With All Deliberate Speed

Prisons are inherently patriarchal systems. When the first modern state detention centers were created, in the late eighteenth century, they were built and designed under the assumption that only men would occupy the cells. At that time women had very limited opportunities or agency, so the notion that they would be able to commit crimes would have been seen as outrageous. That’s not the reality today. Women are now the fastest growing incarcerated group in the United States, with the population growing more than 700% since 1980[1]. With this increase in women prisoners there has been heightened need for sexual and reproductive rights; however, prisons and their policies are just as oppressive and male-centered as ever. These rights include access to menstrual hygiene products, birth control, pregnancy related healthcare, as well as the right to not be shackled during labor and delivery or forced into solitary confinement before or after giving birth. There are almost 13,000 incarcerated women in the United States. It is important that they are able to receive timely sexual and reproductive health care they desperately need, a basic human right.

Recently there has been legislation passed in Maryland that has aided in ensuring the reproductive right of incarcerated women. However, there is a vast disconnect between the law being passed and its actual implementation. Reproductive justice encapsulates not only reproductive rights, but also an intersectional analysis of social, political, and economic inequalities that can have a larger impact on an individual’s ability to control their reproductive health. It is important to note that traditional concepts of gender play an important role in this issue. Individuals who do not identity as part of the gender binary or are transgender still need reproductive justice within prison walls but are heavily neglected — thus, the need for policy reform for them remains challenging as well.

The first ever women’s prison in the United States, the Indiana Women’s Prison, was built in 1873 almost 100 years after the first men’s prison. Since then, incarcerated women have been fighting for reproductive rights and justice inside their cell walls. These injustices are clear human rights violations, but because the group being affected are those who incarcerated and sealed from public view, it is easy to ignore their problems. Those who are incarcerated are physically separated from society, which results in nonincarcerated individuals and lawmakers often turning a blind eye to their needs. As soon as someone becomes a part of the correctional system in America, whether it be through detention or actual imprisonment, they are stripped of their humanity — thus making it easier to neglect their needs.

Because prisons were originally designed for men, the sexual and reproductive rights of female inmates are rarely recognized, let alone appropriately met. In too many facilities, inmates must pay for their own menstrual hygiene products such as pads and tampons through their commissary instead of accessing supplies provided for free, which can leave inmates with no financial means with extremely limited access to necessary products to address a continuing monthly event. In some prisons, inmates have no access to menstrual products whatsoever and are forced to use other available and often unhealthy materials they can find, risking their internal health. When prisons have tampons for purchase in their commissaries, they have been found to upcharge the cost forcing inmates to work more hours to pay for fewer products[2]. Maryland passed a law during its 2018 legislative session requiring all local and state correctional and detention facilities to supply menstrual hygiene products to inmates or detainees. This law was monumental. This law allows a basic right so many of us take for granted: to change their pad or tampon without worry. This measure not only ensures that inmates are given the necessary hygiene products, but also requires the facilities to maintain an adequate supply of products at all times. In the proposed budget for the 2019 fiscal year, $81,000 was set aside for the purpose of providing these products.

As of early June, there are reports that many incarcerated women are still paying for their own pads and tampons. One of the biggest issues with SB598, also known as the Menstrual Hygiene Product Bill, and various bills in the past related to policy reforms in correctional settings, is the lack of implementation and accountability on the side of the government and facility administrators. Head of Corrections, Robert L. Green visited the Maryland Correctional Institute for Women Jessup, Maryland’s only all women state prison early in June to see how far into the implementation stage the prison was. He found that not only was Jessup not properly implementing the bill, but neither was any other prison in the Maryland correctional system. The inmate’s reproductive rights are still being neglected despite the laws enactment.

Some of the biggest reproductive injustices affect pregnant inmates. In nearly every public prison in America, it is legal and often a matter of policy to place pregnant inmates into solitary confinement or some other kind of restrictive housing. These pregnant individuals spend 22–23 hours a day by themselves with limited human interaction. They rarely get to see a doctor, or even walk around for exercise. There is no fresh air, no natural light. Their programming and social interactions are discounted. In addition, when an inmate is in labor, they are shackled on the way to the hospital from the moment they leave the cell until they return, after giving birth and having to give up their baby. This year, a bill passed by the Maryland General Assembly made Maryland the first state to pass legislation ending the practice of placing pregnant and post-pregnant inmates into restrictive housing illegal. Not only is this practice inhumane, but it is also dangerous for the person giving birth. In addition, HB027/SB656 was passed in 2014 by the Maryland General Assembly prohibiting the use of any physical restraint during labor and delivery and well as any physical restraints during the second and third trimester of pregnancy. This anti-shackling legislation was a huge step in the right direction. However when the bill was passed, there was no concrete implementation plan or monitoring component, resulting in reports of pregnant individuals still being subjected to this unlawful practice.

Passage of a law is the first step, but it means nothing if there is no way to ensure that the law will be implemented successfully or in a timely manner. Without transparency in reporting, there is no quantifiable means of ensuring implementation. Lack of implementation is not a new phenomenon. When the decision of Brown v. Board of Education was made in 1954, it was widely celebrated as the end to an era of segregated schools and was seen as a symbol of a new America; separate but equal was no longer the law of the land. While this was considered a monumental case, challenges to its implementation process left many schools segregated well into the 1970s because there was no clear processes for the federal government to implement state governments to comply. In a small town in Mississippi, schools desegregated a mere three years ago, 50 years after Brown v. Board of Education had outlawed segregation in schools. Although the lawsuit intended to desegregate schools with “all deliberate speed”, it ruling left it to the states to dictate just how deliberate they would actually be.

Everyone deserves reproductive justice regardless of imprisonment or not. Incarcerated individuals should not be forced to roll their own tampons with inappropriate materials that can create a health risk, or choose between buying pads at the commissary or essentials like soap, stamps, or laundry detergent. This injustice in the prison system needs to end, and when legislation is enacted to address these problems, prisons and wardens need to be held accountable. No person should go through labor and delivery shackled or unable to reach out to touch their newborn only to be shackled to a hospital bed, unable to move. No one should be forced into solitary confinement after surrendering their newborns, increasing risks of physical and mental health issues. It is time to move with more than deliberate speed, Now it is time for deliberate action and implementation.

[1] Kajstura, Aleks. “Women’s Mass Incarceration: The Whole Pie 2018.” Women’s Mass Incarceration: The Whole Pie 2018 | Prison Policy Initiative. November 13, 2018. Accessed July 23, 2019. https://www.prisonpolicy.org/reports/pie2018women.html.

[2] Marimow, Ann E. “A New Law Promised Maryland’s Female Inmates Free Tampons. They’re Still Paying.” The Washington Post. June 05, 2019. Accessed July 24, 2019. https://www.washingtonpost.com/local/legal-issues/a-new-law-promised-marylands-female-inmates-free-tampons-theyre-still-paying/2019/06/04/cc5442da-86d7-11e9-a491-25df61c78dc4_story.html?utm_term=.3c15a4ca766f.

The political leader of the pro-choice movement in Maryland.

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