The Rap Sheet: Nolo's Criminal Law Blog

I never realized how hard it could be for prisoners to give birth until I read the decision in the case of Nelson v. Correctional Medical Services, (8th Cir., October 2009).  A very pregnant Nelson was in an Arkansas prison, doing time for a non-violent crime.  When Nelson went into labor she was taken to a nearby hospital to give birth. A correctional officer who accompanied Nelson to the hospital repeatedly shackled Nelson's legs to the sides of her bed during labor.  The officer removed the shackles only when the nurses needed to check on Nelson's readiness to deliver, and then immediately replaced them.  The officer removed the shackles for good only after Nelson went into the delivery room.

Nelson is suing the correctional officer for a variety of injuries that she claims resulted from the constant shackling.  The injuries allegedly include a permanent hip injury, torn muscles and a hernia, and lots of unnecessary pain.  The correctional officer claimed "immunity from suit," arguing that Nelson had no right to sue her because she was carrying out her official duties.  The Court decided that the officer was not immune from suit, because she should have known that her actions constituted cruel and unusual punishment under the Eighth Amendment.

This was an "en banc" decision, meaning that numerous 8th Circuit federal court judges participated in the decision.  Amazingly to me, 5 judges dissented from the result and argued that the correctional officer was immune from suit.  Their reasoning was that shackling women during labor was such a widespread and routine practice that the correctional officer couldn't have realized that she was doing anything wrong.

Can it possibly be true that non-violent women in labor are routinely shackled to hospital beds?  Are pregnant women in labor really flight risks?  Strnagely enough, I can't recall ever seeing a woman who is just about to give birth racing down the street with a prison guard giving chase.  Surely the correctional officer could have thought of a better way to keep watch on Nelson duirng labor.  The correctional officer's actions caused needless suffering, and she should have to compensate Nelson for the harms she caused.

Phillip Garrido has been arrested for kidnapping 11 year old Jaycee Dugard in 1991. Until August 2009, he was able to hide her in tents and shacks in his backyard. He even fathered two daughters by her. Garrido and his wife were arrested and Jaycee and the girls were finally set free thanks to the instincts of Berkeley (CA) police officers who serendipitously talked to Garrido and the girls and realized that something wasn't right. 

Now authorities are at a loss to explain why Garrido was out on the streets in 1991.  In 1976, he had been convicted in federal and state courts of rape and kidnapping and was given a 50 year prison sentence in Nevada and a life sentence in federal prison.  However, he was paroled after 11 years, leaving him free to kidnap, rape and imprison Jaycee Dugard.   

This tragedy has come to light while California struggles about what to do about its unaffordable, overcrowded prison system. One obvious response is to save money by releasing prisoners.  But opponents of prisoner release are sure to use Phillip Garrido as an example of the bad things that will happen when we play "catch and release" with criminals.

I would argue, however, that prison release programs can actually prevent the release of inmates like Phillip Garrido.  Inmate populations may simply be too high for prison officials to deal with competently.  Dangerous prisoners are sometimes lost in the shuffle and released because nobody has time to pay close attention to what is happening.  I suspect that if we have fewer prisoners, we'll have fewer Phillip Garridos.