. Elassar, A. (2025) .New York doctor indicted in Louisiana abortion case recognized as a leader in women’s reproductive health. CNN. https://www.cnn.com/2025/02/23/us/abortion-margaret-carpenter-new-york/index.html [55] Goodman, D. (2023). Abortion Ruling Keeps Texas Doctors Afraid of Prosecution. New York Times https://www.nytimes.com/2023/12/13/us/texas-abortion-doctor-prosecution.html [56] E.g., Rappazzo, 2023. [57] While generally conscientious objection often concerns failing to provide (e.g., contraception or abortion), here it refers to objecting to the restrictive law and providing abortion; the history of conscientious objection shows courts would not allow it to apply to failing to pay taxes, but it can apply to failing to provide abortion care or contraception in some cases. Whether it could apply to an objection to an abortion ban is unclear. [58] Cahn, N. and Suter, S. (2024). Crossing state lines to get an abortion is a new legal minefield, with courts to decide if there’s a right to travel. The Conversation. https://theconversation.com/crossing-state-lines-to-get-an-abortion-is-a-new-legal-minefield-with-courts-to-decide-if-theres-a-right-to-travel-238167 [59] 597 U.S. 215 (2022). [60] Cahn and Suter, 2024. [61] Cahn and Suter, 2024. [62] Ranji, U., Salganicoff, A., Sobel, L. (2024). Dobbs-era Abortion Bans and Restrictions: Early Insights about Implications for Pregnancy Loss. Women’s Health Policy. KKF. https://www.kff.org/womens-health-policy/issue-brief/dobbs-era-abortion-bans-and-restrictions-early-insights-about-implications-for-pregnancy-loss/ [63] Rappazzo, 2023. [64] Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). https://supreme.justia.com/cases/federal/us/597/19-1392/ Breyer, Sotomayor, and Kagan, dissent. (“Some women, especially women of means, will find ways around the State’s assertion of power.”) [65] See Forouzan, K., Friedrich-Karnik, A., and Maddow-Zimit, I. (2023). The High Toll of US Abortion Bans: Nearly One in Five Patients Now Traveling Out of State for Abortion Care. Guttmacher Institute. https://www.guttmacher.org/2023/12/high-toll-us-abortion-bans-nearly-one-five-patients-now-traveling-out-state-abortion-care (There has been a stark increase in interstate travel for abortion.) [66] Hoffman, L., Ahmed, O., Salas-Betsch, I. (2022). State Abortion Bans Will Harm Women and Families’ Economic Security Across the U.S. Center for American Progress. https://www.americanprogress.org/article/state-abortion-bans-will-harm-women-and-families-economic-security-across-the-us/ (Of 27 states with restrictive laws (the 12 most plus 15 with significant restrictions but not total bans), “[n]one guarantee paid family and medical leave. Eighteen have gender wage gaps above the national average. Twenty-two have poverty rates for women above the national average. Seventeen have poverty rates for children above the national average. Nineteen have not extended Medicaid coverage to 12 months postpartum. Only four legally require insurers to cover an extended supply of contraceptives.” Many of the states with bans have uninsured rates above the national average.) [67] Santhanam, L. (2022). How abortion bans will likely lead to more deadly infections. PBS. https://www.pbs.org/newshour/health/how-abortion-bans-will-likely-lead-to-more-deadly-infections (being further from care increases the risk.) [68] Arvallo, L., Liu, H., Setty, S., et al. (2024). Deepening the Divide: Abortion Bans Further Harm Immigrant Communities Center for Law and Social Policy. https://www.clasp.org/publications/fact-sheet/deepening-divide-abortion-bans-harm-immigrants-2024/ [69] How Abortion Bans Contribute to the Cycle of Poverty. Comic Relief. https://www.comicrelief.org/posts/how-abortion-bans-contribute-to-the-cycle-of-poverty# (Black women are three times as likely to die during childbirth; Comic Relief is a 501(c)(3) aimed at alleviating poverty.) [70] United States Census Bureau https://www.census.gov/quickfacts/fact/table/LA/PST045224; United States Census Bureau https://www.census.gov/quickfacts/fact/table/MS/RHI225223. [71] United States Census Bureau. https://www.census.gov/quickfacts/fact/table/TX/POP010210 [72] Beauchamp, T. L., & Childress, J. F. (2013). Principles of biomedical ethics (7th ed.). Oxford University Press. [73] Siegel, R., Mayeri, M., and Murray, M. (2023). Equal Protection In Dobbs And Beyond: How States Protect Life Inside And Outside Of The Abortion Context. Columbia Journal of Gender and Law. https://openyls.law.yale.edu/bitstream/handle/20.500.13051/18292/g.pdf?sequence=1&isAllowed=y (Court noted parties had not asserted equal protection claims.)

Photo by niu niu on Unsplash ABSTRACT Shackling prisoners has been implemented as standard procedure when transporting prisoners in labor and during childbirth. This procedure ensures the protection of both the public and healthcare workers. However, the act of shackling pregnant prisoners violates the principles of ethics that physicians are supposed to uphold. This paper will explore how shackling pregnant prisoners violates the principle of justice and beneficence, making the practice unethical. INTRODUCTION Some states allow shackling of incarcerated pregnant women during transport and while in the hospital for labor and delivery. Currently, only 22 states have legislation prohibiting the shackling of pregnant women.[1] Although many states have anti-shackling laws prohibiting restraints, these laws also contain an “extraordinary circumstances” loophole.[2] Under this exception, officers shackle prisoners if they pose a flight risk, have any history of violence, and are a threat to themselves or others.[3] Determining as to whether a prisoner is shackled is left solely to the correctional officer.[4] Yet even state restrictions on shackling are often disregarded. In shackling pregnant prisoners during childbirth, officers and institutions are interfering with the ability of incarcerated women to have safe childbirth experiences and fair treatment. Moreover, physicians cannot exercise various ethical duties as the law constrains them. In this article, I will discuss the physical and mental harms that result from the use of restraints under the backdrop of slavery and discrimination against women of color particularly. I argue that stereotypes feed into the phenomenon of shackling pregnant women, especially pregnant women of color. I further assert that shackling makes it difficult for medical professionals to be beneficent and promote justice. BACKGROUND Female incarceration rates in the United States have been fast growing since the 1980s.[5] With a 498 percent increase in the female incarceration population between 1981 and 2021, the rates of pregnancy and childbirth by incarcerated people have also climbed.[6],[7] In 2021, over 1.2 million women were incarcerated in the United States.[8] An estimated 55,000 pregnant women are admitted to jails each year.[9],[10] Many remain incarcerated throughout pregnancy and are transported to a hospital for labor and delivery. Although the exact number of restrained pregnant inmates is unclear, a study found that 83 percent of hospital prenatal nurses reported that their incarcerated patients were shackled.[11] I. Harms Caused by Shackling Shackling has caused many instances of physical and psychological harm. In the period before childbirth, shackled pregnant women are at high risk for falling.[12] The restraints shift pregnant women’s center of gravity, and wrist restraints prevent them from breaking a fall, increasing the risk of falling on their stomach and harming the fetus.[13] Another aspect inhibited by using restraints is testing and treating pregnancy complications. Delays in identifying and treating conditions such as hypertension, pre-eclampsia, appendicitis, kidney infection, preterm labor, and especially vaginal bleeding can threaten the lives of the mother and the fetus.[14] During labor and delivery, shackling prevents methods of alleviating severe labor pains and giving birth.[15] Usually, physicians recommend that women in labor walk or assume various positions to relieve labor pains and accelerate labor.[16] However, shackling prevents both solutions.[17] Shackling these women limits their mobility during labor, which may compromise the health of both the mother and the fetus.[18] Tracy Edwards, a former prisoner who filed a lawsuit for unlawful use of restraints during her pregnancy, was in labor for twelve hours. She was unable to move or adjust her position to lessen the pain and discomfort of labor.[19] The shackles also left the skin on her ankles red and bruised. Continued use of restraints also increases the risk of potentially life-threatening health issues associated with childbirth, such as blood clots.[20] It is imperative that pregnant women get treated rapidly, especially with the unpredictability of labor. Epidural administration can also become difficult, and in some cases, be denied due to the shackled woman’s inability to assume the proper position.[21] Time-sensitive medical care, including C-sections, could be delayed if permission from an officer is required, risking major health complications for both the fetus and the mother.[22] After childbirth, shackling impedes the recovery process. Shackling can result in post-delivery complications such as deep vein thrombosis.[23] Walking prevents such complications but is not an option for mothers shackled to their hospital beds.[24] Restraints also prevent bonding with the baby post-delivery and the safe handling of the baby while breast feeding.[25] The use of restraints can also result in psychological harm. Many prisoners feel as though care workers treat them like “animals,” with some women having multiple restraints at once— including ankles, wrists, and even waist restraints.[26] Benidalys Rivera describes the feeling of embarrassment as she was walking while handcuffed, with nurses and patients looking on, “Being in shackles, that make you be in stress…I about to have this baby, and I’m going to go back to jail. So it’s too much.”[27] Depression among pregnant prisoners is highly prevalent. The stress of imprisonment and the anticipation of being separated from their child is often overwhelming for these mothers.[28] The inhumane action has the potential to add more stress, anxiety, and sadness to the already emotionally demanding process of giving birth. Shackling pregnant prisoners displays indifference to the medical needs of the prisoner.[29] II. Safety as a Pretense While public safety is an argument for using shackles, several factors make escape or violence extremely unlikely and even impossible.[30] For example, administering epidural anesthesia causes numbness and eliminates flight risk.[31] Although cited as the main reason for using shackles, public safety is likely just an excuse and not the main motivator for shackling prisoners. I argue that underlying the shackling exemplifies the idea that these women should not have become pregnant. The shackling reflects a distinct discrimination: the lawmakers allowing it perhaps thought that people guilty of crimes would make bad mothers. Public safety is just a pretense. The language used to justify the use of restraint of Shawanna Nelson, the plaintiff in Nelson v. Correctional Medical Services, discussed below, included the word “aggressive.”[32] In her case, there was no evidence that she posed any danger or was objectively aggressive. Officer Turnesky, who supervised Nelson, testified that she never felt threatened by Nelson.[33] The lack of documented attempts of escape and violence from pregnant prisoners suggests that shackling for flight risk is a false pretense and perhaps merely based on stereotypes.[34] In 2011, an Amnesty International report noted that “Around the USA, it is common for restraints to be used on sick and pregnant incarcerated women when they are transported to and kept in hospital, regardless of whether they have a history of violence (which only a minority have) and regardless of whether they have ever absconded or attempted to escape (which few women have).”[35] In a 2020 survey of correctional officers in select midwestern prisons, 76 percent disagreed or strongly disagreed with restraining pregnant women during labor and delivery.[36] If a correctional officer shackles a pregnant prisoner, it is not because they pose a risk but because of a perception that they do. This mindset is attributed to select law enforcement, who have authority to use restraints.[37] In 2022, the Tennessee legislature passed a bill prohibiting the use of restraints on pregnant inmates. However, legislators amended the bill due to the Tennessee Sherriff Association’s belief that even pregnant inmates could pose a “threat.”[38] Subjecting all prisoners to the same “precautions” because a small percentage of individuals may pose such risks could reflect stereotyping or the assumption that all incarcerated people pose danger and flight risk. To quell the (unjustified) public safety concern, there are other options that do not cause physical or mental harm to pregnant women. For example, San Francisco General Hospital does not use shackles but has deputy sheriffs outside the pregnant women’s doors.[39] III. Historical Context and Race A. Slavery and Post-Civil War The treatment of female prisoners has striking similarities to that of enslaved women. Originally, shackling of female slaves was a mechanism of control and dehumanization.[40] This enabled physical and sexual abuses. During the process of intentionally dehumanizing slaves to facilitate subordination, slave owners stripped slave women of their feminine identity.[41] Slave women were unable to exhibit the Victorian model of “good mothering” and people thought they lacked maternal feelings for their children.[42] In turn, societal perception defeminized slave women, and barred them from utilizing the protections of womanhood and motherhood. During the post-Civil War era, black women were reversely depicted as sexually promiscuous and were arrested for prostitution more often than white women.[43] In turn, society excluded black women; they were seen as lacking what the “acceptable and good” women had.[44] Some argue that the historical act of labeling black women sexually deviant influences today’s perception of black women and may lead to labeling them bad mothers.[45] Over two-thirds of incarcerated women are women of color.[46] Many reports document sexual violence and misconduct against prisoners over the years.[47] Male guards have raped, sexually assaulted, and inappropriately touched female prisoners. Some attribute the physical abuse of black female prisoners to their being depicted or stereotyped as “aggressive, deviant, and domineering.”[48] Some expect black women to express stoicism and if they do not, people label them as dangerous, irresponsible, and aggressive.[49] The treatment of these prisoners mirrors the historical oppression endured by black women during and following the era of slavery. The act of shackling incarcerated pregnant women extends the inhumane treatment of these women from the prison setting into the hospital. One prisoner stated that during her thirty-hour labor, while being shackled, she “felt like a farm animal.”[50] Another pregnant prisoner describes her treatment by a guard stating: “a female guard grabbed me by the hair and was making me get up. She was screaming: ‘B***h, get up.’ Then she said, ‘That is what happens when you are a f***ing junkie. You shouldn’t be using drugs, or you wouldn’t be in here.”[51] Shackling goes beyond punishing by isolation from society – it is an additional punishment that is not justified. B. Reproductive Rights and “Bad Mothers” As with slaves not being seen as maternal, prisoners are not viewed as “real mothers.” A female prison guard said the following: “I’m a mother of two and I know what that impulse, that instinct, that mothering instinct feels like. It just takes over, you would never put your kids in harm’s way. . . . Women in here lack that. Something in their nature is not right, you know?”[52] This comment implies that incarcerated women lack maternal instinct. They are not in line with the standards of what society accepts as a “woman” and “mother” and are thought to have abandoned their roles as caretakers in pursuit of deviant behaviors. Without consideration of racial discrimination, poverty issues, trauma, and restricted access to the child right after delivery, these women are stereotyped as bad mothers simply because they are in prison. Reminiscent of the treatment of female black bodies post-civil war and the use of reproductive interventions (for example, Norplant and forced sterilization) in exchange for shorter sentences, I argue that shackles are a form of reproductive control. Justification for the use of shackles even includes their use as a “punitive instrument to remind the prisoner of their punishment.”[53] However, a prisoner’s pregnancy should have no relevance to their sentence.[54] Using shackles demonstrates to prisoners that society tolerates childbirth but does not support it.[55] The shackling is evidence that women are being punished “for bearing children, not for breaking the law.”[56] Physicians and healthcare workers, as a result, are responsible for providing care for the delivery and rectifying any physical problems associated with the restraints. The issues that arise from the use of restraints place physicians in a position more complex than they experience with regular healthy pregnancies. C. Discrimination In the case of Ferguson v. City of Charleston, a medical university subjected black woman to involuntary drug testing during pregnancy. In doing so, medical professionals collaborated with law enforcement to penalize black women for their use of drugs during pregnancy.[57] The Court held the drug tests were an unreasonable search and violated the Fourth Amendment. Ferguson v. City of Charleston further reveals an unjustified assumption: the medical and legal community seemed suspicious of black women and had perhaps predetermined them more likely to use drugs while pregnant. Their fitness to become mothers needed to be proven, while wealthy, white women were presumed fit.[58] The correctional community similarly denies pregnant prisoners’ medical attention. In the case of Staten v. Lackawanna County, an African American woman whose serious medical needs were treated indifferently by jail staff was forced to give birth in her cell.[59] This woman was punished for being pregnant in prison through the withholding of medical attention and empathy. IV. Failure to Follow Anti-Shackling Laws Despite 22 states having laws against shackling pregnant prisoners, officers do not always follow these laws. In 2015, the Correctional Association of New York reported that of the 27 women who gave birth under state custody, officers shackled 23 women in violation of the anti-shackling laws.[60] The lawyer of Tracy Edwards, an inmate who officers shackled unlawfully during her twelve-hour labor stated, “I don’t think we can assume that just because there’s a law passed, that’s automatically going to trickle down to the prison.”[61] Even with more restrictions on shackling, it may still occur, partly due to the stereotype that incarcerated women are aggressive and dangerous. V. Constitutionality The Eighth Amendment protects people from cruel and unusual punishment. In Brown vs. Plata, the court stated, “Prisoners retain the essence of human dignity inherent in all persons.”[62] In several cases, the legal community has held shackling to be unconstitutional as it violates the Eighth Amendment unless specifically justified. In the case of Nelson v. Correctional Medical Services, a pregnant woman was shackled for 12 hours of labor with a brief respite while she pushed, then re-shackled. The shackling caused her physical and emotional pain, including intense cramping that could not be relieved due to positioning and her inability to get up to use a toilet.[63] The court held that a clear security concern must justify shackling. The court cited a similar DC case and various precedents for using the Eighth Amendment to hold correctional facilities and hospitals accountable.[64] An Arkansas law similarly states that shackling must be justified by safety or risk of escape.[65] If the Thirteenth Amendment applied to those convicted of crimes, shackling pregnant incarcerated people would be unconstitutional under that amendment as well as the Eighth. In the Civil Rights Cases, Congress upheld the right “to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents.”[66] Section two of the Thirteenth Amendment condemns any trace or acts comparable to that of slavery. Shackling pregnant prisoners, stripping them of their dignity, and justification based on stereotypes all have origins in the treatment of black female slaves. Viewed through the lens of the Thirteenth Amendment, the act of shackling would be unconstitutional. Nonetheless, the Thirteenth Amendment explicitly excludes people convicted of a crime. VI. Justice As a result of the unconstitutional nature of shackling, physicians should have a legal obligation, in addition to their ethical duty, to protect their patients. The principle of justice requires physicians to take a stand against the discriminatory treatment of their patients, even under the eye of law enforcement.[67],[68] However, “badge and gun intimidation,” threats of noncompliance, and the fear of losing one’s license can impede a physician’s willingness to advocate for their patients. The American College of Obstetricians and Gynecologists (ACOG) finds the use of physical restraints interferes with the ability of clinicians to practice medicine safely.[69] ACOG, The American Medical Association, the National Commission on Correctional Health Care, and other organizations oppose using restraints on pregnant incarcerated people.[70] Yet, legislators can adopt shackling laws without consultation with physicians. The ACOG argues that “State legislators are taking it upon themselves to define complex medical concepts without reference to medical evidence. Some of the penalties [faced by OBGYNs] for violating these vague, unscientific laws include criminal sentences.”[71] Legislation that does not consider medical implications or discourages physicians’ input altogether is unjust. In nullifying the voice of a physician in matters pertaining to the patient’s treatment, physicians are prevented from fulfilling the principle of justice, making the act of shackling patients unethical. VII. Principle of Beneficence The principle of beneficence requires the prevention of harm, the removal of harm, and the promotion of good.[72] Beneficence demands the physician not only avoid harm but benefit patients and promote their welfare.[73] The American Board of Internal Medicine Foundation states that physicians must work with other professionals to increase patient safety and improve the quality of care.[74] In doing so, physicians can adequately treat patients with the goal of prevention and healing. It is difficult to do good when law enforcement imposes on doctors to work around shackles during labor and delivery. Law enforcement leaves physicians and healthcare workers responsible not only to provide care for the delivery, but also rectify any ailments associated with the restraints. The issues arising from using restraints place physicians in a position more complex than they experience with other pregnancies. Doctors cannot prevent the application of the shackles and can only request officers to take them off the patient.[75] Physicians who simply go along with shackling are arguably violating the principle of beneficence. However, for most, rather than violating the principle of beneficence overtly, physicians may simply have to compromise. Given the intricate nature of the situation, physicians are tasked with minimizing potential harm to the best of their abilities while adhering to legal obligations.[76] It is difficult to pin an ethics violation on the ones who do not like the shackles but are powerless to remove them. Some do argue that this inability causes physicians to violate the principle of beneficence.[77] However, promoting the well-being of their patients within the boundaries of the law limits their ability to exercise beneficence. For physicians to fulfill the principle of beneficence to the fullest capacity, they must have an influence on law. Protocols and assessments on flight risks made solely by the officers and law enforcement currently undermine the physician’s expertise. These decisions do not consider the health and well-being of the pregnant woman. As a result, law supersedes the influence of medicine and health care. CONCLUSION People expect physicians to uphold the four major principles of bioethics. However, their inability to override restraints compromises their ability to exercise beneficence. Although pledging to enforce these ethical principles, physicians have little opportunity to influence anti-shackling legislation. Instead of being included in conversations regarding medical complexities, legislation silences their voices. Policies must include the physician's voice as they affect their ability to treat patients. Officers should not dismiss a physician's request to remove shackles from a woman if they are causing health complications. A woman's labor should not harm her or her fetus because the officer will not remove her shackles.[78] A federal law could end shackling pregnant incarcerated people. Because other options are available to ensure the safety of the public and the prisoner, there is no ethical justification for shackling pregnant prisoners. An incarcerated person is a human being and must be treated with dignity and respect. To safeguard the well-being of incarcerated women and the public, it is essential for advocates of individual rights to join forces with medical professionals to establish an all-encompassing solution. - [1] Ferszt, G. G., Palmer, M., & McGrane, C. (2018). Where does your state stand on shackling of Pregnant Incarcerated Women? Nursing for Women’s Health, 22(1), 17–23. https://doi.org/10.1016/j.nwh.2017.12.005 [2] S983A, 2015-2016 Regular Sessions (N.Y. 2015). https://legislation.nysenate.gov/pdf/bills/2015/S983A [3] Chris DiNardo, Pregnancy in Confinement, Anti-Shackling Laws and the “Extraordinary Circumstances” Loophole, 25 Duke Journal of Gender Law & Policy 271-295 (2018) https://scholarship.law.duke.edu/djglp/vol25/iss2/5 [4] Chris DiNardo (2018) [5] U.S. Bureau of Justice Statistics. 1980. " Prisoners in 1980 – Statistical Tables”. Retrieved April 20, 2023 (https://bjs.ojp.gov/content/pub/pdf/p80.pdf). [6] U.S. Bureau of Justice Statistics. 2022. " Prisoners in 2021 – Statistical Tables”. Retrieved April 20, 2023 (https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/p21st.pdf). [7] U.S. Bureau of Justice Statistics (1980) [8] Sufrin C, Jones RK, Mosher WD, Beal L. Pregnancy Prevalence and Outcomes in U.S. Jails. Obstet Gynecol. 2020;135(5):1177-1183. doi:10.1097/AOG.0000000000003834 [9] Kramer, C., Thomas, K., Patil, A., Hayes, C. M., & Sufrin, C. B. (2022). Shackling and pregnancy care policies in US prisons and jails. Maternal and Child Health Journal, 27(1), 186–196. https://doi.org/10.1007/s10995-022-03526-y [10] House, K. T., Kelley, S., Sontag, D. N., & King, L. P. (2021). Ending restraint of incarcerated individuals giving birth. AMA Journal of Ethics, 23(4). https://doi.org/10.1001/amajethics.2021.364 [11] Goshin, L. S., Sissoko, D. R., Neumann, G., Sufrin, C., & Byrnes, L. (2019). Perinatal nurses’ experiences with and knowledge of the care of incarcerated women during pregnancy and the postpartum period. Journal of Obstetric, Gynecologic & Neonatal Nursing, 48(1), 27–36. https://doi.org/10.1016/j.jogn.2018.11.002 [12] Shackling and separation: Motherhood in prison. (2013). AMA Journal of Ethics, 15(9), 779–785. https://doi.org/10.1001/virtualmentor.2013.15.9.pfor2-1309 [13] King, L. (2018). Labor in chains: The shackling of pregnant inmates. Policy Perspectives, 25, 55–68. https://doi.org/10.4079/pp.v25i0.18348 [14] King, L. (2018). [15] AMA Journal of Ethics (2013) [16] Lawrence, A., Lewis, L., Hofmeyr, G. J., & Styles, C. (2013). Maternal positions and mobility during first stage labour. Cochrane database of systematic reviews, (8). [17] Association of Women’s Health, Obstetric and Neonatal Nurses. (2011). AWHONN position statement: Shackling incarcerated pregnant women. Journal of Obstetric, Gynecologic, & Neonatal Nursing, 40(6), 817–818. doi:10.1111/j.1552-6909.2011.01300.x [18] Ferszt, G. G., Palmer, M., & McGrane, C. (2018). Where does your state stand on shackling of Pregnant Incarcerated Women? Nursing for Women’s Health, 22(1), 17–23. https://doi.org/10.1016/j.nwh.2017.12.005 [19] Thompson, E. (2022, August 30). Woman sues NC state prison system for mistreatment while pregnant. North Carolina Health News. Retrieved March 12, 2023, from https://www.northcarolinahealthnews.org/2022/05/25/woman-sues-nc-state-prison-system-for-mistreatment-while-pregnant/ [20] CBS Interactive. (2019, March 13). Shackling pregnant inmates is still a practice in many states. CBS News. Retrieved March 12, 2023, from https://www.cbsnews.com/news/shackling-pregnant-inmates-is-still-a-practice-in-many-states/ [21] Griggs, Claire Louise. "Birthing Barbarism: The Unconstitutionality of Shackling Pregnant Prisoners." American University Journal of Gender Social Policy and Law 20, no. 1 (2011): 247-271. [22] American Civil Liberties Union. (2012, October 12). ACLU briefing paper: The shackling of pregnant women & girls in U.S ... American Civil Liberties Union (ACLU). https://www.aclu.org/wp-content/uploads/legal-documents/anti-shackling_briefing_paper_stand_alone.pdf [23] King.L (2018) [24] Griggs, Claire Louise (2011) [25] American Civil Liberties Union. (2012) [26] Clarke, J. G., & Simon, R. E. (2013). Shackling and separation: Motherhood in prison. AMA Journal of Ethics, 15(9), 779–785. https://doi.org/10.1001/virtualmentor.2013.15.9.pfor2-1309 [27] Berg, M. D. (2014, April 18). Pregnant prisoners are losing their shackles - The Boston Globe. BostonGlobe.com. Retrieved March 12, 2023, from https://www.bostonglobe.com/magazine/2014/04/18/taking-shackles-off-pregnant-prisoners/7t7r8yNBcegB8eEy1GqJwN/story.html [28] Levi, R., Kinakemakorn, N., Zohrabi, A., Afanasieff, E., & Edwards-Masuda, N. (2010). Creating the bad mother: How the U.S. approach to pregnancy in prisons violates the right to be a mother. UCLA Women's Law Journal, 18(1). https://doi.org/10.5070/l3181017816 [29] Chris DiNardo (2018) [30] Griggs, Claire Louise (2011). [31] Allen, J. E. (2010, October 21). Shackled: Women Behind Bars Deliver in Chains. ABC News. https://abcnews.go.com/Health/WomensHealth/pregnant-shackled-women-bars-deliver-chains/story?id=11933376&page=1 [32] Nelson v. Correctional, 533 F.3d 958 (8th Cir. 2009) [33] Nelson v. Correctional(2009) [34] House, K. T., Kelley, S., Sontag, D. N., & King, L. P. (2021). Ending restraint of incarcerated individuals giving birth. AMA Journal of Ethics, 23(4). https://doi.org/10.1001/amajethics.2021.364 [35] Amnesty International USA. (1999, March). “Not part of my sentence” Violations of the Human Rights of Women in Custody. Amnesty International USA. Retrieved March 12, 2023, from https://www.amnestyusa.org/reports/usa-not-part-of-my-sentence-violations-of-the-human-rights-of-women-in-custody/ [36] Pendleton, V., Saunders, J. B., & Shlafer, R. (2020). Corrections officers' knowledge and perspectives of maternal and child health policies and programs for pregnant women in prison. Health & justice, 8(1), 1. https://doi.org/10.1186/s40352-019-0102-0 [37] Elizabeth Alexander, Unshackling Shawanna: The Battle Over Chaining Women Prisoners during Labor and Delivery, 32 U. ARK. LITTLE ROCK L. REV. 435 (2010). Available at: https://lawrepository.ualr.edu/lawreview/vol32/iss4/1 [38] Hernandez, J. (2022, April 22). More states are restricting the shackling of pregnant inmates, but it still occurs. NPR. Retrieved March 12, 2023, from https://www.npr.org/2022/04/22/1093836514/shackle-pregnant-inmates-tennessee [39] Sufrin, C. (2012, June 24). End practice of shackling pregnant inmates. SFGATE. Retrieved March 12, 2023, from https://www.sfgate.com/opinion/openforum/article/End-practice-of-shackling-pregnant-inmates-3176987.php [40] Mullings, L. (1997). On our own terms: Race, class, and gender in the lives of African American women. Routledge [41] Ocen, Priscilla A., (2011). [42] Ladd-Taylor, M. (1998). "Bad" mothers: The politics of blame in Twentieth-century America. New York Univ. Press. [43] Hine, D. C. (1998). Hine Sight: Black women and the re-construction of American history. Indiana University Press. [44] Baldwin, L. (2019). Excluded from good motherhood and the impact of prison: Motherhood and Social Exclusion, 129–144. https://doi.org/10.2307/j.ctvk12qxr.13 [45] 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 [46] Johnson, P. C. (2004). Inner lives: Voices of african american women in prison. New York University Press. [47] Thomas, D. Q. (1996). All too familiar: Sexual abuse of women in U.S. state prisons. Human Rights Watch. [48] Ocen, Priscilla A., (2011). [49] Ashley W. The angry black woman: the impact of pejorative stereotypes on psychotherapy with black women. Soc Work Public Health. 2014;29(1):27-34. doi: 10.1080/19371918.2011.619449. PMID: 24188294. [50] CBS Interactive. (2019, March 13). Shackling pregnant inmates is still a practice in many states. CBS News. Retrieved March 12, 2023, from https://www.cbsnews.com/news/shackling-pregnant-inmates-is-still-a-practice-in-many-states/ [51] Guardian News and Media. (2020, January 24). Pregnant and shackled: Why inmates are still giving birth cuffed and bound. The Guardian. Retrieved March 25, 2023, from https://www.theguardian.com/us-news/2020/jan/24/shackled-pregnant-women-prisoners-birth [52] Oparah, J. C. (2015). Birthing justice: Black women, pregnancy, and childbirth. Routledge. [53] Chris DiNardo (2018) [54] Griggs, Claire Louise (2011). [55] Chris DiNardo (2018) [56] Griggs, Claire Louise (2011). [57] Song, Ji Seon, Policing the Emergency Room (June 10, 2021). 134 Harvard Law Review 2646 (2021), Available at SSRN: https://ssrn.com/abstract=3864225 [58] Ocen, Priscilla A., (2011). [59] Staten v. Lackawanna Cnty., No. 4:07-CV-1329, 2008 WL 249988, at *2 (M.D. Pa. Jan. 29, 2008) [60] Lovett, K. (2018, April 9). Pregnant inmates at New York prisons will no longer be shackled under new law. New York Daily News. Retrieved March 12, 2023, from https://www.nydailynews.com/new-york/new-york-pregnant-inmates-no-longer-shackled-article-1.2474021 [61] Thompson, E. (2022, August 30). Woman sues NC state prison system for mistreatment while pregnant. North Carolina Health News. Retrieved March 12, 2023, from https://www.northcarolinahealthnews.org/2022/05/25/woman-sues-nc-state-prison-system-for-mistreatment-while-pregnant/ [62] Brown v. Plata, 563 U.S. 493 (2011) [63] Nelson v. Correctional Medical Serices, et al., Nelson v. Correctional Med. Servs, 583 F.3d 522 (8th Cir. 2009) [64] Nelson citing Women Prisoners of D.C. Dep't of Corr. v. District of Columbia, 877 F.Supp. 634, 668-69 (D.D.C. 1994), modified in part on other grounds, 899 F.Supp. 659 (D.D.C. 1995). [65] Ark. Dep't of Corr. Admin. Reg. 403 § V (1992) [66] Civil Rights Cases, 109 U.S. 3 (1883) [67] Physician charter. ABIM Foundation. (2022, October 18). Retrieved March 10, 2023, from https://abimfoundation.org/what-we-do/physician-charter#:~:text=Principle%20of%20social%20justice.&text=Physicians%20should%20work%20actively%20to,or%20any%20other%20social%20category. [68] Riddick FA Jr. The code of medical ethics of the american medical association. Ochsner J. 2003 Spring;5(2):6-10. PMID: 22826677; PMCID: PMC3399321. [69] American College of Obstetricians and Gynecologists’ Committee on Health Care for Underserved Women (2021). Reproductive Health Care for Incarcerated Pregnant, Postpartum, and Nonpregnant Individuals: ACOG Committee Opinion, Number 830. Obstetrics and gynecology, 138(1), e24–e34. https://doi.org/10.1097/AOG.0000000000004429 [70] American College of Obstetricians and Gynecologists’ Committee on Health Care for Underserved Women (2021). [71] American College of Obstetricians and Gynecologists’ Committee on Health Care for Underserved Women (2021). [72] Beauchamp, T. L., & Childress, J. F. (2019). Principles of Biomedical Ethics. Oxford University Press. [73] Varkey, B. (2020). Principles of clinical ethics and their application to practice. Medical Principles and Practice, 30(1), 17–28. https://doi.org/10.1159/000509119 [74] Medical professionalism in the new millennium: A physician charter. (2002). Annals of Internal Medicine, 136(3), 243. https://doi.org/10.7326/0003-4819-136-3-200202050-00012 [75] Allen, J. E. (2010, October 21). Shackled: Women Behind Bars Deliver in Chains. ABC News. https://abcnews.go.com/Health/WomensHealth/pregnant-shackled-women-bars-deliver-chains/story?id=11933376&page=1 [76] Jonsen, A. R. (2010). The Birth of Bioethics. Oxford University Press. [77] Beauchamp, T. L., & Childress, J. F. (2019). [78] Amnesty International USA. (1999, March). “Not part of my sentence” Violations of the Human Rights of Women in Custody. Amnesty International USA. Retrieved March 12, 2023, from https://www.amnestyusa.org/reports/usa-not-part-of-my-sentence-violations-of-the-human-rights-of-women-in-custody/