Lawmakers in Alabama and Indiana are moving to arrest and incarcerate pregnant women with mental illness and drug addiction, and charge them with harming their fetus. National Advocates for Pregnant Women is working to defend the basic rights of pregnant women suffering from mental illness, severe depression, or any other health problem to be treated like other human beings experiencing the same problems.
In December of 2010, Bei Bei Shuai, a 34-year-old pregnant woman living in Indiana, attempted to end her own life. She did so in one of the slowest and most painful ways possible: she consumed rat poison. With help from friends who intervened, however, she made it to a hospital and survived. The premature newborn she delivered by undergoing cesarean surgery did not. An Indiana prosecutor’s response has been to charge her with the crimes of murder (defined to include viable fetuses) and feticide (defined to include ending a human pregnancy at any stage). She has been arrested, denied bail, and will, unless bail is granted, be imprisoned for as long as her case proceeds through the court system.
National Advocates for Pregnant Women (NAPW), through Indiana-based counsel Kathrine Jack, is working with Indiana defense attorney Linda Pence to secure Ms. Shuai’s freedom and to defend the basic idea that when the person suffering from mental illness, severe depression, or any other health problem happens to be a pregnant woman, she does not lose her right to be treated like other human beings experiencing the same problems.
Pregnant women are not immune from the mental illness or severe depression that leads some people to attempt to end their lives. Indiana, like virtually every other state in the country, addresses suicide and attempted suicide as a public health issue, not a crime. Prosecutors simply may not decide that a suicide attempt is a public health issue for everyone except pregnant women. Moreover, there is wide consensus that subjecting pregnant women to special criminal penalties does not work. Rather, it undermines legitimate interests in maternal, fetal, and child health by stigmatizing pregnant women and by making them vulnerable to punishment if they seek help of any kind.
If this prosecution is allowed to go forward, the law will not just apply to one desperate pregnant woman who attempted suicide by swallowing rat poison – it will create legal precedent that makes every woman criminally liable for the outcome of her pregnancy. This precedent would mean that women who undergo significant risks to their lives and health by bringing forth life, sometimes undergoing major surgery to do so, may then be arrested as criminals if they are unable to guarantee the birth of a live and healthy baby. In addition, if Ms. Shuai’s prosecution is upheld, it leaves no doubt that women who intentionally end their pregnancies will go to jail as murderers if Roe is ever overturned.
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This story and the heart-rending video that accompanies it, Attorney Rips Prosecutor In Infant Rat Poison Death, Pence: Prosecuting Pregnant Women ‘Bad For Babies’, provides a glimpse of the jailhouse dehumanization that awaits pregnant women who become the targets of state feticide and murder laws that have defined eggs, embryos, and fetuses as legally separate from pregnant women.
Women in Alabama may also look forward to such dehumanization. There, legislators suggest that locking up pregnant women, depriving them of treatment and separating them from their families is the right way to address drug dependency problems.
Alabama House Bill 8 would amend the state’s chemical endangerment law, which was originally designed to deter people who run methamphetamine laboratories from bringing children to such dangerous locations. HB 8 would define the word “child” to include “an unborn child in utero at any stage of development,” and make the law applicable to a pregnant woman who uses any amount of a “controlled substance,” prescribed or otherwise, at any point in her pregnancy, and whether or not she knew she was pregnant at the time.
In other words, the bill would allow prosecutors to treat a pregnant woman as if she herself is an illegal drug lab.
Alabama, like most states, makes it a crime to possess illegal drugs, not to use or be addicted to them. This is consistent with state and federal efforts to encourage people to seek help for drug problems. HB 8, however, creates a gender-based law that singles out pregnant women for criminal punishment.
To be clear, HB 8 will not increase pregnant women’s access to treatment or care. Instead, it will increase the number of pregnant women and new mothers in Alabama’s notoriously horrific jails and prisons. And wait there is more! According to the fiscal impact statement that accompanies the bill: This bill could increase receipts to the State General Fund from fines, increase receipts to the State General Fund, county general funds and other funds to which court costs are deposited. In other words, because pregnant women arrested under this law will be required to pay fines, court fees and other costs, Alabama claims locking up pregnant women and new mothers will be a money-making proposition for the state.
The prosecution in Indiana and the proposed law in Alabama both fly in the face of medical and public health recommendations regarding the most effective and appropriate ways to respond to suicide attempts and drug-dependency disorders. That these states believe there is value, financial or otherwise, in locking up pregnant women with these problems is stark evidence of how little, in fact, they value pregnant women and the children they purport to be protecting.
The Indiana Court of Appeals on Friday vacated the feticide conviction of Purvi Patel, an Indiana woman who faced 20 years in prison for what state attorneys argued was a self-induced abortion. The good news is the court decided Patel and others in the state could not be charged and convicted for feticide after experiencing failed pregnancies. The bad news is that the court still deferred to junk science at trial that claimed Patel’s fetus was on the cusp of viability and had taken a breath outside the womb, and largely upheld Patel’s conviction of felony neglect of a dependent. This leaves the door open for similar prosecutions in the state in the future.
As Rewirepreviously reported, “In July 2013 … Purvi Patel sought treatment at a hospital emergency room for heavy vaginal bleeding, telling doctors she’d had a miscarriage. That set off a chain of events, which eventually led to a jury convicting Patel of one count of feticide and one count of felony neglect of a dependent in February 2015.”
To charge Patel with feticide under Indiana’s law, the state at trial was required to prove she “knowingly or intentionally” terminated her pregnancy “with an intention other than to produce a live birth or to remove a dead fetus.”
According to the Indiana Court of Appeals, attorneys for the State of Indiana failed to show the legislature had originally passed the feticide statute with the intention of criminally charging patients like Patel for terminating their own pregnancies. Patel’s case, the court said, marked an “abrupt departure” from the normal course of prosecutions under the statute.
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“This is the first case that we are aware of in which the State has used the feticide statute to prosecute a pregnant woman (or anyone else) for performing an illegal abortion, as that term is commonly understood,” the decision reads. “[T]he wording of the statute as a whole indicate[s] that the legislature intended for any criminal liability to be imposed on medical personnel, not on women who perform their own abortions,” the court continued.
“[W]e conclude that the legislature never intended the feticide statute to apply to pregnant women in the first place,” it said.
This is an important holding, because Patel was not actually the first woman Indiana prosecutors tried to jail for a failed pregnancy outcome. In 2011, state prosecutors brought an attempted feticide charge against Bei Bei Shuai, a pregnant Chinese woman suffering from depression who tried to commit suicide. She survived, but the fetus did not.
Shuai was held in prison for a year until a plea agreement was reached in her case.
The Indiana Court of Appeals did not throw out Patel’s conviction entirely, though. Instead, it vacated Patel’s second charge of Class A felony conviction of neglect of a dependent, ruling Patel should have been charged and convicted of a lower Class D felony. The court remanded the case back to the trial court with instructions to enter judgment against Patel for conviction of a Class D felony neglect of a dependent, and to re-sentence Patel accordingly to that drop in classification.
To support Patel’s second charge of felony neglect at trial, prosecutors needed to show that Patel took abortifacients; that she delivered a viable fetus; that said viable fetus was, in fact, born alive; and that Patel abandoned the fetus. According to the Indiana Court of Appeals, the state got close, but not all the way, to meeting this burden.
According to the Indiana Court of Appeals, the state had presented enough evidence to establish “that the baby took at least one breath and that its heart was beating after delivery and continued to beat until all of its blood had drained out of its body.”
Therefore, the Court of Appeals concluded, it was reasonable for the jury to infer that Patel knowingly neglected the fetus after delivery by failing to provide medical care after its birth. The remaining question, according to the court, was what degree of a felony Patel should have been charged with and convicted of.
That is where the State of Indiana fell short on its neglect of a dependent conviction, the court said. Attorneys had failed to sufficiently show that any medical care Patel could have provided would have resulted in the fetus surviving after birth. Without that evidence, the Indiana Court of Appeals concluded, state attorneys could not support a Class A conviction. The evidence they presented, though, could support a Class D felony conviction, the court said.
In other words, the Indiana Court of Appeals told prosecutors in the state, make sure your medical experts offer more specific testimony next time you bring a charge like the one at issue in Patel’s case.
The decision is a mixed win for reproductive rights and justice advocates. The ruling from the court that the feticide statute cannot be used to prosecute patients for terminating their own pregnancy is an important victory, especially in a state that has sought not just to curb access to abortion, but to eradicate family planning and reproductive health services almost entirely. Friday’s decision made it clear to prosecutors that they cannot rely on the state’s feticide statute to punish patients who turn to desperate measures to end their pregnancies. This is a critical pushback against the full-scale erosion of reproductive rights and autonomy in the state.
But the fact remains that at both trial and appeal, the court and jury largely accepted the conclusions of the state’s medical experts that Patel delivered a live baby that, at least for a moment, was capable of survival outside the womb. And that is troubling. The state’s experts offered these conclusions, despite existing contradictions on key points of evidence such as the gestational age of the fetus—and thus if it was viable—and whether or not the fetus displayed evidence of life when it was born.
Patel’s attorneys tried, unsuccessfully, to rebut those conclusions. For example, the state’s medical expert used the “lung float test,” also known as the hydrostatic test, to conclude Patel’s fetus had taken a breath outside the womb. The test, developed in the 17th century, posits that if a fetus’ lungs are removed and placed in a container of liquid and the lungs float, it means the fetus drew at least one breath of air before dying. If the lungs sink, the theory holds, the fetus did not take a breath.
Not surprisingly, medical forensics has advanced since the 17th century, and medical researchers widely question the hydrostatic test’s reliability. Yet this is the only medical evidence the state presented of live birth.
Ultimately, the fact that the jury decided to accept the conclusions of the state’s experts over Patel’s is itself not shocking. Weighing the evidence and coming to a conclusion of guilt or innocence based on that evidence is what juries do. But it does suggest that when women of color are dragged before a court for a failed pregnancy, they will rarely, if ever, get the benefit of the doubt.
The jurors could have just as easily believed the evidence put forward by Patel’s attorneys that gestational age, and thus viability, was in doubt, but they didn’t. The jurors could have just as easily concluded the state’s medical testimony that the fetus took “at least one breath” was not sufficient to support convicting Patel of a felony and sending her to prison for 20 years. But they didn’t.
Why was the State of Indiana so intent on criminally prosecuting Patel, despite the many glaring weaknesses in the case against her? Why were the jurors so willing to take the State of Indiana’s word over Patel’s when presented with those weaknesses? And why did it take them less than five hours to convict her?
Patel was ordered in March to serve 20 years in prison for her conviction. Friday’s decision upends that; Patel now faces a sentence of six months to three years. She’s been in jail serving her 20 year sentence since February 2015 while her appeal moved forward. If there’s real justice in this case, Patel will be released immediately.
In both the Netflix series and real life, overcrowding has serious ramifications for those behind bars. But the issue isn't limited to privately run institutions; public prisons have been overflowing in many states for years.
“I’ve been in Litchfield for a while now,” says Piper Chapman (actress Taylor Schilling) in the latest season of Orange Is the New Black, “and I’ve started to feel unsafe lately.”
Season four of OITNBhas taken on prison overcrowding. Viewers may recall that, in the last season, the fictional Litchfield Penitentiary was taken over by a corporation, transforming it from an already underfunded state prison to a private facility whose sole purpose is the bottom line. That means each woman inside Litchfield has become a commodity—and the more commodities locked inside, the more profit the corporation receives.
In both the Netflix series and real life, overcrowding has serious ramifications for those behind bars. But the issue isn’t limited to privately run institutions; public prisons have been overflowing in many states for years.
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In the latest season of OITNB, viewers see some of the potential consequences of prison overcrowding: It is accompanied by increased threats of violence and abuse, as people, packed like sardines, step on each other, jostle each other, and can’t get away from each other. Supplies, such as soap, sanitary napkins, and toilet paper, are never in abundance in a prison setting; they become even more scarce as the number of people clamoring for them soar. Even food, which prisons are required to provide in the form of regular meals, becomes in short supply.
A scarcity of resources isn’t the only problem in Litchfield. Again and again, we see long lines for the bathrooms and showers. When the prison installs “porta potties” in the yard, there are long lines for those as well. “Too many people in here, everybody getting on each other’s nerves,” remarks Poussey Washington (Samira Wiley), another of the show’s long-term characters. Conflicts emerge as women struggle to navigate daily living in a narrow room with multiple other women. Some of these may seem small, like the nightly snoring of a new bunkmate keeping another one awake all night. But these seemingly inconsequential issues lead to larger ones, such as sleep deprivation. In the show, women resort to comic measures; but these conflicts, especially in a closed and cramped environment, can quickly erupt into violence.
This is the case in Litchfield as well. Conflicts quickly turn into threats or actual attacks. While prison socializing has always been racially segregated, some of it now becomes racialized and racist. Some of the new white women, noting that they are in the minority among the large numbers of Latina and Black women being shuttled in, are unwittingly pushed by Piper to form a white power group. They hurl racist epithets at the women of color and, when they spot a lone Dominican woman on the stairs, move together to attack her.
Prison staff perpetuate the violence, using their authority to do so. They begin their own version of “stop and frisk” in the prison’s hallways, targeting the growing Latina population. While the body searches in and of themselves are humiliating, the (male) guards also take advantage of the additional security measure to grope and further abuse the women. They even force women into fighting, which they then bet on—a nod to the actual allegations of guard-instigated gladiator fights in California’s prisons and the San Francisco County Jail.
Although not everything in OITNB is realistic, the problems the show portrays in this respect reflect the frequent results of overcrowding—and some of its causes. As OITNB notes repeatedly throughout the season, private prisons receive money per person, so it’s in the company’s interest to lock up as many people as possible.
In 2014, for example, private prison contractor GEO Group contracted with the California Department of Corrections and Rehabilitation (CDCR) to open and operate a women’s prison north of Bakersfield, California. Under the terms of the contract, California pays GEO Group $94.50 per person per day for the first 260 women sent to that prison. The contract also includes an opportunity for the company to expand its prison by another 260 beds—although, if it does that, the state only pays $86.95 per person per day. But even at that lower rate, doubling the occupancy increases the private prison’s overall four-year revenue from roughly $38 million to $66 million. (As of June 8, 2016, that prison held 223 people.)
California, for instance, is one of the most egregious examples of such legislation leading to prison overcrowding. Years of extreme overcrowding ultimately led to Brown v. Plata, a class-action lawsuit charging that the state’s severely crowded prisons prevented it from providing adequate medical and mental health care, thus violating the Eighth Amendment’s prohibition on cruel and unusual punishment. In 2011, the U.S. Supreme Court agreed and ordered California to decrease its state prison population from 180 to 137.5 percent capacity.
To do so, the CDCR took several actions: It began shipping thousands of men to private prisons in Arizona, Mississippi, and Oklahoma. In addition, it converted Valley State Prison for Women, one of its three women’s prisons, into a men’s prison, and transferred the approximately 1,000 women there from Valley State Prison for Women to two other prisons—the Central California Women’s Facility (CCWF) and the California Institution for Women (CIW). It also opened the 523-bed Folsom Women’s Facility in January 2013.
Even before the influx of women from Valley State Prison, though, the numbers of people packed into CIW had led to reports of violence from inside. In 2012, Jane, who has been incarcerated at CIW for several years, wrote in a letter that was later reprinted in Tenacious, “When eight women of widely disparate ages, social backgrounds, ethnicities and interests share a 246-square foot cell, there are bound to be conflicts, and there is little tolerance for any behaviors that are different.” She recounted a woman named Anna who spoke little English and was mentally ill.
“Little Anna has spent the last several weeks being alternately beaten up by her cellmates, who don’t understand her behaviors, or drugged into a drooling stupor in the Specialty Care Unit,” Jane wrote. According to Jane, housing staff ignored the violence. When Anna tried to complain to a higher-ranking staff member, Jane said that correctional officers, “angry at her inability to follow directions, threw her to the floor, cuffed her hands behind her back and twisted her arms until she screamed in pain.”
Two years later, after women from Valley State Prison were moved to CIW, Jane wrote in a second letter published in Tenacious, “What this overcrowding has created in terms of living conditions is continued horrendous health care and failed mental health care.”
The situation seems to have persisted. As noted earlier, women have also reported a pervading sense of hopelessness, exacerbated in part by the inability to access mental health care. CIW has a suicide rate that reportedly is eight times the national rate for women behind bars. In 2015, it had two suicides and 35 attempts. As of June 16, 2016, there have been two successful suicides and nine attempts. “A lot of us are only hanging on by hope alone. In a hopeless place, most don’t make it,” one woman told Rewire one month before her friend’s suicide this past April.
In many men’s prisons, overcrowding is even more severe. Valley State Prison, now a men’s prison, is currently at 172 percent capacity. The vast majority of the state’s other male prisons operate at over 100 percent capacity.
But it’s not just California that suffers from prison overcrowding. Oklahoma, which has especially harsh sentencing laws—particularly for drug offenses—has the country’s highest rate of incarceration for women. And the number of those behind bars continues to rise: In 2014, the state imprisoned 2,979 women, a 9.3 percent increase from the 2,702 women imprisoned the year before.
Mary Fish has been incarcerated at Oklahoma’s Mabel Bassett Correctional Center (MBCC) for the past 15 years. She told Rewire that prison administrators recently added 40 more beds to each unit, increasing its capacity from 1,055 to 1,291. (As of June 13, 1,250 women were incarcerated at MBCC.) This has led to competition, even for state-guaranteed items like cafeteria food (especially fresh fruit, which is infrequent in many prisons). “This overcrowding is all about who can get up there and bull dog [sic] their way to the front of the line,” she wrote in a letter to Rewire. She said that two days earlier, the prison’s cafeteria was serving bananas with lunch. But, even though each woman only received one banana, by the time she reached the window, all of the bananas were gone.
“It really gives new meaning to overcrowded,” Fish reflected. “Bodies rubbing in passing, kind of space-less, boundary-less environment. I’ve never had so much human contact in the 15 years I’ve been incarcerated.”
The state’s medium-security women’s prison, the Eddie Warrior Correctional Center (capacity 988) currently holds 1,010 women. “There are huge overcrowded dorms crammed with bunk beds and steel lockers,” wrote “Gillian” in a letter to Rewire, later printed in Tenacious, shortly after being transferred from MBCC to Eddie Warrior. “The population is young, transient and the majority are disrespectful. They have no clue how to live successfully in a crowded communal environment. The dorms are filthy, loud and chaotic for the most part. There is no peace.”
The situations in Oklahoma and California are only two examples of how state prison overcrowding affects those locked up inside. Institutions in other states, including Alabama, North Dakota, and Nebraska, have also long been overcrowded.
On OITNB, the private corporation in charge plans to bring even more women to Litchfield to increase revenue. But in real life, as state budgets grow leaner and prison justice advocates continue to press for change, local legislators are beginning to rethink their incarceration policies. In California, a recently proposed ballot measure would change parole requirements and allow for early release for those with nonviolent convictions if they enroll in prison education programs or earn good behavior credits. If the ballot garners at least 585,407 voter signatures, it will be added to the state’s November ballot.
In Oklahoma, meanwhile, where the state now spends $500 million a year on incarceration, former Republican house speaker and leader of the coalition Oklahomans for Criminal Justice Reform Kris Steele is pushing for two ballot measures—one that allows reclassifying offenses like drug possession from felonies to misdemeanors, and another that sets up a new fund that would redirect the money spent on incarceration for low-level offenses back to community programs focused on rehabilitation and treating the root causes of crime.
Still, these changes have been slow in coming. In the meantime, individuals continue to be sent to prison, even if it means more bunk beds and less space to move (not to mention the devastation caused by breaking up families). “Last week, Oklahoma County brought a whole big RV-looking bus to deliver a bunch of women here to [Assessment and Reception],” Fish, at MBCC, noted in a May 2016 letter to Rewire.
The following week, she told Rewire, “They keep crowding us. There’s no room to even walk on the sidewalks.” Fish regularly reads the local newspapers in the hopes of learning about pending legislation to ease overcrowding and allow for early release. Though the senate recently passed four bills that may reduce the number of people being sent to prison, she feels that the new laws won’t help those currently trapped inside. “It’s getting pretty awful, and it looks like no bills passed to help us so there’s NO END IN SIGHT.”