II 115th CONGRESS 2d Session S. 3616 IN THE SENATE OF THE UNITED STATES November 14, 2018 Mr. Paul (for himself and Mrs. Gillibrand ) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To prohibit the use of restraints and restrictive housing on inmates during the period of pregnancy, labor and postpartum recovery, to collect data on incarcerated pregnant women in the United States and the results of such pregnancies, to address the health needs of incarcerated women related to pregnancy and childbirth, and for other purposes.

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