Law and Society Paper Super Draft PDF

Preview

Summary

Download Law and Society Paper Super Draft PDF

Description

MaryElizabeth Greeley Hocine Fetni Soci 135, Law and Society 3 April 2018 Imprisoned Mothers: Women and their Children in the Context of Incarceration The impact of imprisonment on families is an issue with a long history. The state, in the form of a ruler or a government, has always been faced with the challenge of meeting out punishment through incarceration in the most effective way possible to satisfy community norms and expectations, to redress wrongs, and to deter future wrongdoing (Greenawalt, 1983), (Bulow, 2014). One of the main forms of punishment in the U.S. in the 20th and 21st century has been and continues to be incarceration. One of the choices that governments have had to make is how to target punishment; should it affect families of the miscreant, in order to increase the severity of the sentence? Alternatively, should punishment be targeted as narrowly as possible to affect only the criminal? The way a government answers these questions will affect criminals and families for potentially multiple generations (Arditti, 2005 ). This essay will briefly examine the way mothers have been treated by the corrections system in this country and elsewhere over time and describe some problems arising from these policies and practices, as well as proposing some more humane and beneficial alternatives, with specific address to women going through labor in shackles, separating infants from their mothers post childbirth, and the effects of a parent’s incarceration on children. Historically, the position of women as criminals has been distinct from that of men. Women were considered to be more like children than like their male adult counterparts, however, there have been instances of women incarcerated since the colonization of this country.

For example, a number of women were imprisoned for alleged witchcraft in Salem, MA, and at least one died- a female child was imprisoned as well. In the 17th century, a woman could postpone a death sentence if she “pleaded her belly” in other words, demonstrated a pregnancy Carney, 2015). This defense against incarceration goes back as far as the 13th century. (Ibid( Apart from the fact that prisons in the time were places of truly horrific conditions and would practically guarantee the death of the mother and children or both, imprisoning a newborn would in effect punish someone who had done no wrong. This had been common practice in England, and its cessation in the United States was an innovation. The notion of punishing families for an individual’s wrongdoing has a basis in the Judeo-Christian Bible. In the fourteenth chapter of Numbers a punishment against wrongdoers is inflicted not only the miscreant but “unto the 3rd and 4th generation” (The Holy Bible, Numbers 14:18). Although the deity is supposed to be doing the punishing, it would have been the community that treated the family of a miscreant badly for many generations. The tactic of taking retribution on families has been implemented at various points in history, for example, during the Third Reich, when entire Jewish family names were wiped out for the supposed crime of ethnic difference. This notion has reappeared just recently in a proposal to punish the families of any Iranian involved in nuclear arms development (Cotton, 2018) . However, the U.S. Constitution in the Preamble, the 5th, , 8th, and 14th Amendments, provide what appear to me protections against punishing those who have not committed a crime and/or punishing someone without due process (The US Constitution, Preamble, 5th, 8th, and 14th Amendments). Clearly infants and families impacted by the incarceration of a parent do not receive due process. In the U.S. in the current decade, unfortunately, these supposed protections do not always apply. The most disturbing example is the practice of shackling female prisoners in the third

trimester of pregnancy (Doetzer, 2008). In 46 states, female prisoners may be shackled during labor and delivery because no law to dictates otherwise (Ibid). Even though a delivering mother is almost completely harmless, jails still believe they are delinquents and often refer to previous attacks on the nurses as a standard for their treatment of women. Jails often fail to take into account other differences between male and female inmates that would seem to make shackling female inmates generally less necessary (Doetzer, 2008). In addition to this restriction on movement, female prisoners have extremely inadequate access to medical assistance, limited to simply painkillers both before and postpartum. Their only midwife or doula may be a male prison guard with absolutely no medical training and they may not get emergency medical care at all. (Ibid). This seems to fit the definition of cruel and unusual punishment, which is a breach of constitutional rights according to the Eighth Amendment (The US Constitution, 8th Amendment). Women should not be subject to this type of treatment because the mother and child can be severely affected both physically and emotionally. In most jurisdictions, babies are not permitted to remain with their mothers for longer than three days (Goltom, 2018). The results of this practice are potentially very damaging. This means that the baby has little opportunity to bond with the mother. Breastfeeding, if it is even permitted, is barely established before being cut off by removal of the infant. This separation can lead to mastitis, a life threatening infection, which requires antibiotics to treat effectively. As is common knowledge in the pro-lactation community, if the baby is jaundiced, such separation and forced weaning deprives the baby of the opportunity to get colostrum, the mother’s first and most potent milk, which is a specific remedy for jaundice. The long-term psychological damage resulting from children's separation from their mother has long been documented. Effects such as later juvenile delinquency, and reduced opportunities in life are among the results of the

severing of the connection with the birth mother. In many jurisdictions, if a child is in foster care for more than 12 months, the mother may lose her rights to custody permanently, thus eliminating any chance of re-establishing a family unit (Arditti, 2005) (Kotova, 2014) (Travis, 2003). Thus an innocent newborn is punished in ways that might have life-long implications for them and, if they do not succeed as citizens, for their community, all for the crime of the mother. This seems to constitute punishment of the newborn/child without due process, which is prohibited by the Fourteenth and Fifth Amendments. All of these practices appear to operate against the goal expressed in the Preamble to the Constitution, which defines the purpose of the government as to “promote the general welfare” (US Constitution, Preamble). None of these practices seem to accomplish this goal. Interestingly, some U.S. jurisdictions and some other democracies around the world have tried various ways to give mothers access to their babies and children in prison. Sweden allows a child to stay as long as is considered beneficial to the child. Other countries, like “Cambodia, Fiji, Mexico, and Turkey allow children to remain in prison until age six (Goltom, 2014). This suggests that a great deal of flexibility is possible in setting up and arranging incarceration. Even in the United States, there exist experiments in keeping children close to their incarcerated mothers. In Bedford Hills, NY, mothers have been able to be with their kids for years. Only recent budget cuts have endangered this successful program. This program has been successful according to the criteria important to prison administrators; the women have not displayed any additional criminal behavior or problems in their management (The Correctional Association of New York, 2013). These programs offer a glimpse of the alternative path for women in prison and their children. Especially in the current epidemic of opioid addiction, there has been an increase in the number of women who have committed crimes in order to support a condition

which requires medical supervision to be treated safely - even if it also treated as a crime. These women, especially, appear to need a different approach to their punishment (Herrera, 2018). Those on various ends of the political spectrum may have varying suggestions for ways to address this issue in an effective manner that fits their vision of the nation and its aspirations. Liberals might suggest that prisons could include day care and housing for children and babies and even educational services for older children. These services, under a liberally run administration, could be run by the local government. The prison could be an extension of the school district, or the Head Start program. Conservatives, on the other hand, might suggest that private entities, for example, religious institutions, could take on the responsibility for creating a space for children near or inside prisons, and provide the supervision for the children. There are precedents for private or religious entities providing services to jails and prisons, for example, weekly bible studies run by local clergy, or crafts classes run by local experts, or job readiness coaching provided by nearby colleges and career counselors. The same sort of arrangement can be envisioned for childcare as well. Whichever end of the political spectrum one starts from, there appear to be alternatives which can be explored and pursued to help ameliorate the current state of affairs. A society that has an espoused goal of equality of its citizens, and justice for all, cannot comfortably pursue a correctional system that deprives so many innocent citizens of their rights to due process and equal treatment. It may be inconvenient to find ways to keep moms and their kids together, but the goal should be pursued anyway, if the U.S is to fulfill its promise as expressed in its founding documents to allow life and liberty equally, and to accord all citizens due process.

Works Cited Arditti, Joyce. "Families and Incarceration: An Ecological Approach." The Journal of Contemporary Social Services 86. 2 (2005): 251-260. Web. 2 April 2018. . Bülow, William. Ethics of Imprisonment: Essays in Criminal Justice Ethics. 2014. PDF. 30 March 2018. . Carney, Laura. "Plead the belly: Stories of Crime, Death, and Pregnancy." EXPLORATIONS: THE UNDERGRADUATE RESEARCH JOURNAL 17 ((2015)). PDF. 3 APril 2018. . Doetzer, Geraldine. "Hard Labor: The Legal Implications of Shackling Female Inmates During Pregnancy and Childbirth." William & Mary Journal of Women and the Law 14,.2 (2008): n.p. PDF. 30 March 2018. . Goitom, Hanibal. "Can Children Live in Prison with a Parent?" 2018. Library of Congress. Web. 2 APril 2018. . Greenawalt, Kent. "Punishment." Journal of Criminal Law and Criminology 74.2 (1983): n.p. Web. 2 April 2018. . Herrera, Allison. "As opioids land more women in prison, Ohio finds alternative treatments." 2 April 2018. Public Radio International. Web. 2 april 2018.

. [email protected]. Jaundice. 2018. Web. 2 April 2018. . Kotova, Anna. "Justice and prisoners’ families." Howard League What is Justice? Working Papers (2014). Web. 2 April 2018. . The Bible: Authorized King James Version. Oxford: Oxford University Press, 1998. Print. "The Constitution of the United States of America." (n.d.). . The Correctional Association of New York. "The Correctional Association of New York." 2 August 2013. More women denied from nursery at Bedford Hills. Web. 29 March 2018. . Travis, Jeremy and Michelle Waul. Prisoners Once Removed: The Impact of Incarceration and Reentry on Children, Families, and Communities. The Urban Insitute, 2003. Web. 29 March 2018. . Zach, Carter. "Tom Cotton ‘Corruption Of Blood’ Bill Would Convict Family Members Of Iran Sanctions Violators." 22 May 2013. Huffington Post. Web. 30 March 2018. .

Thesis: Pregnant incarcerated women should be subject to less restrictions before and after giving birth. Mothers should be given the choice of where the child goes after birth. Background - women give birth alone - the history of women and prisons is ugly and conflicted - Look up: women not being kept out of prison because of pregnancy - Constitution and laws- Bible “punishing under the ___ generation” Body paragraphs - shackling women during pregnancy and after birth - separating baby from families too early (and at all) - effects of incarceration on family limitations on movement of a third trimester gravida can result in damage to the mother and complications during birth -

limitations on movement during delivery

There are a number of constitutional arguments against the way things are done currently. The preamble of the constitution notes that the government should promote the general welfare of the nation. The fifth amendment requires that nobody should be deprived of life, liberty, or property without due process of law. the eighth amendment prohibits cruel and unusual punishments. Shackling a woman during labor seems to fit the definition of a “cruel and unusual punishment”.

The tenth amendment is states rights…. The powers not delegated to the federal government by the constitution nor prohibited by it to the states, are reserved to the states respectively or to the people. In other words, unless the federal government has said that women do not have the right to bare a child without danger to their own life or that of the baby All rights are assumed unless the constitution specifies otherwise The fourteenth amendment says that individual states should not deprive any person of life, liberty, or property without due process.

The current practice of XX does not promote the welfare of the mother. Fifth and fourteenth amendments prohibit depriving a person of life and liberty, both of which occur to the child delivered under these conditions of shackling and lack of appropriate medical care.

http://abcnews.go.com/US/babies-born-raised-bars-mothers-returning-prison/story?id=22413184 https://ec.europa.eu/justice/grants/results/daphne-toolkit/en/file/322/download?.

The introduction should have some of the following elements depending on the type of paper: ● ●

● ● ● ● ● ● ●

Your introduction should be at least ___ words (more if necessary) and be written in paragraph form Start with an attention grabber: a short story, example, statistic, or historical context that introduces the paper topic ○ refer to an actual case and ask questions to the reader Give an overview of any issues/challenges involved with the subject ○ Define any key terminology needed to understand the topic Quote or paraphrase sources revealing the controversial nature of the subject (argumentative papers only) Highlight background information on the topic needed to understand the direction of the paper Discuss a few or several sub-questions you will need to answer in order to answer your overall Extended Essay Question Write an antithesis paragraph, presenting the primary opposing views (argumentative paper only) The introduction must end with a THESIS statement (a 1 to 2 sentences in length): Tell what the overall paper will focus on Briefly outline the main points in the paper

Include Annotated Bibliography (5-10 sources) ● You don’t need to have read all of your sources in their entirety, but you should have read enough to know that you can use them to answer your Extended Essay Question. ● Include a brief description of how you will use each source in answering your Extended Essay question...