From Reproductive Crimes to the Prison Industrial Complex

This coming October, the Hastings Women’s Law Journal will hold a special symposium on family and reproduction in prison, which is incredibly timely. Several important stories from the last few years have raised serious concerns about the correctional authorities’ responsibility for women’s health, pregnancy, and birth in prison.

First, as you may recall, there were efforts to restrict the notorious and common practice of having incarcerated women give birth while shackled. It’s fairly obvious why this is an extremely barbaric practice, and this ACLU report adds some important details.

Then, we heard with shock about a sterilization of female prisoners in California, with very questionable consent. This eventually yielded SB1135, which prohibits the practice.

And just a couple of days ago, this was in the news. Nicole Guerrero, a pregnant inmate in Texas’ custody, was placed in a solitary cell, repeatedly begging for help as her water broke and she was in labor, her cries for care ignored by the guards. Guerrero’s baby died, and the chronology that led to this horrific tragedy includes a nurse who works for a private healthcare contractor. Guerrero is pursuing a §1983 lawsuit against the prison.

There’s hardly anything I can say about this truly horrible incident and the cruelty that led to it that won’t trivialize it, and the basic facts behind it do not seem to be in dispute. My only additional thought about this has to do with the fact that Guerrero’s tragedy occurred in a public setting–a Texas state prison–but one of the people whose behavior was questionable worked for a private healthcare provider. I think we need to problematize the distinction often made by progressive commentators between state institutions and private providers’ institutions. At this point, and in the context of a neoliberal, hypercapitalist economy, it makes a lot less difference who runs the correctional facility overall than these commentaries would suggest. Many functions within state prisons–utilities, phones, cantine services, food, transportation, health care–are partially or completely privatized, as was health care in the institution in which Guerrero was held. Moreover, state actors are behaving like private actors in the market, and many of the corruption scandals and human rights crimes we saw in the last few years–such as Alabama’s Sheriff Bartlett’s profiteering off his wards’ starvation and former Philadelphia Judge Mark Ciavarella essentially selling juveniles to a private contractor for kickbacks–involved public actors. Private prison companies have not cornered the market on cruelty, stinginess, and indifference to human suffering. And wherever a wicked contract is signed, one party tends to be a public actor.

The only answer to this that I can think of is regulation that carefully examines which actors play which roles in exploiting human suffering for profit. Only recently, AB 1876 prohibited the common practice by which sheriffs received kickbacks from phone providers to give them the contract for prison phone services. There are probably ways for sheriffs to bypass this, and we will have to stay fairly attentive to those, but the bottom line is that the lines between the public and the private are so blurred in this economy that maligning “private prisons” misses the point. All actors in these dramas of human cruelty and profiteering–the state included–are acting in a laissez-faire, capitalist market, responding to market pressures, and trying to get ahead; all actors are vulnerable to the sort of indifferent, dehumanizing mentality that seems to have produced the tragedy that happened to Guerrero; and all actors, private and public alike, should be carefully watched and monitored by those who do not want to see more cruelty.
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Cross-posted on Prawfs Blawg.