BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair A
2009-2010 Regular Session B
1
9
0
AB 1900 (Skinner) 0
As Amended May 18, 2010
Hearing date: June 29, 2010
Penal Code; Welfare and Institutions Code
SM:dl
SHACKLING PREGNANT INMATES AND WARDS
HISTORY
Source: American College of Obstetricians and Gynecologists,
District IX
Prior Legislation: AB 478 (Lieber) - Chap. 608, Stats. of 2005
Support: ACCESS/Women's Health Rights Coalition; All of Us or
None (co-sponsor); American Association of University
Women, CA; American Civil Liberties Union; 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; California Public
Defenders Association; California Women's Law Center;
California Women Lawyers; Center for Young Women's
Development (co-sponsor); Centerforce; Community Works
West; Crossroads Inc. (co-sponsor); Drug Policy
Alliance; Families to Amend California's Three
Strikes; Friends Committee on Legislation of CA; Girls
and Gangs; Great Beginnings; House of Ruth, Inc.; Law
Students for Reproductive Justice; Legal Services for
Prisoners with Children (co-sponsor); National
Advocates for Pregnant Women; National Council of
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Jewish Women Peace Over Violence; Physicians for
Reproductive Choice and Health; Planned Parenthood
Affiliates of California; Planned Parenthood Mar
Monte; Planned Parenthood Shasta Diablo; Rainbow
Services, Ltd.; San Francisco Board of Supervisors;
Taxpayers for Improving Public Safety; Three Hands
Together; University of Southern CA - Post Conviction
Justice Project; Women's Community Clinic; W. Haywood
Burns Institute; National Council of Jewish Women Los
Angeles; California Coalition for Women Prisoners;
Lawyers Committee for Civil Rights; Black Women for
Wellness; California National Organization for Women;
National Center for Youth Law; Equal Justice Society;
ACT for Women and Girls; SEIU Local 1000; numerous
individuals
Opposition:None Known
Assembly Floor Vote: Ayes 70 - Noes 0
KEY ISSUE
SHOULD THE CURRENT PROHIBITION ON SHACKLING PREGNANT INMATES DURING
LABOR AND CHILDBIRTH BE EXTENDED TO ALSO LIMIT THE USE OF RESTRAINTS
ON PREGNANT INMATES WHILE THEY ARE BEING TRANSFERRED?
PURPOSE
The purpose of this bill is to extend the current prohibition on
shackling pregnant inmates during labor and childbirth to also
limit the use of restraints on pregnant inmates while they are
being transferred.
Current law 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,
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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.)
Current law 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).)
Current law 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 balanced, nutritious diet approved by a doctor;
Prenatal and postpartum information and health care,
including, but not limited to, access to necessary vitamins
as recommended by a doctor;
Information pertaining to childbirth education and
infant care; and,
A dental cleaning while in a state facility.
Current law 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).)
Current law requires CSA to seek the advice of the California
State Sheriffs' Association, the Chief Probation Officers'
Association of California, and other interested persons, when
establishing minimum standards for female inmates and pregnant
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inmates in local adult and juvenile facilities. (Penal Code
Section 6030(g)(5).)
Current law 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.)
Current law 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.)
Current law 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).)
Current law 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
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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 necessary for the
safety and security of the ward, the staff, and the public.
(Welfare and Institutions Code Sections 222(b) and 1774(d).)
Current law provides that mechanical restraints shall not be
placed on an adult inmate during labor, including during
transport to a hospital, during delivery, and while in recovery
after giving birth, unless circumstances exist that require the
immediate application of mechanical restraints to avoid the
imminent threat of death, escape, or great bodily injury, and
only for the period during which such threat exists. (15 Cal.
Code of Regs. section 3268.2.)
This bill amends the current law to provide that an inmate or
ward known to be pregnant shall not be shackled by the wrists,
ankles, or both during any transport to and from a state or
local correctional facility, including, but not limited to
transport to and from a hospital or courthouse, during labor,
during delivery, and while in recovery after giving birth,
unless deemed necessary for the safety and security of the
inmate, the staff, and the public. In cases where restraints
are deemed necessary, the least restrictive restraints possible
shall be used, consistent with the legitimate security needs of
each inmate, the staff, and the public.
This bill provides that the current law prohibiting shackling an
inmate or ward known to be pregnant during any transport to and
from a state or local correctional facility, during labor,
during delivery, and while in recovery after giving birth,
includes, but is not limited to, transport, to and from a
hospital or courthouse.
This bill makes uncodified legislative findings and declarations
concerning methods of restraining pregnant inmates and wards, as
specified.
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RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
The severe prison overcrowding problem California has
experienced for the last several years has not been solved. In
December of 2006 plaintiffs in two federal lawsuits against the
Department of Corrections and Rehabilitation sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
federal three-judge panel issued an order requiring the state to
reduce its inmate population to 137.5 percent of design capacity
-- a reduction of roughly 40,000 inmates -- within two years.
In a prior, related 184-page Opinion and Order dated August 4,
2009, that court stated in part:
"California's correctional system is in a tailspin,"
the state's independent oversight agency has reported.
. . . (Jan. 2007 Little Hoover Commission Report,
"Solving California's Corrections Crisis: Time Is
Running Out"). Tough-on-crime politics have increased
the population of California's prisons dramatically
while making necessary reforms impossible. . . . As a
result, the state's prisons have become places "of
extreme peril to the safety of persons" they house, .
. . (Governor Schwarzenegger's Oct. 4, 2006 Prison
Overcrowding State of Emergency Declaration), while
contributing little to the safety of California's
residents, . . . . California "spends more on
corrections than most countries in the world," but the
state "reaps fewer public safety benefits." . . . .
Although California's existing prison system serves
neither the public nor the inmates well, the state has
for years been unable or unwilling to implement the
reforms necessary to reverse its continuing
deterioration. (Some citations omitted.)
. . .
The massive 750% increase in the California prison
population since the mid-1970s is the result of
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political decisions made over three decades, including
the shift to inflexible determinate sentencing and the
passage of harsh mandatory minimum and three-strikes
laws, as well as the state's counterproductive parole
system. Unfortunately, as California's prison
population has grown, California's political
decision-makers have failed to provide the resources
and facilities required to meet the additional need
for space and for other necessities of prison
existence. Likewise, although state-appointed experts
have repeatedly provided numerous methods by which the
state could safely reduce its prison population, their
recommendations have been ignored, underfunded, or
postponed indefinitely. The convergence of
tough-on-crime policies and an unwillingness to expend
the necessary funds to support the population growth
has brought California's prisons to the breaking
point. The state of emergency declared by Governor
Schwarzenegger almost three years ago continues to
this day, California's prisons remain severely
overcrowded, and inmates in the California prison
system continue to languish without constitutionally
adequate medical and mental health care.<1>
The court stayed implementation of its January 12, 2010 ruling
pending the state's appeal of the decision to the U.S. Supreme
Court. On Monday, June 14, 2010, The U.S. Supreme Court agreed
to hear the state's appeal in this case.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
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<1> Three Judge Court Opinion and Order, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (August 4, 2009).
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COMMENTS
1. Need for This Bill
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, only one-third of county jails have
policies that comply with current law and many 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 4-7% 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 that the Corrections
Standards Authority create standards for state and
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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.
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 and mandated that the
Corrections Standards Authority (CSA) establish, by January 1,
2007, minimum standards for state prisons incorporating that
prohibition. 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. (15 Cal. Code of Regs. section 3268.2.) 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. (15 Cal. Code of Regs. Section
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1029.<2>) No deadline was established 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:
Thus, on the basis of our survey, we can verify that
only 17 of 58 counties (less than a third) are in
compliance with 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). For example, several
counties list section 5007.7's exceptions to section
6030's prohibition on shackling prisoners in labor,
without stating the prohibition itself, as explicitly
mandated by section 6030(f) ["The standards shall
----------------------
<2> Cal. Code of Regs. section 1029 states, in pertinent part:
"Policy and Procedures Manual. Facility administrator(s) shall
develop and publish a manual of policy and procedures for the
facility. The policy and procedures manual shall address all
applicable Title 15 and Title 24 regulations and shall be
comprehensively reviewed and updated at least every two years.
Such a manual shall be made available to all employees. (a) The
manual for Temporary Holding, Type I, II, and III facilities
shall provide for, but not be limited to, the following:(4)
Policy on the use of restraint equipment, including the
restraint of pregnant inmates as referenced in Penal Code
Section 6030(f)."
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provide that at no time shall a woman who is in labor
be shackled . . . "]. Some counties fail to address
the issue of shackling a woman while she is in
recovery after giving birth.
(LSPC Report on file with Committee.)
3. Constitutional Standards
The Eighth Amendment to the United States Constitution provides
that "Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted."
The Supreme Court has determined that
[D]eliberate indifference to serious medical needs of
prisoners constitutes the "unnecessary and wanton
infliction of pain," proscribed by the Eighth
Amendment. This is true whether the indifference is
manifested by prison doctors in their response to the
prisoner's needs or by prison guards in intentionally
denying or delaying access to medical care or
intentionally interfering with the treatment once
prescribed. Regardless of how evidenced, deliberate
indifference to a prisoner's serious illness or injury
states a cause of action under 1983. (Estelle v.
Gamble, 429 U.S. 97, 104-105 (1976), footnotes and
citations omitted.)
Last year, the Eighth Circuit Court of Appeals found that the
shackling a pregnant inmate while she is in labor and during
childbirth constitutes an Eighth Amendment violation. (Nelson
v. Corr. Med. Servs., 583 F.3d 522 (8th Cir. 2009); see also
Women Prisoners of the D.C. Dep't of Corrections v. District of
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Columbia, 877 F. Supp. 634, 646-647 (D.D.C. 1994)<3>.)
Although Nelson involved shackling a woman who was in labor
and during childbirth, the same principles could apply to
any unnecessary shackling of a pregnant inmate if that use
of mechanical restraint caused foreseeable harm to the
mother or fetus.
COULD FAILURE TO ADOPT POLICIES LIMITING THE USE OF MECHANICAL
RESTRAINTS ON PREGNANT INMATES AND WARDS RESULT IN LEGAL
---------------------------
<3> In that case the Court described one prisoner's ordeal: "On
the night before delivery, Jane Doe L experienced labor pains
and was taken to the hospital. But D.C. General sent her back
because her water had not broken and she was not dilating.
Despite the fact that her contractions were five minutes apart,
the staff at CTF placed her in handcuffs and leg shackles and
sent her to a prescheduled court appearance. The Marshals at
the courthouse sent her back to CTF because she could not walk
due to labor pain. At CTF, she spoke to a nurse who knew about
her trip to D.C. General but only offered her some aspirins and
told her to prop her feet up and rub her stomach. Jane Doe L
went to her cell and delivered her baby shortly thereafter.
Jane Doe L had not yet purged the afterbirth from her body when
guards placed her in handcuffs and leg shackles and sent her by
ambulance to D.C. General." "Jane Doe L's experience with
shackling is not unusual. When Defendants transport pregnant
women prisoners on medical visits they customarily place women
in leg shackles, handcuffs and a belly chain with a box that
connects the handcuffs and belly chain. A physician's assistant
stated that even when a woman is in labor "their ankles and
their hands are cuffed." Leg shackles are the least
inconvenient method of shackling and chest boxes, arm shackles
and wrist shackles increase the chance for injury. Deputy
Warden Jones stated that he does not use leg shackles on a woman
in her third trimester of pregnancy "because there's a
possibility she might trip." Dr. Major stated that unless a
pregnant prisoner is assaultive or an escape threat the need for
shackling is unnecessary." Women Prisoners of the D.C. Dep't of
Corrections v. District of Columbia, 877 F. Supp. 634, 646-647
(D.D.C. 1994), citations omitted.)
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LIABILITY FOR HARM CAUSED TO A MOTHER OR FETUS?
4. What This Bill Would Do
In addition to making legislative findings and declarations
regarding the importance of local correctional facilities
adopting appropriate policies regarding shackling of pregnant
inmates, this bill addresses the issue of shackling pregnant
inmates when they are being transported prior to the onset of
labor. While there undoubtedly are legitimate security issues
involved, the Legal Services for Prisoners with Children (LSPC)
report cites the policies adopted by four counties as
well-written, although with the noted reservations:
Examples of well-written regulations
1. Calaveras County:
G.3. Pregnant inmates being transported outside the
facility shall be transported in the least restrictive
way possible, consistent with the legitimate security
needs of each inmate. An inmate who is in labor shall
at no time be shackled by the wrist[s] or ankles or
both. This shall include transport to a hospital,
during delivery, and while in recovery after giving
birth, except when deemed necessary for the safety and
security of the inmate, the staff, and the public. All
exceptions will need to be articulated in writing.
NOTE: While we have serious reservations about
handcuffing pregnant women at any time, we are
presenting the following counties' regulations because
they have other language which we think is useful.
2. Plumas: (Excerpts from Draft "Transportation and
Shackling of Pregnant Prisoners")
When using handcuffs, place them in the front. (This
will allow the inmate to catch herself should she
fall.)
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Women in labor need to be mobile so that they can
assume various positions as needed and so they can
quickly be moved to an operating room. Having the
woman in shackles compromises the ability to
manipulate her legs into the proper position for
treatment. The mother and baby's health could be
compromised if there were complications during
delivery such as hemorrhage or decrease in fetal heart
beat. If there were a need for a C Section, the mother
needs to be moved to an operating room immediately and
a delay of even five minutes could result in permanent
brain damage to the baby.
3. San Bernardino:
17/800.00: RESTRAINT OF PREGNANT INMATES: Handcuffs
shall be the only restraints used on pregnant inmates.
Handcuffs shall be secured with the inmate's arms in
front of the inmate's body.
Generally, restraints shall not be used on pregnant
inmates in labor, during delivery, or in post partum
recovery for a period determined by a physician.
Exception: Employees may use restraints on inmates
during labor only if a shift supervisor deems it is
necessary for the safety and security of the inmate,
staff, and the public. The shift supervisor shall make
his determination based on circumstances particular to
that specific inmate. Employees shall not apply
restraints to a pregnant inmate without approval from
a shift supervisor. (Refer to Penal Code sections
5007.7 and 6030.)
4. Sutter:
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J104.20 APPLYING RESTRAINTS TO PREGNANT INMATES
[1] Pregnant inmates may only be restrained with
handcuffs.
[2] Pregnant inmates must be handcuffed in the front
so that if they fall, they will be able to break the
fall with their hands.
[3] Pregnant inmates are not to be restrained by
chaining them to other inmates.
[4] Pregnant inmates are not to be restrained with leg
irons.
[5] Escort officers may take other precautions, such
as the use of a wheelchair, to ensure the safety of
the pregnant inmate while under escort in restraints.
[6] Any pregnant inmate during any phase of labor, or
while in recovery after giving birth, shall not be
secured in any type of restraint unless deemed
absolutely necessary for the safety and security of
the inmate, the medical staff, and the public. If a
pregnant inmate in labor is secured with any type of
restraint, the Jail Commander is to be notified at the
earliest opportunity.
SHOULD LIMITATIONS ON SHACKLING WOMEN IN CHILDBIRTH BE EXTENDED
TO PREGNANT INMATES BEING TRANSPORTED DURING THEIR PREGNANCY?
5. Argument in Support
The California Nurses Association states:
Shackling pregnant women puts their health at risk and
restraint policies must be standardized. Excessive
shackling poses undue health risks to a pregnant woman
by increasing the woman's risk of falling and
rendering her unable to break potential falls.
Accordingly, the American College of Obstetricians and
Gynecologists (ACOG) opposes the use of shackles on
pregnant women in all but the most extreme
circumstances. In addition, two states have passed
laws and the US Marshall's Service and American
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Correctional Health Services Association have adopted
policies, to ensure that least restrictive restraints
are used on pregnant women only when there is a
legitimate security reason for doing so.
California has led the nation in passing laws that
limit the use of shackles during labor and childbirth
and could join states like New Mexico and Vermont in
limiting the practice throughout pregnancy. Because
current state law does not address the use of shackles
prior to labor, pregnant women in California are
frequently shackled by the ankles, wrists and/or
belly, and to another person, while being transported
to and from a correctional facility. Although the
vast majority of incarcerated women are non-violent,
non-serious offenders, women as far along as 81/2
months pregnant have been shackled in the most
restrictive ways.
The lack of statewide guidance on this issue has led
to inconsistent and sometimes harmful approaches to
shackling pregnant women. Restraint practices vary
throughout the state, and only one-third of counties
have adopted policies requiring the use of
less-restrictive restraints on pregnant women. It is
important to standardize county policies. Moreover,
federal courts have established that prison officials
may be civilly liable when they restrain someone with
deliberate indifference to that person's health and
safety.
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