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Norris v. Nelson, PLN Amicus Brief 8th Circuit, Shackling Women Prisoners in Labor, 2008

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NO. 07-2481

IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
Larry Norris and Patricia Turensky,
Appellants,
v.
Shawanna Nelson,
Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
THE HONORABLE JAMES M. MOODY
UNITED STATES DISTRICT JUDGE

BRIEF OF AMICI CURIAE
NATIONAL PERINATAL ASSOCIATION, AMERICAN COLLEGE OF
NURSE MIDWIVES, AMERICAN MEDICAL WOMEN’S ASSOCIATION,
REBECCA PROJECT FOR HUMAN RIGHTS, ET AL., IN SUPPORT OF
APPELLEE AND AFFIRMANCE OF THE
DISTRICT COURT’S JUDGMENT
CHARLES M. KESTER
THE KESTER LAW FIRM
P.O. Box 184
Fayetteville, AR 72702
(479) 582-4600

CYNTHIA SOOHOO
DANA SUSSMAN*
STEPHANIE TOTI
CENTER FOR REPRODUCTIVE
RIGHTS
120 Wall Street, 14th Floor
New York, NY 10005
(917) 637-3600
*Bar Admission Pending

Attorneys for Amici Curiae

CORPORATE DISCLOSURE STATEMENT
Each of the amici curiae herein is either an individual or a not-for-profit
organization. None has any parent corporation. None has any capital stock held
by a publicly traded corporation.

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TABLE OF CONTENTS
CORPORATE DISCLOSURE STATEMENT…………………….….………..ii
TABLE OF AUTHORITIES……………………………………………...……...v
DESCRIPTION OF AMICI CURIAE…………………………………...……....ix
INTRODUCTION………………………………………...………………………1
ARGUMENT……………………………………………………………..……….1
I.

SHAWANNA NELSON’S EIGHTH AMENDMENT RIGHTS
WERE VIOLATED WHEN HER LEGS WERE SHACKLED
TO OPPOSITE SIDES OF A BED WHILE SHE WAS
LABORING TO DELIVER A NINE POUND, SEVEN OUNCE
CHILD.…………………………………………………………...……….....1

II.

THE PRACTICE OF SHACKLING PREGNANT WOMEN
DURING THE BIRTHING PROCESS VIOLATES THE
CONTEMPORARY STANDARDS OF DECENCY THAT
SERVE AS THE TOUCHSTONE FOR THE EIGHTH
AMENDMENT’S INTERPRETATION………………………….………...6

III.

A.

The Weight of Authority in the United States Views the
Practice of Shackling Pregnant Women During
the Birthing Process as Cruel, Inhuman, and Degrading
Treatment……………………………………………………….…….6

B.

The International Community Views the Shackling of
Pregnant Women During the Birthing Process as Cruel,
Inhuman and Degrading Treatment……………………………….….9

C.

The Practice of Shackling Pregnant Prisoners During the
Birthing Process is Prohibited in England ………………………….13

SHAWANNA NELSON’S EIGHTH AMENDMENT RIGHT
TO BE FREE OF SHACKLES DURING THE BIRTHING PROCESS
WAS CLEARLY ESTABLISHED AT
THE TIME OF MS. NELSON’S INCARCERATION…………………....14
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CONCLUSION…………………………………………………………………..15
CERTIFICATE OF COMPLIANCE…………………………………….….…16
CERTIFICATE OF SERVICE…………………..………………………..……17

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TABLE OF AUTHORITIES
CASES
Atkins v. Virginia, 536 U.S. 304 (2002)……………………………….………….12
Estelle v. Gamble, 429 U.S. 97 (1976)…………………………………….…2-3, 12
Farmer v. Brennan, 511 U.S. 825 (1994)……………………………………….3, 5
Haslar v. Mergerman, 104 F.3d 178 (8th Cir. 1997)……………………..……6 n.1
Helling v. McKinney, 509 U.S. 25 (1993)……………………………………….2-3
Hope v. Pelzer, 536 U.S. 730, 738 (2002)……………………………..…….2-6, 14
Jackson v. Bishop, 404 F.2d 571 (8th Cir. 1968)……………………..........……2, 9
Lawrence v. Texas, 539 U.S. 558 (2003)…………………………………………12
Monell v. Department of Social Services, 436 U.S. 658 (1977)……………….6 n.1
Nelson v. Correctional Medical Services,
2007 WL 1703562 (E.D. Ark. June 11, 2007)………..…………………...5-6
Roper v. Simmons, 543 U.S. 551 (2005)………………………......………..….9, 12
Saucier v. Katz, 533 U.S. 194 (2001)…………………………………………..…14
Trop v. Dulles, 356 U.S. 86, 99-100 (1958)………………………………….…….2
Wilson v. Seiter, 501 U.S. 294 (1991)………………………………………….…..3
Women Prisoners of the District of Columbia v. District of Columbia,
877 F. Supp. 634, 699 (D.D.C. 1994)………………………….…...…7-8, 14

CONSTITUTIONS AND STATUTES
United States Constitution art. VI………………………………...……..……10 n.6
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United States Constitution amend. VIII………………………………..…..………2
CAL. PENAL CODE § 3423 (2006)……………………………….……………..…...8
55 ILL. COMP. STAT. 52-15003.6 (2000)………………………….……………..…8
Second Chance Act of 2008, Pub. L. No. 110-199, 122 Stat. 657 (2008)…………9
VT. STAT. ANN. tit. 28, § 801a (2005)…………………………………………..…8

FOREIGN AND INTERNATIONAL LEGAL AUTHORITIES
Avci and Others v. Turkey, App. No. 77191/01 (ECHR Apr. 16,
2007)………………………………………………………………….……12
Convention Against Torture, and Other Cruel, Inhuman or Degrading
Treatment or Punishment, G.A. Res. 46, 39 U.N. GAOR Supp.
(No.51), U.N. Doc. 10 A/39/51 (1984)…………….……………………9-10
Convention on the Elimination of All Forms of Discrimination
Against Women art. 12(2), Mar. 1, 1980, 1249 U.N.T.S. 13…………..10 n.5
Council of Europe, Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment,
CPT/Inf (2000), 13, 10th General Report………………………………12-13
European Convention for the Protection of Human Rights and
Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221………..………………………12
Henaf v. France, App. 65436/01 (ECHR Feb. 27, 2004)………………….……...12
International Covenant on Civil and Political Rights, art. 7,
GA res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52,
U.N. Doc. A/6316 (1966)………………………………….………………10
International Covenant on Economic, Social and Cultural Rights,
art. 12(1), Dec. 16, 1966, 993 U.N.T.S. 3……………………………...10 n.5

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Her Majesty’s Prison Service, Guidance Notes on Gender Specific
Standards for Women Prisoners, Annex A to PSO 4800 (2008),
http://www.hmprisonservice.gov.uk/resourcecentre/psispsos/
listpsos/index.asp? startrow=51……………………………………..….13-14
Universal Declaration of Human Rights, G.A. Res. 217A (III),
art. 25(2), U.N. Doc. A/810 (1948)………………………..……..…….10 n.5
United Nations Committee Against Torture, Conclusions
and Recommendations: United States of America,
¶ 33 U.N. Doc. CAT/C/USA/CO/2 (2006)…………...……………...….....11
United Nations High Commissioner for Human Rights,
Status of Ratifications of the Principal International Human Rights
Treaties 12, available at http://www.unhchr.ch/pdf/report.pdf ..............10-11
United Nations Human Rights Committee, Concluding Observations:
United States of America, 87th Sess., ¶ 33, U.N. Doc.
CCPR/C/USA/CO/3/Rev. 1 (2006)………………………………….……..11
United Nations Standard Minimum Rules for the Treatment of
Prisoners, U.N. Doc. A/CONF/1 Annex 1, E.S.C. res. 663C,
U.N. ESCOR, 24th Sess., Supp. No. 1, U.N. Doc. E/3048…………...…11-12

OTHER AUTHORITIES
American College of Obstetricians and Gynecologists,
Letter in Opposition to Shackling, June 12, 2007; available at
http://www.acog.org/departments/dept_notice.cfm?recno=18&
bulletin=4631 ………………………..…………………………………....5-7
American Public Health Association, Standards for
Health Services in Correctional Institutions (2003)……………..………….7
Amnesty International USA Report, Abuse of Women in Custody:
Sexual Misconduct and Shackling of Pregnant Women (2008),
http://www.amnestyusa.org/women/custody/shackling.html……….......8 n.3
Arkansas Department of Corrections Administrative Directive 04-08 (2004)…..…8
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Center for Reproductive Rights and University of Toronto International
Programme on Reproductive and Sexual Health Law,
Bringing Rights to Bear: An Analysis of the Work of U.N. Treaty
Monitoring Bodies on Reproductive and Sexual Rights (2002)……….......10
Letter from Denise V. Lord, Assoc. Comm’r, Maine Department of Corrections
(Feb. 20, 2007)………………………………………………………..…8 n.3
Letter from Michelle A. Donaher, Dir. of Female Offender Services,
Massachusetts Department of Corrections (Nov. 30, 2007)…………….8 n.3
Luisa Dillner, Shackling Prisoners in Hospital Contravenes
International Law, 312 BRIT. MED. J. 200 (1996)……………..…….……..13
Oklahoma Department of Corrections, “Security Standards for Transportation of
Offenders,” Operation Policy No. 040111……………………………....8 n.3
Oregon Department of Corrections, Policy No. 40.1.1(H)(1)(d), available at
http://www.oregon.gov/DOC/PUBSER/rules_policies/
docs/40.1.1.pdf………………………………………………………….8 n.3

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DESCRIPTION OF AMICI CURAIE
Amici curiae submit this brief because they believe that the shackling of
pregnant women during the birthing process is a barbaric practice that endangers
the health and safety of mothers and their children and constitutes cruel and
unusual punishment in violation of the Eighth Amendment to United States
Constitution. The following individuals and organizations join this brief as amici
curiae:
Amicus Curiae National Perinatal Association (“NPA”) promotes the
health and well-being of mothers and infants, enriching families, communities and
our world. NPA seeks to increase access to comprehensive health care, as this has
an immeasurable impact on birth outcomes. NPA opposes all policies which
endanger the well-being of infants or their mothers.
Amicus Curiae American College of Nurse Midwives (“ACNM”), with
roots dating back to 1929, is the oldest women’s health care organization in the
United States. ACNM sets standards for the education, certification, and practice
of certified nurse-midwives and certified midwives; supports research; administers
and promotes continuing education programs; creates liaisons with state and
federal agencies and members of Congress; and advocates for programs and
policies that improve the health status of women and their families. The mission of
ACNM is to promote the health and well-being of women and newborns within

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their families and communities through the development and support of the
profession of midwifery, practiced by certified nurse-midwives and certified
midwives. The philosophy inherent in the profession states that the midwives
believe every individual has the right to safe, satisfying health care with respect for
human dignity and cultural variations.
Amicus Curiae American Medical Women’s Association (“AMWA”) is a
national non-profit organization of over 10,000 women physicians and physiciansin-training representing every medical specialty. Founded in 1915, AMWA is
dedicated to promoting women in medicine and advocating for improved women’s
health policy. AMWA encourages all pregnant women to seek prenatal care and
believes that breaching the medical confidentiality of these women or otherwise
hindering their ability to establish a relationship of trust with their treatment
providers will deter women, especially those that may be at high risk for adverse
pregnancy outcomes, from receiving prenatal care.
Amicus Curiae Rebecca Project for Human Rights (“RPHR”) is a national
legal and policy organization that advocates for public policy reform, justice and
dignity for vulnerable families. RPHR strives to reform child welfare, criminal
justice, and other policies that impact the lives of vulnerable families. RPHR
frames the pervasiveness of violence against women and girls, the draconian
conditions that too often characterize maternal incarceration, and the dearth of

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access to health and healing for mothers and their children, as fundamental human
rights violations.

RPHR advocates for policies and practices that honor,

strengthen, and render whole the sacred ties between parents and children and
affirms the worth and dignity of every child, every family.
Amicus Curiae The Advocates for Human Rights (“The Advocates”) is a
volunteer-based non-profit organization committed to the impartial promotion and
protection of international human rights standards and the rule of law.

The

Advocates conducts a broad range of innovative programs to promote human rights
in the United States and around the world, including human rights monitoring and
fact finding, direct legal representation, education and training, and publications.
The Advocates has produced more than 50 reports documenting human rights
practices in more than 25 countries; and educated more than 10,000 students and
community members on human rights issues.

The Advocates previously has

submitted amicus curiae briefs in numerous cases that raise issues of international
human rights law.
Amicus Curiae Asian American Legal Defense and Education Fund
(“AALDEF”), founded in 1974, is a national organization that protects and
promotes the civil rights of Asian Americans. By combining litigation, advocacy,
education, and organizing, AALDEF works with Asian American communities
across the country to secure human rights for all.

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Amicus Curiae The Bronx Health Link, Inc. (“TBHL”) is a clearinghouse
of information for members of the health and human service delivery system of the
Bronx. TBHL works extensively with the community and health care providers to
identify gaps in perinatal health care and improve both women’s early entry into
prenatal care and the reproductive health of area women, and in particular, African
American and Latina mothers and babies at greatest risk. TBHL educates women
about the importance of prenatal and postpartum medical screening and care, as
well as of self-care and care of their infants—in particular, through workshops and
information that empower women to make informed choices.
Amicus Curiae Center for Constitutional Rights (“CCR”), established in
1966, is a non-profit legal and educational organization dedicated to protecting the
rights guaranteed by the U.S. Constitution and the Universal Declaration of Human
Rights. CCR has a long history of advocating on behalf of civil rights and
advancing the protection of international human rights in the courts and through
education and outreach, including in the areas of criminal and gender justice.
Amicus Curiae Citizens for Midwifery (“CfM”) is a national, consumerbased non-profit organization promoting the Midwives Model of Care.

Our

members are primarily parents and concerned citizens, but include doulas,
childbirth educators, midwifery students, midwives, nurses, and physicians. CfM
works to improve access to the evidence-based, respectful Midwives Model of

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Care in all settings for all women. This kind of care is based on basic human rights
and also recognizes that freedom of movement during labor and delivery is
essential for optimal outcomes for mothers and babies.
Amicus Curiae The Columbia Law School Sexuality & Gender Law
Clinic (“the Clinic”) works both domestically and globally to secure equality and
challenge gender bias and discrimination through legal and public policy advocacy.
The Clinic regularly files amicus briefs in litigation related to women’s rights and
has expertise in international law as well as American constitutional jurisprudence.
The Clinic has particular interest in insuring that pregnant women receive full
protection from the domestic and international standards that underlie the Eighth
Amendment’s cruel and unusual punishment prohibition.
Amicus Curiae The D.C. Prisoners’ Project of the Washington Lawyers’
Committee for Civil Rights and Urban Affairs (“the Prisoners’ Project”), a nonprofit public interest organization, has sought to eradicate discrimination and fully
enforce the nation’s civil rights laws for over 40 years. Since The Prisoners’
Project was founded in 1989, it has engaged in broad-based class action litigation,
improving medical and mental health services, reducing overcrowding, and
seeking to improve overall conditions at correctional facilities wherever D.C.
inmates are held.

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Amicus Curiae Death Penalty Focus is one of the largest nonprofit
advocacy organizations in the nation dedicated to the abolition of capital
punishment through public education; grassroots and political organizing; original
research; media outreach; local, state and nationwide coalition building; and the
education of religious, legislative and civic leaders about the death penalty and its
alternatives. Founded in 1988, Death Penalty Focus has eleven active volunteer
chapters in California and more than 25,000 members and supporters nationwide.
Amicus Curiae Florida Institutional Legal Services, Inc. (“FILS”) is a
non-profit legal services office representing indigent institutionalized people in
Florida. Its primary focus over its 30-year history has been a mix of individual and
class action litigation in federal and state courts on behalf of Florida prisoners.
Amicus Curiae Human Rights Advocates is a non-profit California
corporation founded in 1978 with national and international membership. It has
Special NGO Consultative Status in the United Nations. It endeavors to ensure
that the most basic protections are afforded to everyone and has participated as
amicus curiae in cases involving individual and group rights where international
standards offer assistance in interpreting both state and federal statutes at issue.
Amicus Curiae International Women's Human Rights Law Clinic
(“IWHR”) at the City University of New York School of Law has, since it
founding in 1992, engaged with students and with partners in the United States and

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abroad in advocacy and litigation relating, inter alia, to international law norms
and measures respecting violence against women. IWHR has been instrumental in
bringing about the recognition of various forms of violence as torture and cruel,
inhuman or degrading treatment or punishment as within the obligations of the
United States under the Convention Against Torture.
Amicus Curiae Justice Now works to promote alternatives to policing and
prisons and to challenge the prison industrial complex in all its forms. It fulfills its
mission by providing legal services and supporting prisoner organizing efforts that
promote health and justice; working with prisoners, their families, and community
members on political education and mobilization campaigns; building coalitions to
create safety for women and individual accountability without relying on the
punishment system; and training the next generation of activists and lawyers
committed to working for social justice.
Amicus Curiae Law Students for Reproductive Justice (“LSRJ”) is a nonprofit network of law students, professors, and lawyers dedicated to ensuring the
future of reproductive justice by educating, organizing, and supporting law
students on 75 campuses throughout the United States and Canada. LSRJ is filling
in the gaps left by formal legal education—providing educational materials and inperson learning experiences to ensure that budding legal experts have the

xv

information and skills they need to pursue reproductive justice in any realm—from
the bar to the bench, school board meetings to congressional hearings, and beyond.
Amicus Curiae Legal Momentum is the oldest legal advocacy organization
in the United States dedicated to advancing the rights of women and girls. Legal
Momentum is committed to enforcing the right to be free from cruel and unusual
punishment, and to women’s reproductive rights and access to health care.
Amicus Curiae Maternal and Child Health Access (“MCHA”)is dedicated
to ensuring meaningful access to health and social services for low-income women
and their families and to helping them improve the quality of their lives. MCHA
provides information, support, and technical assistance to health and social service
organizations, assists individual women to achieve healthy pregnancies and obtain
quality health care for themselves and their children, and educates policymakers
and the general public to improve the health and social services systems for all low
income women and families and to benefit the entire community in which we live.
Amicus Curiae National Advocates for Pregnant Women (“NAPW”)
works to secure the human and civil rights, health and welfare of all women,
focusing particularly on pregnant and parenting women, and those who are most
vulnerable, such as low income women and women of color. NAPW seeks to
ensure that women do not lose their constitutional and human rights as a result of
pregnancy, that families are not needlessly separated, and that pregnant and
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parenting women have access to a full range of reproductive health services. By
focusing on the rights of pregnant women, NAPW broadens and strengthens the
reproductive justice, drug policy reform, and other interconnected social justice
movements in America today.
Amicus Curiae National Asian Pacific American Women’s Forum
(“NAPAWF”) is dedicated to forging a grassroots progressive movement for social
and economic justice and the political empowerment of Asian and Pacific Islander
(API) women and girls. Founded in 1996, NAPAWF’s vision includes
strengthening communities to reflect the social, political and economic concerns
and perspectives of API women and girls; inspiring leadership and promoting the
visibility and participation of API women and girls in the political process and
within the broader national and international women’s movement; and creating a
vehicle for API women to connect with others across the country. NAPAWF is
committed to ending violence against women, securing reproductive justice for all,
and advancing immigrant and refugee rights.
Amicus Curiae The National Conference of Black Lawyers (NCBL), New
York Chapter is an association of lawyers, scholars, judges, legal workers, law
students and legal activists. The NCBL's mission is to serve as the legal arm of the
movement for black liberation; to protect human rights; to achieve selfdetermination of Africa and African communities in the diaspora; and to work in

xvii

coalition to assist in ending oppression of all peoples. NCBL is a bar association
but its program concerns matters of critical concern to the broader black
community.
Amicus Curiae National Economic and Social Rights Initiative
(“NESRI”) works with social movements and community organizations to advance
the principle that fundamental human needs, such as health, education, housing and
decent work, are fundamental human rights. NESRI’s right to health program
advocates for universal protection of the right to health, irrespective of race,
gender, class or social status (including incarceration), and promotes the use of
human rights standards and criteria in the development of policies that may impact
health.
Amicus Curiae The National Latina Institute for Reproductive Health is
a non-profit organization that seeks to ensure the fundamental human right to
reproductive health care for Latinas, their families and their communities through
education, policy advocacy, and community mobilization.
Amicus Curiae The National Lawyers Guild is a national non-profit legal
and political organization of lawyers, law students, legal workers, and jailhouse
lawyers dedicated to using the law as an instrument for social amelioration.
Founded in 1937 as an alternative to the then racially segregated American Bar
Association, the Guild has taken an integral role in representing social and political

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movements. The Guild has a long history of monitoring institutional practices
which result in the abuse of incarcerated women, here in the United States and
around the world. A significant number of our members advocate in the area of
women’s rights and prisoners’ rights.
Amicus Curiae The National Organization for Women Foundation
("NOW Foundation") is devoted to furthering women’s rights through education
and litigation. The NOW Foundation is affiliated with the National Organization
for Women, the largest women’s rights organization in the United States, with a
membership of over 500,000 contributing women and men in more than 550
chapters in all 50 states and the District of Columbia.
Amicus Curiae National Partnership for Children of Incarcerated
Parents, (“NPCIP”) is a network of hundreds of organizations in 14 states, seeking
policy reforms that best serve the parent and child relationship when a parent is in
prison. NPCIP is particularly concerned with the issue of restraining pregnant
women in transport, labor and child birthing, as it causes potential medical harm to
mother and child, along with certain psychological trauma for the mother and
future relationships with the infant she is separated from, in many cases. NPCIP
represents approximately 50-100 organizations in each of the following states:
Washington State, Montana, Minnesota, Michigan, Pennsylvania. Connecticut,
Massachusetts, South Carolina, Tennessee, Arkansas, Texas, and Arizona.

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Amicus Curiae The Northwest Women’s Law Center is a non-profit
public interest organization dedicated to advancing the legal rights of all women
through litigation, education, legislation and the provision of legal information and
referral services. Since its founding in 1978, the Law Center has served as a
regional expert and leading advocate on reproductive freedom and the right to
healthcare. Toward that end, the Law Center works to protect and ensure access to
safe and humane medical care for incarcerated women, and to advance the legal
rights of all pregnant and birthing women. Part of this work includes monitoring
the practices and policies of women’s correctional facilities in the Northwest states
to ensure that no facility in the Northwest engages in shackling of laboring women.
Amicus Curiae Penal Reform International (“PRI”) is an international
non-governmental organization working on penal and criminal justice reform
worldwide. PRI seeks to achieve penal reform by promoting the development and
implementation of international human rights instruments in relation to law
enforcement and prison conditions; the elimination of unfair and unethical
discrimination in all penal measures; and a reduction in the use of imprisonment
throughout the world.
Amicus Curiae Physicians for Reproductive Choice and Health
(“PRCH”), founded in 1992, is a national non-profit organization whose mission is
to improve the delivery of the full range of reproductive health services. The active

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membership and board of PRCH consist of some of the most renowned academic,
research, and clinical physicians in the country, including leaders in the field of
obstetrics and gynecology. PRCH exists to enable concerned physicians to take a
more active and visible role in support of universal health. PRCH is committed to
ensuring that all people have the knowledge, access to quality services, and ability
to make informed health decisions. PRCH has an immediate and substantial
interest in this litigation and in protecting women’s reproductive health.
Amicus Curiae Prison Legal News (“PLN”) is a non-profit, charitable
corporation that publishes a nationally distributed monthly journal of the same
name. Since 1990, PLN has reported on news, recent court decisions, and other
developments relating to the civil and human rights of prisoners. Approximately
sixty-five percent of PLN subscribers are state and federal prisoners.
Amicus Curiae Prisoners’ Legal Services of New York (“PLS”) is a nonprofit organization that has been providing civil legal services to indigent inmates
in New York State prisons for over thirty-two years. PLS receives over 10,000
requests for assistance annually. There are over 2,500 females currently in the
custody of the New York State Department of Correctional Services. PLS’ mission
is to insure that New York State inmates receive fair, just, lawful and humane
treatment while incarcerated. PLS seeks, wherever possible, to resolve complaints
administratively and, in meritorious cases that cannot be resolved administratively,

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PLS serves as legal counsel in both state and federal courts. PLS has a significant
interest in ensuring the protection of the constitutional rights of all prisoners.
Amicus Curiae SisterSong Women of Color Reproductive Health
Collective is an organization dedicated to amplifying and strengthening the
collective voices of Indigenous women and women of color to ensure reproductive
justice through securing human rights. SisterSong educates women of color on
reproductive and sexual health and rights, and works to improve access to health
services, information and resources that are culturally and linguistically
appropriate through the integration of the disciplines of community organizing,
self-help and human rights education.
Amicus Curiae Southwest Women’s Law Center is a non-profit legal
advocacy organization based in Albuquerque, New Mexico. Its mission is to create
the opportunity for women to realize their full economic and personal potential by
eliminating gender discrimination, helping to lift women and their families out of
poverty, and ensuring that women have control over their reproductive lives. The
Southwest Women’s Law Center seeks to promote access to comprehensive
reproductive health care information and services and to eliminate discrimination
and disparities in access to necessary and appropriate health care services based on
gender.

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Amicus Curiae Texas Jail Project (“TJP”) is dedicated to improving the
conditions for the thousands of people—mothers, fathers, brothers, sons, sisters
and daughters—incarcerated in Texas jails. TJP was originally formed to improve
conditions for incarcerated women by publicizing the widespread abuse and
neglect in the 258 county facilities in Texas.
Amicus Curiae The Uptown People’s Law Center (“the Law Center”) is a
non-profit legal clinic founded in 1975. In addition to providing legal
representation, advocacy, and education for poor and working people in the
Uptown neighborhood of Chicago and surrounding communities, the Law Center
also provides legal assistance to people housed in Illinois’ prisons in cases related
to their confinement. The Law Center has provided direct representation to over
100 prisoners, including several cases before this Court.
Amicus Curiae Women’s Law Project (“WLP”) is a non-profit public
interest law firm with offices in Philadelphia and Pittsburgh, Pennsylvania.
Founded in 1974, the WLP works to abolish discrimination and injustice and to
advance the legal and economic status of women and their families through
litigation, public policy development, public education and individual counseling.
Throughout its history, the WLP has played a leading role in the struggle to
safeguard access to safe and appropriate reproductive health care for women as
required by the U.S. Constitution and international human rights law.

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Individual Amici Curiae: Bassina Farbenblum, Practitioner in Residence,
International Human Rights/Rule of Law Project, Seton Hall School of Law;
Donna Lee, Associate Professor of Law, CUNY School of Law; Hope Lewis,
Professor of Law, Northeastern University School of Law; Jules Lobel, Professor
of Law at the University of Pittsburgh Law School and Vice President of the
Center for Constitutional Rights; Hope Metcalf, Lecturer-in-Law, Yale Law
School; Sarah Paoletti, Clinical Supervisor and Lecturer, Transnational Legal
Clinic, University of Pennsylvania School of Law; Thomas H. Speedy Rice,
Professor of Practice, Transnational Law Institute at Washington and Lee Law
School; Penny Venetis, Clinical Professor of Law and Co-Director of the
Constitutional Litigation Clinic, Rutgers Law School.*
* Affiliations are listed for identification purposes only.

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INTRODUCTION
The use of shackles to restrain a pregnant woman during the birthing process
is a barbaric practice that needlessly inflicts excruciating pain and humiliation. It
is condemned by leading medical and public health associations, federal and state
law, and international human rights treaties. There can be no doubt that such an
unnecessary and wanton infliction of pain and suffering violates the Eighth
Amendment’s prohibition on cruel and unusual punishments.
In this case, Shawanna Nelson was shackled to a hospital bed while she
endured the labor pains necessary to deliver a nine pound, seven ounce baby. For
more than an hour leading up to her son’s birth, she was completely immobilized
by the shackles, which bound her legs to opposite sides of the bed. When the
sheets became soiled with human waste, she was unable to abate the humiliating
and unsterile condition. The shackles caused her both physical pain and emotional
trauma, and jeopardized the safety of the child she was about to deliver.
Because it was clearly established at the time that Shawanna Nelson gave
birth that the practice of shackling a pregnant prisoner during labor violates the
Eighth Amendment, this Court must affirm the judgment of the district court.
ARGUMENT
I.

Shawanna Nelson’s Eighth Amendment Rights Were Violated When
Her Legs Were Shackled to Opposite Sides of a Bed While She Was
Laboring to Deliver a Nine Pound, Seven Ounce Child.
The Eighth Amendment prohibits the infliction of “cruel and unusual

1

punishments.” U.S. Const. amend XIII. In addition to proscribing torture and
other methods of punishment considered to be barbaric, the Eighth Amendment
proscribes “punishments which are incompatible with the evolving standards of
decency that mark the progress of a maturing society or which involve the
unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 10203 (1976) (internal quotation marks and citations omitted). That is because the
Eighth Amendment embodies “broad and idealistic concepts of dignity, civilized
standards, humanity, and decency.” Id. at 102 (quoting Jackson v. Bishop, 404
F.2d 571, 579 (8th Cir. 1968)). Indeed, “[t]he basic concept underlying the Eighth
Amendment is nothing less than the dignity of man.” Trop v. Dulles, 356 U.S. 86,
99-100 (1958); accord Hope v. Pelzer, 536 U.S. 730, 738 (2002).
In Estelle, the Supreme Court relied on these principles in holding that the
Eighth Amendment imposes an obligation on prison officials to provide medical
care for prisoners in their custody. See Estelle, 429 U.S. at 103. It reasoned that
failure to provide such care could result in pain and suffering that serves no valid
penological purpose. Id. “The infliction of such unnecessary suffering,” the Court
declared, “is inconsistent with contemporary standards of decency.”

Id.

In

subsequent cases, the Supreme Court extended the rationale of Estelle, holding that
prison officials have an obligation to ensure humane conditions of incarceration
and to protect prisoners in their custody from any substantial risks of harm to their
health or safety. See, e.g., Hope, 536 U.S. at 737; Helling v. McKinney, 509 U.S.

2

25, 31-32 (1993); Wilson v. Seiter, 501 U.S. 294, 297-302 (1991).
The Eighth Amendment analysis applied to prisoner treatment not
specifically part of a prisoner’s sentence consists of both an objective and a
subjective component. See Farmer v. Brennan, 511 U.S. 825, 834 (1994). The
objective component focuses on the seriousness of an alleged deprivation, as
measured by contemporary standards of decency.

See id.

The subjective

component focuses on the state of mind of the prison official whose acts or
omissions caused the alleged deprivation. See id. In cases concerning conditions
of confinement, the requisite state of mind is “deliberate indifference.” See id.;
Helling, 509 U.S. at 32; Wilson, 501 U.S. at 303; Estelle, 429 U.S. at 104.
Deliberate indifference is akin to recklessness; it exists if a prison official knows of
and disregards a substantial risk to prisoner health and safety. Farmer, 511 U.S. at
836-37. The existence of this subjective state of mind can be inferred “from the
fact that the risk of harm is obvious.” Hope, 536 U.S. at 738; accord Farmer, 511
U.S. at 842.
In Hope, the Supreme Court held that both the objective and subjective
components of an Eighth Amendment violation were present when a prisoner,
Larry Hope, alleged that he was twice handcuffed to a hitching post as a sanction
for disruptive conduct. On the first occasion, Mr. Hope alleged that he was
handcuffed to the hitching post for two hours. Hope, 536 U.S. at 734. Because he
was only slightly taller than the hitching post, his arms were above shoulder height

3

and grew tired from being handcuffed so high. Whenever he tried moving his arms
to improve his circulation, the handcuffs cut into his wrists, causing him pain and
discomfort. Id. On the second occasion, Mr. Hope alleged that he was handcuffed
to the hitching post for seven hours. Id. at 734-35. The correctional officers made
him take off his shirt, and he remained shirtless all day while the sun burned his
skin. Id. He was given water only once or twice and was allowed no bathroom
breaks. Id. at 735. The Supreme Court held that, based on the facts alleged by Mr.
Hope, the Eighth Amendment violation was “obvious.” Id. at 738. It stated:
Despite the clear lack of an emergency situation, the respondents
knowingly subjected him to a substantial risk of physical harm, to
unnecessary pain caused by the handcuffs and the restricted position
of confinement for a 7-hour period, to unnecessary exposure to the
heat of the sun, to prolonged thirst and taunting, and to a deprivation
of bathroom breaks that created a risk of particular discomfort and
humiliation. The use of the hitching post under these circumstances
violated the basic concept underlying the Eighth Amendment, which
is nothing less than the dignity of man.
Id. at 738 (internal quotation marks and footnotes omitted).
Similarly, both the objective and subjective components of an Eighth
Amendment violation are present here, where Shawanna Nelson, a non-violent
offender who was not considered a security threat, had both of her legs shackled to
a hospital bed while she was laboring to deliver a nine pound, seven ounce child.
As set forth below, the practice of shackling a pregnant woman during the birthing
process violates contemporary standards of decency and subjects the pregnant
woman to the unnecessary and wanton infliction of pain. See infra at 6-14. As a

4

result, it satisfies the objective component of an Eighth Amendment violation. See
Farmer, 511 U.S. at 834. The practice of shackling a pregnant woman during the
birthing process also poses a substantial risk of harm to the woman’s health and
safety. See SA 169-70 (expert testimony of Dr. Cynthia Frazier, Fellow of the
American College of Obstetricians and Gynecologists); American College of
Obstetricians and Gynecologists, Letter in Opposition to Shackling, June 12, 2007
(“ACOG Letter”), available at http://www.acog.org/departments/dept_notice.cfm?
recno=18&bulletin=4631. Because the trier of fact could reasonably conclude that
that risk is obvious, and because Officer Turensky admitted being aware of that
risk, SA 64, 201-02, the subjective component of an Eighth Amendment
violation—deliberate indifference—is also satisfied. See Hope, 536 U.S. at 738;
Farmer, 511 U.S. at 836-37, 842.
The similarities between Ms. Nelson’s experience while shackled during
labor and Mr. Hope’s experience while handcuffed to the hitching post confirm
that Officer Turensky’s actions in shackling Ms. Nelson’s legs to opposite sides of
a bed violated the Eighth Amendment. Neither Mr. Hope nor Ms. Nelson posed an
immediate security threat. Compare Hope, 536 U.S. at 738 with SA 197; Nelson v.
Correctional Medical Services, 2007 WL 1703562, *10 (E.D. Ark. Jun. 11, 2007).
Mr. Hope suffered unnecessary pain caused by the handcuffs and the restrictions
they placed on his movements. Ms. Nelson suffered unnecessary pain caused by
the shackles and the restrictions they placed on her movements, which pain was

5

amplified by the birthing process. Compare Hope, 536 U.S. at 738 with SA 61;
Nelson, 2007 WL 1703562 at *3, 10. As a result of being deprived of bathroom
breaks, Mr. Hope was subjected to the risk of particular discomfort and
humiliation. As a result of being shackled while in labor, Ms. Nelson soiled her
bedsheets with human waste, which caused her actual discomfort and humiliation,
and also subjected her to the risk of infection. Compare Hope, 536 U.S. at 738
with SA 217-19. In addition, both Ms. Nelson and the child she was about to
deliver were subjected to the risk of serious physical injury. See SA 169-70;
ACOG Letter. Accordingly, the Eighth Amendment violation is just as “obvious”
in the instant case as it was in Hope.1 Cf. Hope, 536 U.S. at 738.
II.

The Practice of Shackling Pregnant Women During the Birthing
Process Violates the Contemporary Standards of Decency that Serve as
the Touchstone for the Eighth Amendment’s Interpretation.
A.

The Weight of Authority in the United States Views the Practice
of Shackling Pregnant Women During the Birthing Process as
Cruel, Inhuman, and Degrading Treatment.

There is widespread recognition in the United States that the practice of
shackling women during the birthing process constitutes cruel, inhuman, and
1

Appellants’ reliance on Haslar v. Mergerman for a contrary proposition is misplaced. Haslar
dealt with official capacity claims, not individual capacity claims like the ones at issue in this
case. See Haslar v. Mergerman, 104 F.3d 178, 179-80 (8th Cir. 1997). As a result, in order to
prevail, the plaintiff had the burden of demonstrating that the correctional officers who kept him
shackled to a hospital bed despite the injury that the shackles caused him acted pursuant to an
official policy or custom. See Monell v. Department of Social Services, 436 U.S. 658, 694
(1977). He could not meet that burden because the official policy of Missouri’s Department of
Corrections required the correctional officers to remove the shackles if they posed a threat of
harm to the plaintiff. Id. at 180. The Court specifically declined to comment on whether the
correctional officers’ use of the shackles, in violation of official policy, constituted a violation of
the Eighth Amendment because that question was not necessary to the disposition of the case.
Id.
6

degrading treatment. The nation’s leading medical and public health organizations
condemn the practice as dangerous, unnecessary, and dehumanizing.

The

American College of Obstetricians and Gynecologists (“ACOG”) has stated that
“[t]he practice of shackling an incarcerated woman in labor may not only
compromise her health care but is demeaning and unnecessary. . . . Women [who
have been shackled during labor] describe the inability to move to allay the pains
of labor, the bruising caused by chain belts across the abdomen, and the deeply felt
loss of dignity.” See ACOG Letter. The American Public Health Association
(“APHA”), which promulgates standards for the provision of health care in
prisons, warns that “[w]omen must never be shackled during labor and delivery.”
APHA, Standards for Health Services in Correctional Institutions 108 (2003).2
The only federal court to publish a decision on the issue prior to this case
concluded that the practice of shackling pregnant women ran afoul of
contemporary standards of decency and violated the Eighth Amendment. See
Women Prisoners of the District of Columbia v. District of Columbia, 877 F. Supp.
634, 699 (D.D.C. 1994), aff’d in part, rev’d in part on other grounds, 93 F.3d 910
(D.C. Cir. 1996). The court stated that shackling pregnant prisoners during the
third trimester of pregnancy “poses a risk so serious that it violates contemporary
standards of decency” and that “the physical limitations of a woman in the third

2

Released on April 13, 2003, the third edition of this manual is a model for quality prison health
care based on fundamental principles in public health and legal guidelines set forth in the U.S.
Constitution, international treaties and court rulings.
7

trimester of pregnancy and the pain involved in delivery make complete shackling
redundant and unacceptable in light of the risk of injury to a woman and baby.” Id.
Many states have expressed their repugnance for the practice of shackling
pregnant women during the birthing process by enacting laws or adopting policies
that forbid it. California, Illinois, and Vermont have enacted laws prohibiting the
practice of shackling pregnant prisoners in nearly all circumstances. Cal. Penal
Code § 3423 (2006); 55 Ill. Comp. Stat. 52-15003.6 (2000); Vt. Stat. Ann. tit. 28, §
801(a) (2005). In addition, the Departments of Corrections of fourteen states—
Arkansas, Connecticut, Florida, Hawaii, Iowa, Kansas, Maine, Massachusetts,
New York, Oklahoma, Oregon, Rhode Island, Washington, and Wyoming—and
the District of Columbia have written policies that prohibit the use of restraints
prisoners during the birthing process.3 Arkansas’ shackling policy was reformed
following the events at issue in this case. Since May 2004, the use of restraints on
prisoners during the birthing process has been prohibited.4

Ark. Dep’t of

Corrections Admin. Dir. 04-08 (2004).

3

See Amnesty Int’l USA, Abuse of Women in Custody: Sexual Misconduct and Shackling of
Pregnant Women (2008), http://www.amnestyusa.org/women/custody/shackling.html; Letter
from Denise V. Lord, Assoc. Comm’r, Me. Dep’t of Corrections (Feb. 20, 2007); Letter from
Michelle A. Donaher, Dir. of Female Offender Services, Mass. Dep’t of Corrections (Nov. 30,
2007); Okla. Dep’t of Corrections, “Security Standards for Transportation of Offenders,”
Operation Policy No. 040111; Ore. Dep’t of Corrections, Policy No. 40.1.1(H)(1)(d), available
at http://www.oregon.gov/DOC/PUBSER/rules_policies/ docs/40.1.1.pdf.
4
The change in policy by the Arkansas Department of Corrections belies any claim by
Appellants that the use of shackles on prisoners during the birthing process is necessary in all
cases for security reasons.
8

Moreover, in April 2008, President Bush signed the Second Chance Act into
law. Second Chance Act of 2008, Pub. L. No. 110-199, 122 Stat. 657 (2008). It
recognizes that the practice of shackling pregnant prisoners is generally
unacceptable and requires that all federal correctional facilities justify the use of
shackles during the birthing process with documented security concerns. Id.
In sum, the nation’s leading medical and public heath organizations, the
federal courts, seventeen states, and the U.S. Congress all condemn the practice of
shackling pregnant prisoners during the birthing process, demonstrating that the
practice violates contemporary standards of decency.
B.

The International Community Views the Shackling of Pregnant
Women During the Birthing Process as Cruel, Inhuman and
Degrading Treatment.

Both the Supreme Court and this Court have long recognized the relevance
of international law and the laws of other countries in ascertaining contemporary
standards of decency for Eighth Amendment purposes. See Roper v. Simmons, 543
U.S. 551, 576 (2005). (“[A]t least from the time of the Court’s decision in Trop,
the Court has referred to the laws of other countries and to international authorities
as instructive for its interpretation of the Eighth Amendment’s prohibition of ‘cruel
and unusual punishments.’”); Jackson, 404 F.2d at 579.
The practice of shackling pregnant prisoners during the birthing process is
prohibited as cruel, inhuman, or degrading treatment by two major international
human rights treaties—the Convention Against Torture and Other Cruel, Inhuman

9

or Degrading Treatment or Punishment (“Torture Convention”), G.A. Res. 46, 39
U.N. GAOR Supp. (No. 51), U.N. Doc. A/39/51 (1984) and the International
Covenant on Civil and Political Rights (“ICCPR”), GA res. 2200A (XXI), 21 U.N.
GAOR Supp. (No. 16) at art. 7, U.N. Doc. A/6316 (1966).5

The Torture

Convention has been ratified by 136 nations including the United States, which
ratified the treaty in 1994.6 See Office of the U.N. High Comm'r for Human
Rights, Status of Ratifications of the Principal International Human Rights Treaties
12 (“U.N. Status of Ratifications”), available at http://www.unhchr.ch/pdf/report
.pdf. Compliance with its provisions is officially monitored by the Committee
Against Torture. See Center for Reproductive Rights and University of Toronto
International Programme on Reproductive and Sexual Health Law, Bringing Rights
to Bear: An Analysis of the Work of U.N. Treaty Monitoring Bodies on
Reproductive and Sexual Rights 21-22 (2002). In 2006, the Committee Against
Torture issued concluding observations to the United States expressing concern
5

In addition to the prohibitions of cruel, inhuman, or degrading treatment set forth in the Torture
Convention and the ICCPR, other international conventions and declarations impose an
obligation on states to protect women during pregnancy and childbirth. For example, the
Universal Declaration of Human Rights declares that motherhood is “entitled to special care and
assistance.” G.A. Res. 217A (III), art. 25(2), U.N. Doc. A/810 (Dec 10, 1948). Similarly, the
International Covenant on Economic, Social and Cultural Rights (“ICESCR”) requires that
mothers be given special protection before and after childbirth. ICESCR, art. 12(1), Dec. 16,
1966, 993 U.N.T.S. 3. The Convention on the Elimination of All Forms of Discrimination
Against Women (“CEDAW”) likewise requires that states “ensure women appropriate services
in connection with pregnancy, confinement, and the post-natal period.” CEDAW, art. 12(2),
Mar. 1, 1980, 1249 U.N.T.S. 13.
6
Pursuant to the Supremacy Clause of the U.S. Constitution, once a treaty is ratified, it has status
akin to that of federal law. See U.S. Const. art. VI (“The Constitution, and the Laws of the
United States which shall be made in Pursuance thereof, and all Treaties made, or which shall be
made, under the Authority of the United States, shall be the supreme Law of the Land.”).
10

that the United States was not in compliance with the treaty because some of its
jurisdictions had yet to abolish the practice of shackling pregnant prisoners during
the birthing process.

See U.N. Comm. Against Torture, Conclusions and

Recommendations of the Committee Against Torture: United States of America, ¶
33 U.N. Doc. CAT/C/USA/CO/2 (2006).
The ICCPR has been ratified by 152 countries including the United States,
which ratified the treaty in 1992. See U.N. Status of Ratifications. Compliance
with its provisions is officially monitored by the Human Rights Committee. Id. at
art. 28.

Like the Committee Against Torture, the Human Rights Committee

recently issued concluding observations to the United States expressing concern
over jurisdictions that had not yet abolished the practice of shackling pregnant
prisoners during the birthing process. See Concluding Observations of the Human
Rights Committee: United States of America, 87th Sess., ¶ 33, U.N. Doc.
CCPR/C/USA/CO/3/Rev. 1 (2006).

It recommended that the United States

“prohibit the shackling of detained women during childbirth” in order to come into
compliance with the treaty. Id.
The U.N. Standard Minimum Rules for the Treatment of Prisoners
(“Standard Minimum Rules”), first promulgated in 1955, prohibit the use of
shackles on prisoners except in exceptional circumstances. Standard Minimum
Rules for the Treatment of Prisoners, U.N. Doc. A/CONF/1 Annex 1, E.S.C. res.
663C, U.N. ESCOR, 24th Sess., Supp. No. 1, U.N. Doc. E/3048, Rule 33(c).

11

Furthermore, the Standard Minimum Rules require that prisons make special
accommodations for the care and treatment of pregnant women. Id. at art. 23(1).
The U.S. Supreme Court has frequently relied on the Standard Minimum Rules for
guidance in interpreting the protections of the Eighth Amendment. See, e.g.,
Roper, 543 U.S. at 554; Estelle, 429 U.S. at 103-110; Atkins v. Virginia, 536 U.S.
304, 335 (2002).
Article 3 of the European Convention on Human Rights, which entered into
force in 1953 and prohibits torture and “inhuman or degrading treatment or
punishment,” has been interpreted by the European Court of Human Rights to
proscribe the use of shackles during the hospitalization of a prisoner unless the
prisoner poses a serious risk to security. European Convention for the Protection of
Human Rights and Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221; see Henaf v.
France, App. No. 65436/01 (ECHR Feb. 27, 2004); Avci and Others v. Turkey,
App. No. 77191/01 (ECHR Apr. 16, 2007). The U.S. Supreme Court has relied on
decisions of the European Court of Human Rights as persuasive authority in
interpreting the protections afforded by the Bill of Rights and the Fourteenth
Amendment. See, e.g., Lawrence v. Texas, 539 U.S. 558, 573 (2003). In addition,
in 2000 the Council of Europe’s Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment characterized the limited
instances in which pregnant prisoners have been shackled in Europe as
“completely unacceptable.” CPT/Inf (2000), 13, 10th General Report, ¶ 27. The

12

Committee declared that “[o]ther means of meeting security needs can and should
be found.” Id.
In sum, the Convention Against Torture and the ICCPR, both of which were
ratified by the United States over a decade ago, the U.N. Standard Minimum Rules
for the Treatment of Prisoners, the European Convention for the Protection of
Human Rights and Freedoms, and the Council of Europe’s Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment all
condemn the practice of shackling pregnant prisoners during the birthing process,
further demonstrating that the practice violates contemporary standards of decency.
C.

The Practice of Shackling Pregnant Prisoners During the Birthing
Process is Prohibited in England.

The phrase “cruel and unusual punishments” was taken directly from the
English Declaration of Rights of 1688. See Roper, 543 U.S. at 577. As a result,
England’s “experience bears particular relevance [in interpreting the Eighth
Amendment] in light of the historic ties between our countries and in light of the
Eighth Amendment’s own origins.” Roper, 543 U.S. at 577. Since 1996, the
Prison Service of England and Wales has forbidden the use of restraints on all
pregnant prisoners visiting the hospital for pre-natal care and for labor and
delivery.

Luisa Dillner, Shackling Prisoners in Hospital Contravenes

International Law, 312 BRIT. MED. J. 200, 200 (1996). Specifically, Prison Service
Order 4800 mandates that “[p]regnant women are not handcuffed after their arrival
at a hospital or clinic. . . . Women in active labour are not handcuffed either en
13

route to, or while in, hospital” unless extenuating circumstances exist.7 See Her
Majesty’s Prison Service, Guidance Notes on Gender Specific Standards for
Women Prisoners, Annex A to PSO 4800 (2008), available at http://www.
hmprisonservice.gov.uk/resourcecentre/psispsos/listpsos/index.asp? startrow=51.
III.

Shawanna Nelson’s Eighth Amendment Right to be Free of Shackles
During the Birthing Process Was Clearly Established at the Time of Ms.
Nelson’s Incarceration.
At the time of Shawanna Nelson’s incarceration, the relevant law was

clearly established such that a reasonable prison official would have known that
shackling Ms. Nelson’s legs to the bed during the birthing process violated the
Eighth Amendment. See Hope, 536 U.S. at 739; Saucier v. Katz, 533 U.S. 194,
202 (2001). The Supreme Court’s decision in Hope had made clear that, absent an
emergency situation or specific security threat, the practice of using restraints on a
prisoner in a manner that subjects the prisoner to a substantial risk of physical
injury or other harm constitutes cruel and unusual punishment in violation of the
Eighth Amendment. See Hope, 536 U.S. at 738. And the court’s decision in
Women Prisoners of the District of Columbia Department of Corrections had
specifically addressed the practice of shackling pregnant prisoners and held it to be
unconstitutional. See 877 F. Supp. at 699.
Moreover, at the time of Shawanna Nelson’s incarceration, it was clear that
the practice of shackling a pregnant prisoner during the birthing process violated
7

Prison Service Orders are mandatory instructions that are intended to last for an indefinite
period.
14

contemporary standards of decency. The practice was condemned both in the
United States and abroad by groups ranging from the American Public Health
Association to the Council of Europe’s Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment. See supra at 7, 13. It was
expressly banned in England and several of Arkansas’s sister states, and was
prohibited by two major international human rights treaties that the United States
had ratified. See supra at 8-14.
CONCLUSION
For the reasons set forth above, this Court should affirm the judgment
entered by the district court.
Respectfully submitted,
/S/ Stephanie Toti
Cynthia Soohoo
Dana Sussman*
Stephanie Toti
CENTER FOR REPRODUCTIVE
RIGHTS
120 Wall Street, 14th Floor
New York, NY 10005
(917) 637-3600
*Bar Admission Pending
Counsel for Amici Curiae

/S/ Charles M. Kester
Charles M. Kester
The Kester Law Firm
P.O. Box. 184
Fayetteville, Arkansas 72702
(479) 582-4600

15

CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7), the attached Amicus Curiae Brief is
proportionately spaced, has a type face of 14 point, contains 15 pages and 3,887
words inclusive of headings and footnotes but exclusive of the corporate disclosure
statement, table of contents, table of authorities, description of amici curiae,
certificate of compliance and certificate of service.

/S/ Charles M. Kester
Charles M. Kester
The Kester Law Firm
P.O. Box. 184
Fayetteville, Arkansas 72702
(479) 582-4600

/S/ Stephanie Toti
Cynthia Soohoo
Dana Sussman*
Stephanie Toti
CENTER FOR REPRODUCTIVE
RIGHTS
120 Wall Street, 14th Floor
New York, NY 10005
(917) 637-3600
*Bar Admission Pending

Counsel for Amici Curiae

16

CERTIFICATE OF SERVICE

Counsel hereby certifies that on September 13, 2008, a copy of this brief was
delivered via the Court’s CM/ECF system to:
Christine A. Boozer
Assistant Attorney General
323 Center Street, Suite 200
Little Rock, Arkansas 72201
Attorney for Appellants
and
Cathleen v. Compton
Dudley & Compton
114 South Pulaski Street
Little Rock, Arkansas 77201
Attorney for Appellee

/S/ Charles M. Kester
Charles M. Kester
The Kester Law Firm
P.O. Box. 184
Fayetteville, Arkansas 72702
(479) 582-4600

/S/ Stephanie Toti
Cynthia Soohoo
Dana Sussman*
Stephanie Toti
CENTER FOR REPRODUCTIVE
RIGHTS
120 Wall Street, 14th Floor
New York, NY 10005
(917) 637-3600
*Bar Admission Pending

Counsel for Amici Curiae

17



 

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