Why are Pregnant Women in Prison? Our Findings
“Women very rarely commit violent crimes or pose any risk to the public, so why do about 600 pregnant women enter a UK prison each year?”
By Geraldine Brown and Rona Epstein
Lillia: Women should not be in prison pregnant, it is not anywhere safe or comfortable for a pregnant woman. I am still living the nightmare although I got released in 2019 almost two years later I’m still being punished and so are my children, they are innocent but when u sent the mother to prison they suffer greatly.
Ursula: I constantly worried about my safety and if I would be released before the birth. Petrified he would be taken from me.
Hollie: I was scared, lonely, unsure if I had any future of being a mum.
Olwen: What led to this offence [theft from a shop] was drug addiction and no support. In prison, I felt alone and judged by others. I cannot have any more children … Pregnant women should be in a safe environment with support/help. Putting us in prison does not make things better. This needs to stop.
Our study
In September 2019 a woman, now known as Ms A, held in HMP Bronzefield on remand (pre-trial detention) gave birth alone in her cell; the baby died. Then, in July 2020 a baby was still-born at HMP Styal. The Probation and Prisons Ombudsman published her report on the baby's death at Bronzefield on 22 September 2021. Women very rarely commit violent crimes or pose any risk to the public, so why do about 600 pregnant women enter a UK prison each year? With Maria Garcia de Frutos, City University of London, we explored that question. More information on why we undertook research on pregnant women being sent to prison was set out in a previous FiLiA blog in 2020. Our final report was published in January 2022.
With the collaboration of Birth Companions, we created an online questionnaire, inviting anyone who had been pregnant while imprisoned in the UK to participate in our study, which covered
(1) the offence or alleged offence
(2) the court or probation processes
(3) health and circumstances before entering prison and during imprisonment
(4) pregnancy and birth
(5) the prison experience
We received 19 completed questionnaires and with publicly available information about Ms A (whose baby died in Bronzefield) and two further cases this brought our total to 22 cases.
Results
In our group of 22 women who have been pregnant in an English prison, the most common reason for incarceration was recall on licence during supervision by the probation service: six women. That is to say that after serving a prison sentence they were placed under probation supervision for one year, but, having breached their probation conditions, they were sent back to prison. The breaches included
· missing probation appointments (two women)
· changing address when ordered not to
· shoplifting: ‘Kathleen’ was living homeless in a car park and was 30 weeks pregnant when she stole from a shop; she was recalled to the magistrates court; they activated a suspended sentence, and added four weeks for the new offence, so in total imposed a custodial sentence of 11 weeks.
Two women were in prison on remand (pre-trial detention). The most common offence was shoplifting: five cases. There were four women in prison for drugs offences. Other offences were fraud, perjury, robbery and affray. All but two of the offences were non-violent. Five of the women were sent to prison at a very late stage of pregnancy: three at 36 weeks, one at 35 weeks, and one at 30 weeks.
This was a group of extremely vulnerable women who reported a range of mental health issues. Six suffered from depression, sometimes very long-standing. Six suffered from anxiety, and two had bipolar disorder. There were other serious illnesses: pulmonary embolism, hepatitis C, osteoarthritis. Six reported drug addiction; three had been homeless for long periods. Four reported being the victims of domestic abuse and coercion. There were many risk factors for their pregnancies.
The experiences of the women in our study reflected the findings of academic studies by Laura Abbott of the University of Hertford and Miranda Davies of the Nuffield Trust, who both found disturbing shortcomings in the care of pregnant women in our prisons. More recently there is the testimony published in The Guardian relating the despair of a woman who was pregnant in prison on remand.
An international perspective
It is not necessary to send pregnant women to prison. Eleven countries (with a total population of about 646 million) prohibit the imprisonment of pregnant women, or severely curtail it. They include the Russian Federation, Ukraine, Georgia, Brazil, Mexico and Colombia. Instead of prison they use house arrest, electronic monitoring or probation supervision. Portugal and Italy also have laws which protect pregnant women from being sent to prison. We can learn from these countries. To respect and protect the unborn child should be an important element in the criminal justice system of any civilised society.
International Convention
The United Nations Bangkok Rules, 2010, on the treatment of women offenders state:
Non-custodial sentences for pregnant women and women with dependent children shall be preferred where possible and appropriate, with custodial sentences being considered when the offence is serious or violent or the woman represents a continuing danger …
Alternatives to Prosecution
Many police forces use Out of Court Disposals (OoCDs) as an alternative to prosecution. They serve an important function in diverting women from the criminal justice system, and help women deal with difficult issues in their lives and avoid conflict with the law in the future. They depend largely on the network of Women's Centres which was enlarged after the Corston Review in 2007. This would be a vital part of a reformed and effective system.
The Female Offender Strategy 2018 included positive proposals to optimise liaison and diversion services, providing support to female offenders to complete the requirements imposed as part of a community order, reducing unnecessary recall. However, three years after its publication, most of its proposals remain unachieved or only partially achieved.
Alternatives to imprisonment
Pregnant women should not be sent to prison. The courts have other options:
a. Impose community orders. This would mean that the probation service would help women to access support, training, education and counselling at Women’s Centres, which provide support in a non-punitive setting. This has been found to be effective in helping women turn around lives that were previously chaotic and marked by conflict with the law.
b. Suspend the sentence. Any sentence between two weeks and 24 months can be suspended. This would allow a baby to be born safely in the community and both mother and baby to receive appropriate care. Adequate probation support would be essential to prevent breach of the conditions resulting in the suspended sentence being activated.
c. Defer sentence. A sentence of imprisonment can be deferred while the defendant engages in rehabilitative programmes and receives support. This could be a valuable strategy for a pregnant defendant. The law would need to be changed: deferral is currently limited to 6 months. A longer period would be appropriate for pregnant defendants.
New Sentencing Guidelines came into force in October 2019. In the case of a pregnant defendant. they state that when sentencers decide to consider ‘sole or primary carer for dependent relative’ as a mitigating factor, they should consider the potential effect of imprisonment on the woman’s health and wellbeing and that of her unborn child. Whether these Guidelines have actually changed practice in our courts is not yet established.
Non-punitive provision
i. Women’s Centres
Women’s Centres which are essential in the use of community sentences, and suspended and deferred sentences, require substantially increased investment and guaranteed long-term funding.
ii. Residential facilities
Non-punitive residential options, on the lines of therapeutic communities such as Jasmine Mother's Recovery, in Plymouth and Phoenix Futures, in Sheffield, should be created and sustained. Their life-saving work is totally accepting, non-judgmental and trauma-informed. This type of provision should be extended to other major towns and cities as an alternative to imprisonment. In this all-female setting women find protection from domestic violence; they care for themselves and for each other, for their unborn child, and for the baby once born. They receive highly skilled peer-mentoring and group counselling, proven to be effective in treating addiction.
The way forward
There needs to be a complete rethink. The starting point must be that no pregnant woman should be in custody. If custody is considered unavoidable for reasons of public protection, the reasons must be stated and justified in open court. The law must change. Whenever the defendant is a pregnant woman a Protocol should be activated, to apply both to remand decisions and to sentencing. This would alert the court to the need to protect pregnant women and unborn children. There must be absolutely no committal to custody on remand or sentencing of a pregnant woman without a full assessment of dependent children and /or pregnancy by way of a Bail Information Report (remand) or a Pre-Sentence Report (sentencing decision).
The plan to build 500 new prison places should be scrapped. Some of the £150 million set aside for this should instead be used to increase funding for Women's Centres, and for the probation service and to set up a network of non-punitive, supportive, caring residential facilities on the Jasmine model.
Community punishments can be imposed, community support can be provided, sentences can be suspended, terms of imprisonment can be deferred, Remanding a pregnant woman in custody can and should be avoided: this research began with the death of a baby in a prison cell. The mother was there on remand. When she came before the magistrates again after her baby's death, she was remanded in the community. Why was remand in custody ordered in the first place?
No court should endanger the life of an unborn child.
It is now time to demand change. Level Up, Birth Companions and Women in Prison are campaigning to change sentencing laws so that no pregnant women will be sent to prison - we support them. Please sign the petition to stop pregnant women from being sent to prison.
We thank the Oakdale Trust for funding our research. The full report is accessible here.
Dr Rona Epstein Coventry Law School R.Epstein@coventry.ac.uk Dr Geraldine Brown Coventry University G.Brown@coventry.ac.uk