Florida Senate - 2020              PROPOSED COMMITTEE SUBSTITUTE
       Bill No. CS for SB 852
       Proposed Committee Substitute by the Committee on Appropriations
       (Appropriations Subcommittee on Criminal and Civil Justice)
    1                        A bill to be entitled                      
    2         An act relating to incarcerated pregnant women;
    3         amending s. 944.241, F.S.; amending the short title;
    4         redefining the term “extraordinary circumstance”;
    5         defining the terms “invasive body cavity search” and
    6         “restrictive housing”; revising the circumstances
    7         under which a prisoner who is known to be pregnant may
    8         not be restrained; specifying conditions under which
    9         restraints may be used; requiring that invasive body
   10         cavity searches on a pregnant prisoner be conducted by
   11         a medical professional; providing an exception;
   12         prohibiting the involuntary placement of pregnant
   13         prisoners in restrictive housing; providing
   14         exceptions; requiring corrections officials to write a
   15         specified report if an extraordinary circumstance
   16         necessitates placing a pregnant prisoner in
   17         restrictive housing; providing requirements for the
   18         report; requiring corrections officials to review such
   19         reports at specified intervals; requiring a copy of
   20         such reports and reviews to be provided to pregnant
   21         prisoners in restrictive housing; providing
   22         requirements for the treatment of pregnant prisoners
   23         placed in restrictive housing; requiring pregnant
   24         prisoners to be admitted to the infirmary under
   25         certain circumstances; providing certain rights for
   26         pregnant prisoners admitted to the infirmary;
   27         providing an effective date.
   29  Be It Enacted by the Legislature of the State of Florida:
   31         Section 1. Section 944.241, Florida Statutes, is amended to
   32  read:
   33         944.241 Shackling of Incarcerated pregnant women.—
   34         (1) SHORT TITLE.—This section may be cited as the “Tammy
   35  Jackson Healthy Pregnancies for Incarcerated Women Act.”
   36         (2) DEFINITIONS.—As used in this section, the term:
   37         (a) “Correctional institution” means any facility under the
   38  authority of the department or the Department of Juvenile
   39  Justice, a county or municipal detention facility, or a
   40  detention facility operated by a private entity.
   41         (b) “Corrections official” means the official who is
   42  responsible for oversight of a correctional institution, or his
   43  or her designee.
   44         (c) “Department” means the Department of Corrections.
   45         (d) “Extraordinary circumstance” means a substantial flight
   46  risk or some other extraordinary medical or security
   47  circumstance that dictates restraints or restrictive housing be
   48  used to ensure the safety and security of the prisoner, the
   49  staff of the correctional institution or medical facility, other
   50  prisoners, or the public.
   51         (e) Invasive body cavity search means a search that
   52  involves a manual inspection using touch, insertion, or probing
   53  of the openings, cavities, and orifices of the human body,
   54  including, but not limited to, the genitals, buttocks, anus, or
   55  breasts that is not conducted for a medical purpose.
   56         (f)(e) “Labor” means the period of time before a birth
   57  during which contractions are of sufficient frequency,
   58  intensity, and duration to bring about effacement and
   59  progressive dilation of the cervix.
   60         (g)(f) “Postpartum recovery” means, as determined by her
   61  physician, the period immediately following delivery, including
   62  the recovery period when a woman is in the hospital or infirmary
   63  following birth, up to 24 hours after delivery unless the
   64  physician after consultation with the department or correctional
   65  institution recommends a longer period of time.
   66         (h)(g) “Prisoner” means any person incarcerated or detained
   67  in any correctional institution who is accused of, convicted of,
   68  sentenced for, or adjudicated delinquent for a violation of
   69  criminal law or the terms and conditions of parole, probation,
   70  community control, pretrial release, or a diversionary program.
   71  For purposes of this section, the term includes any woman
   72  detained under the immigration laws of the United States at any
   73  correctional institution.
   74         (i)(h) “Restraints” means any physical restraint or
   75  mechanical device used to control the movement of a prisoner’s
   76  body or limbs, including, but not limited to, flex cuffs, soft
   77  restraints, hard metal handcuffs, a black box, chubb cuffs, leg
   78  irons, belly chains, a security or tether chain, or a convex
   79  shield.
   80         (j)“Restrictive housing” means the placement of pregnant
   81  prisoners separately from the general population of a
   82  correctional institution and imposing restrictions on their
   83  movement, behavior, and privileges solely based on the condition
   84  of being pregnant. The term includes placing the prisoner in
   85  medical isolation or in the infirmary.
   86         (3) RESTRAINT OF PRISONERS.—
   87         (a) Except as provided in paragraph (b), restraints may not
   88  be used on a prisoner who is known to be pregnant:
   89         1.If any doctor, nurse, or other health professional
   90  treating the prisoner in labor, in delivery, or in postpartum
   91  recovery requests that restraints not be used due to a
   92  documentable medical purpose. If the doctor, nurse, or other
   93  health professional makes such a request, the correctional
   94  officer or other law enforcement officer accompanying the
   95  prisoner must immediately remove all restraints.
   96         2. During transport, labor, delivery, or and postpartum
   97  recovery, unless the corrections official makes an
   98  individualized determination that the prisoner presents an
   99  extraordinary circumstance., except that:
  100         1.The physician may request that restraints not be used
  101  for documentable medical purposes. The correctional officer,
  102  correctional institution employee, or other officer accompanying
  103  the pregnant prisoner may consult with the medical staff;
  104  however, If the corrections official officer determines there is
  105  an extraordinary public safety risk, the official may officer is
  106  authorized to apply restraints as limited by paragraph (b)
  107  subparagraph 2.
  108         (b)A restraint may be used on a prisoner who is known to
  109  be pregnant or in postpartum recovery only if all of the
  110  following apply:
  111         1.The corrections official makes an individualized
  112  determination that the prisoner presents an extraordinary
  113  circumstance.
  114         2.The restraints used are the least restrictive necessary.
  115         3.If wrist restraints are used, the restraints are applied
  116  in the front of the prisoner so that she may protect herself in
  117  the event of a forward fall.
  118         4.2.Under no circumstances shall Leg, ankle, or waist
  119  restraints are not be used on any pregnant prisoner who is in
  120  labor or delivery.
  121         (b) If restraints are used on a pregnant prisoner pursuant
  122  to paragraph (a):
  123         1. The type of restraint applied and the application of the
  124  restraint must be done in the least restrictive manner
  125  necessary; and
  126         (c)2. The corrections official shall make written findings
  127  within 10 days after the use of restraints as to the
  128  extraordinary circumstance that dictated the use of the
  129  restraints. These findings shall be kept on file by the
  130  department or correctional institution for at least 5 years.
  131         (d)A pregnant prisoner who is transported by a
  132  correctional institution must be transported using a restraint
  133  that is the least restrictive necessary. A correctional
  134  institution that uses restraints on a pregnant prisoner during
  135  transport must comply with the written findings required in
  136  paragraph (c).
  137         (c) During the third trimester of pregnancy or when
  138  requested by the physician treating a pregnant prisoner, unless
  139  there are significant documentable security reasons noted by the
  140  department or correctional institution to the contrary that
  141  would threaten the safety of the prisoner, the unborn child, or
  142  the public in general:
  143         1. Leg, ankle, and waist restraints may not be used; and
  144         2. If wrist restraints are used, they must be applied in
  145  the front so the pregnant prisoner is able to protect herself in
  146  the event of a forward fall.
  147         (d) In addition to the specific requirements of paragraphs
  148  (a)-(c), any restraint of a prisoner who is known to be pregnant
  149  must be done in the least restrictive manner necessary in order
  150  to mitigate the possibility of adverse clinical consequences.
  152         (a)Except as provided under paragraph (b), an invasive
  153  body cavity search of a pregnant prisoner may be conducted only
  154  by a medical professional.
  155         (b)A correctional officer may conduct an invasive body
  156  cavity search of a pregnant prisoner only if the officer has a
  157  reasonable belief that the prisoner is concealing contraband. An
  158  officer who conducts an invasive body cavity search must submit
  159  a written report to the corrections official within 72 hours
  160  after the search. The report must:
  161         1.Explain the reasons for the search; and
  162         2.Identify any contraband recovered in the search.
  163         (5)RESTRICTIVE HOUSING.—
  164         (a) Except as provided in paragraph (b), a pregnant
  165  prisoner may not be involuntarily placed in restrictive housing.
  166  This subsection does not prohibit a corrections official from
  167  placing a pregnant prisoner in restrictive housing for
  168  disciplinary violations or to address security risks to the
  169  pregnant prisoner, other prisoners, or staff directly related to
  170  the pregnant prisoner provided the corrections official complies
  171  with the reporting requirements of subparagraph (b)1.
  172         (b) A pregnant prisoner may be involuntarily placed in
  173  restrictive housing only if the corrections official of the
  174  correctional institution, in consultation with the medical staff
  175  overseeing prenatal care and medical treatment at the
  176  correctional institution, determines that an extraordinary
  177  circumstance exists such that restrictive housing is necessary
  178  and that there are no less restrictive means available.
  179         1. The corrections official shall, before placing a
  180  prisoner in restrictive housing, write a report that states:
  181         a. The extraordinary circumstance that is present; and
  182         b. The reason less restrictive means are not available.
  183         2. The corrections official shall review the report at
  184  least every 24 hours to confirm that the extraordinary
  185  circumstance cited in the report still exists. A copy of the
  186  report and each review must be provided to the pregnant
  187  prisoner.
  188         (c) A pregnant prisoner who is placed in restrictive
  189  housing under this section shall be:
  190         1. Seen at least every 24 hours by the medical staff
  191  overseeing prenatal care and medical treatment in the facility;
  192         2. Housed in the least restrictive setting consistent with
  193  the health and safety of the pregnant prisoner; and
  194         3. Given an intensive treatment plan developed and approved
  195  by the medical staff overseeing prenatal care and medical
  196  treatment at the facility.
  197         (d) If a pregnant prisoner needs infirmary care, an
  198  authorized medical staff must provide an order for the pregnant
  199  prisoner to be admitted to the infirmary. If the pregnant
  200  prisoner has passed her due date, she must be admitted to the
  201  infirmary until labor begins or until other housing arrangements
  202  are made. A pregnant prisoner who has been placed in the
  203  infirmary shall be provided:
  204         1. The same access to outdoor recreation, visitation, mail,
  205  and telephone calls as other prisoners; and
  206         2. The ability to continue to participate in other
  207  privileges and classes granted to the general population.
  208         (6)(4) ENFORCEMENT.—
  209         (a) Notwithstanding any relief or claims afforded by
  210  federal or state law, any prisoner who is restrained in
  211  violation of this section may file a grievance with the
  212  correctional institution, and be granted a 45-day extension if
  213  requested in writing pursuant to rules promulgated by the
  214  correctional institution.
  215         (b) This section does not prevent a woman harmed through
  216  the use of restraints under this section from filing a complaint
  217  under any other relevant provision of federal or state law.
  218         (7)(5) NOTICE TO PRISONERS.—
  219         (a) By September 1, 2012, The department and the Department
  220  of Juvenile Justice shall adopt rules pursuant to ss. 120.536(1)
  221  and 120.54 to administer this section.
  222         (b) Each correctional institution shall inform female
  223  prisoners of the rules developed pursuant to paragraph (a) upon
  224  admission to the correctional institution, including the
  225  policies and practices in the prisoner handbook, and post the
  226  policies and practices in locations in the correctional
  227  institution where such notices are commonly posted and will be
  228  seen by female prisoners, including common housing areas and
  229  medical care facilities.
  230         Section 2. This act shall take effect July 1, 2020.