BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
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AB 2530 (Atkins) 0
As Amended May 9, 2012
Hearing date: June 26, 2012
Penal Code; Welfare and Institutions Code
SM:mc
SHACKLING PREGNANT INMATES
HISTORY
Source: ACLU; American Congress of Obstetricians and
Gynecologists, District IX;
Legal Services for Prisoners with Children
Prior Legislation: AB 568 (Skinner) - 2011, vetoed
AB 1900 (Skinner) - 2010, vetoed
AB 478 (Lieber) - Chap. 608, Stats. of 2005
Support: ACCESS Women's Health Justice; ACT for Women and Girls;
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
Nurses Association; California Public Defenders
Association; Californians United for a Responsible
Budget; Center for Elders' Independence; Center for
Restorative Justice Works; Center for Young Women's
Development; Critical Resistance; Directors of Public
Health Nursing; Harriett Buhai Center for Family Law;
Law Students for Reproductive Justice; National
Association of Social Workers, California Chapter;
National Center for Lesbian Rights; National Council of
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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; Women's Community
Clinic; American Medical Women's Association; Drug
Policy Alliance; California Latinas for Reproductive
Justice; American Association of University Women -
California; Latino Health Alliance
Opposition:None known
Assembly Floor Vote: Ayes 75 - Noes 0
KEY ISSUES
SHOULD CURRENT PROVISIONS OF THE PENAL CODE AND WELFARE AND
INSTITUTIONS CODE RELATING TO SHACKLING OF PREGNANT STATE INMATES
AND JUVENILE WARDS BE DELETED AND REPLACED WITH SPECIFIED NEW
STANDARDS ON SHACKLING THESE PRISONERS?
SHOULD THE BOARD OF STATE AND COMMUNITY CORRECTIONS BE REQUIRED TO
ADD ITS PROPOSED NEW STANDARDS FOR SHACKLING PREGNANT INMATES AND
WARDS TO THE MINIMUM STANDARDS IT IS CURRENTLY REQUIRED TO ESTABLISH
FOR LOCAL CORRECTIONAL FACILITIES?
PURPOSE
The purpose of this bill is to (1) delete current provisions of
the Penal Code and Welfare and Institutions Code relating to
shackling of pregnant state inmates and juvenile wards and
replace them with specified new standards on shackling these
prisoners; (2) require the Board of State and Community
Corrections (BSCC) to add its proposed new standards for
shackling pregnant inmates and wards to the minimum standards it
is currently required to establish for local correctional
facilities; (3) require BSCC to also add to its minimum
standards that inmates received by the facility while they are
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pregnant be given oral or written notification of specified
existing health requirements.
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 Board of State and Community
Corrections (BSCC, formerly the Corrections Standards Authority)
to establish minimum standards for state and local correctional
facilities. BSCC 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 � 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
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provided in Penal Code Section 5007.7. (Penal Code � 6030(f).)
Current law 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 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
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
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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
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 would delete current provisions of the Penal Code and
Welfare and Institutions Code relating to shackling of pregnant
state inmates and juvenile wards (detailed above) and replace
them with the following new provisions:
An inmate known to be pregnant or in recovery after
delivery shall not be restrained by the use of leg irons,
waist chains, or handcuffs behind the body.
A pregnant inmate in labor, during delivery, or in
recovery after delivery, shall not be restrained by the
wrists, ankles, or both, unless deemed necessary for the
safety and security of the inmate, the staff, or the
public.
Restraints shall be removed when a professional who is
currently responsible for the medical care of a pregnant
inmate during a medical emergency, labor, delivery, or
recovery after delivery determines that the removal of
restraints is medically necessary.
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This section shall not be interpreted to require
restraints in a case where restraints are not required
pursuant to a statute, regulation, or correctional facility
policy.
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.
For purposes of this section, "inmate" means an adult or
juvenile who is incarcerated in a state or local
correctional facility.
This bill would require the BSCC to add the following to the
minimum standards it is currently required to establish for
local correctional facilities:
That a woman known to be pregnant or in recovery after
delivery shall not be restrained, except as specified
above. The board shall develop standards regarding the
restraint of pregnant women at the next biennial review of
the standards after the enactment of the act amending this
subdivision and shall review the individual facilities'
compliance with the standards.
That inmates received by the facility while they are
pregnant be given oral or written notification of existing
requirements that they receive:
o A balanced, nutritious diet approved by a doctor.
o Prenatal and postpartum information and health care,
including, but not limited to, access to necessary
vitamins as recommended by a doctor.
o Information pertaining to childbirth education and
infant care.
o A dental cleaning while in a state facility.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
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In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
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
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-- 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. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
According to 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
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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 pregnant consistent with the
Governor's veto message on the previous bill. 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 the removal of restraints in emergency
situations where requested by the professional
responsible for the woman's medical care.
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) (soon to be known as the Board of
State and Community Corrections) 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'
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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
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
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<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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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."
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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.)
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.)
4. Governor's Veto Message of AB 568
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
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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 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.
5. Statement in Support
The California Medical Association states:
Using restraints that significantly limit a pregnant
inmate's mobility, such as leg shackles, chains across
the belly or shackling wrists behind the back can
cause serious and undue health risks to the woman and
her pregnancy. The vast majority of female prisoners
or detainees incarcerated are non-violent offenders,
and shackling them greatly increases their chances for
physical harm if they trip or fall. Pregnant women
have a different center of gravity. If she trips and
falls while her ankles are shackled, chances are good
that she will not be able to restore her balance and
could suffer a terrible injury.
The American Medical Association passed a resolution
at its 2010 House of Delegates strongly condemning
this practice, calling it "a barbaric and inhumane
practice that needlessly inflicts pain and
humiliation."
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