[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3616 Introduced in Senate (IS)]

<DOC>






115th CONGRESS
  2d Session
                                S. 3616

 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 SENATE OF THE UNITED STATES

                           November 14, 2018

  Mr. Paul (for himself and Mrs. Gillibrand) introduced the following 
    bill; which was read twice and 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.
            (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.
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