Accounting for postpartum depression in criminal sentencing is the right move

Accounting for postpartum depression in criminal sentencing is the right move
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A new Illinois law is set to take effect this summer that will specifically address the legal culpability of women who commit criminal acts during episodes of severe postpartum mental illness. This is the first law of its kind in the U.S., and as perinatal and forensic psychiatrists, we applaud this legislation and urge other states to follow.  

This new law takes the unprecedented step of specifically highlighting postpartum mental illness as a potential mitigating factor for judges to consider in determining an appropriate punishment for a crime.

Once enacted, the state law will allow women who were convicted of a felony, but who did not have evidence of postpartum mental illness presented at their trial or sentencing, to apply for post-conviction sentence reduction. Practically, this means that women in prison for crimes that were directly related to symptoms of undiagnosed or untreated postpartum mental illness now have a legal mechanism to apply to the courts for a lesser sentence.


The law provides hope for the possibility of treatment, rather than punishment, for women who were convicted without consideration of the devastating effects of postpartum mental illness on behavior.  

This legislation is in line with the longstanding Infanticide Act of 1938 in the United Kingdom, which limits the charge for killing an infant to manslaughter, not murder, if the act occurred when the woman’s “balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.”

This act recognizes that pregnancy and childbirth impose mental and physiologic stress upon women.Illinois is breaking ground in the U.S. by following suit and acknowledging the physical and emotional burdens upon women due to childbearing and incorporating them as mitigating circumstance into law.

The Illinois legislation is unique because it creates a legal definition of postpartum mental illness. Postpartum depression was defined in the law’s text as "a mood disorder which strikes many women during and after pregnancy which usually occurs during pregnancy and up to 12 months after delivery.

This depression can include anxiety disorders.” Postpartum psychosis is described as “an extreme form of postpartum depression which can occur during pregnancy and up to 12 months after delivery. This can include losing touch with reality, distorted thinking, delusions, auditory and visual hallucinations, paranoia, hyperactivity and rapid speech, or mania.”  

Mood disorders, particularly depression, are common complications of childbearing. As many as 1 in every 7 pregnant women have a new episode of depression during pregnancy, and a similar number develop mood disorders within the first 3 months after birth. Postpartum psychosis, a rare but serious psychiatric emergency, occurs in 1-2 per 1000 births. Postpartum disorders have no socioeconomic class boundaries and all mothers are at risk.

To be sure, we all have strong emotional reactions to the injury or killing of an infant by a mentally ill mother. The criminal acts in this law apply to forcible felonies, which involve violence or the threat of physical force or violence to any individual, not only the infant but other family members or strangers.

But, coupled with the miracle of new life comes the risk for multiple maternal complications, including mental illness, anemia, nausea and vomiting, hypertension, gestational diabetes, excess weight gain, pregnancy loss, cesarean delivery and anesthesia complications.

Perinatal mood and anxiety disorders are associated with increased risks of maternal and infant mortality and morbidity and are recognized as a significant maternal safety issue. The pregnancy —related death rate in the United States has steadily increased across the past three decades —evidence of another risk pregnant women face.

Along with the bright, cheerful greetings and congratulations we send to pregnant women and new mothers, we also must appreciate that they bear substantial mental and physical risk in bringing our next generation into being and acknowledge this sacrifice in our legal system.

This law specifically identified perinatal (occurring during pregnancy or postpartum) psychiatric disorders as mitigating factors. We urge support for legislation that incorporates both pregnancy and childbirth and their complications as mitigating factors in crimes committed during postpartum mental disorders in all states.

Dr. Katherine L. Wisner, MD, MS, is a perinatal psychiatrist and the Norman and Helen Asher Professor of Psychiatry and Obstetrics and Gynecology at Northwestern University, and a Public Voices Fellow. Dr. Cara Angelotta, MD, is a perinatal psychiatrist whose focus is at the intersection of perinatal psychiatry and law.