Milwaukee sheriff's deputies kept an inmate shackled as she gave birth. Jurors will decide if it was legal

Jacob Carpenter | Milwaukee Journal Sentinel

A federal jury will be asked this week to decide whether it was legal for Milwaukee County Sheriff’s Office deputies to keep a female inmate shackled to her hospital bed during childbirth.

The case, scheduled to begin Monday, was filed by a former Milwaukee County Jail inmate who delivered a child in October 2013 while chained to a hospital bed. She is not named in court documents.

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The former inmate’s lawyers say the practice, authorized by Sheriff David A. Clarke Jr., violates her constitutional rights and unnecessarily increases the possibility of complications during childbirth.

“The practice of shackling is dangerous and risks injury to both mother and child,” lawyers for the former inmate, who’s listed in court files as Jane Doe, wrote in a legal complaint. They declined further comment last week.

Clarke has responded that the policy protects hospital staff from potentially dangerous inmates lashing out, according to court documents. Clarke said doctors can ask for the removal of shackles if it’s medically necessary, though there’s no policy for deciding whether the doctor’s request should be followed.

“If this inmate clocks or strikes or punches – and this has happened – hospital staff, I’m responsible for that,” Clarke said in a December 2015 deposition.

The former inmate delivered her child at Aurora Sinai Medical Center without any medical complications. She was 19 years old at the time.

The plaintiff is also suing the Sheriff's Office and a former corrections officer, Xavier Thicklen, over allegations that Thicklen sexually assaulted her five times during her incarceration. Thicklen was criminally charged with five counts of sexual assault, but those charges were dropped when Thicklen pleaded no contest to a felony count of misconduct in public office.

The trial comes as the Sheriff’s Office deals with multiple legal issues and Clarke plans to leave for a job in the U.S. Department of Homeland Security.

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In March, a second female inmate filed a similar lawsuit related to her shackling as she gave birth.

In a separate matter, an inquest jury in early May recommended criminal charges against seven jail staffers in the dehydration death of inmate Terrill Thomas. District Attorney John Chisholm hasn’t announced whether he will file charges.

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Around the same time as Thomas' death, a suicidal inmate in the same pod of the jail was able to attempt to kill himself twice, even though he was supposed to be on protective watch, a Milwaukee Journal Sentinel investigation found.

In recent years, leading medical associations have advocated for a ban on shackling during childbirth. Several criminal justice agencies, including the Federal Bureau of Prisons and Department of Homeland Security, have either stopped the practice or limited its use to extreme circumstances.

But at the time of the former inmate’s incarceration, Milwaukee County Sheriff’s Office policy required keeping pregnant inmates cuffed at the wrist and leg to the bed. The policy created no exceptions for inmates who had no history of violence or escaping custody.

In his 2015 deposition, Clarke gave no indication that changes were made or that any were imminent.

“If an inmate is outside the (jail), there’s the threat of escape, there’s the threat of assault. It is always present,” Clarke said.

To win the case, the former inmate’s lawyers will have to show their client was harmed as a result of being shackled. Neither the former inmate nor her child was physically hurt during childbirth because of the shackles, but the woman’s lawyer can argue her client suffered mental or emotional injuries.

The trial is expected to last four to five days. The two sides have discussed a settlement but no agreement has been reached, sheriff’s office lawyers said last week.