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Perspective: Should babies be in prison with their mothers?

The sentence given to Elizabeth Holmes, who is pregnant, brings to the fore a problem in criminal justice — what to do about new mothers convicted of crimes

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Theranos founder and CEO Elizabeth Holmes walks into federal court in San Jose, Calif., Friday, Nov. 18, 2022.

Theranos founder and CEO Elizabeth Holmes walks into federal court in San Jose, Calif., Friday, Nov. 18, 2022.

Nic Coury, Associated Press

Elizabeth Holmes has until April 2023 to surrender to authorities, meaning she will not have to deliver the baby she is currently carrying while in prison.

Holmes was sentenced last week to 11 years for defrauding investors in her company Theranos out of billions; she also risked the health and lives of patients who were told that her company’s instant blood test would be accurate in detecting disease when in fact there was no evidence for it.

Holmes is also a mother to a toddler, and now risks being separated from both of her young children if she does not win an appeal. 

She is not alone. A small but growing percentage of the U.S. prison population includes women who are pregnant or who have given birth recently. Legal authorities are being asked what should be done in these cases and whether these women should be treated differently from other prisoners who don’t have babies and toddlers. Some observers have speculated that Holmes got pregnant on purpose in order to get a more lenient sentence.

There are more than 200,000 women incarcerated in prisons and jails in the United States, and an estimated 3% to 5% of them are pregnant. Should we be easier on pregnant women so as not to separate them from their children for too long? According to a Wall Street Journal analysis, the median sentence for such fraud cases is about 16 years. So Holmes may already be getting off easy.

Should we be more lenient with women generally, given that their danger of recidivism is lower than that of men and women are less likely to be a danger to the population? Or is that a violation of some fundamental tenet of justice that says we should punish people who commit similar crimes in a similar way?

The answer to these questions depends in part on what the goal of incarceration is — to punish, to deter, to rehabilitate or to prevent criminals from offending again. 

But the question of how to treat a mother with young children should depend not only on how we want the mother to be treated, but also our concern for the children. It would be easy to argue that a child is best off with their mother no matter what the circumstances are, as long as the mother doesn’t pose a threat to the child. And so at least a dozen states have created prison nurseries so that mothers and children can be together, at least until the age of 3 or so. 

But living the first three years of your life in prison may not be a good idea. The activities of these women and their children are heavily restricted and they may barely get to go outside the prison walls. There were reports of these toddlers being startled by wind when they finally left.

It is easy to say that white-collar criminals like Elizabeth Holmes are not dangerous felons and so there is no reason to assume that their life behind bars will be particularly bad. But female prisoners are often not separated into types of institutions — minimum, medium and maximum security — the way men are, because states generally have fewer facilities for women. A woman with a 24-month sentence for forgery could have a roommate serving 55 years for first-degree murder.

And so any reasonable prison policy will have to take account of the fact that some of the women may become violent and that there is going to be a need to maintain a high degree of order and control. Imagine if a baby living in prison were harmed by another prisoner. Imagine being a baby in prison at all.

Most prison nurseries restrict the presence of babies to those under 18 months. But some allow children to stay inside for as long as 30 months. And some allow mothers with longer sentences to have their babies with them initially and then removed when the nursery’s age limit is reached.

This is the other concern. Keeping a baby with you in prison depends on your own willingness to follow the rules. And maybe we assume that someone like Holmes will always behave civilly — though her actions suggest a kind of sociopathy that we’re not quite acknowledging. But the truth is that being behind bars is a highly stressful experience and even women who start off fine may find that they get into conflicts with other prisoners.

A 2001 study of Nebraska’s prison-nursery program found that, of the 44 babies who were in the program, seven of their mothers were “involuntarily removed” and “the main reason was fighting with another inmate.”

The unit had a zero tolerance policy, meaning any rule infraction could result in expulsion. Women who were caught fighting or even raising their voices at one another could be removed from the unit — which meant their babies would be sent home. Indeed, if the women violated any of the regulations, the mother could be sent to another unit and the baby sent home. If the baby showed signs of any health problem, the child would be sent home, even if the mother was not to blame. 

This kind of abrupt removal can cause deep problems too. A child who grows up in prison has little or no access to any of the other adults in his or her life. There are few, if any, visits with fathers or grandmothers, and children cannot spend time in and out of the prison facility, meaning that if and when a child is removed he will be placed with adults who are basically strangers.

No one wants to say that a woman who is convicted of a significant crime should have to suffer being separated from her children in addition to whatever sentence she is given. But our considerations of these matters must also include the harms of putting babies in prison.

Naomi Schaefer Riley is a senior fellow at the American Enterprise Institute, a senior fellow at the Independent Women’s Forum and a Deseret News contributor. She is the author of “No Way to Treat a Child: How the Foster Care System, Family Courts, and Racial Activists Are Wrecking Young Lives,” among other books