Elizabeth Holmes, the Theranos fraudster, recently asked to delay the start of her 11-year prison sentence, on the grounds that she has just had a child. A judge hasn’t decided yet whether or not to grant Holmes a brief reprieve to bond with her infant, but giving birth is “not likely to result in much of a delay,” because typically women aren’t allowed to push back their prison sentences just because they have a newborn. 

As far as criminal defendants go, Elizabeth Holmes strikes me as among the most unsympathetic. She’s a scammer who lied over and over, and she’s fighting attempts to get her to pay restitution. Apparently she recently attempted to flee to Mexico. I consider her to be in a class with Martin Shkreli and the WeWork guy (the former of whose deceptions resulted in his own criminal conviction, while the latter’s scams led to his further success). She’s not someone whose plight deserves unique sympathy, considering all the people who go to prison in the United States for far less legitimate reasons. 

At the same time, I think it’s obviously hideously cruel to take someone away from their newborn baby, and the Holmes story can at least draw attention to a practice that I think is correctly described as barbaric. A prosecutor commenting on the Holmes request noted that in the criminal punishment system, “many newborns are separated from their mothers shortly after birth.” This is not only a crime against the mother, but against the child, who should be considered to have a right to their mother. Writing in the AMA Journal of Ethics, Jennifer Clarke and Rachel Simon noted in 2013 that current practices inflict serious harm on both children and mothers: 

After giving birth, most incarcerated mothers are allowed only 24 hours with their newborns in the hospital; the infants are then either placed with relatives or in foster care, and the mothers are returned to prison or jail. This separation is devastating for both mother and infant. For infants, maternal separation at birth can lead to multifaceted, severe emotional and behavioral problems in later life including low self-esteem, less successful peer relationships, and difficulty coping with life stressors. For mothers, this separation can also be psychologically traumatizing and has been shown to increase the risk of recidivism. 

Last Mother’s Day, the Prison Policy Initiative took the opportunity to remind Americans that, since this country has the highest rate of incarceration of women in the world, millions of mothers have been separated from their children (and children from their mothers). The Equal Justice Initiative has documented the terrible effects that this family separation has over the years: “Children with an incarcerated parent suffer lasting effects on their well-being. They face increased risks of psychological and behavioral problems, insufficient sleep and poor nutrition, unstable homes, and higher odds of entering the criminal justice system themselves.” Visiting a parent in prison can be a painful experience, too (and can be extremely difficult when prisons are located in remote places), and only about nine percent of incarcerated mothers receive visits from their children. 

Instead of reducing this cruelty by finding alternatives to incarceration, the more “humane” states have introduced a dystopian institution called a “prison nursery,” where young children can be raised in prison itself. While child welfare advocates acknowledge that “incarcerating babies may strike many as unconscionable,” it is seen by its proponents as better than the alternative of tearing newborn infants from their mothers’ arms. (It has also been argued that it’s unconstitutional, because the infants are technically jailed without having been convicted of a crime). But because prison nurseries are still rare, and often have absurdly strict admissions requirements, it is still common in the United States to simply take kids away.

As you might expect, prison nurseries do not appear to be fantastic places to raise a child. A 2010 California investigation of the state’s system found troubling instances such as this one: 

Denisha Lawson gave birth to her daughter Esperanza in 2007. Esperanza was premature, spent a few weeks in the hospital and then came home with her mom. When she developed a cold that seemed to be getting worse, Denisha decided she should take her daughter to the doctor to have her checked out. This is a common scenario—babies get born, they get sick and they go to the doctor. The difference in this case is that Denisha was a prisoner incarcerated in the San Diego Family Foundations Program. Esperanza, while not officially a prisoner, was also being held at this facility. Prison and program officials refused to allow Denisha to take her daughter to the doctor. Denisha kept insisting that Esperanza was ill. This impasse continued for two weeks until a visiting nurse listened to Denisha and rushed Esperanza to the hospital in near-cardiac arrest. If Denisha had complied with prison orders and not demanded that her daughter be seen by a physician, Esperanza would be dead today.

U.S. prisons are infamous for their denial of important health care, so putting prison authorities in charge of child welfare plainly endangers kids. But because prisons themselves are seen as nonnegotiable, the policy options under consideration are to (1) separate families or (2) put the whole family in prison. Any third possibility is too radical to consider, because it would require drastically reducing the size of the U.S. incarceration apparatus. After all, 58 percent of women in prison are parents of minor children. If you couldn’t incarcerate a mom, you couldn’t incarcerate most of the women currently in jails and prisons. And of course, it seems unfair to say that moms should get out just because they’re moms. Some of the women without children might be depended on by older parents, for instance. Why is it any more acceptable to put them in a cage? And we haven’t even spoken of dads yet. Surely it isn’t right to assume that a mother necessarily loves and cares for their child more than a father does. Is it an act of cruelty to take away one parent but acceptable to take away the other?

So if we have a strong opposition to both imprisoning babies and family separation, we are taken a long way toward thinking that there is no way to have a humane prison system, period. But I think we shouldn’t shy away from that conclusion just because the implications would demand radical changes in existing practices. Prisons are inherently inhumane. 

Does that mean that no parent should ever be separated from their child under any circumstances? No, the state still has an obligation to protect children from abuse and endangerment. But we shouldn’t assume that the fact someone has committed a crime is sufficient for them to lose the basic right a parent has to raise their children. When there is reason to believe someone is actually dangerous, the state can abridge their freedom. But if someone is imprisoned for fraud (whether passing bad checks or a Holmes level con), there is no reason to assume they cannot be a good parent to their kids. PBS reported on an imprisoned mom whose 5-month-old didn’t seem to recognize her anymore after a period of separation. She was there on a shoplifting charge. I have no idea what kind of mom Elizabeth Holmes would be, and without any evidence that she would be a bad one, I do not think the government has a right to put bars between her and her babies. 

Women who are pregnant in prison routinely have to give birth while shackled, and then immediately have their child taken away, so that “giving birth means saying goodbye.” There is no way to make this less cruel. (Alabama attempted to “ease the trauma” by introducing doulas at prison childbirths for “holding hands” and “wiping tears.”) The hideous injustice of family separation is an inherent feature of prisons, which makes a strong case against the use of prisons as society’s main method for dealing with harms.