BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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6
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AB 568 (Skinner)
As Amended May 27, 2011
Hearing date: June 7, 2011
Penal Code; Welfare and Institutions Code
SM:mc
SHACKLING PREGNANT INMATES AND WARDS
HISTORY
Source: American Congress of Obstetricians and Gynecologists
Prior Legislation: AB 1900 (Skinner) - 2010, vetoed
AB 478 (Lieber) - Chapter 608, Statutes of 2005
Support: A New Way of Life Reentry Project; AAUW; ACLU
(co-sponsor); ACT for Women and Girls; California
Attorneys for Criminal Justice (CACJ); California
Catholic Conference, Inc.; California Coalition for
Women Prisoners; California Commission on the Status
of Women (co-sponsor); California Correctional Peace
Officers Association; California Communities United
Institute; California Medical Association; California
Maternal, Child, and Adolescent Health Directors;
California National Organization for Women; California
Nurses Association; California Public Defenders
Association; California Women's Law Center (CWLC);
Californians United for a Responsible Budget; Center
for Young Women's Development (co-sponsor); Community
Works West; Correctional Association of New York;
Directors of Public Health Nursing; Drug Policy
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Alliance; East Bay Community Law Center; Ella Baker
Center/Books not Bars; Equal Justice Society; Friends
Committee on Legislation of California; Girls & Gangs;
Great Beginnings for Black Babies, Inc.; Families to
Amend California's Three Strikes; House of Ruth, Inc.;
Justice Now; Just Detention International; Lawyers'
Committee for Civil Rights of the SF Bay Area; Law
Students for Reproductive Justice; Legal Services for
Prisoners with Children (co-sponsor); National Center
for Youth Law; National Council of Jewish Women;
Prison Activist Resource Center; Prison Law Office;
Rainbow Services, Ltd.; Rebecca Project for Human
Rights; San Francisco Board of Supervisors' Public
Safety
Committee; San Francisco Juvenile Probation
Department; SEIU, Local 1000; Time for Change
Foundation (co-sponsor); Violence Prevention
Coalition; Women's Community Clinic; Women's
Foundation of California; Youth and Family Services,
Inc. of Solano County; Youth Law Center; 19
Individuals
Opposition:None known
Assembly Floor Vote: Ayes 70 - Noes 0
KEY ISSUES
SHOULD IT BE REQUIRED THAT PREGNANT INMATES OR WARDS MAY 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, THE STAFF, OR THE PUBLIC, AND THAT WHERE RESTRAINTS ARE
DEEMED NECESSARY, THE LEAST RESTRICTIVE MEANS SHALL BE USED?
SHOULD THE CORRECTIONS STANDARDS AUTHORITY BE REQUIRED TO DEVELOP
STANDARDS REGARDING THE SHACKLING OF PREGNANT WOMEN AS STATED ABOVE
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AS PART OF ITS BIENNIAL REVIEW OF SUCH STANDARDS?
PURPOSE
The purpose of this bill is to provide (1) pregnant inmates or
wards may 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, the staff, or the public; (2)
in cases where restraints are deemed necessary, the least
restrictive means shall be used, which may include cuffing an
inmate's wrists in front, consistent with the legitimate
security needs of each inmate; (3) the restraints shall remain
in place only as long as the threat exists; (4) these provisions
apply to, but are not limited to, movement within the
correctional facility, transport to and from the facility, and
time spent outside of the facility to receive medical or dental
care, to attend court, or any other appointment; (5) the
Corrections Standards Authority (CSA) shall develop standards
regarding the shackling of pregnant women as stated above as
part of its biennial review of the standards established
pursuant to this section; and (6) make uncodified legislative
findings and declarations concerning methods of restraining
pregnant inmates and wards, as specified.
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,
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 � 5007.7.)
Current law requires the Corrections Standards Authority ("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,
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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 � 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 � 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 � 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
inmates in local adult and juvenile facilities. (Penal Code �
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
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the prisoner. (Penal Code
� 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 �
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 �� 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
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 �� 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
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imminent threat of death, escape, or great bodily injury, and
only for the period during which such threat exists. (15 Cal.
Code of Regs. � 3268.2.)
This bill amends current law to provide:
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, the staff, or the public.
In cases where restraints are deemed necessary, the
least restrictive means shall be used, which may include
cuffing an inmate's wrists in front, consistent with the
legitimate security needs of each inmate.
The restraints shall remain in place only as long as the
threat exists.
These provisions apply to, but are not limited to,
movement within the correctional facility, transport to and
from the facility, and time spent outside of the facility
to receive medical or dental care, to attend court, or any
other appointment.
This bill requires that the standards developed by CSA for state
and local correctional facilities provide that a woman known to
be pregnant shall not be shackled by the wrists, ankles, around
the abdomen, or to another person, except as provided in Section
5007.7. This includes, but is not limited to, time spent
outside a correctional facility, during transport to or from a
correctional facility, during labor, during delivery, and while
in recovery after giving birth, except as provided in Section
5007.7. CSA shall develop standards regarding the shackling of
pregnant women pursuant to the amendments made to this
subdivision as part of its biennial review of the standards
established pursuant to this section.
This bill makes uncodified legislative findings and declarations
concerning methods of restraining pregnant inmates and wards, as
specified.
This bill makes certain non-substantive technical changes to
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law.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
As these cases have progressed, prison conditions have
continued to be assailed, and the scrutiny of the federal courts
over California's prisons has intensified.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances.
In response to the unresolved prison capacity crisis, in early
2007 the Senate Committee on Public Safety began holding
legislative proposals which could further exacerbate prison
overcrowding through new or expanded felony prosecutions.
This bill does not appear to aggravate the prison overcrowding
crisis described above.
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COMMENTS
1. Need for This Bill
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 restraints poses undue health risks to a
woman throughout her pregnancy. Despite the dangers
of restraints, correctional facilities have
inconsistent policies and practices for restraining
pregnant incarcerated women.
Pregnant women are frequently restrained 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, nonserious 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.
AB 568 clarifies Corrections Standards Authority's
(CSA) standards for how pregnant women are restrained
during transport to and from facilities. AB 568 will
protect counties and the state from being sued and
ensure the health and safety of incarcerated women and
their pregnancy.
2. Background
AB 478 (Lieber), Chapter 608, Statutes of 2005, prohibited the
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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. � 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. �
1029.<1>) 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
----------------------
<1> 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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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
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:
�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.)
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In 2009, the Eighth Circuit Court of Appeals found that
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).) 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. "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." (Id. at 528.) To establish an
Eighth Amendment violation, "it is enough that the official
acted or failed to act despite �her] knowledge of a substantial
risk of serious harm." (Nelson, supra, at 529.)
COULD FAILURE TO ADOPT POLICIES LIMITING THE USE OF MECHANICAL
RESTRAINTS ON PREGNANT INMATES AND WARDS RESULT IN LEGAL
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
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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.)
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
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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:
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.
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SHOULD LIMITATIONS ON SHACKLING WOMEN IN CHILDBIRTH BE EXTENDED
TO PREGNANT INMATES BEING TRANSPORTED DURING THEIR PREGNANCY?
5. Governor's Veto Message
This bill is substantially similar to last year's AB 1900
(Skinner), which was vetoed by Governor Schwarzenegger. The
veto message stated:
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.
SHOULD CSA'S DUTY TO ESTABLISH MINIMUM STANDARDS FOR TRAINING OF
CORRECTIONAL PERSONNEL INCLUDE TRAINING IN SAFELY TRANSPORTING
PREGNANT INMATES AND WARDS?
6. Argument in Support
The American Congress of Obstetricians and Gynecologists state:
ACOG-IX has been keenly aware of health issues for
incarcerated women, particularly pregnant women, for
some time. In 2005, we supported AB 478 (Lieber)
making California one of the first states in the
country to prohibit shackling of women during labor.
In 2008, Federal law (42 USC �17501) prohibited
shackling of pregnant prisoners in federal facilities
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for all but the most extreme cases. AB 568 seeks to
build on current law and minimize restraints on any
incarcerated pregnant woman when she is outside of the
facility, including during transport and medical care.
As experts in women's health care, ACOG-IX recognizes
the vital importance of expanding the current law
beyond limiting restraints on prisoners in labor.
Many people may consider pregnancy a low-risk event;
however, pregnancy is not a benign condition. Even a
"normal" pregnancy can present significant health
concerns. During pregnancy a woman's blood volume
increases by 40%, and any situation which causes her
to bleed could quickly result in serious injury or
death to both her and/or the fetus.
Restraints pose serious risks to the pregnant woman
when medical complications occur and physical access
required for treatment by medical personnel is
severely restricted. Many of our physicians have
reported harrowing stories of attempting to treat
pregnant women who were not in labor but had other
life-threatening medical conditions. The restraints
rendered it virtually impossible to provide the
urgently needed care.
Even after labor, it is important for the woman to be
able to move about to help avoid deep vein thrombosis
or a pulmonary embolism. Additionally, movement will
help with regaining normal bowel function, which is a
criterion for hospital discharge. Ready access to the
perineum for ongoing monitoring and cleaning is
crucial to a healthy recovery from birth.
Beyond restricting access to the pregnant patient for
medical care, other risks increase with the use of
restraints, particularly restraints that chain the
pregnant woman to another prisoner. The unnecessary
use of restraints increases the chance of falls, which
can cause the placenta to separate from the uterus,
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risking the death of the mother and fetus. Lowering
the likelihood of falls is an important consideration
in minimizing the use of certain restraints.
There has to be a balance between ensuring the
security of the prisoners and personnel, and using
restraints which can cause undue risks for harm to the
woman, pregnancy, and fetus. AB 568 sets up a process
where this balance can be achieved.
Costs to implement regulations are minimal as any
regulatory changes will be incorporated in the routine
regulatory review cycle of the entities involved.
Additionally, legal costs for the state may be avoided
as without this legislation, the state is more
vulnerable to 8th Amendment lawsuits for "cruel and
unusual" treatment of pregnant women who are
incarcerated. Finally, fewer pregnancy complications
will reduce medical costs to state and local entities.
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