BILL ANALYSIS �
AB 568
Page 1
Date of Hearing: April 12, 2011
Consultant: Stefani Salt
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 568 (Skinner) - As Introduced: February 16, 2011
REVISED
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 to be pregnant, shall not be
shackled by the wrists, ankles, around the abdomen, or to
another person, unless deemed necessary for safety, and if
necessary for safety, be restrained in the least restrictive way
possible. Specifically, this bill :
1)Requires that an inmate or ward known to be pregnant shall not
be shackled by the wrists, ankles, around the abdomen, or to
another person, unless deemed necessary for the safety and
security of the inmate or ward, the staff, or the public.
Provides that in cases where restraints are deemed necessary,
the least restrictive means shall be used, consistent with the
legitimate security needs of each inmate. States that these
provisions apply to, but are not limited to, movement within
the correctional facility, transport to and from the facility
and time spent outside the facility to receive medical or
dental care, to attend court or another appointment.
2)Requires that, as part of its biennial review of minimum
standards, the Corrections Standards Authority (CSA) establish
new minimum standards regarding the shackling of pregnant
women.
3)Makes the following declarations and findings:
a) 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
four to seven percent are pregnant.
AB 568
Page 2
b) The health and safety of pregnant inmates shall be a
primary concern of all adult and juvenile state and local
correctional and detention facilities.
c) Using restraints that significantly limit a pregnant
inmate's mobility can cause serious and undue health risks
to the woman and her pregnancy.
d) Potentially harmful methods of restraint include, but
are not limited to, shackling by the ankles, the wrists in
front or behind the body, across the abdomen, or to
another person.
e) To avoid threatening the health of pregnant women and
potential legal challenges, it is critical that policies
are adopted ensuring that restraints are properly used
with this vulnerable population.
f) It is critical that, adult and juvenile state and
local correctional and detention facilities develop
policies that ensure inmates who are known to be pregnant
are not restrained unless deemed necessary for the
security of the inmate, staff, the public, or all
combined. Should restraints be necessary under these
circumstances, facilities are instructed to use the least
restrictive means of restraint as determined by CSA.
g) These policies must meet the minimum standards
established by CSA for the proper use of restraints on
pregnant inmates during transport, as established pursuant
to Penal Code Section 6030.
h) Pursuant to Penal Code Section 6030, the CSA has the
authority to issue minimum standards for treatment of
people incarcerated within correctional facilities,
treatment of inmates in custody during temporary
appointments outside correctional facilities, and
transportation of inmates among correctional facilities
and to and from appointments outside of correctional
facilities. The CSA has previously promulgated
transportation regulations, including, but not limited to,
requiring local correctional facilities to provide
transportation for inmates in need of medical services as
set forth in subdivision (c) of Section 1206 of Title 15
AB 568
Page 3
of the California Code of Regulations, and requiring all
juvenile facilities to provide transportation for minors
to mental health facilities as set forth in subdivision
(f) of Section 1437 of Title 15 of the California Code of
Regulations, and that all juvenile facilities have
adequate transportation staff as set forth in subdivision
(g) of Section 1321 of Title 15 of the California Code of
Regulations. The CSA has also previously established
regulations addressing the treatment of inmates
temporarily taken outside of correctional facilities,
including requiring local correctional facilities to
create policies and procedures for handling situations
such as furloughs and other temporary releases, and
requiring facilities to have adequate field supervision
staff, as set forth in Sections 1027, 1029, and 1351 of
Title 15 of the California Code of Regulations.
EXISTING LAW :
1)Declares that pregnant inmates temporarily taken to a hospital
outside the prison for purposes of childbirth shall be
transported in the least restrictive way possible, consistent
with the legitimate security needs of each inmate. States
that, 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)States 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 security needs, as specified. Provides that
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. Requires that, 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
necessary for the safety and security of the ward, the staff
and the public. �Welfare and Institutions Code (WIC) Sections
222(b) and 1774(d).]
AB 568
Page 4
3)Requires CSA to establish minimum standards for state and
local correctional facilities and to review those standards
biennially. Provides that those standards will include, but
not be limited to: 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).]
4)Provides that CSA's minimum standards must require inmates who
are received by the facility while they are pregnant to be
provided 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.
5)Mandates CSA's minimum standards to provide that at no time
shall a woman in labor be shackled by the wrists, ankles, or
both including during transport to a hospital, during delivery
and while in recovery, except as specified. �Penal Code
Section 6030(f) and WIC Section 222(b).]
6)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 and pregnant inmates
in local adult and juvenile facilities. �Penal Code Section
6030(g)(5).]
7)Mandates that a female prisoner has the right to summon and
receive the services of a 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
AB 568
Page 5
provided by the institution shall be borne by the prisoner.
�Penal Code Section 3406 and WIC Sections 222(a) and 1774(a).]
8)States that a 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 that the charge for hospital and medical care shall be
charged against the funds allocated to the institution.
(Penal Code Section 3423.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Pregnant women
in correctional facilities are more likely to experience
miscarriage, preeclampsia, preterm birth, and low-birth weight
infants. 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. Despite the dangers of shackling,
correctional facilities have inconsistent policies and
practices for restraining pregnant incarcerated women.
"Pregnant women are frequently shackled by the ankles, wrists,
abdomen, behind the back, and even to another person while
being transported to and from a correctional facility. Most
pregnant women receive sentences of less than 1 year in
duration, often for first-time nonviolent, non-serious
offenses. Nevertheless, women as far along as 8 months
pregnant have been shackled in the most restrictive ways. To
avoid threatening the health of pregnant women and potential
legal challenges, it is critical that policies are adopted
ensuring that restraints are properly used with this
vulnerable population.
"�This bill] clarifies �CSA's] standards for how pregnant women
are restrained during transport to and from facilities. �This
bill] will protect counties and the state from being sued and
ensure the health and safety of incarcerated women and their
pregnancy.
"Response to Veto: Last year a similar bill AB 1900 was vetoed
because of the administration's interpretation of CSA's
authority to establish policies on transportation issues to
AB 568
Page 6
and from other locations. Governor Schwarzenegger's assertion
that the CSA has no authority at all over the transportation
of inmates appears to be incorrect. While Penal Code Section
6030 does not expressly grant rulemaking power over inmate
transportation to the CSA, it does grant the CSA some degree
of authority over transportation by mandating that women in
labor shall not be shackled during transport. �Penal Code
Section 6030(f).]
"Furthermore, the regulations promulgated by the CSA in Title 15
of the California Code of Regulations indicate that it
currently regulates at least some aspects of inmate
transportation. While CSA regulations are not as specific as
those established by the CDCR, the CSA requires that local
facilities must develop policies to comply with the restraint
requirements for women in labor laid out in Penal Code Section
6030(f). 15 C.C.R. � 1029(a)(4). The CSA also requires that
local correctional facilities must provide transportation for
inmates in need of medical services. 15 C.C.R. � 1206(c).
"Additionally, the CSA further requires that all juvenile
facilities provide transportation for minors to mental health
facilities, and that all juvenile facilities have adequate
transportation staff. 15 C.C.R. �� 1321(g), 1437(f). It thus
does not appear that a regulation regarding the transport of
pregnant inmates falls outside the scope of the CSA's
authority."
2)Background : According to the information provided by 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. In 2009, nearly two-thirds of county
jails did not have written policies limiting shackling in
compliance with AB 478. This encourages restraint practices
that could cause miscarriage or other injuries for pregnant
women. 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.
AB 568
Page 7
"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).
"�This bill], would require that �CSA] clarify standards for
state, local, adult, and juvenile correctional facilities 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."
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 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. (Id.) 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." (Id.)
"The Eighth Amendment prohibits the infliction of cruel and
unusual punishments on those convicted of crimes." �Nelson v.
AB 568
Page 8
Corr. Med. Servs., supra, 583 F.3d 522, 528 citing, Wilson v.
Seiter (1991) 501 U.S. 294, 296-97.] A finding of an Eight
Amendment violation requires evidence that the offending
conduct is wanton. (Id.) 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., supra, 583 F.3d 522, 528
citing, Whitley v. Albers (1986) 475 U.S. 312, 320-21.] "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., supra, 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., supra, 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.] 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 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 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., supra, 583 F.3d 522, 531 citing,
Hope v. Pelzer, supra, 536 U.S. 730, 739.] 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
AB 568
Page 9
F.3d 868, 875 quoting, Hope v. Pelzer, supra, 536 U.S. 730,
739.] Instead, the unlawfulness must merely be apparent in
light of preexisting law. �Hope v. Pelzer, supra, 536 U.S.
730, 739.] Officials "can still be on notice that their
conduct violates established law even in novel factual
circumstances." (Id. at 741.)
Whether or not a prison officer should know that his or her
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., supra, 583 F.3d 522,
529 citing, Farmer v. Brennan (1994) 511 U.S. 825, 842.]
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.] Estelle was an action brought
against prison officials for providing an inmate inadequate
medical care. (Id. at 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 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, vacated
in part and remanded, (D.C. Cir. 1996) 93 F.3d 910.]
In conclusion, the Nelson court held that an inmate's protection
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., supra, 583 F.3d 522, 534.]
4)Veto of Previous Similar Legislation and the Effect on This
Bill : AB 1900, introduced in the last session, was similar in
its final form to this legislation. The Governor stated:
AB 568
Page 10
"This bill would prohibit the shackling of pregnant inmates and
wards during transport to and from correctional facilities
except when other less restrictive restraints are deemed
necessary. Additionally, this bill would require the
Corrections Standards Authority (CSA) to develop guidelines
concerning the shackling of pregnant inmates and wards during
transport. However, CSA's mission is to regulate and develop
standards for correctional facilities, not establish policies
on transportation issues to and from other locations.
"Since this bill goes beyond the scope of CSA's mission, I am
unable to sign this bill."
This bill includes a legislative finding that CSA has the
authority to issue minimum standards for transportation of
inmates among correctional facilities and to and from
appointments outside of correctional facilities. This should
clarify that these responsibilities are within the purview of
CSA's mission and avoid further confusion.
5)Related Legislation : AB 30 (Hayashi) inserts a subsection
pertaining to CSA's development of standards for a safety and
security plan to prevent and protect health care personnel who
provide care in state and local correctional facilities from
aggression and violence. AB 30 passed in the Health
Committee and will be heard by the Assembly Appropriations
Committee.
6)Previous Legislation :
a) AB 1900 (Skinner), of the 2009-10 Legislative Session,
was vetoed. AB 1900 would have extended the current
prohibition established by AB 478 to also limit the use of
restraints on pregnant inmates while they are being
transported.
b) AB 478 (Lieber), Chapter 608, Statutes of 2005, made it
illegal to deny inmates prenatal and postpartum care,
including access to vitamins and a basic dental cleaning,
and banned the shackling of women during labor, delivery,
and recovery.
REGISTERED SUPPORT / OPPOSITION :
Support
AB 568
Page 11
American College of Obstetricians and Gynecologists (Sponsor)
American Civil Liberties Union (Co-Sponsor)
California Commission on the Status of Women (Co-Sponsor)
Center for Young Women's Development (Co-Sponsor)
Legal Services for Prisoners with Children (Co-Sponsor)
Time for Change Foundation (Co-Sponsor)
AAUW California
ACT for Women and Girls
A New Way of Life Reentry Project
Books Not Bars
California Attorneys for Criminal Justice
California Catholic Conference
California Coalition for Women Prisoners
California Communities United Institute
California Correctional Peace Officers Association
California Medical Association
California National Organization for Women
California Nurses Association
California Public Defenders Association
Californians United for a Responsible Budget
California Women's Law Center
Center for Restorative Justice Works
Community Works West
Correctional Association of New York
Drug Policy Alliance
Equal Justice Society
Families to Amend California's Three Strikes
Friends Committee on Legislation of California
Girls and Gangs
Great Beginnings for Black Babies
House of Ruth
Just Detention International
Justice Now
Law Students for Reproductive Justice
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
National Center for Youth Law
National Council of Jewish Women Los Angeles Section
Prison Activist Resource Center
Prison Law Office
Rainbow Services
Rebecca Project for Human Rights
San Francisco Board of Supervisors' Public Safety Committee
San Francisco Juvenile Probation Department
AB 568
Page 12
Service Employees International Union
Violence Prevention Coalition of Greater Los Angeles
Women's Community Clinic
Women's Foundation of California
Youth and Family Services of Solano County
Youth Law Center
One private individual
Opposition
None
Analysis Prepared by : Stefani Salt / PUB. S. / (916) 319-3744