by Rachel Pokrzywinski*

 

In May 2021, Governor Tim Walz signed Minnesota’s Healthy Start Act (HSA) into law. The first of its kind in the United States, the HSA authorizes placement of pregnant and postpartum inmates into alternative housing—such as halfway houses and residential treatment facilities—with their newborns for up to one year after birth. Previously, incarcerated mothers in Minnesota could expect their newborns to be taken away within 72 hours of birth. This law is only one step toward addressing the many harms suffered by incarcerated women—who are disproportionately Black, Latina, and Native American—in the United States, but it is one that lawmakers across the country should follow.

 

In the decades after the first female prison opened its doors in 1839, women’s prisons generally fell into two categories: reformatories that forced women to conform to gendered ideas of proper behavior and custodial prisons where women were forced to perform domestic labor. In states with both, sentencing decisions were based primarily on race; women of color were disproportionately sentenced to custodial institutions for relatively less serious crimes. In the post-Civil War South, many states operated penal plantations where judges sentenced prisoners—predominately Black men and women—to labor under former slaveowners.

 

Although treatment varied across institutions, prisons of all kinds have long been sites of abuse, from physical and sexual abuse to solitary confinement and inadequate healthcare. However, inmates who could become pregnant faced—and continue to face—unique harms.

 

In Menacing (Re)Production: The Commodification and De-Commodification of Incarcerated Black Women’s Wombs and Work, Talitha L. Leflouria tells the story of Eliza Randall, a Black woman who was sentenced to a penal plantation in 1892. Shortly after her sentence began at Georgia’s Camp Heardmont prison plantation, she gave birth to a son. Valuing Randall’s labor over the life of her child, prison overseers killed him and forced her to continue working. Today, while prisons continue to value labor over life, the majority of incarcerated mothers lose their children not to death but to those outside prison walls.

 

The harms incarcerated women suffer are not limited to those that occur after pregnancy. In 1907, Indiana passed America’s first eugenics based sterilization statute. Thirty states soon followed, with California leading the pack. In California alone, over 20,000 people were sterilized by force or coercion between 1909 and 1979. The primary targets were disabled and incarcerated Black, Latina, and Native American women. Even after California’s sterilization law was repealed in 1979, the state continued to perform involuntary sterilizations well into the twenty-first century.

 

Lack of proper prenatal care, including policies that promote shackling of women before and during birth, is another widespread harm that persists to this day.

 

Today, lawmakers across America are taking steps to address these and other infringements upon the reproductive rights of incarcerated women. Although it remains legal under Buck v. Bell, federal law has created some protections against forced sterilization, including a prohibition on the use of federal funds to sterilize inmates. In 2021, California joined the ranks of North Carolina and Virginia in offering reparations to survivors of its forced sterilization programs. Additionally, 32 states and the federal government have passed laws restricting the use of restraints, including shackling, during birth.

 

Lawmakers must continue to recognize the reproductive rights of incarcerated women and address the harm caused by separating newborns from their incarcerated mothers.

 

A 2017 study found that “mothers who lost custody of a child to foster care experienced significantly higher rates of depression [and] substance use . . . compared to mothers surviving the death of a child.” Data from the Pregnancy in Prison Statistics Project suggests that 11% of children born in prisons are placed into foster care. However, similar psychosocial effects may be suffered even when children are placed with family or other designated individuals. In Minnesota, Department of Corrections data suggests that about 56% of caregivers never bring children to visit their mothers in prison. .

 

When an incarcerated parent wants to have a relationship with their child, separation causes immense pain and strains relationships. “I feel like I have a hole in my chest,” one mother who hasn’t seen her child since she gave birth stated, “like a part of my life is missing.” Others have reported feeling alienated from their children upon release.

 

Only nine states have sought to protect incarcerated mothers’ rights to raise their children. By establishing prison nurseries, these states allow qualifying mothers and their newborns to live together, typically for 12 to 18 months after birth, in a separate wing of a prison or correctional facility that houses only mothers and their children. However, a prison—even a prison nursery—is not suited for raising a child. In addition to stress from caring for a baby, incarcerated mothers face constant surveillance and the lack of autonomy inherent to incarceration. In light of these reports, one can imagine how these mothers may feel that they are not really allowed to be a parent. They may fear that, by choosing to keep their child, they are exposing them to a dangerous environment.

 

In Minnesota, the HSA will have a particularly profound effect for Native American women. According to the Minnesota Department of Corrections, 278 pregnant women received prison sentences in Minnesota between 2013 and 2020. Despite making up only 1.4% of the state’s population, 34% of those pregnant women were Native American. Black women were similarly overrepresented at 12%, despite Black people making up only 7% of Minnesota’s population. Nationally, an estimated 58,000 pregnant women are admitted into prisons and jails each year. Because these racial disparities are also present on a national scale—Black, Latina, and Native American women are overrepresented in prison populations nationwide—we can assume that they are also overrepresented among pregnant inmates nationally.

 

While the HSA is too new to definitively predict its impact, it appears evident that it should create better health outcomes for mothers. Under the HSA, mothers placed in alternative housing beyond prison walls may experience all the benefits of a prison nursery without any of the pitfalls of attempting to parent a child in a prison environment.

 

Perhaps the greatest challenge facing the HSA in other jurisdictions is its ability to scale to larger prison populations. It may require impracticable oversight or unavailable funding. However, future data about the amount of inmates who participate and the relative cost of the program may put this challenge to rest.

 

Ultimately, the damage done to mothers—predominantly Black, Latina, and Native American mothers—by the American penal system is too great to repair with just one law. However, the HSA is an essential step in the right direction. In the wake of Minnesota’s landmark Act, lawmakers across the country should look to their own prison populations, consider the harms these populations and their families face and the steps that must be taken to prevent them, and follow Minnesota’s example.

 

*J.D. Candidate, University of Minnesota Law School Class of 2022, JLI Vol. 40 Executive Editor