Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act or the Pregnant Women in Custody Act
This bill amends the federal criminal code to limit the use of restraints and restrictive housing for prisoners who are pregnant or in postpartum recovery.
Additionally, it requires the Bureau of Justice Statistics to include, in the National Prison Statistics Program and Annual Survey of Jails, statistics on the health needs of incarcerated pregnant women.
A Bureau of Prisons facility must provide appropriate services and programs to address the health and safety needs of women inmates related to pregnancy and childbirth.
The Government Accountability Office must study the services and protections for pregnant incarcerated women in state and local correctional settings.
[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6805 Introduced in House (IH)]
<DOC>
115th CONGRESS
2d Session
H. R. 6805
To prohibit the use of restraints and restrictive housing on inmates
during the period of pregnancy, labor and postpartum recovery, to
collect data on incarcerated pregnant women in the United States and
the results of such pregnancies, to address the health needs of
incarcerated women related to pregnancy and childbirth, and for other
purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 13, 2018
Ms. Bass (for herself, Mrs. Love, Ms. Clark of Massachusetts, Mrs.
McMorris Rodgers, Ms. Frankel of Florida, Ms. McSally, Mrs. Lawrence,
Ms. Stefanik, Ms. Roybal-Allard, Ms. Granger, Ms. Lofgren, Mrs.
Comstock, Ms. Jackson Lee, Mrs. Brooks of Indiana, Ms. Judy Chu of
California, Ms. Jenkins of Kansas, Ms. Jayapal, Mrs. Noem, Mrs.
Napolitano, Mrs. Black, Mrs. Wagner, Ms. Kaptur, Ms. Herrera Beutler,
Ms. Matsui, Ms. Ros-Lehtinen, Ms. Brownley of California, Mrs. Handel,
Ms. Sewell of Alabama, Ms. Cheney, Ms. Fudge, Mrs. Roby, Ms. McCollum,
Mrs. Walorski, Mrs. Dingell, Ms. Speier, Mrs. Watson Coleman, Ms.
Norton, Ms. Lee, Ms. Moore, Ms. Clarke of New York, Ms. Pingree, Ms.
Michelle Lujan Grisham of New Mexico, Ms. Wilson of Florida, Ms. Titus,
Ms. Barragan, Ms. Hanabusa, Ms. Eddie Bernice Johnson of Texas, Mrs.
Davis of California, Ms. Velazquez, Ms. Bonamici, Mrs. Bustos, Ms. Esty
of Connecticut, Ms. Tsongas, Ms. Meng, Ms. Sinema, Ms. Blunt Rochester,
Ms. DeLauro, Ms. Adams, and Ms. Schakowsky) introduced the following
bill; which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To prohibit the use of restraints and restrictive housing on inmates
during the period of pregnancy, labor and postpartum recovery, to
collect data on incarcerated pregnant women in the United States and
the results of such pregnancies, to address the health needs of
incarcerated women related to pregnancy and childbirth, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting the Health and Wellness
of Babies and Pregnant Women in Custody Act'' or as the ``Pregnant
Women in Custody Act''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The number of incarcerated women in the United States
increased by 700 percent from 1980 to 2014.
(2) Justice-involved women are less likely to be violent or
attempt to escape. The majority of female offenders in Federal
custody are housed in minimum or low security facilities.
(3) Eighty percent of all incarcerated women have children
under the age of 18.
(4) The number of incarcerated pregnant women is unknown,
but it is estimated that 2,000 women give birth in custody each
year.
(5) Prenatal care significantly improves outcomes for
pregnant women, adolescents, and their babies.
(6) Availability of birth coach and doula services to
incarcerated pregnant women has been associated with a drop in
the rate of Caesarean section births from 63 percent to 3
percent.
(7) Birth by Caesarean section on average can cost $7,000
to $10,000 more than a natural birth.
(8) Participation in post-delivery mother-infant residency
or nursery programs is associated with lower recidivism rates,
reduced risk of babies entering foster care, and improved odds
that mothers and their babies will remain together after the
mother's period of incarceration.
(9) Use of restrictive housing and restraints on
incarcerated pregnant women is extremely dangerous to the
health of mothers, fetuses, and infants. Yet, these practices
remain legal and practiced widely in some States.
(10) Use of restrictive housing for pregnant women creates
a serious risk of mental and physical harm and can result in
deprivation of critical nutritional and medical care.
(11) Use of restraints can cause injuries to mothers and
their babies including physical trauma due to falls, increased
pain during labor from bone separation and muscle tears,
blocked circulation, and miscarriage.
(12) The U.S. Department of Justice has stated its
opposition to the use of restrictive housing with pregnant
prisoners, but no State or Federal laws exist that place limits
on the use of restrictive housing with pregnant prisoners.
(13) Some States provide strong or comprehensive
protections in State prisons against the use of restraints on
incarcerated women during pregnancy, labor, childbirth, and
postpartum recovery.
SEC. 3. DATA COLLECTION.
(a) In General.--Beginning not later than one year after the date
of the enactment of this Act, pursuant to the authority under section
302 of the Omnibus Crime Control and Safe Streets Act of 1968 (42
U.S.C. 3732), the Director of the Bureau of Justice Statistics shall
include in the National Prisoner Statistics Program and Annual Survey
of Jails statistics relating to the health needs of incarcerated
pregnant women in the criminal justice system at the Federal, State,
tribal, and local levels, including--
(1) the number of women known to be pregnant while in
custody, the outcomes of such pregnancies, and whether the
delivery was induced or by caesarian section;
(2) demographic and other information about incarcerated
women who are pregnant, in labor, or in postpartum recovery,
including the race, ethnicity, and age of the pregnant woman;
(3) the provision of pregnancy care and services provided
for such women, including--
(A) whether prenatal, delivery and post-delivery
check-up visits were scheduled and provided;
(B) whether a social worker, psychologist, doula or
other support person, or pregnancy or parenting program
was offered and provided during pregnancy and delivery;
(C) whether a nursery or residential program to
keep mothers and infants together post-delivery was
offered and provided;
(D) the number of days the mother stayed in the
hospital post-delivery; and
(E) the number of days the infant remained with the
mother post-delivery;
(4) the location of the nearest hospital with a licensed
obstetrician-gynecologist in proximity to where the inmate is
housed and the length of travel required to transport the
inmate;
(5) whether a written policy or protocol is in place to
respond to unexpected childbirth deliveries of pregnant inmates
and for inmates experiencing labor or other medical
complications related to such pregnancy when they are not
located at a hospital; and
(6) the number of incidents in which an incarcerated woman
who is pregnant, in labor, or in postpartum recovery was
restrained or placed in restrictive housing, the reason for
such restriction or placement, the type of restraints used, and
the circumstances under which each incident occurred, including
the duration of time in restrictive housing, during--
(A) pregnancy;
(B) labor;
(C) delivery; and
(D) postpartum recovery.
(b) Personally Identifiable Information.--Data collected under this
paragraph shall not contain any personally identifiable information of
any prisoner.
SEC. 4. CARE FOR FEDERALLY INCARCERATED WOMEN RELATED TO PREGNANCY AND
CHILDBIRTH.
(a) In General.--The head of each Bureau of Prisons women's
facility shall ensure that appropriate services and programs are
provided to women in custody at the facility, including pre-trial and
contract facilities, to address the health and safety needs of inmates
related to pregnancy and childbirth.
(b) Services and Programs Provided.--The head of each Bureau of
Prisons women's facility shall ensure that:
(1) every woman of reproductive age in custody at the
facility has access to pregnancy testing, contraception, and
testing for sexually transmitted diseases;
(2) upon learning of an inmate's pregnancy, either by self-
report or clinical diagnostics and assessment, medical staff
immediately notify an assigned case manager and social worker
to ensure all appropriate protocols directly pertaining to the
safety and well-being of the pregnant inmate are provided and
followed, including the assessment of undue safety risks and
necessary changes to accommodate where and when appropriate, as
it relates to--
(A) strip searches;
(B) housing or lower bunk for safety reasons;
(C) medically recommended bedding or clothing;
(D) additional food allotment or modifications to
ensure adequate nutrition and health, including dietary
supplements and additional calories; and
(E) modified recreation and transport, in
accordance with standards within the obstetrical and
gynecological care community, to prevent overexertion
or prolonged periods of sedentary movement;
(3) either at intake or not later than 48 hours after the
confirmation of a prisoner's pregnancy by a health care
professional, the inmate is provided prenatal education,
counseling, and birth support services provided by a licensed
or certified provider trained to provide such service,
including information about their parental rights and their
child's rights;
(4) every woman in custody at the facility, who is pregnant
or gave birth within the previous six months, is provided--
(A) appropriate educational materials, resources,
and services related to pregnancy, child birth, and
parenting, including nutrition, health and safety
risks, breast feeding, and postpartum depression; and
(B) prenatal education, counseling, and birth
support services provided by a licensed or certified
provider trained to provide such services; and
(5) every woman in custody at the facility, who is
pregnant, gave birth or experienced any other pregnancy outcome
within the previous 6 months is provided--
(A) evidence-based screening, assessment and
treatment, including psychosocial interventions and
medication, for mental health and substance use needs;
and
(B) evidence-based therapeutic care for postpartum
depression or depression related to pregnancy or
pregnancy loss.
(c) Exception.--In carrying out subsection (b)(1), the head of the
Bureau of Prisons women's facility may excuse individual officers or
employees, on a case by case basis, from carrying out such actions on
the basis of sincerely held religious objections to such actions.
SEC. 5. USE OF RESTRICTIVE HOUSING AND RESTRAINTS ON INMATES DURING
PREGNANCY, LABOR AND POSTPARTUM RECOVERY PROHIBITED.
(a) In General.--Chapter 317 of title 18, United States Code, is
amended by inserting after section 4321 the following:
``Sec. 4322. Use of restraints and restrictive housing on prisoners
during the period of pregnancy, labor, and postpartum
recovery prohibited and to improve pregnancy care for
women in Federal prisons
``(a) Prohibition.--Except as provided in subsection (b), beginning
on the date on which pregnancy is confirmed by a healthcare
professional, and ending at the conclusion of postpartum recovery, a
prisoner in the custody of the Bureau of Prisons, or in the custody of
the United States Marshals Service pursuant to section 4086, shall not
be placed in restraints or held in restrictive housing.
``(b) Exceptions.--
``(1) Use of restraints.--The prohibition under subsection
(a) related to the use of restraints shall not apply if--
``(A) the senior Bureau of Prisons or the United
States Marshal Service official overseeing women's
health and services, in consultation with senior
officials in health services, makes an individualized
determination that the prisoner--
``(i) is an immediate and credible flight
risk that cannot reasonably be prevented by
other means; or
``(ii) poses an immediate and serious
threat of harm to herself or others that cannot
reasonably be prevented by other means; or
``(B) a health care professional responsible for
the health and safety of the prisoner determines that
the use of medical restraints is appropriate for the
medical safety of the prisoner, and such professional
reviews such determination not later than every 6 hours
after such use is initially approved until such use is
terminated.
``(2) Least restrictive restraints.--In the case that
restraints are used pursuant to an exception under paragraph
(1), only the least restrictive restraints necessary to prevent
the harm or risk of escape described in paragraph (1) may be
used.
``(A) Application.--The exceptions under paragraph
(1) may not be applied--
``(i) to place restraints around the
ankles, legs, or waist of a prisoner;
``(ii) to restrain a prisoner's hands
behind her back;
``(iii) to restrain a prisoner using four-
point restraints; or
``(iv) to attach a prisoner to another
prisoner.
``(B) Medical request.--Notwithstanding paragraph
(1), upon the request of a healthcare professional who
is responsible for the health and safety of a prisoner,
a corrections officer or United States marshal, as
applicable, shall refrain from using restraints on the
prisoner or remove restraints used on the prisoner.
``(C) Situational use.--The individualized
determination described under paragraph (1) shall only
apply to a specific situation and must be reaffirmed
through the same process, to use restraints again in
any future situation involving the same prisoner.
``(3) Access to care.--Immediately upon the cessation of
the use of restraints or restrictive housing as outlined in
this subsection, the Bureau of Prisons or United States Marshal
Service shall provide the prisoner with immediate access to
physical and mental health assessments and all indicated
treatment.
``(4) Use of restrictive housing.--The prohibition under
subsection (a) related to restrictive housing shall not apply
if the senior Bureau of Prisons official or United States
Marshals Service official overseeing women's health and
services, in consultation with senior officials in health
services, makes an individualized determination that
restrictive housing is required as a temporary response to
behavior that poses a serious and immediate risk of physical
harm and reviews and affirms that determination at least every
24 hours.
``(c) Reports.--
``(1) Report to the director and healthcare professional
after the use of restraints.--If an official identified in
subsection (b)(1), correctional officer, or United States
Marshal uses restraints on a prisoner under subsection (b)(2),
that official, including a designated correctional officer or
marshal shall submit, not later than 30 days after placing the
prisoner in restraints, to the Director of the Bureau of
Prisons or the Director of the United States Marshals Service,
as applicable, and to the healthcare professional responsible
for the health and safety of the prisoner, a written report
which describes the facts and circumstances surrounding the use
of restraints, and includes--
``(A) the reasoning upon which the determination to
use restraints was made;
``(B) the details of the use of restraints,
including the type of restraints used and length of
time during which restraints were used;
``(C) any resulting physical effects on the inmate,
fetus, or the neonate observed by or reported by the
qualified health care professional; and
``(D) a description of all attempts to use
alternative interventions and sanctions before the
restraints were used.
``(2) Report to the director and healthcare professional
after placement in restrictive housing.--If an official
identified in subsection (b)(3), correctional officer, or
United States Marshal places a prisoner in restrictive housing
under subsection (b)(3), that official, correctional officer,
or United States Marshal shall submit, not later than 30 days
after placing the prisoner in restrictive housing, to the
Director of the Bureau of Prisons or the Director of the United
States Marshals Service, as applicable, and to the healthcare
professional responsible for the health and safety of the
prisoner, a written report which describes the facts and
circumstances surrounding the restrictive housing placement,
and includes--
``(A) the reasoning upon which the determination
for the placement was made;
``(B) the details of the placement, including
length of time of placement and how frequently and how
many times the determination was made subsequent to the
initial determination to continue the restrictive
housing placement; and
``(C) any resulting physical effects on the inmate,
fetus, or the neonate observed by or reported by
qualified health care professional.
``(3) Supplemental report to the director.--Upon receipt of
a report under subsection (c), the healthcare professional
responsible for the health and safety of the prisoner shall
submit to the Director such information as the healthcare
professional determines is relevant to the use of restrictive
housing or restraints on the prisoner.
``(4) Report to judiciary committees.--
``(A) In general.--Not later than 1 year after the
date of enactment of this Act, and annually thereafter,
the Director of the Bureau of Prisons and the Director
of the United States Marshals Service shall each submit
to the Judiciary Committee of the Senate and of the
House of Representatives a report that certifies
compliance with this section and includes the
information required to be reported under paragraphs
(1) and (2).
``(B) Personally identifiable information.--The
report under this paragraph shall not contain any
personally identifiable information of any prisoner.
``(d) Notice.--Not later than 24 hours after the confirmation of a
prisoner's pregnancy by a health care professional, that prisoner shall
be notified, orally and in writing, by an appropriate health care
professional, corrections official or officer, or United States
Marshal, as applicable, of--
``(1) the restrictions on the use of restraints and
restrictive housing placements under this section;
``(2) the prisoner's right to make a confidential report of
a violation of restrictions on the use of restraints or
restrictive housing placement; and
``(3) that the facility staff have been advised of all
rights of the prisoner under subsection (a).
``(e) Violation Reporting Process.--Not later than 180 days after
the date of enactment of this Act, the Director of the Bureau of
Prisons, and the Director of the United States Marshals Service shall
establish processes through which a prisoner may report a violation of
this section.
``(f) Notification of Rights.--The head of the Bureau of Prisons
facility where a pregnant woman is in custody shall notify all facility
staff of the pregnancy and of the pregnant prisoner's rights under
subsection (a).
``(g) Retaliation.--It shall be unlawful for any Bureau of Prisons
or United States Marshal Service employee to retaliate against a
prisoner for reporting under the provisions of subsection (d) a
violation of subsection (a).
``(h) Education.--
``(1) In general.--Not later than 180 days after the date
of enactment of this Act, the Director of the Bureau of Prisons
and the Director of the United States Marshals Service shall
each develop education guidelines regarding the physical and
mental health needs of pregnant prisoners, and the use of
restrictive housing placements and the use of restraints on
female prisoners during the period of pregnancy, labor, and
postpartum recovery, and shall incorporate such guidelines into
appropriate education programs. Such education guidelines shall
include--
``(A) how to identify certain symptoms of pregnancy
that require immediate referral to a health care
professional;
``(B) in the case that an exception under
subsection (b)(1) applies, how to apply restraints in a
way that does not harm the prisoner, the fetus, or the
neonate;
``(C) circumstances under which the exceptions
under subsection (b)(3) would apply;
``(D) the information required to be reported under
subsection (d); and
``(E) the right of a health care professional to
request that restraints not be used, and the
requirement under subsection (b)(2)(B) to comply with
such a request.
``(2) Development of guidelines.--In developing the
guidelines required by paragraph (1), the Directors shall each
consult with health care professionals, professional
associations, and United States Department of Health and Human
Services entities with expertise in caring for women during the
period of pregnancy and postpartum recovery.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 317 of title 18, United States Code, is amended by adding after
the item relating to section 4321 the following:
``4322. Use of restraints and restrictive housing on prisoners during
the period of pregnancy, labor, and
postpartum recovery prohibited and to
improve pregnancy care for women in Federal
prisons.''.
SEC. 6. DEFINITIONS.
(a) In Custody.--The term ``in custody'' means, with regard to an
individual, that the individual is under the supervision of a Federal,
State, tribal or local correctional facility, including pretrial and
contract facilities, and juvenile or medical or mental health
facilities.
(b) Other Pregnancy Outcome.--The term ``other pregnancy outcome''
means a pregnancy that ends in stillbirth, miscarriage, ectopic
pregnancy, or other non-live birth outcome.
(c) Postpartum Recovery.--The term ``postpartum recovery'' means
the eight-week period, or longer as determined by the healthcare
professional responsible for the health and safety of the prisoner,
following delivery, and shall include the entire period that the
prisoner is in the hospital or infirmary.
(d) Prisoner or Inmate.--The term ``prisoner'' or ``inmate'' means
a person who has been sentenced to a term of imprisonment pursuant to a
conviction for a Federal criminal offense, or a person in the custody
of the Bureau of Prisons, including a person in a Bureau of Prisons
pre-trial or contracted facility, or a person in the custody of the
United States Marshal Service, including a person in the United States
Marshal contracted facility.
(e) Restraints.--The term ``restraints'' means any physical or
mechanical device used to control the movement of a prisoner's body,
limbs, or both.
(f) Restrictive Housing.--The term ``restrictive housing'' means
any type of detention that involves--
(1) removal from the general inmate population, whether
voluntary or involuntary;
(2) placement in a locked room or cell, whether alone or
with another inmate; and
(3) inability to leave the room or cell for the vast
majority of the day.
SEC. 7. SENSE OF CONGRESS.
It is the sense of Congress that States should enact comprehensive
laws to ensure that the health needs of incarcerated women, including
women during the period of pregnancy and postpartum recovery, are met,
and that such laws should include a prohibition of the use of
restrictive housing and restraints on inmates during the period of
pregnancy and postpartum recovery that is substantially similar to the
restriction under section 4322 of title 18, United States Code.
SEC. 8. EDUCATION AND TECHNICAL ASSISTANCE.
The Director of the Bureau of Justice Assistance, in consultation
with the Secretary of Health and Human Services, shall provide
education and technical assistance, in conjunction with the appropriate
public agencies, at State and local correctional facilities that house
women and facilities in which incarcerated women labor and give birth,
in order to--
(1) educate the employees of such facilities, including
health personnel, on the dangers and potential mental health
consequences associated with the use of restrictive housing and
restraints on incarcerated women during pregnancy, labor, and
postpartum recovery, and on alternatives to the use of
restraints and restrictive housing placement;
(2) foster a culture of safe, high-quality care in these
facilities that voids the use of restrictive housing and
restraints on incarcerated women during pregnancy, labor, and
postpartum recovery;
(3) ensure that in States which have in place a law or
policy that restricts the use of restrictive housing and
restraints on incarcerated women during pregnancy, labor, and
postpartum recovery--
(A) employees at such facilities can comply with
the restrictions in an effective manner; and
(B) administrators at such facilities--
(i) understand their responsibilities, and
enforce the responsibilities of their employees
in carrying out the restrictions on the use of
restraints and restrictive housing;
(ii) establish an official process by which
an incarcerated woman protected by the State's
restriction on the use of restraints and
restrictive housing can report a violation of
their rights under such law or policy;
(iii) provide incarcerated women under
their supervision with clear information
regarding their rights under the State's
restrictions, including information on how to
report violations of those rights; and
(iv) provide to healthcare professionals
who care for incarcerated women information
relating to the rights of such women under the
laws of the State, including the rights of such
health care professionals, if any, to require
that restraints be removed or the use of
restrictive housing be suspended; and
(4) ensure that health personnel outside of correctional
facilities understand their right to inform correctional
officers to remove restraints, if applicable.
SEC. 9. PRIORITY FUNDING FOR STATES THAT PROVIDE PROGRAMS AND SERVICES
FOR INCARCERATED WOMEN RELATED TO PREGNANCY AND
CHILDBIRTH.
The Attorney General shall take into consideration when determining
the amount provided to a State or locality under a covered grant
program in accordance with federally authorized grant programs, if the
State or locality has enacted and implemented services or pilot
programs for incarcerated pregnant women aimed at enhancing the safety
and wellness of pregnant women in custody, including providing services
for obstetrical and gynecological care, resources and support services
for nutrition and physical and mental health, residential substance use
treatment, and post-delivery nursery care or residential programs to
keep the infant with the mother and to promote and facilitate bonding
skills for pregnant inmates.
SEC. 10. GOVERNMENT ACCOUNTABILITY OFFICE STUDY.
The Government Accountability Office (GAO) shall conduct a study of
services and protections provided for pregnant incarcerated women in
local and State correctional settings, including policies on
obstetrical and gynecological care, education on nutrition, health and
safety risks associated with pregnancy, mental health and substance use
treatment, access to prenatal and post-delivery support services and
programs, the use of restraints and restrictive housing placement, and
the extent to which the intent of such policies are fulfilled.
<all>
Introduced in House
Introduced in House
Referred to the House Committee on the Judiciary.
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