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Cruel and Unusual Punishment
May 20, 2013 permalink
In 2008 British Columbia ended a program that let mothers in prison keep their babies while incarcerated. A pending suit contends that the routine separation of mothers and babies in prison constitutes cruel and unusual punishment. Once the courts accept that argument, what will they call the routine separation of children from mothers who have committed no offense?
Top Story: B.C.'s prison moms battle to keep their babies
The baby was a girl.
As her first cries rang through the hospital room, her mother began to cry, too.
Through 14 hours of labour, Patricia Block had refused pain medication so she would remember this moment: her daughter’s cries, her bright eyes and chubby arms, the way it felt to hold her.
She named the baby Amber Joy and prayed time would stand still.
Two days later, a social worker took Amber from Abbotsford Regional Hospital to a foster home.
A correctional officer took Block back to prison.
On May 27, as the B.C. Supreme Court considers a case that deals with the rights of incarcerated mothers and their babies, Block will relive the events that separated her from Amber for three months in 2009.
The claim was filed almost five years ago after the closure of the “mother-baby program” at Alouette Correctional Centre for Women, a provincial prison for women serving sentences of less than two years.
Between 2004 and 2008, 12 mothers took part in the program, which allowed them to keep their babies with them while doing time. Most babies remained with their mothers in prison for six months. The longest stay was 18 months.
In 2008, the program was cancelled.
Since then, 22 mothers have given birth while in a B.C. prison.
Block is one of two plaintiffs claiming the program’s cancellation constitutes cruel and unusual punishment, while infringing on her right to care for her baby and her baby’s right to security.
The second plaintiff, Amanda Inglis, was able to remain with her premature son in hospital until she received parole.
The mothers are asking the B.C. Supreme Court to reinstate ACCW’s mother-baby program.
A statement of defence filed on behalf of B.C.’s attorney general and solicitor general, as well as ACCW’s current warden, claims the program’s cancellation violated no rights and that the program ended over concerns for the babies’ safety.
“I’m getting ready to live it all again [in court],” Block told the Sunday Province in a recent interview. “It’s stirring up a lot of memories.”
Baby Amber was born a few months after the end of the mother-baby program.
Former ACCW warden Brenda Tole, whose time as warden corresponds almost exactly with the duration of the program, cannot recall a single incident of concern among participants.
There was no violence, she says, and no drugs, either. The provincial prison system is often called a “revolving door,” but the recidivism rate for moms was astonishingly low, she says.
“The impacts [of the program] were very, very positive.”
As Tole describes it, the prison was more like the “facilitator” than the initiator of the program, which began when ACCW opened in 2004. The provincial jail was a replacement facility for the Burnaby Correctional Centre for Women, which housed both federal and provincial inmates.
A “mother-child” program has been part of the federal Corrections mandate since 1990 and continues in Fraser Valley Institution, B.C.’s federal women’s prison for inmates serving sentences of two years or more.
Tole says that when ACCW opened, a planning conference on women’s health identified a need for a mother-baby program in the provincial prison.
“We were told the outcomes for the moms and babies were better if they could stay together,” she says. “So we said OK, we’ll try it, but we need to do our due diligence.”
That meant getting the Ministry of Children and Family Development on board, as babies who are born to women in custody fall under the ministry’s protection.
Once the program was up and running, women delivered their babies at the Fir Square unit at B.C. Women’s Hospital. After birth, the moms and babies returned to the prison to a special living unit next to the health care unit.
“It was of the things I was most proud of,” Tole says of the program. “When these moms got out [of prison] they didn’t come back. They made a life for their kids. I don’t think that would have happened otherwise.”
Tole retired in 2007.
ACCW’s new warden, Lisa Anderson, is listed as a defendant in the upcoming court case. According to the statement of claim, she implemented a number of changes to prison programs. In early 2008 the mother-baby program ended.
The defendants maintain the program was cancelled due to “concerns regarding risks to the infants” as the provincial prison holds both remanded and sentenced offenders, as well as immigration detainees.
“The short-term stay of many of these individuals does not afford an opportunity for effective, or any assessment of their suitability to cohabit safely with mothers and infants in custody,” says the statement of defence.
The decision to end the program came under fire immediately.
B.C.’s representative for children and youth, Mary Ellen Turpel-Lafond, called the mother-baby program “a jewel” in a 2008 Vancouver Sun opinion piece.
“The program was cancelled without any real evaluation,” she wrote. “There were no security concerns, and certainly any institutional issues could be addressed — if the will was there — as they have been addressed for women incarcerated around the world.”
In another article, the executive director of the B.C. Association of Social Workers asked who was being “punished” by the cancellation of the program: “The experts on early childhood development will tell you unequivocally it is the children,” wrote Linda Korbin.
“If you take their children away what do these women have to live for?” president of the B.C. Government and Service Employees Union Darryl Walker said in a recent interview with the Sunday Province.
Patricia Block lived for visiting day.
A few days postpartum, she remembers being shackled and transported to court. She asked the judge for more visiting hours and provisions to send breast milk to her baby.
Back in her cell, she sat on her bed and watched the clock until Amber arrived.
“Newborn babies just sleep, so sometimes the whole two hours [of visiting] would pass and I wouldn’t get to feed her. But I held her,” she says.
At the end of the visit, she’d hand over her daughter and a bag of frozen milk. There was little else she could do for her baby, so she wrote to her.
“I miss you and love you so much.
I’m so sorry we are not together, honey.
I think of you every second of the day.
Wherever you are, I hope you are OK.
Block began the journal before Amber was born. She’d learned she was pregnant in late 2008, around the same time she entered ACCW after being arrested for selling drugs.
“I knew the baby program had ended, and I knew what would happen to my baby,” she says.
At her sentencing hearing, Block asked for a two-year sentence so she could go to FVI, where there is a mother-child program.
But while her request for a longer sentence was granted, it took 60 days to process her transfer to the federal prison, and another 60 days for an intake assessment.
At seven months pregnant, she learned her application to the federal mother-child program was denied because she was not expected to remain at the prison long enough to complete the classes that are part of the program.
Amber was born at 9:24 p.m. on March 17, 2009. St. Patrick’s Day. Two days later, a social worker came into Block’s hospital room with a car seat.
Block insisted on strapping the baby in herself.
“I couldn’t do anything. I cried. I kissed her goodbye.”
The significance of the mother-child bond will play a key role in Block’s upcoming B.C. Supreme Court case.
“We argue that breaking that bond is taking away the right to life, liberty and security of the person, both for the mother and the baby,” explains co-counsel Sarah Rauch.
According to an article in the BC Medical Journal, female prisoners who experience “traumatic separations” from their children are more likely to be re-incarcerated.
“If we are looking for positive outcomes [for female prisoners], we need to pay attention to the role of bonding between mothers and their children,” agrees Dr. Patricia Janssen with the School of Population and Public Health at UBC.
Several years ago, while the ACCW mother-baby program was still running, the professor followed female prisoners to assess their success at achieving health goals upon release.
“A number of women said that watching moms with their babies in the prison motivated them to find and reconnect with their own children,” she says.
Mo Korchinski can attest to that.
The former inmate turned prison researcher was doing time at ACCW in 2004 when a fellow inmate had a baby boy and brought him back to the mom-and-baby unit with her.
After years of addiction and several stints behind bars, Korchinski often told people she had no children.
In fact, she had three.
“Seeing the babies opened up something inside of me,” she says. “I’d blocked out that part of my life.”
Reconnecting with her daughter Cassandra was hard work. The teen had been living with her dad’s family for about a decade.
“It’s impossible to forget everything that happened in the 11 years she was gone,” says Cassandra, who was eight months pregnant herself when she reconnected with her mother.
Today, Korchinski is helping to raise her granddaughter.
“The cycle of dysfunction has to break somewhere,” she says.
Block’s lawyers plan to argue the cancellation of the mother-baby program not only infringes on the rights of mothers, but also on the rights of their babies.
Child development experts agree a strong mother-child bond is the basis for proper child development.
“The baby has to know that the adult taking care of them is absolutely in love with them,” says Dr. Hillel Goelman, an early childhood education professor at UBC. “Children become confident when they’re comfortable and the caregiver’s response to them is positive and predictable.”
Dr. Jennifer Lloyd with UBC’s Human Early Learning Partnership points to breastfeeding as an important way for mothers and babies to bond.
“It’s very difficult to find a replacement for Mom,” she says.
Both experts were unable to comment on the upcoming court case and the impact that living in a prison might have on a baby, but Goelman says a child’s environment should be safe and predictable, as well as stimulating.
“Toys don’t have to be the latest thing from Fisher Price. A drawer of wooden spoons might fit the bill,” he says.
Lloyd says children begin to appreciate social interaction with other children at about age three, but adults remain the key to healthy development.
The mother-baby program has its share of detractors as well.
The union for federal prison guards is not supportive of the federal program.
“A prison is not a place for children,” says Gord Robertson, regional president of the Union of Canadian Correctional Officers. “Staff cannot cover all places at all times, and we believe the risk outweighs the benefits.”
The federal mother-baby program made headlines in 2008 when Lisa Whitford won the right to bring her 11-month-old daughter, Jordyn, into FVI while serving a four-year sentence for manslaughter. The baby girl was born as Whitford awaited trial at ACCW following her 2006 arrest for shooting Jordyn’s father, Anthony Cartledge, at the couple’s Prince George home.
Cartledge’s family did not reply to interview requests for this story, but previously told the Comox Valley Echo they did not feel Whitford was being adequately punished.
“She’s getting her own private, guarded, locked and secure backyard,” said Natasha Cartledge, Anthony Cartledge’s daughter from a previous relationship.
Another family member, Diane Martin, questioned what was best for Jordyn.
“I would think that if I was to have a baby and raise it in total isolation by myself in a house for the first two years of its life, there might be a public outcry when that was discovered,” she said in the article.
Stockwell Day, federal public safety minister at the time, called for a review of the federal program and announced prisoners convicted of violent crimes would no longer be eligible.
Canada’s corrections watchdog Howard Sapers says participation in the federal program has dwindled since eligibility was restricted. There are currently no prisoners taking part in the program in Canada.
“I feel it needs to be structured in a way that allows for participation,” he says. “A program that exists solely on paper is not really a program at all.”
Beyond sparking the controversy that led to the eligibility restrictions, it’s unclear what impact the mother-child program had on Whitford’s life — and what has happened to Jordyn.
In 2011, Whitford was the subject of a Canada-wide arrest warrant after leaving a New Westminster halfway house.
Court records from Fernie, B.C. show that in January she was convicted of assault with a weapon. She received a 60-day jail sentence.
For more than 70 years, the Elizabeth Fry Society of Greater Vancouver has advocated for the rights of women in trouble with the law.
So one might assume the non-profit organization would support the mother-baby program.
But executive director Shawn Bayes says she can’t “in good conscience” do that. Since the cancellation of the ACCW program, E Fry has been working with B.C. Corrections to develop sentencing alternatives that keep new mothers in the community — and out of prison.
B.C. Corrections says 22 inmates have given birth since the program’s cancellation.
“I think this is where the rubber hits the road,” says Bayes. “Pre-sentencing reports should present the judge with options for dealing with [expectant] mothers ... Mothers and babies should not be in prison to begin with.”
E Fry estimates more than two-thirds of female prisoners are mothers and the sole caregivers of their children. While most children of male prisoners live with their mothers, children of female prisoners live with extended family or are placed in foster care.
About 75 per cent of female prisoners in B.C. Corrections serve less than three months in jail.
Three months is the amount of time Block was separated from Amber.
“I can’t ever get that time back,” she says.
After her release from prison, Block attended culinary school in Vancouver. She now lives in the Okanagan.
Amber is four. She’s funny and silly and bursting with life. She likes preschool. She just finished swimming lessons. She’s a picky eater.
“I think someday I’ll tell her the story of her birth,” says Block. “When she’s an adult. When she can understand.”
Right now, Block’s focus is on saving other women from the nightmare she endured after Amber’s birth.
“Women are still suffering. I’m fighting for them now. I want to give them hope.”
Source: The Province (BC)
Addendum: A court has ruled in favor of the plaintiffs.
Incarcerated mothers should be able to take babies with them to jail, B.C. judge rules
British Columbia’s government violated the rights of incarcerated mothers when it cancelled a program allowing inmates to serve time with their babies, a B.C. Supreme Court judge has ruled.
The lawsuit was launched in 2008 by two former inmates of the Alouette Correctional Centre for Women in Maple Ridge, B.C., after a prison official cancelled the program because infants were not within the mandate of the correctional service.
Justice Carol Ross ruled Monday the decision violated the mothers’ equality rights and security of person and liberty, contrary to the principles of fundamental justice under the Charter of Rights.
“The decision to cancel the Mother Baby Program removed one important option, the one presumed at law to be favourable, from the process of determining the best interests of the child,” said Judge Ross.
“As a result infants have been and will be separated from their mothers during the critical formative period of their life, interfering with their attachment to their mother, and depriving them of the physical and psychological benefits of breastfeeding.”
Mothers, too, will continue to suffer from being separated from their infants, Judge Ross added, concluding the decision to cancel the program was “arbitrary, overbroad and grossly disproportionate.”
She said it was also contrary to the principles of fundamental justice.
“Provincially sentenced mothers and their babies are members of a vulnerable and disadvantaged group,” she said.
“In that regard the circumstances of aboriginal mothers and their infants are of particular concern given the history of overrepresentation of aboriginal women in the incarcerated population and the history of dislocation of aboriginal families caused by state action.”
Geoff Cowper, legal counsel for some of the plaintiffs, said he is pleased with the ruling, adding the women showed considerable courage and determination.
“There’s a compelling record, I think, record to revisit the whole issue, and I’m hopeful that the province will agree to reinstate the program because it stands well on its own merits, whether or not the constitution requires them to do that,” he said.
The judge gave the government six months to correct the present situation and comply with her ruling.
Kasari Govender, executive director of the West Coast Women’s Legal Education and Action Fund, an intervener in the case, said the ruling creates a legal implication for the government.
“The government has to reinstate a similar program,” she said. “What exactly that program will look like is not specified in the decision.”
Grace Pastine, spokeswoman for the BC Civil Liberties Association, agreed that the status quo is isn’t acceptable.
“The government will no longer have the option of refusing to administer a successful program that had fundamental, proven benefits for mothers and babies,” she said.
“This program was highly respected. It respected the family unit and the bond between mothers and their babies.”
Marnie Mayhew, a spokeswoman for BC Corrections, said the agency will review the decision carefully and decide how to move forward.
“If government decides to not pursue an appeal, BC Corrections has six months to fulfil the direction from the court,” she said in an email.
“Regardless of the outcome, I can assure you we are committed to ensuring supports for all women — including pregnant women — continues to be in place at Alouette Correctional Centre for Women.”
Source: National Post