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August 28, 2018

"Incapacitating Motherhood"

The title of this post is the title of this new paper authored by Priscilla Ocen now available via SSRN.  Here is its abstract:

Incapacitation, the removal of dangerous people from society, is one of the most significant penal rationales in the United States.  Mass incarceration emerged as one of the most striking applications of this theory, as policymakers shifted from rehabilitative efforts toward incapacitation in jails and prisons across the country . Women have been uniquely devastated by this shift toward incapacitation.  Indeed, the United States is home to the largest and fastest growing women’s prison population in the world.

Of the women incarcerated in jails and prisons, nearly seventy percent were the primary caretakers of small children at the time of their arrest and approximately eighty percent are of reproductive age. Notwithstanding these alarming trends, the gendered dimensions of incapacitation have largely been underexplored in the scholarly literature. Rather, women’s incarceration has been theorized as an unintended consequence of the punitiveness directed toward Black men.

This Article aims to bridge this discursive gap by highlighting the specific ways in which incapacitation has been used as a means to regulate the bodies and reproductive capacities of marginalized women.  The Article advances this claim in three ways. First, by mapping the historical function of women’s prisons as a mechanism to restore and regulate “fallen women” who deviated from traditional norms associated with femininity and motherhood.  Second, by examining the ways in which contemporary women’s prisons similarly regulate women’s identities as mothers.  Instead of attempting to rehabilitate women, however, contemporary women’s prisons incapacitate women who engage in behavior or possess characteristics that diverge from traditional maternal norms.  Indeed, through what the Article terms the “incapacitation of motherhood,” women prisoners are alienated from their children, denied reproductive care, humiliated during pregnancy and postpartum recovery, and in some cases, sterilized. 

Lastly, contesting these practices and the incapacitation of motherhood, this Article calls for the use of a robust legal framework, informed by the principles of reproductive justice that are more protective of the reproductive capacities of incarcerated women.

August 28, 2018 at 10:04 AM | Permalink

Comments

About time someone wrote about this heinous practice. I wonder where all the MeToo milquetoasts were while this was going on, including all the schmoes in Congress, the judges, and the prosecutors who reveled in it.

Posted by: FluffyRoss | Aug 28, 2018 3:43:39 PM

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