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Tearing Children Away from Their Incarcerated Mothers: An 8th Amendment Violation?

All across America, pregnant incarcerated females give birth to life only to have that life taken away from them.[1] Women’s incarceration is skyrocketing at a pace twice as fast as male incarceration.[2]  There were 231,000 women and girls incarcerated in the United States by the end of 2019.[3] In a study conducted in 2016, about 3.8% of newly admitted women that year were pregnant.[4] What does this mean for pregnant women in prison? It could mean giving birth in prison or being chained to their hospital beds during labor.[5] Even worse, it could mean being immediately separated from your child at birth.[6] Giving birth is not the end of the pain for these women. Motherhood is a forever status when one chooses to be a mom. Motherhood transcends the pain one endures when giving birth to a child. It includes pains she endures while raising her child, and especially includes pains she feels for life when her child has been taken from her.

Separating incarcerated mothers from their children is an Eighth Amendment violation. The Eighth Amendment clause prohibits “cruel and unusual punishment.”[7] To establish an Eighth Amendment claim, inmates must satisfy a two-pronged test established by the Supreme Court which comprises of an objective and a subjective component.[8] The objective prong requires a claimant to show that the challenged condition deprived them of a “basic human need” or because the conditions were a “substantial risk of serious harm.”[9] The subjective prong requires claimants to show that prison officials acted with “deliberate indifference” in subjecting the inmate under these conditions despite knowing the harm or risk of harm.[10]

Mother-child separation permanently affects both the mother and the child. For the mothers, their babies are often removed within twenty-four hours of delivery.[11] Stripped of their baby, the women are sent back to finish the remainder of their prison sentence.[12] Absent a legal guardian, the baby will go straight into foster care.[13] One study showed that approximately fifteen to twenty percent of children in foster care had a parent who was incarcerated.[14]

Many of us develop our first trusting relationship through our mothers. There is a reason why children cry for their mothers when they are scared, or when they start their first day of school. Mothers are an important staple in a child’s life. Women who give birth are often told to give as much skin-to-skin contact as possible with their baby right after birth. The reason behind this is for the woman and the baby to develop a bond very early on, and to support better physical and developmental progress in the baby.[15] The result of mother-child separation is a child who will be devoid of that physical and emotional staple or bonded rock in his or her life, a child who will have no memory of his or her mother. It also could mean a mother who will not know where her child is, even after she finishes her prison sentence. Baby mammals are born out of the womb needing their mother, whether that need is for food, protection, or comfort. These needs are not different from what a baby human needs from his or her mother. Baby mammals do not just randomly choose another female to provide all these needs, even if the other female is a mother. They have a designated mother whom they turn to and associate with. Separating human babies from their mothers at birth robs them of something that is naturally and innately needed in their biology.

The practice and its effects satisfy the elements for an Eighth Amendment claim. It can be argued that having a mother physically present, especially in the early developmental stages of life, is a basic necessity. Stripping either mother or child of this necessity has long term potentially irreversible effects; it has a “substantial risk of serious harm.” This includes psychological trauma that can exist for both mother and her child.[16] It includes a child entering the foster care system and the child’s life and family associations affected forever. Studies show that children placed in foster care are in significantly poorer mental and physical health than those in the general population.[17] The prison guards act with “deliberate indifference” obviously because this practice continues. Everyone has a mom or knows of a mom. I believe that these prison officials know that there is at least some risk of harm done when a crying baby is separated from the mother. And yet, they continue separating mother and children nonetheless. The Eighth Amendment argument can be swung both ways because the practice impacts both parties so deeply: it is a violation of rights for the mother and the child.

Some states have developed policies against shackling women in labor to their hospital beds,[18] while other states have created initiatives that prevent mother-child separation, such as opening prison nurseries.[19] These are important and crucial steps forward, but it is not enough. In no prison should any woman be separated from her child and prevented from discovering the child’s whereabouts and reuniting after separation.

There are several arguments in opposition to these initiatives.[20] One argument is that the woman would be unfit to be a good parent because she is incarcerated or because of the crime she committed before she became incarcerated.[21] Another argument is that we are using taxpayers’ money to keep these children in prison.[22] And finally a third argument is that keeping these children is a strain on the prison staff to have to take care of them.[23]

I argue that mistakes a parent has made in his or her own personal life does not equate to an unfit mother (or even father) for eternity. Parents are human. Though I do agree that some crimes may warrant an actual reason why a child should not be with his or her parent, such as a parent who has a tendency to sexually abuse children, I do not believe that there should be a blanket restriction of a child being with the mother for any crime she committed. Parents make mistakes or travel down paths they did not think they would take, especially when they were growing up as a child. That is part of the human condition. But it does not mean all parents are unfit to parent because they are or have been incarcerated. In response to the tax and strain of resources arguments, each year our country still spends thousands of dollars to maintain its solitary confinement practice.[24] I believe spending money and resources on caring for innocent babies is worth more of our tax dollars than a practice that has scientifically been proven to inflict permanent damage on the human psyche.[25]

Separating mothers and children is a cruel and unusual punishment. It would be cruel and unusual in the natural mammalian world; it is especially cruel and unusual in the human world. A society is built by the children we raise, and most often it is the mothers who raise these children. By tearing apart that vital relationship, we have unnecessarily violated the Eighth Amendment rights of these women and of our next generation. We are sending a message that mothers do not matter, and the lives of the children of these mothers do not matter.

[1] Priscilla A. Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191, 2221 (2018).

[2] Aleks Kajstura, Women’s Mass Incarceration: The Whole Pie 2019, Prison Pol’y Initiative (Oct. 29, 2019),

[3] Id.

[4] Sufrin et al., Pregnancy Outcomes in US Prisons, 2015-2017, Am. J. Pub. Health (Mar. 2019), It is interesting to note that there has neither been any updated statistics since that study, nor any statistical data before that study.

[5] Jonathan Lambert, Pregnant Behind Bars: What We Do and Don’t Know About Pregnancy and Incarceration, NPR (Mar. 21, 2019),

[6] Jennifer G. Clarke & Rachel E. Simon, Shackling and Separation: Motherhood in Prison, AMA J. Ethics (Sept. 2013),

[7] U.S. Const. amend. VIII.

[8] See Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also Laura Rovner, Article, in Hell is a Very Small Place: Voices for Solitary Confinement 181(Casella, et al. eds., 2016).

[9] Rovner, supra note 8.

[10] Id.

[11] Ocen, supra note 1.

[12] Id.

[13] Id.

[14] Id.

[15] Skin-to-Skin Contact, Unicef, (last accessed Jan. 31, 2020).

[16] Ocen, supra note 1.

[17] Kristin Turney & Christopher Wildeman, Mental and Physical Health of Children in Foster Care, 138 J. Am. Acad. Pediatrics (Nov. 1, 2016),

[18] Lindsay Whitehurst, States Weigh Bans on Shackling Jailed Moms During Childbirth, Associated Press (Mar. 13, 2019),

[19] Elizabeth Chuck, Prison Nurseries Give Incarcerated Mothers a Chance to Raise Their Babies – Behind Bars, NBC News (Aug. 4, 2018).

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Carrie Johnson, Solitary Confinement Costs $78K per Inmate and Should be Curbed, Critics Say, NPR (Feb. 25, 2014),

[25] Michael Mechanic, What Extreme Isolation Does to Your Mind, MOTHER JONES (Oct. 18, 2012, 4:09 AM),