Morgan Ellis thinks back to what she had wanted to do differently during her second pregnancy: eat more fruit, drink more water, rest more. She had even considered switching to a vegan diet.
Instead, Ellis spent the third trimester of her pregnancy eating two meals a day—mostly peanut butter and jelly sandwiches, dried milk, and, as she put it, “carrots that tasted like they were coated in chemicals”—as she sat in pretrial custody at Illinois’ Cook County Jail. (A spokesperson for the Cook County Jail said pregnant women are given the nutritional support menu, which is more calorically dense and consists of breakfast, lunch, and a hot dinner, but no lunchmeat.)
Ellis altogether spent more than 100 days in jail, since she couldn’t afford the requisite 10 percent of her $100,000 bond as she awaited her trial. She eventually bonded out 16 days before her due date.
“It’s not a place for pregnant women,” Ellis, who was ultimately cleared on her most serious charges, said of jail. Though she eventually delivered a healthy baby girl, giving birth behind bars would have been a heartbreaking outcome.
The jail agrees.
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The Cook County Sheriff’s Office (CCSO) this summer drafted legislation aimed at reducing the number of babies born in Illinois jails by providing alternatives to incarceration. With the sponsorship of several Chicago Democrats, HB 1464 cleared the statehouse on Wednesday with wide bipartisan support in a 106-8 vote; the bill moves to the state senate, where it’s expected to pass with similar support.
The bill would amend the state’s criminal code so that pregnant women who are arrested and likely to give birth before their release or their transfer to a state prison are deferred from jail via counseling, unsecured bonds that don’t require cash or collateral, electronic monitoring (EM), and other alternatives.
Keeping nonviolent pregnant women in jail through their due date because they’re too poor to bond out defies “common sense, reason, and thoughtfulness,” Cook County Sheriff Tom Dart said in an interview with Rewire.
“Lots of things in a perfect pregnancy require a lot of different things to change in someone’s life,” said Dart, alluding to things like eating habits, stress reduction, and access to medical care. “You don’t want people to do that while in jail,” he continued. “And for the morons who say ‘Well, then [the women] shouldn’t commit an offense’—some of these women are in here on traffic violations.”
The issue came into public focus this June, when 25-year-old Karen Padilla was jailed while seven-and-a-half months pregnant. Chicago police pulled Padilla over for a broken headlight and arrested her on an outstanding warrant for twice violating probation stemming from a 2015 retail theft.
A Cook County judge denied Padilla bond and set her court date two months out. Padilla went into labor behind bars and was rushed to Stroger Hospital, where she gave birth.
“I guess that case was the tipping point,” Dart said
Cara Smith, chief policy adviser to the CCSO, said Padilla’s case came to their attention because they were looking at people in the jail who had long continuances—court date delays that are common in the Cook County system, particularly where low-income defendants are concerned. The details of Padilla’s detainment spurred the sheriff’s office to act.
“We were left thinking, ‘How in the hell did anyone sleep at night knowing we were sentencing a nonviolent probation offender to give birth to her firstborn in jail?'” Smith said.
Cook County Jail, the largest single-site jail in the country, held nearly 300 pregnant women in pretrial custody in the year spanning April 2016 to May 2017. The majority of those women were held in jail before their trial date because they couldn’t afford bail; 17 of them gave birth while in custody. Elsewhere in the state, the number of pregnant women and number of births in local jails is imprecise: The Bureau of Justice Statistics collects data on a federal level from state prisons, but county data is self-reported and not uniformly available.
“A lot of the data about women in jail is pretty limited and also quite dated,” said Liz Swavola, senior program associate with the Vera Institute’s Center on Sentencing and Corrections, in an interview with Rewire. “About 5 percent of women report being pregnant in jail, but [that data] is about a decade old at this point.”
The Vera Institute’s Kristine Riley, who co-authored the 2016 “Overlooked: Women and Jails in an Era of Reform” report with Swavola, said that even though women make up the fastest-growing segment of the correctional population, jails and prisons have yet to really focus on the needs of this demographic.
“Across the board, jails tend to not have sufficient resources for women’s health; it can be a challenge to get even pads or tampons,” Riley said. “There’s really not a lot of focus on pregnant women in particular; there are instances of women giving birth in jail without proper care—and having miscarriages or ectopic pregnancies.”
Riley noted that the dangers to pregnant women are especially acute in rural jails.
“They tend to have even fewer resources [and] less staffing; the local hospital might be farther away,” she said.
While Cook County Jail has a medical wing and administers pregnancy tests to incoming female detainees, Dart said pregnant women are better off not being in his jail unless their charges mean they “absolutely have to be.”
“It wasn’t that long ago that I was in the delivery room,” said Dart, a father of five. “At no point did I think a viable option would be to do it in a corrections setting—even in a hospital wing of a corrections setting—and then shortly after the actual birth, wheel the women out of the room, the baby [sometimes] goes into the foster care system, and the woman goes into her jail cell.”
One notable limitation of the bill is that it won’t keep all pregnant women out of local Illinois jails—just the ones who can’t afford bail and whose pretrial detention is scheduled to extend past their delivery date.
The sheriff’s office conceded that the proposed legislation only targets women likely to give birth in jail and doesn’t address women who, like Ellis, spend a significant portion of their pregnancy in jail but are released before they deliver.
“We are looking to expand this,” noted CCSO spokesperson Sam Randall. “This is phase one of sorts; we’re looking at ways to address pregnant women in general, but wanted to start here, since [giving birth] is one of the more traumatic experiences a woman can experience in detention.”
Randall said judges or the county health provider are likely to be the ultimate arbiters determining a pregnant defendant’s risk of giving birth in jail; in Cook County, for example, the Health and Hospitals System or Cermak, the jail’s health facility, will determine which women are at risk.
There are currently no states that have laws specifically aimed at reducing the number of pregnant women in jail across the board. And while the number of women likely to give birth in jail custody is estimated to be small, Dart said the effect of a single jail birth can be significant for the child, the mother, the community, and taxpayers.
“If you can do anything you can from avoiding a child being taken away from its birth family and given to a foster family, you better do it,” he said.
Dart also anticipates the number of births in his jail will drop dramatically following a Cook County judge’s July order to reform cash bail. His proposed legislation is aimed at the rest of Illinois’ counties, where pregnant women are still likely to be held in pretrial custody because they’re too poor to afford bail.
“A lot of this is out of the control of sheriffs because a lot of things come into play before their role, like the arrest and the charges,” Swavola said.
Forcing a legislative issue would ideally create systemic changes at varying levels of law enforcement and the criminal justice system, ranging from the kind of charges and sentences prosecutors recommend to alternative measures judges could pursue instead of incarceration.
Dart said that he’s leaning on his past experience as a prosecutor and lawmaker to come up with alternatives to incarceration that state legislators and district attorneys can get behind.
Instead of pretrial detention, Dart suggested pregnant women who would otherwise be at risk of giving birth in jail while they await their court date could be given r-bonds, where an arrestee is released on their promise to return to court, or i-bonds, where an arrestee pays no money for release, but faces a cash penalty if they fail to appear in court.
Dart said if a judge has concerns about lifestyles such as alcohol abuse adversely affecting a pregnancy, a woman could be released with mandated counseling or doctor appointments—”a range of things that are better than incarceration.”
Swavola and Riley support alternatives like pretrial supervision and voluntary treatment or services. They generally discourage electronic monitoring, one of the most well-known alternatives to pretrial detention, because it can be overly restrictive for pregnant women who may need to make unscheduled doctor visits, errands, or visits with family. In some jails (though not in Cook County), individuals must also pay for the use of a court-ordered ankle monitor.
“We find most women are coming in to jail for low-level charges like drug use and disorderly conduct,” Swavola said. “You wouldn’t need EM for most of these women.”
Dart conceded that electronic monitoring isn’t a perfect solution for diverting pregnant women from jail, but noted that if it is necessary, the jail can shut off the monitor for periods at a time so that women can visit the doctor, go to work, or even visit with family.
“We can be really flexible, but EM is definitely not the first choice as an alternative to incarceration,” he said.
Smith, the sheriff’s chief policy adviser, expressed confidence that the team’s proposal will pass.
“It should sail through, absent any legislative goofiness,” Smith said. She suspected that when lawmakers take a closer look at how existing policies are affecting pregnant women and their newborn babies, they’ll be motivated to make changes. “No one should deliver a baby in jail. Period.”
Though Morgan Ellis narrowly avoided giving birth in jail, the feelings of helplessness and fear are still fresh in her mind.
Her daughter “came out healthy. But it affected me, mentally, while I was in there. Even though I was pregnant, I was still treated like an animal. And I was proven not guilty. They didn’t know I was an innocent person,” she said. “It’s horrible. It really is. We’re all humans, regardless of the situation.”