In April, Andrea Circle Bear became the first female federal prisoner to die after testing positive for COVID-19. The 30-year-old South Dakota mother had just given birth. Her tragic death carries an important lesson to all of us, especially those working in criminal justice.
During this pandemic, it is imperative that all judges, probation officers, parole boards and other stakeholders consider any and all alternatives to incarceration for pregnant Nebraskans in prison, jail and juvenile facilities. These alternatives include pretrial release, home confinement, probation, parole or compassionate release.
We know that proper measures to protect those who are incarcerated from this virus are of the upmost importance given the unique conditions present in correctional and detention facilities. The CDC has issued specific guidance for secure facilities because of the increased risk of the virus spreading quickly through these environments.
Given the fact that COVID-19 is already present in our state prison system, county jails and youth facilities, we call on all relevant decision-makers to consider a specific subset of the incarcerated population during the pandemic: pregnant women and girls.
Most women are incarcerated for nonviolent crimes, including drug and property offenses. On average, 6% to 10% of incarcerated women are pregnant, with the highest rates in local jails. While pregnant prisoners, detainees and youth in out-of-home placements comprise a small portion of Nebraska’s overall in-custody population, the risks of incarceration while pregnant during COVID-19 are too great to ignore.
Even during the best of times, pregnant women in jails, prisons and other facilities face unnecessary risks. Inadequate prenatal care and nutrition while in custody already make a disproportionate number of prisoner pregnancies high-risk. These same risk factors make it more likely that underlying conditions will cause serious complications should a pregnant prisoner contract the coronavirus.
Additionally, the use of solitary confinement as a quarantine method is particularly dangerous for pregnant women, as such isolation may prevent them from getting the emergency care they need to protect themselves and protect their pregnancies.
Experts have recognized concerns relating to COVID-19 and pregnant prisoners. Corrections leaders in other states have acted by using their authority to release pregnant prisoners. Prior to the pandemic, the Nebraska Legislature expressed a strong public policy preference for thoughtful treatment of Nebraskans who are pregnant and incarcerated in banning the shackling of pregnant prisoners and restricting the use of solitary.
We can honor Andrea Circle Bear’s memory by making sure her story is not repeated in Nebraska. But it must be a group effort. It will take the thoughtful work of decision-makers in all criminal and juvenile cases to ensure the health and safety of Nebraskans who are incarcerated and pregnant. The ACLU and our partners stand ready to help if local and state leaders signal the political will to act.
Scout Richters is legal and policy counsel at the ACLU of Nebraska.
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