For complete article see: Helen Paillé, Black Female Inmates' Reproductive Rights: Cutting the Chains of Colorblind Constitutionalism, 3 William Mitchell Law Raza Journal 1 (Spring 2012) (87 Footnotes Omitted)
Consider a birdcage. If you look very closely at just one wire in the cage, you cannot see the other wires. If your conception of what is before you is determined by this myopic focus, you could look at that one wire, up and down the length of it, and be unable to see why a bird would not just fly around the wire any time it wanted to go somewhere ....There is no physical property of any one wire, nothing, that the closest scrutiny could discover, that will reveal how a bird could be inhibited or harmed by it except in the most accidental way. It is only when you step back, stop looking at the wires one by one, microscopically, and take a macroscopic view of the whole cage, that you can see why the bird does not go anywhere; and then you will see it in a moment.
Imagine a single, solitary chain link. Alone, it might feel light in your hand. But, one link is, of course, useless on its own. Now, imagine that link as one of many in a much larger chain--a chain that stretches back some 400 years. Imagine its weightiness and strength. At one end of that chain is Shawanna Nelson. At the other end--and along its length--are a million of her sisters and foremothers. Though some are enslaved and others free, all are in labor--and all are shackled.
Consider the following: although fewer Black women are imprisoned than white or Black men, significantly greater proportions of incarcerated women [are] Black, in federal and state prisons and local jails alike. In 2009, the United States population as a whole was approximately 76.9% white and 12.9% Black. In federal prisons, however, only 29% of female inmates are white, while 35% are Black. State prisons exhibit an even more extreme disparity: 33% of female inmates are white, 48% are Black. Similarly, 36% of female inmates in locals jails are white, 44% Black.
Probation statistics, however, do not reflect this pattern; 62% of women on probation are white, 27% Black. This seeming incongruence may actually be the exception that proves the rule. As Michelle S. Jacobs notes in Piercing the Prison Uniform of Invisibility for Black Female Inmates, this seeming contradiction reveals that white women are far more likely to be given probation than any other group of women in the system.
Consider, in light of these statistics, that thirty-eight states and the Federal Bureau of Prisons allow the use of restraints on pregnant women in the third trimester, and twenty-three states and the Federal Bureau of Prisons allow the use of restraints during labor. Not only, then, are Black women disproportionately represented in the prison system but many are--quite literally--born in chains.
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