PRINTER'S NO. 115
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
138
Session of
2021
INTRODUCED BY BARTOLOTTA, PHILLIPS-HILL, KEARNEY, STREET,
TARTAGLIONE, COLLETT, SCHWANK, COSTA AND KANE,
JANUARY 28, 2021
REFERRED TO JUDICIARY, JANUARY 28, 2021
AN ACT
Amending Title 61 (Prisons and Parole) of the Pennsylvania
Consolidated Statutes, in general administration, further
providing for State recording system for application of
restraints to pregnant prisoners or detainees; and, in
miscellaneous provisions, providing for restrictive housing
prohibited for pregnant or postpartum inmates and detainees,
for cavity search and inspection restrictions, for training
and education requirement, for family consideration in
placement and visitation, for feminine hygiene and
incontinence products, for postpartum recovery and for human
trafficking education.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 1104 of Title 61 of the Pennsylvania
Consolidated Statutes is amended to read:
§ 1104. State recording system for application of restraints
and restrictive housing to pregnant [prisoners] and
postpartum inmates or detainees.
(a) General rule.--[A correctional institution as defined by
section 5905(e) (relating to healthy birth for incarcerated
women) shall report each restraint applied to a pregnant
prisoner or detainee. The report must be in writing and must
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note the number of restraints. Individual, separate written
findings for each restraint must accompany the report. This
shall include reports from the following:] A correctional
institution shall, in writing, report each restraint applied to
a pregnant, laboring or postpartum individual in the
correctional institution's custody, as well as any instance
where a pregnant, laboring or postpartum individual is placed in
restrictive housing. The report shall note the number of
restraints or, in the case of restrictive housing, the length of
time the individual was placed in restrictive housing.
Individual, separate written findings for each restraint and
placement of an individual in restrictive housing must accompany
the report. The provisions of this subsection shall apply to
county constables, police, sheriffs and other law enforcement
personnel. The report shall include reports from the following:
(1) A correctional institution that is not operated,
supervised or licensed by the Department of [Public Welfare]
Human Services pursuant to the act of June 13, 1967 (P.L.31,
No.21), known as the [Public Welfare] Human Services Code,
shall make the report to the secretary.
(2) A correctional institution that is operated,
supervised or licensed by the Department of [Public Welfare]
Human Services pursuant to the [Public Welfare] Humans
Services Code shall make the report to the Secretary of
[Public Welfare] Human Services.
(b) Contents of written findings.--Written findings of each
restraint or placement of an incarcerated or detained individual
in restrictive housing as required under subsection (a) must
include [the following]:
(1) One of the following:
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(i) the circumstances that led to the determination
that the [prisoner] inmate or detainee represented a
substantial risk of imminent flight[; or]. For the
purpose of this paragraph, substantial risk of imminent
flight shall be established by a showing of real and
considerable risk of escaping by the incarcerated
individual with the intent to avoid continued
incarceration. An individual's history of escape attempts
and flight to avoid continued incarceration may be
relevant to the determination, but history alone cannot
meet the requirement; or
[(2)] (ii) the circumstances that led to the
determination that other extraordinary medical or
security circumstances dictated the [prisoner] inmate or
detainee be restrained to ensure the safety and security
of the [prisoner] inmate or detainee, the staff of the
correctional institution or medical facility, other
[prisoners] inmates or detainees or the public.
(2) The date and time restraints were applied or the
restrictive housing placement occurred, and the length of
time the incarcerated or detained individual was kept in
restraints or restrictive housing.
(3) The name of the custodian or staff member that
applied the restraints or placed the individual into
restrictive housing.
(4) The number of restraints used.
(5) Any physical effects on the incarcerated or detained
individual or the unborn child of an incarcerated or detained
individual resulting from placement in the restraints or
restrictive housing.
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(6) Instances of restraints being used for transport to
or from a correctional institution. If restraints are applied
to a pregnant or postpartum individual or detainee en route
between facilities, the law enforcement escorting the
individual must report the use to the receiving institution,
including the names of the police officers escorting the
individual. The receiving institution must then file a
written report pursuant to this subsection.
(c) Staff presence during labor.--Staff accompanying
incarcerated women to the hospital for medical treatment related
to pregnancy shall be female whenever practicable or if
preferred by the incarcerated woman.
(d) Report required.--If staff remain present during the
examination, labor or delivery of the pregnant incarcerated
woman, a report shall be submitted consistent with the
provisions of section 5905(d), containing the following
information:
(1) The name of the staff who remained in the room
during the medical procedure or appointment.
(2) The names of the medical personnel who made the
request of the staff and the reason provided for the request
or, if the request was made by the pregnant woman, the
signature of the pregnant woman verifying the request.
(3) The duration during which the staff remained
present.
(e) Availability of written findings.--The nonidentifying
data contained in the written reports submitted to the Secretary
of Corrections and the Secretary of Human Services shall be
posted on the Governor's publicly accessible Internet website
annually. No identifying information, such as names or dates of
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birth, shall be posted.
(f) Failure to comply with written findings.--If a
correctional institution fails to submit a report under this
section by the end of the fiscal year, the Secretary of Human
Services shall obtain a certification from the correctional
institution verifying that the institution had zero instances of
use of restraints, placement in restrictive housing or staff
presence during medical examinations or appointments of pregnant
incarcerated women under the provisions of this section.
(g) 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." As defined in section 5905(e).
"Incarcerated individuals." Individuals who are incarcerated
in a correctional facility in this Commonwealth. The term
includes detainees, inmates and prisoners.
"Postpartum recovery." The eight-week period, or longer as
determined by the healthcare professional responsible for the
health and safety of the incarcerated or detained person,
following childbirth.
"Restraints." Any physical or mechanical device used to
restrict or control the movement of a prisoner's body, limbs or
both.
"Restrictive housing." Any type of detention that involves
removal from the general incarcerated population for purposes of
discipline or administrative purposes, whether voluntary or
involuntary, and the inability to leave a room or cell for the
vast majority of the day.
"Staff." An individual who is employed by a correctional
facility.
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Section 2. Title 61 is amended by adding sections to read:
§ 5905.1. Restrictive housing prohibited for pregnant or
postpartum inmates and detainees.
(a) Restrictive housing prohibited.--Except as provided
under subsection (e), a pregnant or postpartum incarcerated or
detained individual may not be involuntarily placed in
restrictive housing in any correctional institution in this
Commonwealth. Pregnant or postpartum incarcerated or detained
individuals who violate the rules and regulations of a
correctional institution shall be issued an informal resolution
of misconduct.
(b) Alternative discipline.--Forms of discipline for
pregnant and postpartum incarcerated or detained individuals
shall be limited, to the greatest extent possible, as follows:
(1) The pregnant or postpartum incarcerated or detained
individual may be sanctioned by restricting telephone use,
visiting privileges and commissary privileges, but not by
restricting time the pregnant or postpartum incarcerated or
detained individual spends out of the individual's cell.
(2) If telephone usage is limited under paragraph (1),
the restriction shall be reviewed every seven days. An
exception for the limited purpose of the individual under
this subsection planning for the delivery, care and custody
of the child, legal calls or the child's care and custody
shall be provided to the pregnant or postpartum incarcerated
or detained individual.
(c) Hearing.--An informal hearing with a meaningful
opportunity for the pregnant or postpartum incarcerated or
detained individual to be heard shall be conducted within 24
hours of any violation of the correctional institution's rules
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or regulations under subsection (a), if the privileges of a
pregnant or postpartum incarcerated or detained individual are
restricted. The department shall develop written procedures
relating to the implementation of this subsection, including due
process procedure for inmates.
(d) Conduct of hearing.--No individual involved in the
incident that is the subject of the hearing may conduct the
hearing. Nothing in this subsection shall waive any right of the
pregnant or postpartum incarcerated or detained individual to a
formal hearing.
(e) Exceptions.--A pregnant or postpartum incarcerated or
detained individual may be placed in restrictive housing only as
a temporary response to behavior that poses a serious and
immediate risk of physical harm to the pregnant or postpartum
incarcerated or detained individual, another incarcerated or
detained individual or the unborn child of the pregnant
incarcerated or detained individual. The following shall apply:
(1) The decision to place a pregnant or postpartum
incarcerated or detained individual in restrictive housing
under this subsection must be approved by the warden or
individual in charge of the correctional institution and a
health care practitioner.
(2) The rationale for the decision under this subsection
must be documented as required by section 1104 (relating to
State recording system for application of restraints and
restrictive housing to pregnant and postpartum inmates or
detainees).
(3) No period of restrictive housing in excess of seven
days may be approved unless a documented assessment of the
pregnant or postpartum incarcerated or detained individual by
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a health care practitioner finds good cause for extending the
time spent in restrictive housing and is approved by the
warden or individual in charge of the facility. A copy of the
assessment under this paragraph shall be placed in the
inmate's or detainee's medical file and any other file
maintained on the inmate within 24 hours of the placement of
the pregnant or postpartum incarcerated or detained
individual in restrictive housing under this subsection.
(f) Definition.--As used in this section, the term "health
care practitioner" shall mean an individual licensed in this
Commonwealth as a physician, certified registered nurse
practitioner, registered nurse, nurse midwife or physician
assistant.
§ 5908. Cavity search and inspection restrictions.
(a) Cavity search and inspection restrictions.--To the
greatest extent possible:
(1) No staff other than a licensed health care
professional shall conduct an invasive body cavity search of
a pregnant incarcerated individual or detainee.
(2) A correctional institution shall limit inspections
by male staff where a female incarcerated individual or
detainee is in a state of undress.
(b) Documentation requirement.--If staff is required to
perform an invasive cavity search on a pregnant incarcerated
individual or detainee, or male staff is required to conduct an
inspection on a female incarcerated individual or detainee in a
state of undress, a written report shall be submitted to the
correctional institution within 72 hours following the cavity
search or inspection. The report under this subsection shall:
(1) include the justification for performing the cavity
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search or male staff inspection; and
(2) note if any contraband was found on the incarcerated
individual or detainee.
(c) Bed assignments.--The department may not assign a
pregnant incarcerated individual to any bed that is elevated
more than three feet from the floor of the facility.
(d) 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:
"Body cavity search." An invasive search of incarcerated or
detained individuals, conducted by staff in search of
contraband.
"Staff." An individual who is employed or contracted by a
correctional facility.
"State of undress." A state where an incarcerated or
detained female is partially or fully naked, either in the
shower, toilet areas, a medical examination room or while a body
cavity search is being conducted.
§ 5909. Training and education requirement.
(a) Correction institution staff training.--The department
and the Department of Human Services shall jointly develop and
provide both correctional institutions and county correctional
institutions with a training program for staff who have contact
with a pregnant, laboring or postpartum incarcerated or detained
individual. The training program shall be related to the
physical and mental health of the pregnant or postpartum
incarcerated or detained individual and unborn child, including:
(1) The general care of a pregnant individual.
(2) The impact of restraints on a pregnant individual
and unborn child.
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(3) The impact of being placed in restrictive housing on
a pregnant individual.
(4) The impact of invasive searches on a pregnant
individual.
(5) Any other pertinent information the department or
the Department of Human Services finds appropriate or
necessary.
(b) Correctional institution staff training exceptions.--If
the correctional institution or county correctional institution
prohibits the placement of pregnant women as a matter of law,
that institution may submit a written exemption reporting that
there is no risk of staff interacting with pregnant women housed
in the institution. The exemption under this subsection shall
apply only to the correctional institution, not the individual
staff of the institution. All correctional institution staff
that come in contact with pregnant incarcerated women must
complete the training under this section. If correctional
institution staff work at more than one institution, the staff
must receive the required training at the nonexempt institution.
(c) Education programming for pregnant incarcerated
individuals.--The department and the Department of Human
Services shall jointly develop and provide both correctional
institutions and county correctional institutions with
educational programming for pregnant or postpartum incarcerated
or detained individuals. The educational programming shall be
related to:
(1) Medical screenings related to female reproductive
and overall health, including preventive screenings.
(2) Prenatal care.
(3) Pregnancy-specific hygiene.
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(4) Parenting skills.
(5) The impact of alcohol and drugs on the unborn child.
(6) General health of the child.
(7) Any other pertinent information the department or
the Department of Human Services finds appropriate or
necessary.
(d) Trauma-informed care.--The following shall apply:
(1) The warden of a correctional institution shall
ensure that the correctional institution provides to all
incarcerated individuals and detainees quality trauma-
informed care as specified by the Substance Abuse and Mental
Health Services Administration of the United States
Department of Health and Human Services.
(2) Trauma-informed care for an individual shall begin
immediately upon the individual's intake and assessment at a
correctional institution.
(3) Correctional staff training.--Correctional staff
must have no fewer than four hours of professional training
related to trauma-informed care, which must include, but not
be limited to, the following:
(i) Training to identify individuals with trauma.
(ii) Training on how and when to refer individuals
to the proper health care professionals, including, but
not limited to, preventive health care and mental health
care.
(iii) Training on how to interact with and empower
incarcerated individuals who have experienced trauma.
(e) Definitions.--As used in this section, the term "trauma-
informed care" means an organizational structure and treatment
framework that involves recognizing, understanding and
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responding to the effects of trauma.
§ 5910. Family consideration in placement and visitation.
To the greatest extent possible, after accounting for
security and capacity factors, the department shall ensure that
primary caregivers of a minor dependent child who are
incarcerated shall be placed as close as possible to the
incarcerated individual's permanent address of record.
§ 5911. Feminine hygiene and incontinence products.
(a) Issuance of feminine hygiene products related to
menstruation.--A supply of feminine hygiene products shall be
provided to all incarcerated individuals and detainees who are
menstruating in a correctional institution each month at no cost
to the incarcerated individuals and detainees, regardless of
financial means. Incarcerated individuals and detainees shall
not be required to show proof of need or to undergo a medical
examination or obtain a medical permit, authorization or
diagnosis to receive the products under this section.
(b) Feminine hygiene products provided.--The following
products shall be distributed to all incarcerated individuals
and detainees who are menstruating in a correctional
institution:
(1) a choice of at least two sizes or absorbencies of
sanitary pads; and
(2) a choice of at least two sizes of tampons.
(c) Issuance of feminine hygiene products related to bladder
control and incontinence.--A supply of products for bladder
control and incontinence shall be provided to incarcerated
individuals and detainees, including geriatric incarcerated
individuals and postpartum incarcerated individuals, who require
such products each month at no cost to incarcerated individuals
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and detainees, regardless of financial means.
(d) Bladder control and incontinence products
distribution.--Adult diapers or protective undergarments shall
be distributed to incarcerated individuals who require them.
(e) Rules and regulations.--The correctional institution
shall promulgate rules necessary to implement and enforce the
provisions of this section.
(f) Definition.--As used in this section, the term "feminine
hygiene products" means products that women use during
menstruation. The term includes tampons and sanitary napkins.
§ 5912. Postpartum recovery.
(a) Restraints during postpartum recovery.--No restraints
shall be used on any incarcerated or detained individual who has
given birth within the last 30 days and is in postpartum
recovery, unless the department has a reasonable belief that the
incarcerated or detained individual will harm themselves, their
newborn or another individual or pose a substantial risk of
imminent flight. If restraints are used, the facility employee
ordering the use of restraints on an incarcerated or detained
individual while in postpartum recovery shall submit a written
report to the warden of the facility within 72 hours following
the use of the restraints, containing the justification for
restraining the incarcerated or detained individual during
postpartum recovery.
(b) Nutritional and hygiene products.--Following the
delivery of a newborn by an incarcerated or detained individual,
the department shall make available for 72 hours the necessary
nutritional and hygiene products, including diapers, to care for
the newborn.
(c) Definition.--As used in this section, the term
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"substantial risk of imminent flight" means a showing of real
and considerable risk of escaping by the incarcerated individual
with the intent to avoid continued incarceration. An
individual's history of escape attempts and flight to avoid
continued incarceration may be relevant to the determination,
but history alone cannot meet the requirement.
§ 5913. Human trafficking education.
The department and the Department of Human Services shall
jointly develop and provide to all correctional institutions in
this Commonwealth a training program for female inmates related
to human trafficking, methods of recruitment used by individuals
engaged in human trafficking and resources available to victims
of human trafficking.
Section 3. This act shall apply to an entity under the
authority of the Commonwealth or any county or municipality that
has the power to detain and restrain an individual under the
laws of this Commonwealth, including, but not limited to, State
correctional institutions, county correctional institutions,
juvenile detention facilities, police departments, constable's
offices, sheriff's offices and private entities performing
contracts for the Commonwealth or a county or municipality of
the Commonwealth.
Section 4. This act shall take effect in 60 days.
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