The exterior of Camille Graham Correctional Institution in Columbia, the South Carolina Department of Corrections' women's prison. (Photo courtesy of SC Department of Corrections)
COLUMBIA — South Carolina judges could allow a pregnant woman convicted of a crime to stay in her home until and after the baby is born under proposed legislation making its way through the Statehouse.
The bill gives judges the discretion to put a pregnant woman who is not a danger to herself or the community on pre-incarceration probation for the term of her pregnancy, plus anywhere between 12 weeks to a year after giving birth as the judge sees fit. The court would waive all fines and fees during this time. And the woman must receive perinatal care as a condition of release, as well as alcohol and drug testing and treatment if the judge orders it.
If the woman has a miscarriage or ends the pregnancy, she has three days to report to jail or prison to serve her sentence. A woman who fails to do so would face an additional misdemeanor charge.
A panel voted unanimously Thursday to send the bill to the full Senate Corrections and Penology Committee for consideration.
The legislation has brought about a rare moment of cooperation between anti-abortion and women’s rights groups in the Palmetto State.
“Pro-Life Greenville believes that the preservation of the bond between mother and child, both during and immediately following the pregnancy, is a critical moment, and will reduce the chances of a woman seeking an abortion to end her pregnancy,” said Hayden Laye, the organization’s founder.
Laye said incarceration can put women at greater risk of premature births and miscarriages and their babies at risk of having a low birth weight.
“We also know that the immediate separation between the newborn child and the mother can cause severe, long-term trauma for both the mother and the child,” he added.
National data on the number of pregnant women in prisons and jails is spotty at best.
On a single day in 2023, the U.S. Bureau of Justice Statistics recorded more than 300 pregnant women in state and federal prisons nationwide — about 2% of the female inmate population. In a 2016 survey, researchers at Johns Hopkins University found that 4% of incarcerated women were pregnant when they entered the facility, based on data from 22 state prisons, a handful of jails and the U.S. Bureau of Prisons.
“But one pregnant person behind bars in our state is one too many,” said Courtney Thomas, the advocacy director for the state’s chapter of the American Civil Liberties Union.
Statewide data was not available as many county jails do not track pregnancies among inmates, according to the bill’s sponsor, Sen. Tameika Isaac Devine, one of only two women in the Senate.
The Columbia Democrat did share data provided by the state Department of Corrections:
This is particularly concerning, according to the ACLU, as South Carolina already has one of the nation’s highest maternal mortality rates.
The latest report from a committee that reviews pregnancy-related deaths in the state showed 47 of every 100,000 live births in the state resulted in the mother’s death before, during or after delivery. For Black women, that ratio was nearly 72 for every 100,000 births. For white women, it was about 37.
“Pregnancy is often a wonderful time, but there are also risks involved,” Thomas said. “We owe pregnant women as much time and safety and comfort that we can afford them. This bill does that for some of the most marginalized people in our state.”
“(This bill) gives women the opportunity to experience pregnancy in a safe environment and not a jail cell,” said Katie Dattilio of South Carolina’s Women’s Rights and Empowerment Network.
And the benefits ripple outward, Dattilio added, giving the newborns a healthier start and keeping families together.
Women who give birth while incarcerated generally have very little time to name a caregiver — between 24 and 48 hours after giving birth, according to Pamela Winn, founder of a Georgia-based nonprofit called RestoreHER that has promoted similar legislation across the country.
If a caregiver is not found, the babies become wards of the state, she said.
‘Teaching us how to grow with our babies’: How prisons allow mothers and infants to nest for months
States with mother-infant nursery programs are the exception.
Across the country, nine states operate nursery programs that allow incarcerated mothers to live with their newborns, according to reporting from Stateline, an affiliate of the SC Daily Gazette.
New York operates the nation’s oldest prison nursery, which opened in the early 1900s, allowing up to 25 incarcerated mothers to live with their infants until age 1.
Programs in Illinois, Indiana, Missouri, Nebraska, South Dakota, Ohio, Washington state and West Virginia vary widely by size, eligibility and funding. Many rely heavily on donations for essentials such as diapers, cribs and parenting classes.
Kansas, North Dakota, Virginia and Wisconsin are considering adding nursery programs. Idaho and Wyoming explored the option in recent years, but abandoned those plans due to space, budget and staffing issues, Stateline reported.
Under Devine’s proposal, South Carolina would avoid those funding and staffing issues altogether by allowing the women to remain home with their infants for at least three months.
Senators on the panel appeared receptive to the idea.
“Can we just send this straight to the governor’s desk?” joked Sen. Ed Sutton, D-Charleston.
Beyond being safer for expecting mothers, it also could save the state and counties money, Winn said.
Women typically must make 13 to 15 visits to a doctor during pregnancy. Jails and prisons must cover the cost of transportation and staff for these visits. Pregnant women also have more dietary needs that go beyond meals typically offered behind the prison wire.
“This money could be spent on programs or other things that would be more helpful to the women — to decrease recidivism, rather than spent on keeping them confined,” Winn said.
South Carolina, in 2020, passed a law that makes it illegal to shackle pregnant women with leg, waist, or ankle restraints. Only wrist restraints, fastened in front, are allowed while an inmate is escorted or transported.
No restraints are allowed during labor, delivery or postpartum recovery, unless there’s a risk of the woman hurting herself or others.
Most states ban shackling pregnant women in custody, yet many report being restrained
But Winn told legislators her organization, which advocated for that law’s passage in the state, still receives reports of violations, mostly when women are held in county jails. If pregnant women are allowed temporarily deferred sentences, the state could reduce or eliminate those violations, she said.
Outside South Carolina, similar legislation is up for a floor vote in Alabama. North Carolina and Georgia are taking it under consideration.
Colorado’s governor, in May 2023, signed a law allowing deferred sentences through the child’s first birthday.
And a March 2023 University of Minnesota review of state laws showed Tennessee allowed for temporary furloughs of up to six months.
Six states — California, Minnesota, Missouri, New Jersey, Texas, and Wisconsin — had laws allowing community-based programs for pregnant and postpartum women. Alabama, Illinois, Massachusetts, North Carolina and Vermont had community-based programs, though they weren’t legislatively mandated.
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Courtesy of South Carolina Daily Gazette
