[House Report 116-536]
[From the U.S. Government Publishing Office]
116th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 116-536
======================================================================
PROTECTING THE HEALTH AND WELLNESS OF BABIES AND PREGNANT WOMEN IN
CUSTODY ACT
_______
September 24, 2020.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Nadler, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 7718]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 7718) to address the health needs of incarcerated
women related to pregnancy and childbirth, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 9
Committee Consideration.......................................... 9
Committee Votes.................................................. 9
Committee Oversight Findings..................................... 9
New Budget Authority and Tax Expenditures and Congressional
Budget Office Cost Estimate.................................... 9
Duplication of Federal Programs.................................. 10
Performance Goals and Objectives................................. 10
Advisory on Earmarks............................................. 10
Section-by-Section Analysis...................................... 10
Changes in Existing Law Made by the Bill, as Reported............ 13
Purpose and Summary
H.R. 7718, the ``Protecting the Health and Wellness of
Babies and Pregnant Women in Custody Act,'' would: (1) require
the Bureau of Justice Statistics to collect and report data
relating to the demographics and physical and mental health
needs of incarcerated women who are pregnant, in labor, or in
post-partum recovery, at the Federal, State, tribal, and local
levels; (2) ensure that appropriate medical services and
programs related to pregnancy and childbirth are provided in
the Bureau of Prisons (BOP) and made available to women in
custody; (3) prohibit the use of restraints or restrictive
housing, while in BOP or U.S. Marshals Service custody, during
the period of pregnancy, labor, and postpartum recovery, unless
these measures are necessary; (4) provide education and
technical assistance by the National Institute of Corrections
to state and local corrections facilities on appropriate
medical care for pregnant women; (5) ensure training of BOP
correctional officers at facilities housing women and of deputy
U.S. Marshals, on the requirements of the bill; (6) order GAO
studies on services and protections provided for pregnant
incarcerated women in local and State correctional settings and
in Federal pretrial detention facilities; and (7) authorize the
Attorney General to make grants to State, tribal, and local
governments, to promote and support the health needs of
incarcerated pregnant women.
Background and Need for the Legislation
A. The Rise of Women and Girls in the Criminal Justice System
Over the past four decades, the total U.S. prison
population has skyrocketed. There are almost 2.3 million people
currently in our nation's prisons and jails,\1\ which
represents a more than 500% increase over the last 40 years.
During the period from 1980 to the present, the federal prison
population has grown from approximately 25,000 to 180,000--an
increase of over 600%.\2\ A topic that is not as widely
discussed is the fact that women are the fastest-growing
segment of the incarcerated population.\3\ In the same time
period, the number of women in the state prison population has
grown by 834%, at more than double the pace of men.\4\
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\1\Pete Wagner & Wendy Sawyer, Mass Incarceration: The Whole Pie
2019, Prison Policy Initiative (Mar, 19, 2019), https://
www.prisonpolicy.org/reports/pie2019.html.
\2\Federal Bureau of Prisons, Statistics: Total Federal Inmates,
https://www.bop.gov/about/statistics/population_statistics.jsp.
\3\Wendy Sawyer, The Gender Divide: Tracking Women's State Prison
Growth, Prison Policy Initiative (Jan. 9, 2019), https://
www.prisonpolicy.org/reports/women_overtime.html.
\4\Id.
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Today, the overall incarcerated population has begun to
decrease slightly, although almost all of the reduction has
been among men, and the proportion of incarcerated women
remains on the rise.\5\ Since 2000, the jail incarceration rate
for women has risen 26% while the rate for men has fallen by
5%.\6\
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\5\Id.
\6\Prison Policy Initiative, State Policy Drivers of Prison Growth,
https://www.prisonpolicy.org/images/women_overtime_rates_1922_2015.png.
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In addition, at the present time, there are more women in
prison than at any point in U.S. history. Nationally, 64 out of
every 100,000 women were in prison in 2016.\7\ Since 2013, the
percentage of women prosecuted federally has consistently
hovered around 13 percent.\8\ At the state level, the rate at
which women are incarcerated varies greatly. The state with the
highest rate of female imprisonment is Oklahoma and the states
with the lowest incarceration rates for women are Rhode Island
and Massachusetts.\9\ In 35 states, women's incarceration
numbers have been higher than men's, and in a few states, the
growth of women's prison populations have counteracted any
reductions in men's incarceration numbers.\10\
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\7\7 The Sentencing Project, Incarcerated Women and Girls (May 10,
2018), https://www.sentencingproject.org/publications/incarcerated-
women-and-girls/.
\8\U.S. Sentencing Commission, Quick Facts--Women in the Federal
Offender Population (July 2018), https://www.ussc.gov/sites/default/
files/pdf/research-and-publications/quick-facts/
Female_Offenders_FY17.pdf.
\10\Sawyer, supra note 3.
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Futher, women in jail are the fastest growing correctional
population in the country, increasing 14-fold between 1970 and
2014.\11\ This trend is even greater in small counties, where
there has been a 31-fold increase between 1970 and 2014.\12\ A
Significantly, nearly half of all incarcerated women are held
in jails.\13\
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\11\Vera Institute, Overlooked: Women and Jails in an Era of Reform
(Apr. 2016), https://storage.googleapis.com/vera-web-assets/downloads/
Publications/overlooked-women-and-jails-report/legacy_downloads/
overlooked-women-and-jails-report-updated.pdf.
\12\Id. at 6.
\13\ Aleks Kajstura, Women's Mass Incarceration: The Whole Pie 2018
(Nov. 13, 2018), Prison Policy Initiative, https://
www.prisonpolicy.org/reports/pie2018women.html.
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The explanation for exactly why women's representation in
the criminal justice system has grown at twice the pace of
men's does not yet exist because data on women have long been
obscured by the larger scale of men's incarceration.\14\ While
policy makers have traditionally overlooked incarcerated women,
this policy of neglect cannot continue as the number of women
in prisons continues to increase.\15\
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\14\ Id.
\15\ Kerry Blakinger, Can We Build a Better Women's Prison, Wash.
Post Mag. (Oct. 28, 2019), https://www.washingtonpost.com/magazine/
2019/10/28/prisons-jails-are-designed-men-can-we-build-better-womens-
prison/?arc404=true.
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B. Pregnant Women in Prison
It is difficult to know precisely how many pregnant women
are in prison, and their pregnancy outcomes, because most of
the data available is out of date and the methodology for
gathering this information varies.\16\ Data on maternal health
and pregnancy outcomes are not recorded in national health
statistics databases and there is no federal agency that
collects data on pregnancy in prison.\17\ As Dr. Carolyn
Sufrin, an obstetrician and researcher at Johns Hopkins School
of Medicine stated in testimony to the U.S. Commission on Civil
Rights: ``Women who don't count are not counted. That is the
lack of any comprehensive or updated statistics about pregnancy
among women behind bars signals the systematic disregard in the
carceral system, and indeed our country, for incarcerated
pregnant people''.1A\18\ That said, most studies find that
somewhere between 3% and 6% of women entering the prison system
are pregnant, with the highest rates of pregnancies being in
local jails.\19\ Statistics from the Bureau of Prisons show
that there were 171 pregnancies in federal prison in 2018.\20\
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\16\ Carolyn Sufrin et al., Pregnancy Outcomes in US Prisons, 2016-
2017, Am. J. of Pub. Health, Vol. 106, No. 20 (May 2019) (hereinafter
``Pregnancy Outcomes'').
\17\Id.
\18\U.S. Comm'n on Civil Rights, Women in Prison: Seeking Justice
Behind Bars at 101 (Feb. 2020) (hereinafter ``Women in Prison'').
\19\E. Ann Carson, Prisoners in 2014, Bureau of Justice Statistics,
Sep. 2015, https://www.bjs.gov/content/pub /pdf/p14.pdf (noting that in
a 2004 survey, 3% of women in federal prisons and 4% of state prisoners
were pregnant at their intake); see also Am. College of Obstetricians
and Gynecologists, Health Care for Pregnant and Postpartum Incarcerated
Women and Adolescent Females, Committee Opinion No. 511 (Nov. 2011),
https://www.acog.org/-/media/project/acog/acogorg/clinical/files/
committee-opinion/articles/2011/11/health-care-for-pregnant-and-
postpartum-incarcerated-women-and-adolescent-female.pdf (stating that
6-10% of incarcerated women are pregnant, with most pregnancies
concentrated in local jails.)
\20\ E. Ann Carson, Data Collected Under the First Step Act 2019,
Bureau of Justice Statistics (Mar. 2020), https://www.bjs.gov/content/
pub/pdf/dcfsa19.pdf
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C. Prenatal Care in Prison
United States prisons and jails are required to provide
adequate health care to people in their care;\21\ however, as
with most aspects of prison, correctional health care systems
were originally created to serve a predominantly male
population.\22\ While the prison health care system is barely
adequate for men, it fails to meet incarcerated women's basic
needs.\23\ The situation is even more dire for pregnant women
in prison who have additional and unique health needs.
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\21\See Estelle v. Gamble, 429 U.S. 97, 104 (1976).
\22\Penal Reform International, Women in Prison: Incarcerated in a
Man's World, Penal Reform Briefing No.3 (2008), at 3.
\23\ Women in Prison, at 98-99.
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A significant portion of women come into the prison system
with a history of poverty, substance abuse, and trauma and
abuse.\24\ Women who enter prison are also less likely to have
had access to regular health care before their incarceration,
especially appropriate prenatal care.\25\ Moreover, women in
prison are more likely to suffer from undiagnosed chronic
illnesses, such as diabetes and high blood pressure, that can
cause a high-risk pregnancy.\26\ Despite the presence of these
risk factors, most jails and prisons in most states do not
screen women at intake, for pregnancy.\27\
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\24\Pregnancy Outcomes, at 799
\25\25 The Rebecca Project for Human Rights & National Women's Law
Center, Mothers Behind Bars: A State-by-State Report Card and Analysis
of Federal Policies on Conditions of Confinement for Pregnant and
Parenting Women and the Effect on their Children, at 11 (Oct. 2010)
(hereinafter ``Mothers Behind Bars''), https://www.nwlc.org/sites/
default/files/pdfs/mothersbehindbars2010.pdf.
\26\Id.
\27\ Laura M. Maruschak, Medical Problems of Jail Inmates (NCJ-
210696), Bureau of Justice Statistics Special Report. U.S. Dep't of
Just. (2006), http://www.bjs.gov/content/pub/pdf/mpji.pdf.
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Although most state prison systems require some form of
medically provided prenatal care, the level of care varies
widely from state to state.\28\ Forty-three states do not
require medical examinations as part of prenatal care.\29\
Forty-one states do not require prenatal nutrition counseling
or the provision of appropriate nutrition to incarcerated
women.\30\ Additionally, there are no detailed federal
standards to ensure that women are actually receiving
appropriate care. This helps to explain why a survey by the
Bureau of Justice Statistics found that only half (54%) of
pregnant women in prison reported receiving some form of
prenatal care while incarcerated.\31\ More alarming, 45 states
do not have arrangements with local hospitals for
deliveries.\32\
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\28\Mothers Behind Bars, at 6.
\29\Id.
\30\Id.
\31\See Laura M. Maruschak, Medical Problems of Prisoners, Bureau
of Justice Statistics, U.S. Dep't of Just. (last revised Apr. 22,
2008), https://www.bjs.gov/content/pub/pdf/mpp.pdf.
\32\Mothers Behind Bars, at 6.
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In addition to proper medical care, incarcerated pregnant
women also need proper nutrition in order to have a healthy
pregnancy. A pregnant woman needs to eat an extra 300 calories
a day consisting of a balanced diet of grains, fruits, and
vegetables.\33\ Despite these minimum recommended nutritional
guidelines, far too many pregnant women in prison do not have
access to appropriate nutrition. For example, in one prison in
Arizona, pregnant women were provided only an extra peanut
butter sandwich and a carton of milk.\34\
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\33\American Pregnancy Association, Pregnancy Nutrition, https://
americanpregnancy.org/pregnancy-health/pregnancy-nutrition/.
\34\ Lauren Castle, Arizona Prisons Have a History of Women Giving
Birth in their Cells, Ariz. Republic (June 4, 2019), https://
www.azcentral.com/story/news/local/arizona/2019/06/04/arizona-prisons-
history-women-giving-birth-cells-health-care-department-corrections/
1306184001/.
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Failure to provide comprehensive health care to pregnant
women leads to poor health outcomes for both the mother and the
child, including early labor and low birth weight.\35\ Babies
born with a low birth weight are at increased risk for a
variety of developmental problems related to health,
psychological adjustment, and intellectual functioning.\36\
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\35\Kenneth Leveno, Prenatal Care and the Low Birth Weight Infant,
66 J. Amer. Coll. Obstetricians and Gynecologists No. 5 (Nov. 1985), at
1.
\36\Stephen Morse, et al., Early School-age Outcomes of Late
Preterm Infants, Pediatrics (Apr. 2009).
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D. Use of Restraints
Prisons have routinely used restraints, also known as
shackles, on both men and women while they receive medical
care. While this practice is gender neutral, it fails to
account for the unique medical needs of pregnant women. The use
of restraints, often referred to as ``shackling,'' has serious
health impacts on pregnant women, both before and during labor
as well as during the postpartum period.
According to the American Medical Association, ``us[ing]
shackles to restrain a pregnant woman during the birthing
process is a barbaric practice that needlessly inflicts
excruciating pain and humiliation.''\37\ The use of shackles
during labor exacerbates pain, inhibits diagnosis of
complications, and limits movement during the birthing
process.\38\ Shackles also impede a doctor's ability to
diagnose and treat labor complications, not to mention making
it difficult to perform any emergency life-saving
procedures.\39\
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\37\Amer. Med. Ass'n, An ``Act to Prohibit the Shackling of
Pregnant Prisoners'' Model State Legislation, file:///C:/Users/ebayisa/
Downloads/shackling-pregnant-prisoners-issue-brief%20(11).
pdf.
\38\Amer. Coll. of Obstetricians and Gynecologists, Health Care for
Pregnant and Postpartum Incarcerated Women and Adolescent Females,
Committee Opinion No. 511 (Nov 2011).
\39\Women in Prison, at 105.
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The use of shackles on pregnant women is harmful even when
a woman is not in labor. Yet shackles are routinely used during
transport to court appearances and even to doctor visits.\40\
Use of shackles increases the likelihood that a woman will trip
because pregnancy shifts the center of gravity and wrist
constraints make it difficult for a woman to break her fall,
making it more likely that she will fall directly on her
stomach.\41\ Additionally, belly chains can cause bruising
around the stomach and make it more difficult for doctors to
test for causes of pregnancy complications, such as infections
and preterm bleeding.\42\ Considering that most women in prison
have committed non-violent offenses, the practice of shackling
pregnant women cannot be justified.
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\40\Tori DeAngelis, The Restraint of Pregnant Inmates, 47 Monitor
on Psych. No.6 (June 2016), at 26, https://www.apa.org/monitor/2016/06/
restraint-inmates.
\41\Lauryn King, Labor in Chains: The Shackling of Pregnant
Inmates, Policy Perspectives, 25 J. of Pub. Policy & Pub. Admin.
(2018).
\42\Am. Coll. of Obstetricians and Gynecologists, Health Care for
Pregnant and Postpartum Incarcerated Women and Adolescent Females,
Committee Opinion No. 511 (Nov. 2011), https://www.acog.org/-/media/
project/acog/acogorg/clinical/files/committee-opinion/articles/2011/11/
health-care-for-pregnant-and-postpartum-incarcerated-women-and-
adolescent-female.pdf
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In 2008, the BOP ended the practice of routinely shackling
pregnant women\43\ and the First Step Act of 2018 outlawed the
practice except in very limited circumstances.\44\ Both the
American Correctional Association and the National Commission
on Correctional Healthcare have adopted standards opposing the
use of shackles; however, these standards are only guidelines
and are voluntary.\45\
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\43\Bureau of Prisons, Program Statement No. 5538.05, Escorted
Trips (Oct. 6, 2008), https://www.aclu.org/files/pdfs/prison/
bop_policy_escorted_trips_p5538_05.pdf
\44\First Step Act of 2018, Pub. Law. 115-391 Sec. 301 (codified
as amended at 18 U.S.C. Sec. 4233) (hereinafter ``First Step Act'').
\45\Am. Correctional Ass'n, Public Correctional Policy on the Use
of Restraints with Pregnant Offenders, No. 2012-1 (Aug. 27, 2017),
http://www.aca.org/ACA_Prod_IMIS/DOCS/Pubs/Policies/Updated%20PDFs/
PUBLIC-%20CORRECTIONAL%20POLICY%20ON%20USE%20OF%20
RESTRAINTS%20WITH%20-PREGNANT%20OFFENDERS.pdf; see also Nat'l Comm'n on
Correctional Health Care, Position Statement: Women's Health Care in
Correctional Settings (Oct. 2014), https://www.ncchc.org/womens-health-
care.
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While 18 states have explicitly banned the practice of
shackling pregnant women, 32 states, as well as the Bureau of
Immigration and Customs Enforcement, fail to limit the use of
restraints on pregnant women during transportation, labor and
delivery, and postpartum recuperation.\46\ Several states still
have no policy at all for limiting the use of restraints on
women during pregnancy, leaving many pregnant women still
subject to this painful and dangerous practice.\47\
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\46\Am. Civ. Liberties Union, Reproductive Freedom Project,
Briefing Paper: The Shackling of Pregnant Women & Girls in U.S.
Prisons, Jails & Youth Detention Centers (Oct. 2012), https://
www.aclu.org/sites/default/files/field_document/anti-
shackling_briefing_paper_stand_alone.pdf
\47\Mothers Behind Bars, at 17.
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E. Use of Restrictive Housing
In 2016, the Department of Justice issued a report on the
use of restrictive housing in correctional settings, including
the Bureau of Prisons.\48\ In order to be able to analyze and
compare a variety of scenarios, the report settled on three
specific elements or features that serve to define the term
``restrictive housing'': (1) removal from the general inmate
population, whether voluntary or involuntary; (2) placement in
a locked room or cell, whether alone or with another prisoner;
and (3) inability to leave the room or cell for the vast
majority of the day, typically 22 hours or more.\49\ The DOJ
report concluded that restrictive housing ``should be used
rarely, applied fairly, and subjected to reasonable
constraints'' and noted that ``[i]t is the responsibility of
all governments to ensure that this practice is used only as
necessary--and never as a default solution.''\50\
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\48\U.S. Dep't of Just., Report and Recommendations Concerning the
Use of Restrictive Housing (Jan. 2016) (hereinafter ``DOJ Report on
Restrictive Housing''), https://www.justice.gov/archives/dag/file/
815551/download.
\49\Id. at 3.
\50\Id. at 1-2.
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Restrictive housing has long been a feature of prison in
the United States. The justifications for its use have varied
over time, as has acceptance of the practice. Solitary
confinement gained popularity in the late 18th and early 19th
centuries, when prison reformers in Pennsylvania promoted it as
a pathway to repentance and rehabilitation. Over time, however,
critics questioned whether the total isolation of the
``Pennsylvania System,'' as the method was called, actually
promoted the rehabilitation its adherents promised.\51\ Some
claimed that the extreme practices caused mental illness, yet,
even as solitary confinement declined in use, some prisons
still used segregated housing to isolate the most difficult and
disruptive prisoners.\52\
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\51\Barbara Belbot, Eastern State Penitentiary, in Encyclopedia of
Prisons and Correctional Facilities (Mary Bosworth ed., 2005).
\52\DOJ Report on Restrictive Housing, at 6-7.
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The 1970s and early 1980s marked the beginning of a
``modern'' era in restrictive housing, where factors like
prison overcrowding, scaling back of programming, and increased
violence led to the development of methods to control the
prisoner population and where placing the most disruptive
prisoners in restrictive housing was often considered the
quickest and most effective solution.\53\ By 1999, more than 30
states operated some form of supermax facility.\54\
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\53\Id. at 7 (citing CNA Analysis & Solutions, Federal Bureau of
Prisons: Special Housing Unit Review and Assessment 25-28 (2014)).
\54\Chase Riveland, Nat'l Inst. of Corrections, Supermax Prisons:
Overview and General Considerations (1999).
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In the 1990s and 2000s, correctional systems worked hard to
manage their growing prison populations. As with many other
prison systems, BOP experienced a substantial increase in the
total number of inmates--but without a corresponding increase
in the number of correctional staff.\55\ The rising prisoner-
to-officer ratio put additional stress on BOP operations. In
response to a spike in prison violence, BOP implemented several
measures, including harsher penalties for those who violated
disciplinary rules and creation of restrictive housing
units.\56\ At the present time, BOP oversees 135 institutions,
122 of which are managed by BOP, and 13 of which are run by
private contractors.\57\ Most BOP facilities include space
dedicated for restrictive housing.\58\
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\55\DOJ Report on Restrictive Housing, at 8.
\56\Id.
\57\Id. at 14.
\58\Id.
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In a 2018 study titled ``Rethinking Restrictive Housing:
Lessons from Five U.S. Jail and Prison Systems,'' the Vera
Institute described the contemporary state of restrictive
housing in the United States as follows:
Although cell size, recreational areas, and other
characteristics of restrictive housing units varied,
incarcerated people in these units were typically held
in stark, isolated environments with little sensory
stimulation or social interaction. Many cells were
small and sparsely furnished, and some had no windows
or natural light. Opportunities for therapeutic
programming or any form of productive activity were
scarce.
In the most restrictive housing, people were held in
their cells for around 23 hours a day. They received up
to one hour of out-of-cell recreation, often held in a
small caged area or a bare concrete space, sometimes
with limited access to fresh air and direct sunlight.
In some systems, barred indoor enclosures were used for
recreation at times.\59\
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\59\Leon Digard, et al., Vera Inst., Rethinking Restrictive
Housing: Lessons from Five U.S. Jail and Prison Systems (May 2018)
(hereinafter ``Vera Study''), https://www.vera.org/rethinking-
restrictive-housing.
But in recent years, a growing chorus of correctional
officials, policymakers, and reform advocates has called for
substantial limitations on the use of restrictive housing, in
the United States and abroad.\60\ In response, a number of
correctional systems have modified their restrictive housing
programs, resulting in significant declines in their
segregation populations.\61\ In the First Step Act, for
instance, Congress required annual reporting by BOP of ``the
number of prisoners who have been placed in solitary
confinement at any time during the previous year''\62\ and
prohibited ``room confinement'' for juveniles (defined as ``the
involuntary placement of a covered juvenile alone in a cell,
room, or area for any reason'') for any reason other than as a
temporary response to the juvenile's behavior that ``poses a
serious and immediate risk of physical harm to any individual .
. .''\63\
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\60\DOJ Report on Restrictive Housing, at 9.
\61\Id.
\62\First Step Act Sec. 610.
\63\First Step Act Sec. 613 (codified at 18 USC 5043(b)).
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According to a report by the Liman Center at Yale Law
School, 27 states and the federal government have proposed or
enacted legislation to regulate the use of restrictive
housing.\64\ On July 1, 2019, there were eight states
(Arkansas, Georgia, Maryland, Massachusetts, Minnesota,
Montana, New Jersey, and Texas) that had enacted legislation
limiting the use of restrictive housing.\65\ Massachusetts,
Minnesota, Montana, and New Jersey passed general restrictions
on the use of solitary confinement.\66\ The bills in Arkansas,
Georgia, Maryland, and Texas related to specific subpopulations
of prisoners: pregnant women and individuals under age 18 or
under age 21.\67\ In addition, Illinois, Maryland,
Massachusetts, Michigan, Minnesota, New Mexico, and Virginia,
as well as the federal government (in the First Step Act), had
enacted legislation requiring data collection in restrictive
housing.\68\
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\64\Arianna Zoghi, Liman Center at Yale Law School, Regulating
Restrictive Housing: State and Federal Legislation on Solitary
Confinement as of July 1, 2019--A Research Brief (last revised July 18,
2019), at 1, https://law.yale.edu/sites/default/files/area/center/
liman/document/restrictive_housing_legislation_research_brief.pdf.
\65\Id. at 2.
\66\Id.
\67\Id.
\68\Id.
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According to the Vera study, over 150 years of research in
psychiatry, neuroscience, epidemiology, and anthropology has
documented the harmful effects of restrictive housing on the
health and well-being of incarcerated people.\69\ This evidence
confirms what is perhaps understood intuitively: the practice
can result in physical and psychological damage that can
persist even after release.\70\ Indeed, in June 2015, Supreme
Court Justice Anthony Kennedy issued a five-page concurrence in
Davis v. Ayala, in which he criticized the practice of placing
inmates in ``near-total isolation.''\71\ In that opinion,
Justice Kennedy also raised the possibility that the Court
could address the issue of restrictive housing more directly in
the future, writing that, ``[i]n a case that presented the
issue, the judiciary may be required, within its proper
jurisdiction and authority, to determine whether workable
alternative systems for long-term confinement exist and, if so,
whether a correctional system should be required to adopt
them.''\72\
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\69\Vera Study.
\70\Id.
\71\576 U.S. 257, 289 (2015) (Kennedy, J., concurring).
\72\Id. at 289-90.
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Significantly, although it did not focus specifically on
pregnant or postpartum women, the 2016 DOJ report singled out
pregnant women as a particularly vulnerable subgroup when it
comes to the use of restrictive housing. The report made two
key recommendations for implementation by the BOP:
(1) Women who are pregnant, who are post-partum, who
recently had a miscarriage, or who recently had a
terminated pregnancy should not be placed in
restrictive housing.
(2) In very rare situations, a woman who is pregnant,
is postpartum, recently had a miscarriage, or recently
had a terminated pregnancy may be placed in restrictive
housing as a temporary response to behavior that poses
a serious and immediate risk of physical harm. Even in
such cases, this decision must be approved by the
agency's senior official overseeing women's programs
and services, in consultation with senior officials in
health services, and must be reviewed every 24
hours.\73\
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\73\DOJ Report on Restrictive Housing, at 101-02.
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Hearings
The July 16, 2019 hearing of the Subcommittee on Crime,
Terrorism and Homeland Security on ``Women and Girls in the
Criminal Justice System'' provided information used to develop
this bipartisan bill.
Committee Consideration
On September 15, 2020, the Committee met in open session
and ordered the bill, H.R. 7718, favorably reported, by voice
vote, a quorum being present.
Committee Votes
No record votes occurred during the Committee's
consideration of H.R. 7718.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures and Congressional Budget
Office Cost Estimate
With respect to the requirements of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives and section
308(a) of the Congressional Budget Act of 1974 and with respect
to requirements of clause (3)(c)(3) of rule XIII of the Rules
of the House of Representatives and section 402 of the
Congressional Budget Act of 1974, the Committee has requested
but not received a cost estimate for this bill from the
Director of Congressional Budget Office (CBO). The Committee
has requested but not received from the Director of the CBO a
statement as to whether this bill contains any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures.
Duplication of Federal Programs
No provision of H.R. 7718 establishes or reauthorizes a
program of the Federal government known to be duplicative of
another federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
7718 would put in place a number of measures to ensure the
health and safety of pregnant and post-partum women in the
custody of the BOP and the USMS, including prohibiting the use
of restraints and restrictive housing (except in very limited
circumstances); direct GAO studies pertaining to the services
and protections provided for pregnant incarcerated women in
local and State correctional settings and in Federal pretrial
facilities; and create a grant program to authorize the
Attorney General to make grants to State, tribal, and local
governments, to promote the health needs of incarcerated
pregnant women in the criminal justice system.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 7718 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(d), 9(e), or 9(f) of rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short Title. Section 1 sets forth the short
title of the bill as the ``Protecting the Health and Wellness
of Babies and Pregnant Women in Custody Act.''
Sec. 2. Data Collection. Section 2 would require the
Director of the Bureau of Justice Statistics, within one year
of enactment of the bill, to collect and include in the
National Prisoner Statistics Program and Annual Survey of Jails
data relating to the demographics and physical and mental
health needs of incarcerated women who are pregnant, in labor,
or in post-partum recovery, at the Federal, State, tribal, and
local levels.
Sec. 3. Care for Federally Incarcerated Women Related to
Pregnancy and Childbirth. Section 3 would require the Director
of the Bureau of Prisons (BOP) to ensure that appropriate
medical services and programs are provided and made available
to women in custody and would make the warden of each BOP
facility that houses women responsible for ensuring that such
services and programs are implemented in their facility.
Section 3 would also direct the Attorney General to make rules
establishing procedures for responding to unexpected childbirth
deliveries, labor complications, and medical complications
related to pregnancy, in the event a woman in custody is unable
to access a hospital in a timely manner. In addition, a
pregnant woman in BOP custody who is diagnosed with having a
substance use or mental health disorder would be entitled to
treatment specifically targeted to address those issues,
including treatment in a licensed hospital (if suffering from a
substance use disorder) and transfer to a residential reentry
program offering adequate treatment if such treatment cannot be
provided in custody in a BOP facility.
Sec. 4. Use of Restrictive Housing and Restraints on
Incarcerated Pregnant Women During Pregnancy, Labor, and
Postpartum Recovery Prohibited. Section 4 would amend Title 18
of the United States Code to prohibit the use of restraints or
restrictive housing during the period of pregnancy, labor, and
postpartum recovery and to improve pregnancy care for women in
Federal prisons. The prohibition on restraints and restrictive
housing would apply in the case of pregnant women in BOP and
U.S. Marshals Service (USMS) custody from the moment a
pregnancy is confirmed, extending at least through 12 weeks
after delivery, except if certain senior officials within the
BOP or USMS and health care professionals determine that
restraints are appropriate for the medical safety of the woman
(subject to ongoing review). With regards to placement of
pregnant women in BOP restrictive housing, an exception is
contemplated if certain senior BOP officials make an
individualized determination that restrictive housing is
required as a temporary response to behavior that poses a
serious and immediate risk of physical harm, but subject to
ongoing review and monitoring as well as the development of an
individualized plan to move the woman to less restrictive
housing within a reasonable amount of time (not to exceed 2
days). Section 4 would require comprehensive and detailed
reporting on the use, and rationale for the use, of restraints
and restrictive housing involving pregnant women, both to the
Directors of the BOP and the USMS (as applicable in the
particular case) and to Congress every 6 months for a period of
10 years. Finally, this section would direct the Directors of
the BOP and the USMS to establish processes for incarcerated
persons to report violations of the provisions of this section,
require notification to all necessary facility staff about a
pregnancy and a pregnant woman's rights, and prohibit
retaliation for reporting violations.
Sec. 5. Treatment of Women with High-Risk Pregnancies.
Section 5 would amend Title 18 of the United States Code to add
a section requiring the director of the BOP to provide
appropriate care for women with high-risk pregnancies (i.e.,
those which ``threaten[] the health or life of the woman or
pregnancy as determined by a health care professional''),
including obstetrical and gynecological care during pregnancy
and postpartum recovery. Section 5 would also require the
director of the BOP to transfer a woman deemed to have a high-
risk pregnancy, who agrees to be transferred, to a residential
reentry center with adequate care, during her pregnancy and
during the period of postpartum recovery. If a proper
residential reentry center is not available, Section 5 would
direct that the woman be transferred to alternative housing,
including with a family member. Any time served in the
residential reentry center under these circumstances would be
credited toward service of the woman's in-custody sentence.
Sec. 6. Exemption of Incarcerated Pregnant Women from the
Requirements for Suits by Prisoners. This section would exempt
incarcerated pregnant women from the requirements outlined in
the Civil Rights of Institutionalized Persons Act (CRIPA), 42
U.S.C. Sec. 1997e, for prisoner lawsuits.
Sec. 7. Definitions. This section includes definitions for
key terms used in the bill, specifically what is meant by ``in
custody'' (a broad term encompassing Federal, State, tribal or
local correctional facilities, including pretrial and contract
facilities), ``other pregnancy outcome'' (a pregnancy that ends
in a stillbirth, miscarriage, or ectopic pregnancy),
``postpartum recovery'' (a 12-week period, or longer, as
determined by a health care professional, following delivery),
``restraints'' (any physical or mechanical device used to
control movement), and ``restrictive housing'' (removal from
the general inmate population, whether voluntary or
involuntary; placement in a locked room or cell, whether alone
or with another inmate; and inability to leave that room or
cell for the vast majority of the day).
Sec. 8. Education and Technical Assistance. Section 8 would
require the Director of the National Institute of Corrections
to provide education and technical assistance to state and
local correctional facilities that house women regarding safe
and appropriate medical care for pregnant women, including on
the dangers and potential mental health consequences of the use
of restraints and restrictive housing and on alternatives to
their use.
Sec. 9. Bureau of Prisons Staff and U.S. Marshals Training.
This section would require the Director of the BOP and the
Director of the USMS to ensure training of BOP correctional
officers at facilities housing women and of deputy U.S.
Marshals, on the requirements of the bill. It would also ensure
that training for new hires is completed within 30 days of
hiring or beginning employment. Section 9 would mandate that
the Director of the BOP and the USMS develop, and incorporate
into their trainings, guidelines on the treatment of
incarcerated women during pregnancy, labor, and postpartum
recovery, to include guidelines on proper transportation,
housing, nutritional requirements, and the right of a health
care professional to request that restraints not be used.
Sec. 10. GAO Study on State and Local Correctional
Facilities. Section 10 would direct the Comptroller General to
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 is fulfilled.
Sec. 11. GAO Study on Federal Pretrial Detention
Facilities. Section 11 would direct the Comptroller General to
conduct a study of services and protections provided for
pregnant women who are incarcerated in Federal pretrial
detention facilities (i.e., State, local, private, or other
facilities under contract with the USMS for the purpose of
housing Federal pretrial detainees), including what available
data indicate about pregnant women detained or held in Federal
pretrial detention facilities, existing USMS policies and
standards that address the care of pregnant women in Federal
pretrial detention facilities, and what is known about the care
provided to pregnant women in Federal pretrial detention
facilities. The Comptroller General would be directed to submit
a report to Congress regarding the results of the study not
later than two years after the enactment of the bill,
identifying best practices for ensuring that Federal pretrial
detention facilities implement services and protections for
pregnant women consistent with the bill, as well as making
recommendations for implementing such best practices within all
Federal pretrial detention facilities.
Sec. 12. PWIC Grant Program. Section 12 would amend the
Omnibus Crime Control and Safe Streets Act of 1968 (34 U.S.C.
10151 et seq.) by adding section 508, the Pregnant Women in
Custody Grant Program, the ``PWIC Act of 2020,'' to authorize
the Attorney General to make grants (of up to five years in
length) to State, tribal, and local governments, to promote the
health needs of incarcerated pregnant women in the criminal
justice system. Authorized uses of the grant funds include
promotion of the safety and wellness of pregnant women in
custody; provision of obstetrical and gynecological care;
facilitation of resources and support services for nutrition
and physical and mental health; establishment of policies
limiting the use of restraints on pregnant women in custody;
and maintenance, establishment and building of post-delivery
lactation and nursery care or residential programs that keep
the infant with the mother and to promote and facilitate
bonding skills for incarcerated pregnant women and women with
dependent children. Eligible applicants for grant funds would
be State or territory departments of corrections; tribal
entities that operate a correctional facility; units of local
government that operate a prison or jail that houses women; and
local nonprofit organizations with expertise in providing
health services to incarcerated pregnant women that have
partnered with a States or units of local government that
operate correctional facilities. This section would provide an
explicit exception from the general rule against the use of
grant funds for construction, to allow for the construction of
rooms to facilitate lactation, nursery, obstetrical, or
gynecological services. When determining which jurisdictions
should be awarded funds, this subsection would require the
Attorney General to give priority to States or units of local
government that have enacted laws or policies and implemented
services or pilot programs for incarcerated pregnant women
aimed at enhancing the safety and wellness of pregnant women in
custody. This section would authorize $5,000,000 for fiscal
years 2021 through 2023 and $6,000,000 for fiscal years 2024
and 2025 and would require that recipients of funds adhere to
the nondiscrimination provisions of the Violence Against Women
Act of 1994.
Sec. 13. Placement in Prerelease Custody. This section
would amend section 3624(c) of Title 18, which provides for
placement of BOP prisoners in prerelease custody, to allow
placement of a pregnant woman in prerelease custody for the two
months immediately prior to her due date, if her due date falls
within the final year of her term of imprisonment.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, and existing law in which no
change is proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART II--CRIMINAL PROCEDURE
* * * * * * *
CHAPTER 229--POSTSENTENCE ADMINISTRATION
* * * * * * *
SUBCHAPTER C--IMPRISONMENT
* * * * * * *
Sec. 3624. Release of a prisoner
(a) Date of Release.--A prisoner shall be released by the
Bureau of Prisons on the date of the expiration of the
prisoner's term of imprisonment, less any time credited toward
the service of the prisoner's sentence as provided in
subsection (b). If the date for a prisoner's release falls on a
Saturday, a Sunday, or a legal holiday at the place of
confinement, the prisoner may be released by the Bureau on the
last preceding weekday.
(b) Credit Toward Service of Sentence for Satisfactory
Behavior.--(1) Subject to paragraph (2), a prisoner who is
serving a term of imprisonment of more than 1 year other than a
term of imprisonment for the duration of the prisoner's life,
may receive credit toward the service of the prisoner's
sentence of up to 54 days for each year of the prisoner's
sentence imposed by the court, subject to determination by the
Bureau of Prisons that, during that year, the prisoner has
displayed exemplary compliance with institutional disciplinary
regulations. Subject to paragraph (2), if the Bureau determines
that, during that year, the prisoner has not satisfactorily
complied with such institutional regulations, the prisoner
shall receive no such credit toward service of the prisoner's
sentence or shall receive such lesser credit as the Bureau
determines to be appropriate. In awarding credit under this
section, the Bureau shall consider whether the prisoner, during
the relevant period, has earned, or is making satisfactory
progress toward earning, a high school diploma or an equivalent
degree. Credit that has not been earned may not later be
granted. Subject to paragraph (2), credit for the last year of
a term of imprisonment shall be credited on the first day of
the last year of the term of imprisonment.
(2) Notwithstanding any other law, credit awarded under
this subsection after the date of enactment of the Prison
Litigation Reform Act shall vest on the date the prisoner is
released from custody.
(3) The Attorney General shall ensure that the Bureau of
Prisons has in effect an optional General Educational
Development program for inmates who have not earned a high
school diploma or its equivalent.
(4) Exemptions to the General Educational Development
requirement may be made as deemed appropriate by the Director
of the Federal Bureau of Prisons.
(c) Prerelease Custody.--
(1) In general.--The Director of the Bureau of
Prisons shall, to the extent practicable, ensure that a
prisoner serving a term of imprisonment spends a
portion of the final months of that term (not to exceed
12 months), under conditions that will afford that
prisoner a reasonable opportunity to adjust to and
prepare for the reentry of that prisoner into the
community. Such conditions may include a community
correctional facility. Notwithstanding any other
provision of this paragraph, in the case of a pregnant
woman in custody, if that woman's due date is within
the final year of her term of imprisonment, that woman
may be placed into prerelease custody beginning not
earlier than the date that is 2 months prior to that
woman's due date.
(2) Home confinement authority.--The authority
under this subsection may be used to place a prisoner
in home confinement for the shorter of 10 percent of
the term of imprisonment of that prisoner or 6 months.
The Bureau of Prisons shall, to the extent practicable,
place prisoners with lower risk levels and lower needs
on home confinement for the maximum amount of time
permitted under this paragraph.
(3) Assistance.--The United States Probation System
shall, to the extent practicable, offer assistance to a
prisoner during prerelease custody under this
subsection.
(4) No limitations.--Nothing in this subsection
shall be construed to limit or restrict the authority
of the Director of the Bureau of Prisons under section
3621.
(5) Reporting.--Not later than 1 year after the
date of the enactment of the Second Chance Act of 2007
(and every year thereafter), the Director of the Bureau
of Prisons shall transmit to the Committee on the
Judiciary of the Senate and the Committee on the
Judiciary of the House of Representatives a report
describing the Bureau's utilization of community
corrections facilities. Each report under this
paragraph shall set forth the number and percentage of
Federal prisoners placed in community corrections
facilities during the preceding year, the average
length of such placements, trends in such utilization,
the reasons some prisoners are not placed in community
corrections facilities, and number of prisoners not
being placed in community corrections facilities for
each reason set forth, and any other information that
may be useful to the committees in determining if the
Bureau is utilizing community corrections facilities in
an effective manner.
(6) Issuance of regulations.--The Director of the
Bureau of Prisons shall issue regulations pursuant to
this subsection not later than 90 days after the date
of the enactment of the Second Chance Reauthorization
Act of 2018, which shall ensure that placement in a
community correctional facility by the Bureau of
Prisons is--
(A) conducted in a manner consistent with
section 3621(b) of this title;
(B) determined on an individual basis; and
(C) of sufficient duration to provide the
greatest likelihood of successful reintegration
into the community.
(d) Allotment of Clothing, Funds, and Transportation.--Upon
the release of a prisoner on the expiration of the prisoner's
term of imprisonment, the Bureau of Prisons shall furnish the
prisoner with--
(1) suitable clothing;
(2) an amount of money, not more than $500,
determined by the Director to be consistent with the
needs of the offender and the public interest, unless
the Director determines that the financial position of
the offender is such that no sum should be furnished;
and
(3) transportation to the place of the prisoner's
conviction, to the prisoner's bona fide residence
within the United States, or to such other place within
the United States as may be authorized by the Director.
(e) Supervision After Release.--A prisoner whose sentence
includes a term of supervised release after imprisonment shall
be released by the Bureau of Prisons to the supervision of a
probation officer who shall, during the term imposed, supervise
the person released to the degree warranted by the conditions
specified by the sentencing court. The term of supervised
release commences on the day the person is released from
imprisonment and runs concurrently with any Federal, State, or
local term of probation or supervised release or parole for
another offense to which the person is subject or becomes
subject during the term of supervised release. A term of
supervised release does not run during any period in which the
person is imprisoned in connection with a conviction for a
Federal, State, or local crime unless the imprisonment is for a
period of less than 30 consecutive days. Upon the release of a
prisoner by the Bureau of Prisons to supervised release, the
Bureau of Prisons shall notify such prisoner, verbally and in
writing, of the requirement that the prisoner adhere to an
installment schedule, not to exceed 2 years except in special
circumstances, to pay for any fine imposed for the offense
committed by such prisoner, and of the consequences of failure
to pay such fines under sections 3611 through 3614 of this
title.
(f) Mandatory Functional Literacy Requirement.--
(1) The Attorney General shall direct the Bureau of
Prisons to have in effect a mandatory functional
literacy program for all mentally capable inmates who
are not functionally literate in each Federal
correctional institution within 6 months from the date
of the enactment of this Act.
(2) Each mandatory functional literacy program
shall include a requirement that each inmate
participate in such program for a mandatory period
sufficient to provide the inmate with an adequate
opportunity to achieve functional literacy, and
appropriate incentives which lead to successful
completion of such programs shall be developed and
implemented.
(3) As used in this section, the term ``functional
literacy'' means--
(A) an eighth grade equivalence in reading
and mathematics on a nationally recognized
standardized test;
(B) functional competency or literacy on a
nationally recognized criterion-referenced
test; or
(C) a combination of subparagraphs (A) and
(B).
(4) Non-English speaking inmates shall be required
to participate in an English-As-A-Second-Language
program until they function at the equivalence of the
eighth grade on a nationally recognized educational
achievement test.
(5) The Chief Executive Officer of each institution
shall have authority to grant waivers for good cause as
determined and documented on an individual basis.
(g) Prerelease Custody or Supervised Release for Risk and
Needs Assessment System Participants.--
(1) Eligible prisoners.--This subsection applies in
the case of a prisoner (as such term is defined in
section 3635) who--
(A) has earned time credits under the risk
and needs assessment system developed under
subchapter D (referred to in this subsection as
the ``System'') in an amount that is equal to
the remainder of the prisoner's imposed term of
imprisonment;
(B) has shown through the periodic risk
reassessments a demonstrated recidivism risk
reduction or has maintained a minimum or low
recidivism risk, during the prisoner's term of
imprisonment;
(C) has had the remainder of the prisoner's
imposed term of imprisonment computed under
applicable law; and
(D)(i) in the case of a prisoner being
placed in prerelease custody, the prisoner--
(I) has been determined under the
System to be a minimum or low risk to
recidivate pursuant to the last 2
reassessments of the prisoner; or
(II) has had a petition to be
transferred to prerelease custody or
supervised release approved by the
warden of the prison, after the
warden's determination that--
(aa) the prisoner would not
be a danger to society if
transferred to prerelease
custody or supervised release;
(bb) the prisoner has made
a good faith effort to lower
their recidivism risk through
participation in recidivism
reduction programs or
productive activities; and
(cc) the prisoner is
unlikely to recidivate; or
(ii) in the case of a prisoner being placed
in supervised release, the prisoner has been
determined under the System to be a minimum or
low risk to recidivate pursuant to the last
reassessment of the prisoner.
(2) Types of prerelease custody.--A prisoner shall
be placed in prerelease custody as follows:
(A) Home confinement.--
(i) In general.--A prisoner placed
in prerelease custody pursuant to this
subsection who is placed in home
confinement shall--
(I) be subject to 24-hour
electronic monitoring that
enables the prompt
identification of the prisoner,
location, and time, in the case
of any violation of subclause
(II);
(II) remain in the
prisoner's residence, except
that the prisoner may leave the
prisoner's home in order to,
subject to the approval of the
Director of the Bureau of
Prisons--
(aa) perform a job
or job-related
activities, including
an apprenticeship, or
participate in job-
seeking activities;
(bb) participate in
evidence-based
recidivism reduction
programming or
productive activities
assigned by the System,
or similar activities;
(cc) perform
community service;
(dd) participate in
crime victim
restoration activities;
(ee) receive
medical treatment;
(ff) attend
religious activities;
or
(gg) participate in
other family-related
activities that
facilitate the
prisoner's successful
reentry such as a
family funeral, a
family wedding, or to
visit a family member
who is seriously ill;
and
(III) comply with such
other conditions as the
Director determines
appropriate.
(ii) Alternate means of
monitoring.--If the electronic
monitoring of a prisoner described in
clause (i)(I) is infeasible for
technical or religious reasons, the
Director of the Bureau of Prisons may
use alternative means of monitoring a
prisoner placed in home confinement
that the Director determines are as
effective or more effective than the
electronic monitoring described in
clause (i)(I).
(iii) Modifications.--The Director
of the Bureau of Prisons may modify the
conditions described in clause (i) if
the Director determines that a
compelling reason exists to do so, and
that the prisoner has demonstrated
exemplary compliance with such
conditions.
(iv) Duration.--Except as provided
in paragraph (4), a prisoner who is
placed in home confinement shall remain
in home confinement until the prisoner
has served not less than 85 percent of
the prisoner's imposed term of
imprisonment.
(B) Residential reentry center.--A prisoner
placed in prerelease custody pursuant to this
subsection who is placed at a residential
reentry center shall be subject to such
conditions as the Director of the Bureau of
Prisons determines appropriate.
(3) Supervised release.--If the sentencing court
included as a part of the prisoner's sentence a
requirement that the prisoner be placed on a term of
supervised release after imprisonment pursuant to
section 3583, the Director of the Bureau of Prisons may
transfer the prisoner to begin any such term of
supervised release at an earlier date, not to exceed 12
months, based on the application of time credits under
section 3632.
(4) Determination of conditions.--In determining
appropriate conditions for prisoners placed in
prerelease custody pursuant to this subsection, the
Director of the Bureau of Prisons shall, to the extent
practicable, provide that increasingly less restrictive
conditions shall be imposed on prisoners who
demonstrate continued compliance with the conditions of
such prerelease custody, so as to most effectively
prepare such prisoners for reentry.
(5) Violations of conditions.--If a prisoner
violates a condition of the prisoner's prerelease
custody, the Director of the Bureau of Prisons may
impose such additional conditions on the prisoner's
prerelease custody as the Director of the Bureau of
Prisons determines appropriate, or revoke the
prisoner's prerelease custody and require the prisoner
to serve the remainder of the term of imprisonment to
which the prisoner was sentenced, or any portion
thereof, in prison. If the violation is nontechnical in
nature, the Director of the Bureau of Prisons shall
revoke the prisoner's prerelease custody.
(6) Issuance of guidelines.--The Attorney General,
in consultation with the Assistant Director for the
Office of Probation and Pretrial Services, shall issue
guidelines for use by the Bureau of Prisons in
determining--
(A) the appropriate type of prerelease
custody or supervised release and level of
supervision for a prisoner placed on prerelease
custody pursuant to this subsection; and
(B) consequences for a violation of a
condition of such prerelease custody by such a
prisoner, including a return to prison and a
reassessment of evidence-based recidivism risk
level under the System.
(7) Agreements with united states probation and
pretrial services.--The Director of the Bureau of
Prisons shall, to the greatest extent practicable,
enter into agreements with United States Probation and
Pretrial Services to supervise prisoners placed in home
confinement under this subsection. Such agreements
shall--
(A) authorize United States Probation and
Pretrial Services to exercise the authority
granted to the Director pursuant to paragraphs
(3) and (4); and
(B) take into account the resource
requirements of United States Probation and
Pretrial Services as a result of the transfer
of Bureau of Prisons prisoners to prerelease
custody or supervised release.
(8) Assistance.--United States Probation and
Pretrial Services shall, to the greatest extent
practicable, offer assistance to any prisoner not under
its supervision during prerelease custody under this
subsection.
(9) Mentoring, reentry, and spiritual services.--
Any prerelease custody into which a prisoner is placed
under this subsection may not include a condition
prohibiting the prisoner from receiving mentoring,
reentry, or spiritual services from a person who
provided such services to the prisoner while the
prisoner was incarcerated, except that the warden of
the facility at which the prisoner was incarcerated may
waive the requirement under this paragraph if the
warden finds that the provision of such services would
pose a significant security risk to the prisoner,
persons who provide such services, or any other person.
The warden shall provide written notice of any such
waiver to the person providing such services and to the
prisoner.
(10) Time limits inapplicable.--The time limits
under subsections (b) and (c) shall not apply to
prerelease custody under this subsection.
(11) Prerelease custody capacity.--The Director of
the Bureau of Prisons shall ensure there is sufficient
prerelease custody capacity to accommodate all eligible
prisoners.
* * * * * * *
PART III--PRISONS AND PRISONERS
* * * * * * *
CHAPTER 303--BUREAU OF PRISONS
Sec.
* * * * * * *
4050. Secure firearms storage.
4051. Treatment of incarcerated pregnant women.
* * * * * * *
Sec. 4051. Treatment of incarcerated pregnant women
(a) High-Risk Pregnancy Health Care.--The Director of the
Bureau of Prisons shall ensure that each incarcerated pregnant
woman receives health care appropriate for a high-risk
pregnancy, including obstetrical and gynecological care, during
pregnancy and post-partum recovery.
(b) High-Risk Pregnancies.--
(1) In general.--The Director of the Bureau of
Prisons shall transfer any incarcerated woman, who is
determined by a health care professional to have a
high-risk pregnancy and who agrees to be transferred,
to a Residential Reentry Center with adequate health
care during her pregnancy and post-partum recovery.
(2) Priority.--The Residential Reentry Center to
which an incarcerated pregnant woman is transferred
pursuant to paragraph (1) shall be in a geographical
location that is close to the family members of the
incarcerated pregnant woman. In the case that a
Residential Reentry Center is unavailable, the
incarcerated pregnant woman shall be transferred to
alternative housing, including housing with a family
member.
(3) Transportation.--To transport an incarcerated
pregnant woman to a Residential Reentry Center, the
Director of the Bureau of Prisons shall provide to the
woman a mode of transportation that has been approved
by the woman's health care professional, at no expense
to the woman.
(4) Monitoring.--In the case that an incarcerated
pregnant woman transferred to alternative housing
pursuant to this section is monitored electronically,
an ankle monitor may not be used on the woman, unless
there is no feasible alternative for monitoring the
woman.
(5) Service of sentence.--Any time accrued at a
Residential Reentry Center or alternative housing as a
result of a transfer made pursuant to this section
shall be credited toward service of the incarcerated
pregnant woman's sentence.
(6) Credit for pretrial custody.--In the case of an
incarcerated pregnant woman, any time accrued in
pretrial custody shall be credited toward service of
the woman's sentence.
(c) Definitions.--In this section:
(1) Family member.--The term ``family member''
means any individual related by blood or affinity whose
close association with the incarcerated pregnant woman
is the equivalent of a family relationship, including a
parent, sibling, child, or individual standing in loco
parentis.
(2) Residential reentry center.--The term
``Residential Reentry Center'' means a Bureau of
Prisons contracted residential reentry center.
(3) Health care professional.--
(A) In general.--The term ``health care
professional'' means--
(i) a doctor of medicine or
osteopathy who is authorized to
practice medicine or surgery by the
State in which the doctor practices;
(ii) any physician's assistant or
nurse practitioner who is supervised by
a doctor of medicine or osteopathy
described in clause (i); or
(iii) any other person determined
by the Secretary to be capable of
providing health care services.
(B) Other health care services.--A person
is capable of providing health care services if
the person is--
(i) a podiatrist, dentist, clinical
psychologist, optometrist, or
chiropractor (limited to treatment
consisting of manual manipulation of
the spine to correct a subluxation as
demonstrated by X-ray to exist)
authorized to practice in the State and
performing within the scope of their
practice as defined under State law;
(ii) a nurse practitioner, nurse-
midwife, clinical social worker, or
physician's assistant who is authorized
to practice under State law and who is
performing within the scope of their
practice as defined under State law;
and
(iii) any health care professional
from whom an employer or the employer's
group health plan's benefits manager
will accept certification of the
existence of a serious health condition
to substantiate a claim for benefits.
(C) Authorized to practice in the state.--
The term ``authorized to practice in the
State'' means that a professional must be
authorized to diagnose and treat physical or
mental health conditions under the laws of the
State in which the professional practices and
where the facility is located.
(4) High-risk pregnancy.--The term ``high-risk
pregnancy'' means, with respect to an incarcerated
woman, that the pregnancy threatens the health or life
of the woman or pregnancy, as determined by a health
care professional.
(5) Post-partum recovery.--The term ``post-partum
recovery'' means the 3-month period beginning on the
date on which an incarcerated pregnant woman gives
birth.
* * * * * * *
CHAPTER 317--INSTITUTIONS FOR WOMEN
Sec.
4321. Board of Advisers.
[4322. Use of restraints on prisoners during the period of pregnancy,
labor, and postpartum recovery prohibited.]
4322. Use of restraints and restrictive housing on incarcerated women
during the period of pregnancy, labor, and postpartum recovery
prohibited and to improve pregnancy care for women in Federal
prisons.
* * * * * * *
[Sec. 4322. Use of restraints on prisoners during the period of
pregnancy, labor, and postpartum recovery
prohibited
[(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.
[(b) Exceptions.--
[(1) In general.--The prohibition under subsection
(a) shall not apply if--
[(A) an appropriate corrections official,
or a United States marshal, as applicable,
makes a 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 healthcare professional responsible
for the health and safety of the prisoner
determines that the use of restraints is
appropriate for the medical safety of the
prisoner.
[(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.
[(3) Application.--
[(A) In general.--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
4-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
official or United States marshal, as
applicable, shall refrain from using restraints
on the prisoner or shall remove restraints used
on the prisoner.
[(c) Reports.--
[(1) Report to the director and healthcare
professional.--If a corrections official or United
States marshal uses restraints on a prisoner under
subsection (b)(1), that official 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 that 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; and
[(C) any resulting physical effects on the
prisoner observed by or known to the
corrections official or United States marshal,
as applicable.
[(2) Supplemental report to the director.--Upon
receipt of a report under paragraph (1), the healthcare
professional responsible for the health and safety of
the prisoner may submit to the Director such
information as the healthcare professional determines
is relevant to the use of restraints on the prisoner.
[(3) Report to judiciary committees.--
[(A) In general.--Not later than 1 year
after the date of enactment of this section,
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 paragraph (1).
[(B) Personally identifiable information.--
The report under this paragraph shall not
contain any personally identifiable information
of any prisoner.
[(d) Notice.--Not later than 48 hours after the
confirmation of a prisoner's pregnancy by a healthcare
professional, that prisoner shall be notified by an appropriate
healthcare professional, corrections official, or United States
marshal, as applicable, of the restrictions on the use of
restraints under this section.
[(e) Violation Reporting Process.--The Director of the
Bureau of Prisons, in consultation with the Director of the
United States Marshals Service, shall establish a process
through which a prisoner may report a violation of this
section.
[(f) Training.--
[(1) In general.--The Director of the Bureau of
Prisons and the Director of the United States Marshals
Service shall each develop training guidelines
regarding the use of restraints on female prisoners
during the period of pregnancy, labor, and postpartum
recovery, and shall incorporate such guidelines into
appropriate training programs. Such training guidelines
shall include--
[(A) how to identify certain symptoms of
pregnancy that require immediate referral to a
healthcare professional;
[(B) circumstances under which the
exceptions under subsection (b) would apply;
[(C) in the case that an exception under
subsection (b) applies, how to apply restraints
in a way that does not harm the prisoner, the
fetus, or the neonate;
[(D) the information required to be
reported under subsection (c); and
[(E) the right of a healthcare professional
to request that restraints not be used, and the
requirement under subsection (b)(3)(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 healthcare professionals with
expertise in caring for women during the period of
pregnancy and postpartum recovery.
[(g) Definitions.--For purposes of this section:
[(1) Postpartum recovery.--The term ``postpartum
recovery'' means the 12-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.
[(2) Prisoner.--The term ``prisoner'' 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
contracted facility.
[(3) Restraints.--The term ``restraints'' means any
physical or mechanical device used to control the
movement of a prisoner's body, limbs, or both.]
Sec. 4322. Use of restraints and restrictive housing on incarcerated
women 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
health care professional and ending not earlier than 12 weeks
after delivery, an incarcerated woman 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) shall not apply if the senior Bureau of
Prisons official or United States Marshals Service
official overseeing women's health and services and a
health care professional responsible for the health and
safety of the incarcerated woman determines that the
use of restraints is appropriate for the medical safety
of the woman, and the health care professional reviews
such determination not later than every 6 hours after
such use is initially approved until such use is
terminated.
(2) 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 woman.
(3) Access to care.--Immediately upon the cessation
of the use of restraints or restrictive housing as
outlined in this subsection, the Director of the Bureau
of Prisons or the United States Marshal Service shall
provide the incarcerated woman with immediate access to
physical and mental health assessments and all
recommended treatment.
(4) Response to behavioral risks in the bureau of
prisons.--
(A) Restrictive housing.--The prohibition
under subsection (a) relating to restrictive
housing shall not apply if the Director of the
Bureau of Prisons or a senior Bureau of Prisons
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.
(B) Review.--The official who makes a
determination under subparagraph (A) shall
review such determination every 4 hours for the
purpose of removing an incarcerated woman as
quickly as feasible from restrictive housing.
(C) Restrictive housing plan.--The official
who makes a determination under subparagraph
(A) shall develop an individualized plan to
move an incarcerated woman to less restrictive
housing within a reasonable amount of time, not
to exceed 2 days.
(D) Monitoring.--An incarcerated woman who
is placed in restrictive housing pursuant to
this paragraph shall be--
(i) monitored every hour;
(ii) placed in a location visible
to correctional officers; and
(iii) prohibited from being placed
in solitary confinement if the
incarcerated woman is in her third
trimester.
(c) Reports.--
(1) Report to the director and health care
professional after the use of restraints.--If an
official identified in subsection (b)(1) or a
correctional officer uses restraints on an incarcerated
woman under subsection (b), that official (or an
officer or marshal designated by that official) or
correctional officer shall submit, not later than 30
days after placing the woman in restraints, to the
Director of the Bureau of Prisons or the Director of
the U.S. Marshal Service, as applicable, a written
report which describes the facts and circumstances
surrounding the use of restraints, and includes each of
the following:
(A) A description of all attempts to use
alternative interventions and sanctions before
the restraints were used.
(B) A description of the circumstances that
led to the use of restraints.
(C) Strategies the facility is putting in
place to identify more appropriate alternative
interventions should a similar situation arise
again.
(2) Report to congress.--Beginning on the date that
is 6 months after the date of enactment of the
Protecting the Health and Wellness of Babies and
Pregnant Women in Custody Act, and every 6 months
thereafter for a period of 10 years, the Attorney
General shall submit to the Committees on the Judiciary
of the House of Representatives and the Senate a report
on--
(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; and
(C) any resulting physical effects on the
prisoner observed by or known to the
corrections official or United States Marshal,
as applicable.
(3) Report to the director and health care
professional after placement in restrictive housing.--
If an official identified in subsection (b)(3),
correctional officer, or United States Marshal places
or causes an incarcerated woman to be placed in
restrictive housing under such subsection, that
official, correctional officer, or United States
Marshal shall submit, not later than 30 days after
placing or causing the placement of the incarcerated
woman 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 health care
professional responsible for the health and safety of
the woman, a written report which describes the facts
and circumstances surrounding the restrictive housing
placement, and includes the following:
(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.
(C) A description of all attempts to use
alternative interventions and sanctions before
the restrictive housing was used.
(D) Any resulting physical effects on the
woman observed by or reported by the health
care professional responsible for the health
and safety of the woman.
(E) Strategies the facility is putting in
place to identify more appropriate alternative
interventions should a similar situation arise
again.
(4) Report to congress.--Beginning on the date that
is 6 months after the date of enactment of the
Protecting the Health and Wellness of Babies and
Pregnant Women in Custody Act, and every 6 months
thereafter for a period of 10 years, the Attorney
General shall submit to the Committees on the Judiciary
of the House of Representatives and the Senate a report
on the information described in paragraph (3).
(d) Notice.--Not later than 24 hours after the confirmation
of an incarcerated woman's pregnancy by a health care
professional, that woman shall be notified, orally and in
writing, by an appropriate health care professional,
correctional officer, or United States Marshal, as applicable--
(1) of the restrictions on the use of restraints
and restrictive housing placements under this section;
(2) of the incarcerated woman'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 incarcerated woman 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 an
incarcerated person may report a violation of this section.
(f) Notification of Rights.--The warden of the Bureau of
Prisons facility where a pregnant woman is in custody shall
notify necessary facility staff of the pregnancy and of the
incarcerated pregnant woman'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 an incarcerated person for reporting under the
provisions of subsection (e) a violation of subsection (a).
(h) Education.--Not later than 90 days after the date of
enactment of the Protecting the Health and Wellness of Babies
and Pregnant Women in Custody 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 incarcerated pregnant
women, and the use of restraints and restrictive housing
placements on incarcerated women during the period of
pregnancy, labor, and postpartum recovery, and shall
incorporate such guidelines into appropriate education
programs.
(i) Definition.--In this section:
(1) Restraints.--The term ``restraints'' means any
physical or mechanical device used to control the
movement of an incarcerated pregnant woman's body,
limbs, or both.
(2) Restrictive housing.--The term ``restrictive
housing'' means any type of detention that involves--
(A) removal from the general inmate
population, whether voluntary or involuntary;
(B) placement in a locked room or cell,
whether alone or with another inmate; and
(C) inability to leave the room or cell for
the vast majority of the day.
* * * * * * *
----------
CIVIL RIGHTS OF INSTITUTIONALIZED PERSONS ACT
* * * * * * *
SEC. 7. SUITS BY PRISONERS.
(a) Applicability of Administrative Remedies.--No action
shall be brought with respect to prison conditions under
section 1979 of the Revised Statutes of the United States (42
U.S.C. 1983), or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted. This
subsection shall not apply with respect to an incarcerated
pregnant woman who brings an action relating to or affecting
the woman's pregnancy.
(b) Failure of State To Adopt or Adhere to Administrative
Grievance Procedure.--The failure of a State to adopt or adhere
to an administrative grievance procedure shall not constitute
the basis for an action under section 3 or 5 of this Act.
(c) Dismissal.--(1) The court shall on its own motion or on
the motion of a party dismiss any action brought with respect
to prison conditions under section 1979 of the Revised Statutes
of the United States (42 U.S.C. 1983), or any other Federal
law, by a prisoner confined in any jail, prison, or other
correctional facility if the court is satisfied that the action
is frivolous, malicious, fails to state a claim upon which
relief can be granted, or seeks monetary relief from a
defendant who is immune from such relief.
(2) In the event that a claim is, on its face, frivolous,
malicious, fails to state a claim upon which relief can be
granted, or seeks monetary relief from a defendant who is
immune from such relief, the court may dismiss the underlying
claim without first requiring the exhaustion of administrative
remedies.
(d) Attorney's Fees.--(1) In any action brought by a
prisoner, except an incarcerated pregnant woman, who is
confined to any jail, prison, or other correctional facility,
in which attorney's fees are authorized under section 2 of the
Revised Statutes of the United States (42 U.S.C. 1988), such
fees shall not be awarded, except to the extent that--
(A) the fee was directly and reasonably incurred in
proving an actual violation of the plaintiff's rights
protected by a statute pursuant to which a fee may be
awarded under section 2 of the Revised Statutes; and
(B)(i) the amount of the fee is proportionately
related to the court ordered relief for the violation;
or
(ii) the fee was directly and reasonably incurred
in enforcing the relief ordered for the violation.
(2) Whenever a monetary judgment is awarded in an action
described in paragraph (1), a portion of the judgment (not to
exceed 25 percent) shall be applied to satisfy the amount of
attorney's fees awarded against the defendant. If the award of
attorney's fees is not greater than 150 percent of the
judgment, the excess shall be paid by the defendant.
(3) No award of attorney's fees in an action described in
paragraph (1) shall be based on an hourly rate greater than 150
percent of the hourly rate established under section 3006A of
title 18, United States Code, for payment of court-appointed
counsel.
(4) Nothing in this subsection shall prohibit a prisoner
from entering into an agreement to pay an attorney's fee in an
amount greater than the amount authorized under this
subsection, if the fee is paid by the individual rather than by
the defendant pursuant to section 2 of the Revised Statutes of
the United States (42 U.S.C. 1988).
(e) Limitation on Recovery.--No Federal civil action may be
brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered
while in custody without a prior showing of physical injury or
the commission of a sexual act (as defined in section 2246 of
title 18, United States Code).
(f) Hearings.--(1) To the extent practicable, in any action
brought with respect to prison conditions in Federal court
pursuant to section 1979 of the Revised Statutes of the United
States (42 U.S.C. 1983), or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional
facility, pretrial proceedings in which the prisoner's
participation is required or permitted shall be conducted by
telephone, video conference, or other telecommunications
technology without removing the prisoner from the facility in
which the prisoner is confined.
(2) Subject to the agreement of the official of the
Federal, State, or local unit of government with custody over
the prisoner, hearings may be conducted at the facility in
which the prisoner is confined. To the extent practicable, the
court shall allow counsel to participate by telephone, video
conference, or other communications technology in any hearing
held at the facility.
(g) Waiver of Reply.--(1) Any defendant may waive the right
to reply to any action brought by a prisoner confined in any
jail, prison, or other correctional facility under section 1979
of the Revised Statutes of the United States (42 U.S.C. 1983)
or any other Federal law. Notwithstanding any other law or rule
of procedure, such waiver shall not constitute an admission of
the allegations contained in the complaint. No relief shall be
granted to the plaintiff unless a reply has been filed.
(2) The court may require any defendant to reply to a
complaint brought under this section if it finds that the
plaintiff has a reasonable opportunity to prevail on the
merits.
(h) Definition.--As used in this section, the term
``prisoner'' means any person incarcerated or detained in any
facility 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
diversionary program.
* * * * * * *
----------
OMNIBUS CRIME CONTROL AND SAFE STREETS ACT OF 1968
* * * * * * *
TITLE I--JUSTICE SYSTEM IMPROVEMENT
* * * * * * *
Part E--Bureau of Justice Assistance Grant Programs
Subpart 1--Edward Byrne Memorial Justice Assistance Grant Program
* * * * * * *
[SEC. 508. AUTHORIZATION OF APPROPRIATIONS.
[There is authorized to be appropriated to carry out this
subpart $1,095,000,000 for each of the fiscal years 2006
through 2012.]
SEC. 508. PREGNANT WOMEN IN CUSTODY GRANT PROGRAM.
(a) Short Title.--This section may be cited as the
``Pregnant Women in Custody Grant Program of 2020'' or the
``PWIC Act of 2020''.
(b) Establishment.--The Attorney General may make grants to
eligible entities that have established a program to promote
the health needs of incarcerated pregnant women in the criminal
justice system at the State, tribal, and local levels or have
declared their intent to establish such a program. Eligible
entities shall--
(1) promote the safety and wellness of pregnant
women in custody;
(2) provide services for obstetrical and
gynecological care, for women in custody;
(3) facilitate resources and support services for
nutrition and physical and mental health, for women in
custody;
(4) establish and maintain policies that are
substantially similar to the limitations imposed under
section 4322 of title 18, United States Code, limiting
the use of restraints on pregnant women in custody; and
(5) maintain, establish, or build post-delivery
lactation and nursery care or residential programs to
keep the infant with the mother and to promote and
facilitate bonding skills for incarcerated pregnant
women and women with dependent children.
(c) Grant Period.--A grant awarded under this section shall
be for a period of not more than 5 years.
(d) Eligible Entity.--An entity is eligible for a grant
under this section if the entity is--
(1) a State or territory department of corrections;
(2) a tribal entity that operates a correctional
facility; or
(3) a unit of local government that operates a
prison or jail that houses women; or
(4) a locally-based nonprofit organization, that
has partnered with a State or unit of local government
that operates a correctional facility, with expertise
in providing health services to incarcerated pregnant
women.
(e) Application.--To receive a grant under this section, an
eligible entity shall submit an application to the Attorney
General at such time, in such manner, and containing such
information as the Attorney General may require, including a
detailed description of the need for the grant and an account
of the number of individuals the grantee expects to benefit
from the grant.
(f) Administrative Costs.--Not more than 5 percent of a
grant awarded under this section may be used for costs incurred
to administer such grant.
(g) Construction Costs.--Notwithstanding any other
provision of this Act, no funds provided under this section may
be used, directly or indirectly, for construction projects,
other than new construction or upgrade to a facility used to
provide lactation, nursery, obstetrical, or gynecological
services.
(h) Priority Funding for States That Provide Programs and
Services for Incarcerated Women Related to Pregnancy and
Childbirth.--In determining the amount provided to a State or
unit of local government under this section, the Attorney
General shall give priority to States or units of local
government that have enacted laws or policies 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, and post-delivery
lactation and nursery care or residential programs to keep the
infant with the mother and to promote and facilitate bonding
skills for incarcerated pregnant women and women with dependent
children.
(i) Subgrant Priority.--A State that receives a grant under
this section shall prioritize subgrants to a unit of local
government within the State that has established a pilot
program that enhances safety and wellness of pregnant women in
custody.
(j) Federal Share.--
(1) In general.--The Federal share of a grant under
this section may not exceed 75 percent of the total
costs of the projects described in the grant
application.
(2) Waiver.--The requirement of paragraph (1) may
be waived by the Assistant Attorney General upon a
determination that the financial circumstances
affecting the applicant warrant a finding that such a
waiver is equitable.
(k) Compliance and Redirection of Funds.--
(1) In general.--Not later than 1 year after an
eligible entity receives a grant under this section,
such entity shall implement a policy that is
substantially similar to the policy under section 3 of
Protecting the Health and Wellness of Babies and
Pregnant Women in Custody Act.
(2) Extension.--The Attorney General may provide a
120-day extension to an eligible entity that is making
good faith efforts to collect the information required
under paragraph (1).
(l) Authorization of Appropriations.--There are authorized
to be appropriated to carry out this section, to remain
available until expended--
(1) for fiscal year 2021, $5,000,000;
(2) for fiscal year 2022, $5,000,000;
(3) for fiscal year 2023, $5,000,000;
(4) for fiscal year 2024, $6,000,000; and
(5) for fiscal year 2025, $6,000,000.
(m) Funds to Be Supplemental.--To receive a grant under
this section, the eligible entity shall certify to the Attorney
General that the amounts received under the grant shall be used
to supplement, not supplant, non-Federal funds that would
otherwise be available for programs or services in the prison
where funds will be used.
(n) Unobligated and Unspent Funds.--Funds made available
pursuant to this section that remain unobligated for a period
of 6 months after the end of the fiscal year for which the
funds have been appropriated shall be awarded to other
recipients of this grant.
(o) Civil Rights Obligation.--A recipient of a grant under
this section shall be subject to the nondiscrimination
requirement under section 40002(b)(13) of the Violence Against
Women Act of 1994 (34 U.S.C. 12291(b)(13)).
(p) Definitions.--In this section, the term ``in custody''
means, with respect 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.
* * * * * * *
[all]