THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY LEACH, STOUT, HUGHES, KITCHEN, FERLO, FONTANA, WILLIAMS, COSTA AND TARTAGLIONE, SEPTEMBER 2, 2009

SENATOR GREENLEAF, JUDICIARY, AS AMENDED, JANUARY 26, 2010   

AN ACT

Relating to the incarceration of pregnant women.

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Amending Title 61 (Penal and Correctional Institutions) of the

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Pennsylvania Consolidated Statutes, providing for State

recording system for application of restraints to pregnant

prisoners or detainees, for county recording system for

application of restraints to pregnant prisoners or detainees

and for incarceration of pregnant women.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Short title.

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This act shall be known and may be cited as the Healthy Birth

for Incarcerated Women Act.

Section 2.  Definitions.

The following words and phrases when used in this act shall

have the meanings given to them in this section unless the

context clearly indicates otherwise:

"Correctional institution."  Any entity under the authority

of any state, county or municipal law enforcement division that

has the power to detain and restrain a person under the laws of

this Commonwealth.

"Detainee."  Includes any person detained under the

immigration laws of the United States at any correctional

facility.

"Labor."  The period of time before a birth during which

contractions are of sufficient frequency, intensity and duration

to bring about effacement and progressive dilation of the

cervix. The determination of when labor has commenced shall rest

solely with the medical providers of the prisoner or detainee.

"Postpartum."  The period following delivery, including the

entire period a woman is in the hospital after the birth of her

child or children.

"Prisoner."  Any person incarcerated or detained in any

facility who is accused of, convicted of, sentenced for or

adjudicated delinquent for violations of criminal law or the

terms and conditions of parole, probation, pretrial release or a

diversionary program.

"Restraints."  Any physical restraint or mechanical device

used to control the movement of a prisoner's or detainee's body

and limbs, including, but not limited to, shackles, flex cuffs,

soft restraints, hard metal handcuffs, a black box, Chubb cuffs,

leg irons, belly chains, a security (tether) chain or a convex

shield.

Section 3.  Duties of correctional institution.

Consistent with established correctional policy and practice,

it shall be the duty and responsibility of the correctional

institution to provide adequate personnel to monitor the

pregnant prisoner or detainee during transport to and from the

hospital and during her stay at the hospital.

Section 4.  Restraint of pregnant prisoners and detainees.

(a)  Limitation on restraints.--Unless provided in subsection

(b), a correctional institution shall not apply restraints to a

prisoner or detainee known to be pregnant during any stage of

labor, any pregnancy related medical distress, transport to a

medical facility, delivery or postpartum, as defined in section

2.

(b)  Exception.--Subsection (a) shall not bar reasonable

restraint provided a shift commander or the staff equivalent at

the correctional institution makes an individualized

determination that the prisoner or detainee presents a

substantial flight risk or some other extraordinary medical or

security circumstance dictates that the prisoner or detainee be

restrained to ensure the safety and security of the prisoner or

detainee, the staff of the correctional institution or medical

facility, other prisoners or detainees or the public.

(c)  Condition of restraint.--If restraint is applied under

subsection (b), at no time shall the detainee be left unattended

by a correctional officer with the ability to release said

restraints should such a release become medically necessary.

(d)  Least restrictive alternative.--When restraints are

permitted under this section, a correctional institution shall

use the least restrictive restraints necessary when the facility

has actual or constructive knowledge that a prisoner is in the

second or third trimester of pregnancy.

Section 5.  Restraints.

The following shall apply to a prisoner or detainee who has

been restrained under section 4:

(1)  The corrections officer accompanying the prisoner or

detainee shall immediately remove all restraints upon request

of the doctor, nurse or other health care professional.

(2)  Leg or waist restraints shall not be used on any

prisoner or detainee who is in labor.

(3)  The type of restraint applied and the application of

the restraint shall be done in the least restrictive manner

possible.

(4)  A correctional officer shall not apply restraints

without prior authorization of the shift commander or staff

equivalent.

Section 6.  Duties of warden or other correctional institution

official.

The warden or the highest-ranking official of the

correctional institution shall make written findings within ten

days of the application of restraints to a pregnant prisoner or

detainee under section 4. The report shall specifically identify

and enumerate the circumstances that led to the determination

that the prisoner or detainee represented a substantial flight

risk or to the determination that other extraordinary medical or

security circumstances dictated the prisoner or detainee be

restrained to ensure the safety and security of the prisoner or

detainee, the staff of the correctional institution or medical

facility, other prisoners or detainees or the public. These

findings shall be maintained by the institution for at least

five years and be made available for public inspection, except

that no information identifying any prisoner or detainee shall

be made public without the prisoner's or detainee's prior

written consent.

Section 7.  Annual report.

No later than August 1 of each year, the Secretary of

Corrections and the official responsible for oversight of each

municipal and county correctional institution where a pregnant

prisoner or detainee had been subject to application of

restraints during that previous fiscal year shall submit to the

Office of the Governor a written report containing detailed

information, including information required under section 6,

regarding the use of restraints on any pregnant prisoner or

detainee in the official's custody during the preceding fiscal

year. The written report shall not contain any identifying

information of any prisoner or detainee. The reports shall be

posted on the Governor's Internet website and shall be made

available for public inspection at the office of the Department

of Corrections.

Section 8.  Effective date.

This act shall take effect in 60 days.

Section 1.  Title 61 of the Pennsylvania Consolidated

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Statutes is amended by adding sections to read:

§ 1104.  State recording system for application of restraints to

pregnant prisoners or detainees.

(a)  General rule.--Any and all incidents where the

application of restraints to a pregnant prisoner or detainee

occurred pursuant to section 5905 (relating to healthy birth for

incarcerated women) must be reported to the department. The

report must be in writing and must note the number of incidents

that occurred. Individual, separate written findings for each

incident that occurred must accompany the report.

(b)  Contents of written findings.--Written findings of each

incident as required under subsection (a) must include the

following:

(1)  the circumstances that led to the determination that

the prisoner or detainee represented a substantial risk of

imminent flight; or

(2)  the circumstances that led to the determination that

other extraordinary medical or security circumstances

dictated the prisoner or detainee be restrained to ensure the

safety and security of the prisoner or detainee, the staff of

the correctional institution or medical facility, other

prisoners or detainees or the public.

§ 1758.  County recording system for application of restraints

to pregnant prisoners or detainees.

(a)  General rule.--The application of restraints to a

pregnant prisoner or detainee occurring pursuant to section 5905

(relating to healthy birth for incarcerated women) shall

constitute an incident that qualifies as an extraordinary

occurrence that must be reported to the department in the County

Extraordinary Occurrence Monthly Report.

(b)  Information to be included in County Extraordinary

Occurrence Monthly Report.--

(1)  Any and all incidents where the application of

restraints to a pregnant prisoner or detainee pursuant to

section 5905 occurred must be included in the County

Extraordinary Occurrence Monthly Report that is submitted to

the department. An indication of the incidents must be noted

on the designated report form or other available approved

method, if applicable, and individual, separate written

findings must accompany the form for each incident that

occurred.

(2)  Written findings of each incident as required under

paragraph (1) must include the following:

(i)  the circumstances that led to the determination

that the prisoner or detainee represented a substantial

risk of imminent flight; or

(ii)  the circumstances that led to the determination

that other extraordinary medical or security

circumstances dictated the prisoner or detainee be

restrained to ensure the safety and security of the

prisoner or detainee, the staff of the correctional

institution or medical facility, other prisoners or

detainees or the public.

(c)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection unless the context clearly indicates otherwise:

"County Extraordinary Occurrence Monthly Report."  A

collection of statistics and other information by the department

on designated report forms or by other available approved

methods for the collection of such incident information under

this section and in accordance with written local policy

providing for the collection of population information

prescribed by 37 Pa. Code 95.242 (relating to Statistical/

informational reporting).

"Department."  The Department of Corrections of the

Commonwealth.

§ 5905.  Healthy birth for incarcerated women.

(a)  Duties of correctional institution.--Consistent with

established correctional policy and practice, it shall be the

duty and responsibility of the correctional institution to

provide adequate personnel to monitor the pregnant prisoner or

detainee during transport to and from the hospital and during

her stay at the hospital.

(b)  Restraint of pregnant prisoners and detainees.--

(1)  Unless provided in paragraph (2), a correctional

institution shall not apply restraints to a prisoner or

detainee known to be pregnant during any stage of labor, any

pregnancy-related medical distress, any period of delivery,

any period of postpartum, as defined in subsection (e), or

transport to a medical facility as a result of any of the

preceding conditions or transport to a medical facility after

the beginning of the second trimester of pregnancy.

(2)  Paragraph (1) shall not bar reasonable restraint

provided the correctional staff assigned to the prisoner

makes an individualized determination that the prisoner or

detainee presents a substantial risk of imminent flight or

some other extraordinary medical or security circumstance

dictates that the prisoner or detainee be restrained to

ensure the safety and security of the prisoner or detainee,

the staff of the correctional institution or medical

facility, other prisoners or detainees or the public. The

assigned correctional staff shall report the incident to the

shift commander or staff equivalent in a reasonable amount of

time after the restraint occurs. If the assigned correctional

staff is not employed by the correctional institution then

the assigned correctional staff shall report the restraint to

the correctional institution in a reasonable amount of time

after the incident occurs.

(3)  If restraint is applied under paragraph (2), at no

time shall the detainee be left unattended by a correctional

officer with the ability to release said restraints should

such a release become medically necessary.

(4)  When restraints are permitted under this section, a

correctional institution shall use the least restrictive

restraints necessary when the facility has actual or

constructive knowledge that a prisoner is in the second or

third trimester of pregnancy.

(c)  Restraints.--The following shall apply to a prisoner or

detainee who has been restrained under this subsection:

(1)  The corrections officer accompanying the prisoner or

detainee shall immediately remove all restraints upon request

of the doctor, nurse or other health care professional.

(2)  Leg or waist restraints shall not be used on any

prisoner or detainee who is in labor.

(3)  The type of restraint applied and the application of

the restraint shall be done in the least restrictive manner

possible.

(d)  Annual report.--No later than August 1 of each year, the

Secretary of Corrections shall submit to the Governor's Office a

written report containing information regarding the use of

restraints on any pregnant prisoner or detainee in the

official's custody during the preceding fiscal year specifically

identifying and enumerating the circumstances that led to the

determination that the inmate fell under the exception in

subsection (b)(2). The written report shall not contain any

identifying information of any prisoner or detainee. The reports

shall be posted on the Governor's Internet website and shall be

made available for public inspection at the office of the

Department of Corrections.

(e)  Definitions.--As used in this section, the following

words and phrases shall have the meanings given to them in this

subsection unless the context clearly indicates otherwise:

"Correctional institution."  Any entity under the authority

of any state, county or municipal law enforcement division that

has the power to detain and restrain a person under the laws of

this Commonwealth.

"Detainee."  Includes any person detained under the

immigration laws of the United States at any correctional

facility.

"Labor."  The period of time before a birth during which

contractions are of sufficient frequency, intensity and duration

to bring about effacement and progressive dilation of the

cervix. The determination of when labor has commenced shall rest

solely with the medical providers of the prisoner or detainee.

"Postpartum."  The period following delivery before a

prisoner or detainee has been discharged from a medical

facility.

"Prisoner."  Any person incarcerated or detained in any

facility who is accused of, convicted of, sentenced for or

adjudicated delinquent for violations of criminal law or the

terms and conditions of parole, probation, pretrial release or a

diversionary program.

"Restraints."  Any physical restraint or mechanical device

used to control the movement of a prisoner's or detainee's body

and limbs, including, but not limited to, shackles, flex cuffs,

soft restraints, hard metal handcuffs, a black box, Chubb cuffs,

leg irons, belly chains, a security (tether) chain or a convex

shield.

Section 2.  This act shall take effect in 60 days.