PRINTER'S NO. 805
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
707
Session of
2021
INTRODUCED BY CAPPELLETTI, SAVAL, HUGHES, FONTANA, SANTARSIERO,
COSTA, STREET, COLLETT, MUTH, KEARNEY, KANE AND COMITTA,
MAY 25, 2021
REFERRED TO JUDICIARY, MAY 25, 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; 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.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Sections 1104, 1758 heading, (a) and (b)(1) and
5905 of Title 61 of the Pennsylvania Consolidated Statutes are
amended to read:
§ 1104. State recording system for application of restraints to
pregnant, laboring or postpartum 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 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:] Each custodian, as
defined by section 5905(e) (relating to healthy birth for
incarcerated prisoners and detainees), who applies restraints to
a pregnant, laboring or postpartum prisoner or detainee shall,
on a form prepared by the department, submit a written report of
the application of restraints to a staff person appointed by the
officer in charge of a correctional institution within two days
of use of the restraint on a pregnant, laboring or postpartum
prisoner or detainee. The staff person appointed under this
section shall deliver each written report of the use of
restraints to the officer in charge within two days of receiving
the report under this section. The officer in charge shall
deliver the reports in the following manner:
(1) [A] The officer in charge of a correctional
institution that is not operated, supervised or licensed by
the Department of [Public Welfare pursuant to] Human Services
under the act of June 13, 1967 (P.L.31, No.21), known as the
[Public Welfare] Human Services Code, shall [make the report]
deliver the reports on a monthly basis to the secretary
within 30 days of the end of the previous month.
(2) [A] The officer in charge of a correctional
institution that is operated, supervised or licensed by the
Department of [Public Welfare pursuant to] Human Services
under the [Public Welfare] Human Services Code shall [make
the report] deliver the reports on a monthly basis to the
Secretary of [Public Welfare] Human Services within 30 days
of the end of the previous month.
(b) Contents of written [findings] reports.--Written
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[findings of each restraint as] reports 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.]
for each restraint applied:
(1) the date and time restraints were applied and
removed;
(2) the number and type of restraints applied;
(3) the name of the prisoner or detainee on which
restraints were applied;
(4) the gestational period of the pregnant prisoner or
detainee;
(5) the name of the correctional institution of the
prisoner or detainee;
(6) the name of the staff member who applied the
restraints; and
(7) the staff member's justification for the
individualized determination to use restraints, including the
underlying facts that led to the determination:
(i) that the prisoner or detainee represented a
substantial risk of imminent flight that could not be
reasonably prevented by other means; or
(ii) that the prisoner or detainee posed an
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extraordinary, immediate and serious threat to
themselves, the staff of the correctional institution or
medical or other 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:
"Correctional institution." As defined in section 5905(e)
(relating to healthy birth for incarcerated prisoners and
detainees).
"Custodian." As defined in section 5905(e).
"Officer in charge." As defined in section 5905(e).
§ 1758. County recording system for application of restraints
to pregnant, laboring or postpartum prisoners or
detainees.
(a) General rule.--The application of restraints to a
pregnant, laboring or postpartum prisoner or detainee [occurring
pursuant] subject to section 5905 (relating to healthy birth for
incarcerated [women] prisoners and detainees) shall constitute
an incident that qualifies as an extraordinary occurrence that
must be reported to the department in the County Extraordinary
Occurrence Monthly Report. The provisions of this subsection
shall apply to county constables, police, sheriffs or other law
enforcement personnel.
(b) Information to be included in County Extraordinary
Occurrence Monthly Report.--
(1) Any and all incidents where the application of
restraints to a pregnant, laboring or postpartum prisoner or
detainee [pursuant] subject to section 5905 occurred must be
included in the County Extraordinary Occurrence Monthly
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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.] The report must include the
following for each restraint applied:
(i) the date and time restraints were applied and
removed;
(ii) the number and type of restraints applied;
(iii) the name of the prisoner or detainee on which
restraints were applied;
(iv) the gestational period of the pregnant prisoner
or detainee;
(v) the name of the correctional institution of the
prisoner or detainee;
(vi) the name of the staff member who applied the
restraints; and
(vii) the staff member's justification for the
individualized determination to use restraints, including
the underlying facts that led to the determination:
(A) that the prisoner or detainee represented a
substantial risk of imminent flight that cannot be
reasonably prevented by other means; or
(B) that the prisoner or detainee posed an
extraordinary, immediate and serious threat to
themselves, the staff of the correctional institution
or medical or other facility, other prisoners or
detainees or the public.
* * *
§ 5905. Healthy birth for incarcerated [women] prisoners and
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detainees.
(a) Duties of correctional institution.--[Consistent with
established policy and practice, it] It shall be the duty and
responsibility of the correctional institution and officers in
charge to:
(1) provide adequate personnel to monitor [the] and
promptly address the medical needs of a pregnant prisoner or
detainee:
(i) in the correctional institution;
(ii) during transport to and from [the] a medical
facility, court or other location; and
(iii) during [her] a pregnant prisoner or detainee's
stay at [the] a medical facility[.], court or other
location;
(2) provide annual training on the requirements of this
section to all personnel who will monitor pregnant prisoners
or detainees, including training consistent with the
guidelines developed by the Department of Human Services in
consultation with health care professionals with expertise in
pregnancy and postpartum recovery, which shall include:
(i) the general care of a pregnant individual;
(ii) the impact of restraints on a pregnant
individual and fetus;
(iii) how to identify certain symptoms of pregnancy
and postpartum complications that require immediate
referral to a health care professional;
(iv) the restrictions on use of restraints on
pregnant prisoners and detainees;
(v) circumstances under which the exceptions under
subsection (b)(2) would apply;
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(vi) in the case that an exception under subsection
(b)(2) applies, how to apply restraints in a way that
does not harm the prisoner, detainee or fetus;
(vii) the requirements to report and the information
required to be reported under sections 1104(b) (relating
to State recording system for application of restraints
to pregnant, laboring or postpartum prisoners or
detainees), 1758(b) (relating to county recording system
for the application of restraints to pregnant, laboring
or postpartum prisoners or detainees) and subsection (b)
(2.1); and
(viii) the right of a health care professional to
request that restraints not be used and the requirements
under subsection (c.1) to comply with such a request;
(3) adopt and implement a written policy consistent with
and reiterating the requirements of sections 1104, 1758 and
this section; and
(4) prepare and distribute written information to
pregnant and potentially pregnant prisoners and detainees
explaining their rights under this section, provided that
this obligation shall be satisfied by distribution of a fact
sheet prepared by the department or the Department of Human
Services that accurately sets forth the requirements of this
section.
(b) Restraint of pregnant, laboring and postpartum prisoners
and detainees.--
(1) Unless provided in paragraph (2), a correctional
institution and its personnel 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
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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.], laboring or postpartum within the correctional
institution's facilities or during transport to or a stay at
a medical facility, courthouse or other location. A prisoner
or detainee is known to be pregnant, laboring or postpartum
on the earliest date on which the custodian:
(i) receives medical confirmation of a prisoner or
detainee's status of being pregnant, laboring or
postpartum;
(ii) sees that a prisoner or detainee is visibly
pregnant, laboring or postpartum; or
(iii) has received a credible report of the prisoner
or detainee's status of being pregnant, laboring or
postpartum or of the prisoner or detainee's symptoms of
being pregnant, laboring or postpartum, including a
report from the prisoner or detainee;
(2) [Paragraph] Except as provided in paragraph (4) and
subsections (c) and (c.1), paragraph (1) shall not bar
reasonable restraint provided:
(i) the custodian or 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
[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,] that cannot be reasonably
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prevented by other means or poses an extraordinary,
immediate and serious threat to themselves, the staff of
the correctional institution or medical or other
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 after the restraint 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 after the incident occurs.]; and
(ii) except when prevented from doing so due to
exigent circumstances, the officer in charge approves the
use of the restraint.
(2.1) Whenever a prisoner or detainee is restrained
under paragraph (2), including in the event of exigent
circumstances, the assigned correctional institution staff or
other custodian shall report the incident to the correctional
institution staff assigned to receive the reports within two
days after the restraint occurs, on a form prepared by the
department for this purpose. The assigned staff person shall
deliver the written report to the officer in charge within
two days of receiving the report. This paragraph shall apply
even if the assigned custodian or correctional institution
staff is not employed by the correctional institution.
(3) If restraint 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 restraint should a release become medically necessary.
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The correctional institution staff under this paragraph shall
be female if practicable and preferred by the prisoner or
detainee; however, no correctional personnel shall be present
in the room during the prisoner's or detainee's examination,
labor, delivery or childbirth unless specifically requested
by medical personnel.
(4) [When a] A restraint is permitted under [this
section, a correctional institution shall use] paragraph (2)
only if the restraint is the least restrictive [restraint
necessary when the facility has actual or constructive
knowledge that a prisoner or detainee is in the second or
third trimester of pregnancy] method available.
(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
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.] restraints may not be used on a prisoner or
detainee at any time during pregnancy, labor or postpartum
period:
(1) abdomen, ankle, leg or waist restraints;
(2) restraint of the hands behind the back;
(3) four-point restraints;
(4) restraints attaching the prisoner or detainee to
another prisoner or detainee; or
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(5) tasers and stun guns.
(c.1) Medical request.--Notwithstanding subsection (b)(2),
on the request of a health care professional who is responsible
for the health and safety of a prisoner or detainee, a
correctional official or other custodian, as applicable, shall
refrain from using restraints on the prisoner or detainee or
shall immediately remove all restraints.
(c.2) Duties of officer in charge.--The officer in charge
shall:
(1) review and assess the appropriateness of the use of
restraints under this section and shall provide an assessment
to the custodian who used restraints;
(2) maintain reports of the use of restraints under this
section for a minimum of five years; and
(3) deliver reports of the use of restraints under this
section to the secretary or the Secretary of Human Services
consistent with section 1104(a) (relating to State recording
system for application of restraints to pregnant, laboring or
postpartum prisoners or detainees).
(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 on any
pregnant, laboring or postpartum 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 following shall apply:
(1) For each restraint, the following information shall
be included:
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(i) the date and time restraints were applied and
removed;
(ii) the number and type of restraints applied;
(iii) the name of the correctional institution of
the prisoner or detainee;
(iv) the job title and employer of the staff person
who applied the restraints; and
(v) the staff member's justification for the
individualized determination to use restraints, including
the particular factual circumstances that support a
determination that the prisoner or detainee fell under
the exception in subsection (b)(2).
(2) The secretary shall report on pregnant prisoners or
detainees in the custody of correctional institutions
operated, supervised or licensed by the department. If a
correctional institution fails to submit a report of
restraints used on pregnant, laboring or postpartum prisoners
or detainees during the preceding fiscal year, the secretary
shall:
(i) obtain a certification from the correctional
institution that the correctional institution did not use
any restraints on any pregnant, laboring or postpartum
prisoner or detainee during the preceding fiscal year;
and
(ii) include the certification under subparagraph
(i) in the secretary's report.
(3) 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 pursuant to]
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Human Services under the act of June 13, 1967 (P.L.31,
No.21), known as the [Public Welfare] Human Services Code.
[The reports] If a correctional institution does not submit a
report of restraints used on pregnant, laboring or postpartum
prisoners or detainees during the preceding fiscal year, then
the Secretary of Human Services shall:
(i) obtain a certification from the correctional
institution that the correctional institution did not use
restraints on a pregnant, laboring or postpartum prisoner
or detainee during the preceding fiscal year; and
(ii) include the certification in the Secretary of
Human Services' report.
(4) The annual reports submitted under this subsection
shall not contain any identifying information of any prisoner
or detainee.
(5) The annual reports submitted under this subsection
shall be posted on the [Governor's] department's publicly
accessible 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.
(d.1) Oversight.--The following shall apply:
(1) In addition to the department's inspection powers
and duties under section 1105(a)(2) (relating to powers and
duties of department), the department shall have the power
and duty to inspect county correctional institutions'
fulfillment of the requirements of this section.
(2) Consistent with section 402 of the act of April 9,
1929 (P.L.343, No.176), known as The Fiscal Code, the
Department of the Auditor General shall have the authority to
make a special audit of the department's affairs under this
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section.
(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 the state or any county or municipality that has the power to
detain and restrain a person under the laws of this
Commonwealth[.], including, but not limited to, State
correctional institutions, county correctional institutions,
juvenile detention facilities, police departments, constables
offices, sheriff's offices and private entities performing
contracts for the State, county or municipality.
"Custodian." Warden, sheriff, jailer, deputy sheriff, police
officer or other correctional or law enforcement officer having
actual custody of a pregnant, laboring or postpartum prisoner or
detainee.
"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.] commence, followed by delivery of the child and
placenta.
"Officer in charge." The warden, captain, superintendent or
other individual who is responsible for the supervision of a
correctional institution or of another custodian.
"Postpartum." The period of eight weeks following [delivery
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before a prisoner or detainee has been discharged from a medical
facility] labor.
"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 or
chemical 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 or drug or medication.
Section 2. This act shall take effect in 60 days.
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