Back to All Legislation

Legislative Memo: Prohibiting the use of segregated confinement for incarcerated women who are pregnant, recently gave birth, and/or are participating in the nursery programs

Segregated confinement, also known as solitary confinement, poses many harms to people who are incarcerated. Pregnant women are especially susceptible to greater harms presented by segregated confinement.
This legislation would amend the state correction law to prohibit the use of segregated confinement for people who are pregnant, have given birth within the last eight weeks (“postpartum”), and/or are living with their infants in prison nursery programs. The NYCLU strongly supports this legislation.

The National Commission on Correctional Health Care defines solitary confinement as “the housing of an adult or juvenile with minimal to rare meaningful contact with other individuals. Those in solitary confinement often experience sensory deprivation and are offered few or no educational, vocational, or rehabilitative programs.”[1]

The harms posed by this confinement are well-documented and include increased anxiety, loss of appetite, hallucinations, depression, self-mutilation and increased risk of suicide.[2] These harms, among others, were also identified in a recent landmark[3] federal appellate court decision.[4]

Additionally, some people are at heightened risk of experiencing the negative impacts of this type of confinement, e.g., people with mental illness, young people under the age of 18, pregnant women and women who have recently given birth.[5]

In 2015, the Correctional Association of New York released a report analyzing the state of reproductive health care in New York’s prisons. The report detailed the risks that pregnant women in solitary confinement encounter, and concluded that:

Solitary is especially dangerous for pregnant women because it impedes access to critical OB care and prevents women from getting the regular exercise and movement that are vital for a healthy pregnancy. In addition, many pregnant women experience stress and depression regardless of whether they have a mental illness, and solitary can greatly exacerbate those feelings. High levels of stress are hazardous for pregnant women, lowering their ability to fight infection and increasing the risk of preterm labor, miscarriage and low birth weight in babies.[6]

The report also identified privacy concerns that many women experience, noting that “sick call nurses do their medical assessments in solitary by standing outside the cell and speaking with women through the closed cell door”[7] and that more than one-third of women reported that when they asked to be placed on the sick call list, officers required them to provide detailed explanations regarding their medical concerns.[8]

Moreover, a report issued by the American Civil Liberties Union on women and solitary confinement found that “many policies and practices are male-standardized and do not take into account the unique medical needs of pregnant women, and pregnant women in solitary confinement are often unable to request medical care.”[9]

This legislation would also protect women during the postpartum period and women with infants in the nursery. These are critical components of the legislation given that:

Solitary is also harmful for women in postpartum recovery as it can increase the risk of women experiencing full-blown postpartum depression. For women participating in the nursery, solitary has dire consequences. If a mother on the nursery is sent to solitary, she loses her spot in the program and is separated from her baby for the rest of her incarceration.[10]

In 2012, the NYCLU, along with co-counsel Morrison & Foerster and co-counsel Professor Alexander Reinert of the Benjamin N. Cardozo School of Law, filed a lawsuit, Peoples v. Fischer, against the New York State Department of Corrections and Community Supervision (DOCCS) challenging the use of segregated confinement in New York prisons.[11] In 2014, the parties entered into an interim settlement agreement which included a presumption against placing pregnant inmates in special housing units (SHU) [12]  absent exceptional circumstances. This presumption continued in the final 2015 settlement agreement between the parties.[13]

Additionally, DOCCS maintains that “[n]o exceptional circumstance determinations have been made…and none are expected.”[14] Notwithstanding these assertions, the settlement only governs DOCCS facilities, so women in county jails are not protected by the settlement. Furthermore, the settlement does not include women who have recently given birth or are living with their babies in a nursery. This legislation remedies those oversights.

New York has positioned itself as a national leader and a champion for women and families, including women and families affected by incarceration. The adoption of New York’s anti-shackling law[15] and the Peoples settlement represent great strides in protecting women who are incarcerated. All pregnant women, women who recently gave birth, and mothers participating in nursery programs should be protected from the substantial dangers posed by solitary confinement.

The NYCLU calls on lawmakers to pass this critical piece of legislation immediately.

[1] National Commission on Correctional Health Care. “Solitary Confinement (Isolation).” Adopted by the National Commission on Correctional Health Care Board of Directors, April 10, 2016, available at Accessed April 12, 2017.

[2] ACLU Foundation. The Dangerous Overuse of Solitary Confinement in the United States. ACLU Briefing Paper, August 2014: 4-5, available at See also, Kim, Scarlet, et al. Boxed In: The True Cost of Extreme Isolation in New York’s Prisons. New York Civil Liberties Union (2012): 14, available at            

[3] Solitary Watch. “Federal Court Acknowledges Growing Legal and ‘Scientific Consensus’ on Harms Caused by Solitary Confinement.” March 10, 2017, available at Accessed April 7, 2017.

[4] Williams v. Secretary Pennsylvania Department of Corrections et al, 3rd U.S. Circuit Court of Appeals, No. 14-1469 and Walker v. Farnan et al, 3rd U.S. Circuit Court of Appeals, No. 15-1390 (Feb. 9, 2017) at 36-42, available at

[5] ACLU Foundation, supra note 2, and Kim, at 49. See also, Kraft-Stolar, Tamar. Reproductive Injustice: The State of Reproductive Healthcare for Women in New York State Prisons. The Women in Prison Project of the Correctional Association of New York (2015): 149, available at  

[6] Kraft-Stolar, supra note 5 (citing March of Dimes. [2012]. Emotional and life changes: Stress and pregnancy; [2009]. Depression During Pregnancy: Treatment Recommendations; American Civil Liberties Union. [2014]. Worse than Second-Class: Solitary Confinement of Women in the United States).

[7] Kraft-Stolar, supra note 5, at 151.

[8] Id. at 150.

[9] ACLU Foundation. Worse than Second-Class: Solitary Confinement of Women in the United States. April 2014: 9, available at than_second-class.pdf 344 (citing Testimony by the Correctional Association of New York Before the Senate Judiciary Committee’s Subcommittee on the Constitution, Civil Rights and Human Rights, Reassessing Solitary Confinement, at 4 [June 19, 2012]; citing Interview with Gail Smith, Exec. Dir. CLAIM IL [May 15, 2013]).

[10] Kraft-Stolar, supra note 5 (also citing Centers for Disease Control and Prevention. [2008]. Prevalence of Self-Reported Postpartum Depressive Symptoms – 17 States, 2004-2005. Morbidity and Mortality Weekly Report, 57(14), 361-366; Mayo Clinic. [2012]. Postpartum depression: Risk factors; New York State Department of Health. [2012]. Understanding Maternal Depression, A Fact Sheet for Care Providers). The Reproductive Injustice report, however, does not address the frequency with which nursery participants are placed in segregated confinement. 

[11] New York Civil Liberties Union. “Historic Settlement Overhauls Solitary Confinement in New York.” December 16, 2015, available at Accessed April 7, 2017.

[12] New York State Department of Corrections and Community Supervision. Directive No. 4933, Special Housing Units, April 19, 2016: 2 (“A SHU, in maximum security facilities, as well as in designated medium security facilities, shall consist of single or double-occupancy cells grouped so as to provide separation from the general population, and may be used to house inmates confined to such units pursuant to 7 NYCRR Part 301, as well as such other inmates as approved by the Commissioner or his or her designee.”), available at

[13] Peoples v. Fischer, 11-CV-2964 (SAS) (2015): 30 (“DOCCS will maintain a written policy in the form of a memorandum by the Deputy Commissioner for Correctional Facilities continuing the presumption against placement of a pregnant inmate in SHU for disciplinary purposes, except in exceptional circumstances as determined by the DOCCS Central Office.”), available at

[14] New York State Department of Corrections and Community Supervision. “Child Birth Planning at DOCCS.” July 22, 2016, available at

[15] N.Y. Correct. Law §611.

As bold as the spirit of New York, we are the NYCLU.
© 2024 New York
Civil Liberties Union