BILL ANALYSIS �
AB 2530
Page 1
Date of Hearing: April 17, 2012
Consultant: Jesse Stout
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2530 (Atkins) - As Amended: March 29, 2012
SUMMARY : Prohibits the shackling of inmates and wards
incarcerated by the Department of Corrections and Rehabilitation
(CDCR) who are known to be pregnant or in recovery after
delivery, with leg irons, waist chains, or handcuffs behind the
body. Specifically, this bill :
1)Prohibits the restraint of an inmate known to be pregnant or
in recovery after delivery by use of leg irons, waist chains,
or handcuffs behind the body.
2)Prohibits the restraint of an inmate who is pregnant, in
labor, delivering, or recovering after delivery, by the
wrists, ankles, or both, unless deemed necessary for the
safety and security of the inmate, the staff, or the public.
3)Requires that restraints be removed when a professional who is
responsible for the pregnant inmate's medical care during a
medical emergency, labor, delivery, or recovery after delivery
determines the removal of restraints is medically necessary.
4)Provides that this bill shall not be interpreted to require
restraints in a case where restraints are not required
pursuant to a statute, regulation, or correctional facility
policy.
5)Requires that upon confirmation of an inmate's pregnancy, she
shall be advised, orally or in writing, of the standards and
policies governing pregnant inmates, including, but not
limited to, the provisions of this chapter, the relevant
regulations, and the correctional facility policies.
6)Requires that the Board of State and Community Corrections
(BSCC), in the minimum standards for local correctional
facilities, include a requirement that pregnant inmates be
notified, orally or in writing, of specified rights.
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7)Requires that the BSCC minimum standards for local
correctional facilities provide that a woman known to be
pregnant or in recovery after delivery shall not be
restrained, except as provided in this bill.
8)Requires that the BSCC develop standards regarding the
restraint of pregnant women at the next biennial review of the
standards after this bill's passage, and review the individual
facilities' compliance with the standards.
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 Sections
222(b) and 1774(d).]
3)Requires BSCC 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
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facilities, and personnel training. �Penal Code Section
6030(a) and (b).]
4)Provides that BSCC'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 BSCC'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 Welfare and Institutions Code Section
222(b).]
6)Requires BSCC 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 or local juvenile facility
ward 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.
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 and Welfare
and Institutions Code Sections 222(a) and 1774(a).]
8)States that a woman inmate who would give birth to a child
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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; the
inmate 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, unless
deemed necessary for the safety and security of the inmate,
the staff, and the public. (Penal Code Section 3423.)
9)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.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "California has
the third largest population of incarcerated women in the
country. Tens of thousands of women go through state prison
and county jails every year and 4-7% are pregnant. While the
passage of AB 478 (Lieber) in 2005 intended to limit harmful
restraints on pregnant inmates during labor, surveys taken
four years later showed that most facilities had not
implemented policies to comply with state law.
"Pregnant women are frequently shackled by the ankles, wrists,
belly, behind the back, and even to other people while being
transported to and from correctional facilities causing many
to fall. Studies indicate that the incidence of minor trauma,
especially from falls, increases as pregnancy progresses and
excessive shackling poses undue health risks to a woman
throughout her pregnancy.
"Pregnant women in correctional facilities are more likely to
experience miscarriage, preeclampsia, preterm birth, and low
birth-weight infants. The added stress of maneuvering with
excessive restraints could lead to further complications while
rendering doctors unable to treat them properly.
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"Federal courts recently established that prison officials are
in violation of pregnant incarcerated women's rights and may
be civilly liable when they act with deliberate indifference
to their health and safety. Most pregnant women receive
sentences of less than one year in duration, often for
first-time nonviolent, nonserious offenses. Nevertheless,
women as far along as eight months pregnant have been shackled
in the most restrictive ways posing threats to their health
and safety. 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 2530 would prohibit the use of the most restrictive and
dangerous kinds of shackling for pregnant women while
clarifying that during labor, delivery or recovery certain
restraints shall not be used unless deemed necessary for a
safety and security purpose. It would ensure that doctors are
able to treat pregnant women in emergency situations and
affirms the role of the Board of Corrections in reviewing
local policies for consistency with state law. This will
protect counties and the state from being sued and ensure the
health and safety of incarcerated women and their pregnancies.
"Similar bills have twice passed the Legislature without any
'no' votes, most recently with AB 568. AB 2530 directly
addresses issues raised in the AB 568 veto message by
clarifying language and responsibilities."
2)Background : According to information provided by the author,
"Existing law prohibits shackling by the wrists and ankles
only during labor, delivery, and recovery, which leaves women
in various stages of pregnancy vulnerable to potentially
injurious falls throughout their pregnancy. Current law also
has a provision that is sometimes unworkable in practice; it
requires a doctor to determine whether a woman is in labor
which may negate the requirement that women in labor not be
shackled during transport to the hospital for the purposes of
labor.
"This bill would prohibit the most dangerous forms of
restraint (leg irons, waist chains, and handcuffs behind the
back) from being used on any incarcerated woman known to be
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pregnant. The bill clarifies that women in labor are not
restrained by the wrists, ankles, or both during labor,
delivery, and recovery after delivery, including during
transport, unless deemed necessary for the safety and security
of the inmate, staff, or the public. It also allows for
medical professionals' requests for the removal of restraints
be granted in emergency situations."
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. 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
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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 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
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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 Effect on this
Bill : AB 568, introduced last year, was similar to this
bill. In his veto message, the Governor stated:
"At first blush, I was inclined to sign this bill because it
certainly seems inappropriate to shackle a pregnant inmate
unless absolutely necessary. However, the language of this
measure goes too far, prohibiting not only shackling, but also
the use of handcuffs or restraints of any kind except under
ill-defined circumstances.
"Let's be clear. Inmates, whether pregnant or not, need to be
transported in a manner that is safe for them and others. The
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restrictive criteria set forth in this bill go beyond what is
necessary to protect the health and dignity of pregnant
inmates and will only serve to sow confusion and invite
lawsuits."
This bill addresses these concerns by clarifying the relevant
language and responsibilities. Instead of prohibiting the
practice of shackling as in AB 568, AB 2530 prohibits specific
shackles: leg irons, waist chains, and handcuffs behind the
body. Instead of allowing the least restrictive means of
restraint when "deemed necessary", AB 2530 more specifically
allows restraints unless deemed necessary for the safety and
security of the inmate, staff, or public. This bill
additionally clarifies that restraints shall be removed when a
medical professional determines the removal is medically
necessary.
5) Legislation is Necessary to Protect Pregnant Inmates
Being Transported to Hospitals : Even though the California
Code of Regulations currently requires counties to
incorporate the BSCC's minimum standards into jails'
policies and procedure manuals, Legal Services for
Prisoners with Children (LSPC) found in "Stop Shackling: A
Report on the Written Policies California's Counties on the
Use of Restraints on Pregnant Prisoners in Labor" that many
counties have not done so. �Penal Code Section 6030(f).]
According to "Stop Shackling," 17 counties have adopted
these minimum standards, 13 counties including Los Angeles
have no written policy on shackling of pregnant women in
labor, and 16 counties' written policies do not comply with
the specific terms of Section 6030(f). �"Stop Shackling,"
LSPC (March 2010).] This bill would solve this problem of
inconsistency by providing a clear statewide rule.
6) Argument in Support : According to the American Congress
of Obstetricians and Gynecologists, District IX
(California) , "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."
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7) Argument in Opposition : According to the California
State Sheriffs' Association , "This bill is directed towards
policies and procedures in place by the California
Department of Corrections and Rehabilitation (CDCR), yet
requires the Board of State and Community Corrections
(BSCC) under Title 15 for local facilities to adopt
standards regarding restraint of pregnant inmates in
prison. The BSCC does not set standards for the CDCR, nor
does it set transportation standards for local adult
facilities (county jails)."
8)Related Legislation :
a) AB 568 (Skinner) would have required that pregnant
inmates and wards not be shackled by the wrists, ankles,
around the abdomen, or to another person, unless deemed
necessary for safety, and if necessary, be restrained in
the least restrictive way possible. AB 568 was vetoed.
b) AB 30 (Hayashi) would have inserted a subsection
pertaining to the Correctional Standards Authority'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 was held in the Assembly
Appropriations Committee.
9)Prior Legislation :
a) AB 1900 (Skinner), of the 2009-10 Legislative Session,
would have prohibited the use of restraints on pregnant
inmates while they are being transported. AB 1900 was
vetoed.
b) AB 478 (Lieber), Chapter 608, Statutes of 2005,
prohibited denying 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
ACCESS Women's Health Justice
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American Association of University Women - California
American Civil Liberties Union of California
American Congress of Obstetricians and Gynecologists, District
IX (California)
Asian Communities for Reproductive Justice
California Attorneys for Criminal Justice
California Catholic Conference, Inc.
California Family Health Council
California Medical Association
California National Organization for Women
California Public Defenders Association
Californians United for a Responsible Budget
Center for Young Women's Development
Critical Resistance
Law Students for Reproductive Justice
Legal Services for Prisoners with Children
National Council of Jewish Women, California
National Council of Jewish Women Los Angeles
Physicians for Reproductive Choice and Health
Rainbow Services, Ltd.
Service Employees International Union, Local 1000
Opposition
Chief Probation Officers of California
California Probation, Parole and Correctional Association
California State Sheriffs' Association
Analysis Prepared by : Jesse Stout / PUB. S. / (916) 319-3744