A State Policy Brief from the National University-Based Collaborative on Justice-Involved Women and Children (JIWC)
October 2024
Executive Summary: Women are the fastest-growing population of incarcerated individuals within the U.S. The criminal legal system impacts the reproductive health and rights of incarcerated individuals and their families. We analyzed states’ death penalty laws and execution protocols through a reproductive justice lens. Half of the U.S. states have laws that prohibit the execution of a pregnant person, though these exceptions are rarely reflected in execution protocols. While these laws are obsolete in the present-day criminal legal system, they have implications for broader conversations related to reproductive justice.
Background:
Structural racism has accelerated incarceration rates among Black women, men, and children across the U.S. Women are the fastest growing population–a rate shaped by the family policing system1 and a rise in pregnancy-related criminalization. Nearly two-thirds of incarcerated women are mothers;2 the number of children with incarcerated mothers has increased 131% since 1991.
Pregnant and postpartum people in prison have unique needs, some of which are beginning to be addressed through state laws to protect their rights and reduce the harms of incarceration (e.g., anti-shackling laws). Yet, reproductive injustices remain common, including sexual assault, abortion restrictions, and forced separation from their infants following birth. In this brief, we examine how reproductive injustices are perpetuated through states’ death penalty laws.
The reproductive justice framework is useful for examining state laws on the death penalty. The framework consists of three core rights of people to 1) have children; 2) not have children; and 3) parent their children in dignity, safety, free from governmental harm, and with the necessary material support to do so.3 In this way, the reproductive justice framework helps to understand how fetal-centeredness within death penalty statutes negatively impacts the incarcerated person, as well as their infants.
Summary of State Laws:
State laws in twenty-five states (AL, AZ, AR, CA, FL, GA, ID, IN, KS, KY, LA, MA, MS, MT, MO, NE, NV, NY, OH, OK, SC, SD, UT, VA, and WY) specifically prohibit a pregnant person from being executed until they are “no longer pregnant.” This means that the death penalty cannot be carried out while someone is pregnant.
These laws don’t always match states’ execution protocols (i.e., the specific guidelines for how an execution must be carried out). For example, some states have a law that prohibits the execution of a pregnant person, but the execution protocol does not reference the exception for pregnancy.
Pregnancy Exception in Statute and Execution Protocol
Six states (ID, KY, MT, NV, SD, and WY) that have a pregnancy exception in their death penalty statute also reference pregnancy in their execution protocol.
Pregnancy Exception in States Where the Death Penalty Has Been Abolished
One state (VA) previously had a pregnancy exception in its death penalty statute, but the statute was repealed and the death penalty was abolished. Similarly, two states (MA and NY) have pregnancy exceptions in death penalty statutes; however, the death penalty has been abolished.
A Closer Look:
Death penalty statutes in states have notable similarities and differences:
- Often states designate a specific agency or official (usually a prison or law enforcement official) to be responsible for communicating a “suspected pregnancy” to the designated recipient (typically an appropriate court).
- In all states with relevant statutes, the execution must be delayed (i.e., stayed) until the end of the pregnancy (at which point the date of execution should be set), if the condemned person is determined to be pregnant.
- There is variation among statutes in regulating the timing of an execution post-pregnancy. The timing ranges from “immediately” to nine months after pregnancy.
The language used around pregnancy, as it relates to the rights of the fetus as compared to the pregnant person, is of importance.
- In terms of defining the end of the reprieve from execution, most states use a variation of the phrase “is no longer pregnant” (including “the cause of the suspension no longer exists”), and do not specify how the pregnancy is resolved (i.e., through birth, miscarriage, ectopic pregnancy, or induced abortion).
- Three states (AL, AR, and KY) explicitly use the term “child” in the statute, focusing the resolution of the pregnancy on the birth of the child. Language used in the KY statute seemingly removes the possibility of other outcomes of pregnancy.
- KS and LA statutes explicitly state other possible scenarios for the termination of pregnancy.
- For example, the LA statute states: “date of delivery of the baby, a miscarriage, or voluntary termination of the pregnancy” (LA ST § 567).
Of the six states with relevant statutes that also address pregnancy in their execution protocols, the three most recent (ID, MT, and NV) parallel the language of their state’s statutes (e.g., using the variation of a phrase “is no longer pregnant” to describe the end of the execution suspension). Specifically, they further state that a pregnant person cannot be executed until they are no longer pregnant, and offer additional details on proceedings that follow the conclusion of the pregnancy.
Notably, six states’ (AZ, IN, KY, MS, MT, and UT) execution protocols–including two that account for pregnancy in their protocols–exclusively or heavily use he/him/his pronouns when speaking of condemned individuals, contradicting the language in these states’ statutes.
Conclusion:
Our review revealed 25 states with laws that have an exception to the death penalty for instances when the individual is pregnant. These laws reflect reproductive injustices: it makes it impossible for the pregnant individual to make autonomous decisions about having or not having children. Given the forced removal of their infant, they cannot parent their children in dignity, safety, free from governmental harm, and with the necessary material support to do so. These existing laws–while obsolete in the modern-day criminal legal system–are threats to reproductive justice and maternal and child health.
Suggested Citation:
Smith, A., Moss, R. A., Augustin, D., Benning, S.J., Trejbalova, T., and Brisendine, A. (2024). State Laws on the Death Penalty for People who are Pregnant While Incarcerated. Center for Leadership Education in Maternal and Child Public Health, University of Minnesota.
This brief is based on the article: Trejbalova, T., Sufrin, C. B., Kotlar, B., Saunders, J., Mason, E., Sherman, J., and Shlafer, R. J. (2024). Right to “Life”: The Cruel Contradiction of Exceptions to the Death Penalty for Pregnant People. The Prison Journal, 104(4), 449-471.
Acknowledgements:
Funding for this effort was provided by the Center for Leadership Education in Maternal and Child Public Health at the University of Minnesota. The Center is supported by the Health Resources and Services Administration (HRSA) of the U.S. Department of Health and Human Services (HHS) under grant number T76MC00005-67-00 for Leadership Education in Maternal and Child Public Health in the amount of $1,750,000. This information or content and conclusions of related outreach products are those of the authors and should not be construed as the official position or policy of, nor should any endorsements be inferred by HRSA, HHS or the U.S. Government.
References:
- Roberts, D. E. (2002). Shattered bonds: The color of child welfare. Basic Books.
- Maruschak, L. M., Bronson, J., & Alper, M. (March, 2021). Survey of prison inmates, 2016: Parents in prison and their minor children. Bureau of Justice Statistics. https://bjs.ojp.gov/content/pub/pdf/pptmcspi16st.pdf
- Ross, L., & Solinger, R. (2017). Reproductive justice: An introduction (Vol. 1). Univ of California Press.