Academic Research Public Law

Why are pregnant women in prison?

Rona Epstein, Honorary Research Fellow at Coventry Law School, explains her recent research into why pregnant women are incarcerated and offers suggestions as to alternative sanctions for criminal behaviour in those who are pregnant.

Our research started in September 2019 when a woman, now known as Ms A, held in HMP Bronzefield on remand gave birth alone in her cell; the baby died. Then in July 2020, a baby was still-born at HMP Styal. 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? Dr Geraldine Brown, Coventry University, Maria Garcia De Los Frutos, City University of London, and I looked for answers to that question.

With help from Birth Companions we set up an online survey asking women who had spent part or all of a pregnancy in prison about their offence and about their experiences in prison. We collected information from 19 women who had been pregnant in an English prison (there are no women’s prisons in Wales). We were thus looking at law and practice in England and Wales. Publicly available information about Ms A (whose baby died in Bronzefield) and on two further cases brought our total to 22 cases.

In our group of 22 pregnant women in prison, the most common reason for being in an English prison was recall on licence during supervision by the probation service: six women. That is to say that at the end of a prison term they were placed under probation supervision for one year, but, having breached their probation conditions, they were sent back to prison. The breaches included

  • a missed probation appointment (two women)  
  • changing address when ordered not to
  • shoplifting (this was committed by a woman who was living homeless in a car park and who was 30 weeks pregnant when recalled to the magistrates court and returned to prison for an 11 week term.

Two women were in prison on remand. 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, with backgrounds of poverty, disadvantage and deprivation. Six suffered from depression, sometimes very long-standing. Six suffered from anxiety, and two had bi-polar 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.

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 that protect pregnant women from being sent to prison. We should follow these examples. Sending pregnant women to prison is disproportionate, cruel and is simply not necessary. Respecting and protecting the unborn child should be an important element in the criminal justice system of any civilised society.

There are other ways to deal with offending. Out of Court Disposals (OoCDs) are used by many police forces as an alternative to prosecution. They serve an important function in diverting women from the criminal justice system and helping 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. Our courts should use alternatives to imprisonment. They can impose community orders; defer sentences, or 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 a breach of the conditions and the suspended sentence being imposed.

Non-punitive residential options, on the lines of therapeutic communities such as the Jasmine Mother’s Recovery, in Plymouth and Phoenix Futures, in Sheffield, should be created and sustained. 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 plan to build 500 new prison places should be scrapped. Some of the £150 million set aside to build them should instead be used to increase funding for Women’s Centres, to increase funding for the probation service and to establish a network of non-punitive, supportive, caring residential facilities on the Jasmine model.

It’s time we demand change. Level Up, Birth Companions and Women in Prison are campaigning to change sentencing laws so that no pregnant woman will be sent to prison, and I support them.

We thank the Oakdale Trust who have funded our research.

Rona Epstein

Rona Epstein

Honorary Research Fellow

Rona Epstein’s work includes access to justice; women and mothers; and police accountability. Her research has had a substantial impact on the criminal justice system, exposing unlawful decisions and led to sentences being quashed in the High Court. Rona was awarded an Honorary Doctorate of Laws (LL.D.) in 2018.

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