Academic journal article Journal of Criminal Law and Criminology

Parental Prisoners: The Incarcerated Mother's Constitutional Right to Parent

Academic journal article Journal of Criminal Law and Criminology

Parental Prisoners: The Incarcerated Mother's Constitutional Right to Parent

Article excerpt


"My little baby, she doesn't even know what's coming." (1) New mother, Kayla, cried on the phone to her mother and sister while shackled to the hospital bed. (2) Just hours before, she had given birth to a beautiful, healthy baby girl. (3) However, Kayla's experience is far from the experience of most mothers in the United States. During her pregnancy, Kayla was serving a prison sentence at Logan Correctional Center in Lincoln, Illinois. (4) She was pregnant at the time of her arrest, and thus was required to carry her pregnancy to term from inside the prison walls. (5) Treated differently from the beginning, she was ordered to wear a pink jumpsuit, designating her soon-to-be mother status. (6) Rather than decorate a nursery and pick out baby clothes in anticipation of her daughter's arrival, Kayla was forced to fear the day she would meet her daughter and soon after say goodbye to her. Kayla knew that right after giving birth, she would return to prison alone, without her daughter. (7)

As her due date approached, she was taken to the hospital, and her labor was induced. (8) None of her family members were allowed to be present. (9) The only people allowed in the room with Kayla during some of the most unpleasant, yet life-changing, hours of her life were the prison guards and medical personnel. (10) After meeting her daughter, Angelica, Kayla had fewer than two days with her before Angelica was taken and Kayla returned to prison alone, without the child that she had carried inside her for the previous nine months. (11) The only communication she was permitted to have with the outside world during this time was "one call" with her mother and sister. (12) As she held her daughter close, savoring every precious second, she cried: "Oh my God, she is so beautiful. And I love her, I love her, I love her, and I just want to hold her forever." (13)

This is the true story of one woman's experience giving birth while incarcerated, which is further detailed in Maya Schenwar's Locked Down, Locked Out: Why Prison Doesn't Work and How We Can Do It Better. (14) This story, while unbelievably tragic, is not all that unique or uncommon for incarcerated women. (15) Mothers in both jails and prisons across the country go through similarly tragic experiences. (16) The vast majority of incarcerated women carry their pregnancies to term, give birth in isolation, and are then separated from their children immediately. (17) Often, incarcerated mothers struggle to get to know their children or maintain a positive relationship upon release. (18) Kayla was fortunate because her new daughter was able to live with family while she served the remainder of her sentence. (19) However, many mothers are not as lucky. Other incarcerated women end up at least temporarily losing their children to the foster care system, and some lose custody permanently. (20)

Though incarceration rates in the United States have started to decrease, there are still far too many people in prison. (21) As of 2016, state and federal prisons in the United States held a combined total of roughly 1.6 million people. (22) Women uniquely feel the effects of mass incarceration. (23) For a number of reasons, the number of incarcerated women has continued to increase, jumping 646% between 1980 and 2012, far quicker than the speed of male incarceration. (24) Women are currently the fastest growing segment of the prison population, accounting for a larger portion than ever before. (25) In 2014, there were a total of 215,332 women incarcerated, with 106,232 women in prisons and 109,100 in jails. (26)

The high rate of female incarceration is made more problematic when looking at the effect that it has on the rest of society. Almost two-thirds of incarcerated women in U.S. prisons are mothers. (27) Because the median age of incarcerated women is thirty-four, many of these women are new mothers with young children, and 60% of women in state prisons have children under the age of eighteen. …

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