PRINTER'S NO. 1121
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
814
Session of
2019
INTRODUCED BY LEACH, BREWSTER, FONTANA, MENSCH, HUGHES, STREET,
COSTA, K. WARD, TARTAGLIONE, HAYWOOD AND A. WILLIAMS,
AUGUST 7, 2019
REFERRED TO JUDICIARY, AUGUST 7, 2019
AN ACT
Amending Title 61 (Prisons and Parole) of the Pennsylvania
Consolidated Statutes, in general administration of
correctional institutions, further providing for State
recording system for application of restraints to pregnant
prisoners or detainees; in county correctional institutions,
further providing for county recording system for application
of restraints to pregnant prisoners or detainees; and, in
miscellaneous provisions, further providing for healthy birth
for incarcerated women and providing for family
considerations in inmate placement and visitation, for
inspections by staff of correctional institutions, for access
to feminine hygiene products and for training and educational
programming.
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,
restrictive housing and body cavity searches to
pregnant prisoners 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, restrictive housing and body
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cavity search applied to a pregnant prisoner or detainee. The
report must be in writing and must note the number of
restraints, restrictive housing and body cavity searches.
Individual, separate written findings for each restraint,
restrictive housing and body cavity search must accompany the
report. This 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] Human
Services Code shall make the report to the Secretary of
[Public Welfare] Human Services.
(b) Contents of written findings.--Written findings of each
restraint, restrictive housing and body cavity search 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[.]; or
(3) whether any contraband was recovered while
conducting a body cavity search.
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Section 2. Section 1758(a) and (b) of Title 61 are amended
to read:
§ 1758. County recording system for application of restraints,
restrictive housing and body cavity searches to
pregnant prisoners or detainees.
(a) General rule.--The application of restraints,
restrictive housing and body cavity searches 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, restrictive housing and body cavity searches 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
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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[.]; or
(iii) whether any contraband was recovered while
conducting a body cavity search.
* * *
Section 3. Section 5905 of Title 61 is amended to read:
§ 5905. Healthy birth for incarcerated women.
(a) Duties of correctional institution.--Consistent with
established 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 medical facility and during her
stay at the medical facility.
(b) Restraint, restrictive housing and body cavity searches
of pregnant prisoners and detainees.--
(1) Unless provided in paragraph (2), a correctional
institution shall not apply restraints, restrictive housing
or body cavity searches to a prisoner or detainee known to be
pregnant during any stage of pregnancy, including labor, any
pregnancy-related medical distress, any period of delivery,
any period of postpartum recovery 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. No
correctional institution staff other than a licensed
healthcare professional shall conduct invasive body cavity
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searches of pregnant inmates unless provided in paragraph
(2).
(2) Paragraph (1) shall not bar reasonable restraint,
restrictive housing or body cavity searches provided the
correctional institution staff assigned to the prisoner or
detainee makes an individualized determination that the
prisoner or detainee presents a substantial risk of imminent
flight, has a reasonable belief that the prisoner or detainee
is concealing contraband, or some other extraordinary medical
or security circumstance dictates that the prisoner or
detainee be restrained, placed in restrictive housing or
subject to a body cavity search 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
institution staff shall report the incident to the
correctional institution in a reasonable amount of time, not
to exceed 72 hours, after the restraint, restrictive housing
or body cavity search occurs. If the assigned correctional
institution staff is not employed by the correctional
institution, then the assigned correctional institution staff
shall report the restraint to the correctional institution in
a reasonable amount of time, not to exceed 72 hours, after
the incident occurs.
(3) If restraint or restrictive housing is applied under
paragraph (2), at no time shall the prisoner or detainee be
left unattended by a correctional institution staff with the
ability to release the prisoner or detainee from the
restraint or restrictive housing should a release become
medically necessary.
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(4) When a restraint is permitted under this section, a
correctional institution shall use the least restrictive
restraint necessary when the facility has actual or
constructive knowledge that [a] the prisoner or detainee 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 correctional institution staff accompanying the
prisoner or detainee shall immediately remove all restraints
upon request of a doctor, nurse or other health care
professional.
(2) Leg or waist restraints shall not be used [on any]
if the 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.
(c.1) Bed assignments.--The correctional institution shall
not assign a pregnant inmate to a bed that is elevated more than
three feet from the floor of the facility.
(c.2) Nutrition for pregnant inmates.--The correctional
institution shall ensure that a pregnant inmate is provided
sufficient food and dietary supplements to meet generally
accepted prenatal nutritional guidelines for pregnant women.
(c.3) Bonding period and nutritional and hygiene products
for newborn.--Following the delivery of a newborn by an inmate,
the correctional institution shall permit the newborn to remain
with the inmate for 72 hours. During that time, the correctional
institution shall make available the necessary nutritional and
hygiene products, including diapers, to care for the newborn. If
the inmate qualifies as indigent, the products shall be provided
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without cost.
(d) Annual report.--No later than August 1 of each year, the
secretary and the Secretary of [Public Welfare] Human Services
shall each submit to the Governor's Office a written report
containing information regarding the use of restraints,
restrictive housing and body cavity searches on any pregnant
prisoner or detainee during the preceding fiscal year
specifically identifying and enumerating the circumstances that
led to the determination that the prisoner or detainee fell
under the exception in subsection (b)(2). The secretary shall
report on pregnant prisoners or detainees in the custody of
correctional institutions operated, supervised or licensed by
the department. The Secretary of [Public Welfare] Human Services
shall report on pregnant prisoners or detainees in the custody
of correctional institutions 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. The reports 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 offices of the
department and the Department of [Public Welfare] Human
Services, respectively.
(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:
"Body cavity search." An invasive search on an inmate that
is conducted by correctional institution staff in search of
contraband.
"Correctional institution." Any entity under the authority
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of the state or any county or municipality 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.
"Indigent." An inmate who has less than an average of $16 in
the inmate's prison account.
"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.
"Menstrual hygiene product." A product that women use during
their menstrual cycle. The term includes a tampon, sanitary
napkin and menstrual cup.
"Postpartum recovery." [The period following delivery before
a prisoner or detainee has been discharged from a medical
facility.] The eight-week period following delivery, or longer
as determined by the healthcare professional responsible for the
health and safety of the prisoner.
"Prisoner." Any person incarcerated or detained in any
correctional institution 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.
"Restraint." Any physical hold 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
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irons, belly chains, a security (tether) chain or a convex
shield.
" Restrictive housing. " Any type of detention that involves
removal of a prisoner from the general inmate population,
whether voluntary or involuntary, and that prohibits the
prisoner from leaving the room or cell for the vast majority of
the day.
Section 4. Title 61 is amended by adding sections to read:
§ 5905.1 Family considerations in inmate placement and
visitation.
(a) Placement.--To the greatest extent possible, after
accounting for security and capacity factors, the department and
the Department of Human Services shall place female inmates
within 250 miles of their permanent address of record.
(b) Visitation.--The correctional institution shall
authorize visitation of female inmates by minor dependents, with
the minimum following requirements:
(1) Opportunities for dependent children under 18 years
of age to visit their incarcerated mother at least two days
per week.
(2) Elimination of restrictions on the number of
dependent children under 18 years of age that may be
permitted visitation privileges.
(3) Authorization of contact visits for female inmates
with low or minimum security classifications.
(c) Overnight Visitation Pilot Program.--The department and
the Department of Human Services shall jointly establish a pilot
program that authorizes overnight visits for children under 10
years of age.
§ 5905.2 Inspections by staff of correctional institutions.
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(a) Inspections where female inmate is in state of
undress.--
(1) To the greatest extent possible, the department and
the Department of Human Services shall jointly issue rules to
correctional institutions that limit inspections by male
correctional staff where a female inmate is in a state of
undress.
(2) Nothing in this section shall be construed to limit
the ability of a male correctional staff from conducting
inspections where a female may be in a state of undress if no
female correctional staff are available.
(b) Documentation requirement.--If a male correctional staff
is required to conduct an inspection while a female inmate is in
a state of undress, the staff shall submit a written report to
the correctional institution within 72 hours following the
inspection, containing the justification for a male correctional
staff to inspect the female inmate. The correctional institution
shall include this information in the report required under
sections 1104 (relating to State recording system for
application of restraints, restrictive housing and body cavity
searches to pregnant prisoners or detainees) and 1758 (relating
to county recording system for application of restraints,
restrictive housing and body cavity searches to pregnant
prisoners or detainees).
§ 5905.3 Access to feminine hygiene products.
A correctional institution shall ensure that sufficient
menstrual hygiene products are available at the facility for all
female inmates who have an active menstrual cycle. The menstrual
hygiene products shall be provided as needed and at no cost to
the female inmates.
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§ 5905.4 Training and educational programming.
(a) Correctional institution staff training.--The department
and the Department of Human Services shall jointly develop and
provide to all correctional institutions a training program for
staff who have contact with pregnant inmates related to the
physical and mental health of pregnant inmates and fetuses,
including:
(1) General care of pregnant women.
(2) The impact of restraints on pregnant inmates and
fetuses.
(3) The impact of being placed in restrictive housing on
pregnant inmates.
(4) The impact of invasive searches on pregnant inmates.
(b) Educational programming for pregnant inmates.--The
department and the Department of Human Services shall jointly
develop and provide to all correctional institutions educational
programming for pregnant inmates related to:
(1) Prenatal care.
(2) Pregnancy-specific hygiene.
(3) Parenting skills.
(4) The impact of alcohol and drugs on the fetus.
(5) General health of a child.
Section 5. This act shall take effect in 60 days.
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