BILL ANALYSIS
AB 1900
Page 1
Date of Hearing: April 6, 2010
Counsel: Meghan Masera
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 1900 (Skinner) - As Introduced: February 16, 2010
SUMMARY : Requires that inmates and wards in the custody of the
Department of Corrections and Rehabilitation (CDCR), CDCR's
Division of Juvenile Facilities, and local correctional and
juvenile facilities, who are known or suspected to be pregnant
be restrained in the least restrictive way possible, consistent
with the legitimate security needs of each inmate or ward, when
transported to and from their respective facilities.
Specifically, this bill :
1)Requires that, by January 1, 2012, the Corrections Standards
Authority (CSA) establish minimum standards for female inmates
at state and local correctional facilities to ensure that
inmates who are pregnant are restrained in the least
restrictive way possible, consistent with the legitimate
security needs of each inmate, when being transported. In
addition, this bill mandates CSA to seek the advice of
Correctional Medical Associates and the Academy of
Correctional Health Professionals when establishing these
minimum standards.
2)Mandates that inmates and wards of state and local
correctional and detention facilities who are known or
suspected to be pregnant be restrained in the least
restrictive way possible, consistent with the legitimate
security needs of each inmate or ward, when transported to and
from their respective facilities.
3)States legislative intent that adult and juvenile state and
local correctional and detention facilities develop policies
to ensure that pregnant inmates are restrained in the least
restrictive way, consistent with the legitimate security needs
of each inmate or ward, for purposes of transportation to and
from a correctional or detention facility.
EXISTING LAW :
AB 1900
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1)Provides that pregnant inmates temporarily taken to the
hospital outside the prison for purposes of child-birth shall
be transported in the least restrictive way possible,
consistent with the legitimate security needs of each inmate.
Upon arrival at the hospital, once the inmate has been
declared by the attending physician to be in active labor, the
inmate shall not be shackled by the wrists, ankles, or both,
unless deemed necessary for the safety and security of the
inmate, the staff, and the public. (Penal Code Section
5007.7.)
2)Requires CSA to establish minimum standards for state and
local correctional facilities. CSA shall review those
standards biennially and make any appropriate revisions. The
standards shall include, but not be limited to, the following:
health and sanitary conditions, fire and life safety,
security, rehabilitation programs, recreation, treatment of
persons confined in state and local correctional facilities,
and personnel training. [Penal Code Section 6030(a) and (b).]
3)Provides that the standards require inmates who are received
by the facility while they are pregnant are provided all of
the following [Penal Code Section 6030(e)]:
a) A balanced, nutritious diet approved by a doctor;
b) Prenatal and postpartum information and health care,
including, but not limited to, access to necessary vitamins
as recommended by a doctor;
c) Information pertaining to childbirth education and
infant care; and,
d) A dental cleaning while in a state facility.
4)States that the standards shall provide that at no time shall
a woman who is in labor be shackled by the wrists, ankles, or
both including during transport to a hospital, during
delivery, and while in recovery after giving birth, except as
provided in Penal Code Section 5007.7. [Penal Code Section
6030(f).]
5)Requires CSA to seek the advice of the California State
Sheriffs' Association, the Chief Probation Officers'
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Association of California, and other interested persons, when
establishing minimum standards for female inmates and pregnant
inmates in local adult and juvenile facilities. [Penal Code
Section 6030(g)(5).]
6)Provides that any female prisoner shall have the right to
summon and receive the services of any physician and surgeon
of her choice in order to determine whether she is pregnant.
If the prisoner is found to be pregnant, she is entitled to a
determination of the extent of the medical services needed by
her and to the receipt of these services from the physician
and surgeon of her choice. Any expenses occasioned by the
services of a physician and surgeon whose services are not
provided by the institution shall be borne by the prisoner.
(Penal Code Section 3406.)
7)States that any woman inmate who would give birth to a child
during her term of imprisonment may be temporarily taken to a
hospital outside the prison for the purposes of childbirth,
and the charge for hospital and medical care shall be charged
against the funds allocated to the institution. (Penal Code
Section 3423.)
8)Requires that any female in the custody of a local juvenile
facility, defined as any city, county, or regional facility
used for the confinement of juveniles for more than 24 hours,
shall have the right to summon and receive the services of any
physician and surgeon of her choice in order to determine
whether she is pregnant. If she is found to be pregnant, she
is entitled to a determination of the extent of the medical
services needed by her and to the receipt of those services
from the physician and surgeon of her choice. [Welfare and
Institutions Code Sections 222(a) and 1774(a).]
9)Provides that a ward shall not be shackled by the wrists,
ankles, or both during labor, including during transport to a
hospital, during delivery, and while in recovery after giving
birth, subject to the security needs described in this
section. Pregnant wards temporarily taken to a hospital
outside the facility for the purposes of childbirth shall be
transported in the least restrictive way possible, consistent
with the legitimate security needs of each ward. Upon arrival
at the hospital, once the ward has been declared by the
attending physician to be in active labor, the ward shall not
be shackled by the wrists, ankles, or both, unless deemed
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necessary for the safety and security of the ward, the staff,
and the public. [Welfare and Institutions Code Sections
222(b) and 1774(d).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "In 2005,
California was the second state to require pregnant women who
are temporarily being taken to a hospital for childbirth to be
transported in the least restrictive way possible. Since
then, other states have implemented safer measures to stop
shackling pregnant women altogether. Unfortunately, in
California not all correctional facilities have implemented
policies that require officers to use least restrictive
restraints. Currently, nearly two-thirds of county jails
shackle pregnant women in ways that could cause miscarriage or
other injuries. Studies indicate that the incidence of minor
trauma, especially falls, increases as pregnancy progresses
and excessive shackling poses undue health risks to a woman
throughout her pregnancy.
"California has the third largest population of incarcerated
women in the country. Tens of thousands of women go through
county jails every year and an average of 4% to 7% are
pregnant at some point in their custody. Therefore, the use
of restraints and shackles when prisoners are transported
should be re-evaluated since the passage of AB 478 (Lieber,
2005).
"Assembly Bill 1900 would require CSA to create standards for
state and local correctional facilities by January 1, 2012 to
ensure that pregnant women are restrained in the least
restrictive way when being transported. This will protect
financially strapped counties from being sued and ensure the
health and safety of pregnant incarcerated women. The bill
also establishes findings that excessive shackling
significantly limits a pregnant woman's mobility (e.g.,
shackling by the ankles, across the belly, behind the woman's
back, and to another person) and can cause serious harm to the
woman and her pregnancy. To avoid threatening the health of
pregnant women and potential legal challenge, it is critical
that policies are adopted ensuring that restraints are
properly used with this vulnerable population."
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2)Background : AB 478 (Lieber), Chapter 608, Statutes of 2005,
prohibited the shackling of pregnant prisoners in labor,
during childbirth and during recovery from childbirth. AB 478
also mandated CSA establish standards for state prisons by
January 1, 2007. In addition, AB 478 required CSA to
establish these standards for county jails, but did not set a
time deadline.
The CSA wrote the minimum standards to apply to the state
prisons. However, instead of also writing the standards to
apply to county jails, the CSA instead directed each jail
facility in each county to incorporate these minimum standards
into their own facilities' policies and procedures manuals.
No time deadline was given for the counties to accomplish this
directive.
According to the Legal Services for Prisoners with Children
(LSPC) report, "Stop Shackling: A report on the written
policies of California's counties on the use of restraints on
pregnant prisoners in labor" (March 2010), "[LSPC] reviewed
all of the written policies and other communications [it]
received from the various counties and found:
a) "33 counties have a written policy addressing shackling
of pregnant women in labor, childbirth or recovery;
b) "13 counties have no written policy addressing these
issues; and,
c) "12 counties did not respond at all.
"[LSPC] studied the written policies of the 33 counties which
(sic) have them to determine whether or not they were in
compliance with Penal Code section 6030(f). In [LSPC's] view,
'compliance' means that all of the elements of that statute
are present in the written regulation. In contrast, a
county's written policy is 'not in total compliance' if one or
more elements of the statute are missing or are stated
inaccurately. [LSPC] determined that:
a) "17 counties' written policies are in compliance; and,
b) "16 counties' written policies are not in total
compliance.
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"Thus, on the basis of [the] survey, [LSPC] can verify that
only 17 of 58 counties (less than a third) are in compliance
with [Penal Code] section 6030(f) four years after it went
into effect. These include San Bernardino, Alameda and Fresno
counties. The 29 non-complying counties either have no
written policy on shackling of pregnant women in labor (13
counties, including Los Angeles County) or their written
policies do not comply with all of the specific terms of
section 6030(f) (16 counties, including San Diego, Riverside
and Santa Clara counties)."
3)Eighth Amendment Considerations : In 2007, Arkansas
Department of Correction (ADC) inmate Shawanna Nelson brought
a lawsuit against the Director of the ADC and an ADC
corrections officer. [Nelson v. Corr. Med. Servs., (8th Cir.
2009) 583 F.3d 522.] Nelson alleged that while giving birth
to her child she was forced to go through the final stages of
labor with both legs shackled to her hospital bed in violation
of the Eighth Amendment. (Id. at p. 525.) Nelson further
alleged that the ACD Director failed to ensure that
appropriate policies for the treatment of pregnant inmates
were implemented and that the officer assigned to accompany
her during labor, despite having witnessed her severe
contractions and despite the expressed wish of medical
personnel, failed to follow prison regulations requiring her
to balance any security concern against the medical needs of
the patient. (Ibid.) "Nelson argued that a reasonable
corrections officer would have known that she should not have
been restrained by shackles while on the verge of giving birth
and that she was in no condition to flee while her whole body
was engaged in moving her baby to birth." (Ibid.)
"The Eighth Amendment prohibits the infliction of cruel and
unusual punishments on those convicted of crimes." [Nelson v.
Corr. Med. Servs., (8th Cir. 2009) 583 F.3d 522, 528 citing,
Wilson v. Seiter, (1991) 501 U.S. 294, 296-97 (111 S. Ct.
2321).] A finding of an Eight Amendment violation requires
evidence that the offending conduct is wanton. (Ibid.) In
the context of the Eighth Amendment, the meaning of the word
"wanton" depends upon the circumstances in which the alleged
violation occurs. For example, in cases involving prison
riots, "wantonness" is demonstrated by acting maliciously for
the purpose of causing harm. [Nelson v. Corr. Med. Servs.,
(8th Cir. 2009) 583 F.3d 522, 528 citing, Whitley v. Albers,
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(1986) 475 U.S. 312, 320-21 (106 S. Ct. 1078).] "The Eighth
Amendment standard for conditions of confinement and medical
care is different, and the constitutional question in such
cases is whether the defendant acted with deliberate
indifference." [Nelson v. Corr. Med. Servs., (8th Cir. 2009)
583 F.3d 522, 528.]
"A prison official is deliberately indifferent if she knows of
and disregards a serious medical need or a substantial risk to
an inmate's health or safety. A claim of deliberate
indifference has both an objective and a subjective
component." [Nelson v. Corr. Med. Servs., (8th Cir. 2009) 583
F.3d 522, 528-529.]
In 2002, the United States Supreme Court provided guidance to
officials on the constitutional limits on restraining
prisoners. [Hope v. Pelzer, (2002) 536 U.S. 730 (122 S. Ct.
2508).] In Hope, an inmate brought a lawsuit alleging that
his Eighth Amendment rights had been violated by officials
responsible for handcuffing him to a prison hitching post.
(Id. at pp. 733-35.) The Court determined that the prison
officials had acted with deliberate indifference to the
inmate's health and safety in violation of the Eighth
Amendment by restraining him despite the clear lack of "an
emergency situation," in a manner that "created a risk of
particular discomfort and humiliation." (Id. at pp. 737-38.)
A constitutional right is clearly established if it is
"sufficiently clear that a reasonable official would
understand that what he is doing violates that right."
[Nelson v. Corr. Med. Servs., (8th Cir. 2009) 583 F.3d 522,
531 citing, Hope v. Pelzer, (2002) 536 U.S. 730, 739 (122 S.
Ct. 2508).] The Supreme Court "has made it clear that there
need not be a case with 'materially' or 'fundamentally'
similar facts in order for a reasonable person to know that
his or her conduct would violate the constitution." [Young v.
Selk, (8th Cir. 2007) 508 F.3d 868, 875 quoting, Hope v.
Pelzer, (2002) 536 U.S. 730, 739 (122 S. Ct. 2508).] Instead,
the unlawfulness must merely be apparent in light of
preexisting law. [Hope v. Pelzer, (2002) 536 U.S. 730, 739
(122 S. Ct. 2508).] Officials "can still be on notice that
their conduct violates established law even in novel factual
circumstances." (Id. at p. 741.)
Whether or not a prison officer should know that his or her
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conduct presents a substantial risk to an inmate is a question
of fact subject to demonstration in the usual ways, including
inference from circumstantial evidence and a fact finder may
conclude that a prison official knew of a substantial risk
from the very fact that the risk was obvious. [Nelson v.
Corr. Med. Servs., (8th Cir. 2009) 583 F.3d 522, 529.]
In 1976, the Supreme Court decided Estelle v. Gamble, a leading
case in the development of Eighth Amendment law. [Estelle v.
Gamble, (1976) 429 U.S. 97 (97 S. Ct. 285).] Estelle was an
action brought against prison officials for providing an
inmate inadequate medical care. (Id. at p. 98.) The Court
concluded that either interference with care or infliction of
"unnecessary suffering" establishes deliberate indifference in
medical care cases in violation of the Eighth Amendment. (Id.
at p. 103-05.)
Moreover, at least one court has held that shackling a woman in
labor is inhumane and violates her constitutional rights.
[Women Prisoners of D.C. Dep't of Corr. v. District of
Columbia, (D.D.C. 1994) 877 F. Supp. 634, 668-69, modified in
part on other grounds, (D.D.C. 1995) 899 F. Supp. 659.]
In conclusion, the Nelson court held that an inmate's
protections from being shackled during labor had been clearly
established by decisions of the Supreme Court and the lower
federal courts before the date of the incident in question
and, thus, the prison guard who accompanied Nelson into the
delivery room and shackled her to the bed had likely acted
with indifference, in violation of Nelson's Eighth Amendment
rights. [Nelson v. Corr. Med. Servs., (8th Cir. 2009) 583
F.3d 522, 534.]
4)Argument in Support : According to the American Congress of
Obstetricians and Gynecologists (the sponsor of this bill),
"Many people associate pregnancy with a low-risk condition.
However, pregnancy is not a benign condition. Even for an
average risk woman who is not incarcerated, significant risks
exist. Blood volume increases by 40%, and any situation which
causes her to bleed could quickly cause serious injury or
death to both the mother and/or the fetus. During transport
to the hospital, the patient may need aggressive treatment
that can be encumbered by unnecessary restraints.
"Overly restrictive transport in vehicles with limited
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ventilation, (sic) no access to water or restroom facilities
will put the pregnant prisoner at higher risk for a
life-threatening blood clot. Falls, the risk of which is
increased with some types of restraints, could cause the
placenta to separate from the uterus, which creates an
imminent threat of death for the mother and fetus. Lowering
the risk of falls is an important consideration in minimizing
the use of certain restraints, particularly restraints that
cause the pregnant prisoner to be chained to another
prisoner."
5)Argument in Opposition : According to the Chief Probation
Officers of California , "AB 1900 is a duplicative measure,
considering that the CSA already has regulations on how
pregnant inmates are to be restrained while being transported.
We share the concern of the author and others that female
wards are restrained in the most appropriate manner consistent
with the legitimate security needs; however, policies are
already in place to address this concern. It is unnecessary
at this time to incur additional costs or (sic) rewriting and
training on standards that have already been put in place."
6)Prior Legislation : AB 478 (Lieber) Chapter 608, Statutes of
2005, makes it illegal to deny inmates prenatal and postpartum
care, including access to vitamins and a basic dental
cleaning, and bans the shackling of women during labor,
delivery, and recovery.
REGISTERED SUPPORT / OPPOSITION :
Support
American Congress of Obstetricians and Gynecologists (Sponsor)
American Civil Liberties Union (Co-Sponsor)
All of Us or None (Co-Sponsor)
Center for Young Women's Development (Co-Sponsor)
Legal Services for Prisoners with Children (Co-Sponsor)
ACCESS/Women's Health Rights Coalition
ASK Mentoring Outreach, Inc.
California Attorneys for Criminal Justice
California Catholic Conference
California Church IMPACT
California Commission on the Status of Women
California Medical Association
California Nurses Association
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California Public Defenders Association
California Women's Law Center
California Women Lawyers
Centerforce
Community Works West
Crossroads Inc.
Drug Policy Alliance
Families to Amend California's Three Strikes
Friends Committee on Legislation of CA
Girls and Gangs
Great Beginnings
Law Students for Reproductive Justice
Life Support Alliance
National Advocates for Pregnant Women
National Council of Jewish Women
Peace Over Violence
Physicians for Reproductive Choice and Health
Rainbow Services, Ltd.
Taxpayers for Improving Public Safety
Three Hands Together
University of Southern CA-Post Conviction Justice Project
Women's Community Clinic
55 Individuals
Opposition
Chief Probation Officers of California
Analysis Prepared by : Meghan Masera / PUB. S. / (916)
319-3744