Florida Senate - 2020                                     SB 854
       By Senator Pizzo
       38-00970-20                                            2020854__
    1                        A bill to be entitled                      
    2         An act relating to incarcerated pregnant women;
    3         amending s. 944.241, F.S.; defining the term
    4         “restrictive housing”; revising the circumstances
    5         under which a prisoner who is known to be pregnant may
    6         not be restrained; specifying conditions under which
    7         restraints may be used; requiring the Department of
    8         Corrections, correctional facilities, and certain
    9         agencies to develop policies that meet certain
   10         requirements for the use of restraints on prisoners
   11         known to be pregnant; requiring such prisoners who are
   12         in labor to be taken to an appropriate medical
   13         facility without delay; providing requirements for the
   14         care of the prisoner after she has given birth and of
   15         the prisoner’s infant; prohibiting the child’s birth
   16         certificate from stating the child was born in a
   17         correctional facility; requiring that invasive body
   18         cavity searches on a pregnant prisoner be conducted by
   19         a medical professional; providing an exception;
   20         prohibiting the involuntary placement of pregnant
   21         prisoners in restrictive housing; providing
   22         exceptions; requiring corrections officials to write a
   23         specified report if an extraordinary circumstance
   24         necessitates placing a pregnant prisoner in
   25         restrictive housing; providing requirements for the
   26         report; requiring corrections officials to review such
   27         reports at specified intervals; requiring copies of
   28         the reports and reviews to be provided to pregnant
   29         prisoners in restrictive housing; providing
   30         requirements for the treatment of pregnant prisoners
   31         placed in restrictive housing; requiring pregnant
   32         prisoners to be admitted to the infirmary under
   33         certain circumstances; providing certain privileges
   34         for pregnant prisoners admitted to the infirmary;
   35         providing an effective date.
   37  Be It Enacted by the Legislature of the State of Florida:
   39         Section 1. Section 944.241, Florida Statutes, is amended to
   40  read:
   41         944.241 Shackling of Incarcerated pregnant women.—
   42         (1) SHORT TITLE.—This section may be cited as the “Healthy
   43  Pregnancies for Incarcerated Women Act.”
   44         (2) DEFINITIONS.—As used in this section, the term:
   45         (a) “Correctional institution” means any facility under the
   46  authority of the department or the Department of Juvenile
   47  Justice, a county or municipal detention facility, or a
   48  detention facility operated by a private entity.
   49         (b) “Corrections official” means the official who is
   50  responsible for oversight of a correctional institution, or his
   51  or her designee.
   52         (c) “Department” means the Department of Corrections.
   53         (d) “Extraordinary circumstance” means a substantial flight
   54  risk or some other extraordinary medical or security
   55  circumstance that dictates restraints be used to ensure the
   56  safety and security of the prisoner, the staff of the
   57  correctional institution or medical facility, other prisoners,
   58  or the public.
   59         (e) “Labor” means the period of time before a birth during
   60  which contractions are of sufficient frequency, intensity, and
   61  duration to bring about effacement and progressive dilation of
   62  the cervix.
   63         (f) “Postpartum recovery” means, as determined by her
   64  physician, the period immediately following delivery, including
   65  the recovery period when a woman is in the hospital or infirmary
   66  following birth, up to 24 hours after delivery unless the
   67  physician after consultation with the department or correctional
   68  institution recommends a longer period of time.
   69         (g) “Prisoner” means any person incarcerated or detained in
   70  any correctional institution who is accused of, convicted of,
   71  sentenced for, or adjudicated delinquent for a violation of
   72  criminal law or the terms and conditions of parole, probation,
   73  community control, pretrial release, or a diversionary program.
   74  For purposes of this section, the term includes any woman
   75  detained under the immigration laws of the United States at any
   76  correctional institution.
   77         (h) “Restraints” means any physical restraint or mechanical
   78  device used to control the movement of a prisoner’s body or
   79  limbs, including, but not limited to, flex cuffs, soft
   80  restraints, hard metal handcuffs, a black box, chubb cuffs, leg
   81  irons, belly chains, a security or tether chain, or a convex
   82  shield.
   83         (i)“Restrictive housing” means the placement of some
   84  prisoners separately from the general population of a
   85  correctional institution and imposing restrictions on their
   86  movement, behavior, and privileges. The term includes placing
   87  the prisoner in medical isolation or in the infirmary.
   88         (3) RESTRAINT OF PRISONERS.—
   89         (a) Except as provided in paragraph (b), restraints may not
   90  be used on a prisoner who is known to be pregnant:
   91         1.If any doctor, nurse, or other health professional
   92  treating the prisoner in labor, in delivery, or in postpartum
   93  recovery requests that restraints not be used. If the doctor,
   94  nurse, or other health professional makes such a request, the
   95  correctional officer or other law enforcement officer
   96  accompanying the prisoner must immediately remove all
   97  restraints.
   98         2. During transport, labor, delivery, or and postpartum
   99  recovery, unless the corrections official makes an
  100  individualized determination that the prisoner presents an
  101  extraordinary circumstance., except that:
  102         1.The physician may request that restraints not be used
  103  for documentable medical purposes. The correctional officer,
  104  correctional institution employee, or other officer accompanying
  105  the pregnant prisoner may consult with the medical staff;
  106  however, If the corrections official officer determines there is
  107  an extraordinary public safety risk, the official may officer is
  108  authorized to apply restraints as limited by paragraph (b)
  109  subparagraph 2.
  110         (b)A restraint may be used on a prisoner who is known to
  111  be pregnant or in postpartum recovery only if all of the
  112  following apply:
  113         1.The corrections official makes an individualized
  114  determination that the prisoner presents an extraordinary
  115  circumstance.
  116         2.The restraints used are the least restrictive necessary.
  117         3.If wrist restraints are used, the restraints are applied
  118  in the front of the prisoner so that she may protect herself in
  119  the event of a forward fall.
  120         4.2.Under no circumstances shall Leg, ankle, or waist
  121  restraints are not be used on any pregnant prisoner who is in
  122  labor or delivery.
  123         (b) If restraints are used on a pregnant prisoner pursuant
  124  to paragraph (a):
  125         1. The type of restraint applied and the application of the
  126  restraint must be done in the least restrictive manner
  127  necessary; and
  128         (c)2. The corrections official shall make written findings
  129  within 10 days after the use of restraints as to the
  130  extraordinary circumstance that dictated the use of the
  131  restraints. These findings shall be kept on file by the
  132  department or correctional institution for at least 5 years.
  133         (d)The department and the corrections official of each
  134  local correctional facility or the managing official of the
  135  agency designated to transport prisoners shall develop a policy
  136  for use at each correctional facility which:
  137         1.Requires a restraint used on a pregnant prisoner during
  138  transport to be the least restrictive necessary; and
  139         2.Establishes a method for reporting the use of restraints
  140  on pregnant prisoners.
  142  BIRTH.—
  143         (a)A prisoner who is in labor shall be taken to an
  144  appropriate medical facility without delay.
  145         (b)For 72 hours after the birth of an infant by a
  146  prisoner:
  147         1.The infant must be allowed to remain with the prisoner,
  148  unless a medical professional determines that doing so would
  149  pose a health or safety risk to the prisoner or infant; and
  150         2.The prisoner must have access to any nutritional or
  151  hygiene-related products necessary to care for the infant,
  152  including diapers.
  153         (c)A corrections official must allow a prisoner who gives
  154  birth while in a correctional facility or who already has an
  155  infant when she is admitted to a correctional facility to keep
  156  the infant with her for a reasonable time, preferably on
  157  extended furlough or in an appropriate community facility or, if
  158  that is not practicable or reasonable, in a nursery at a
  159  correctional facility which is staffed by qualified persons.
  160         (d)If long-term imprisonment is anticipated, the
  161  correctional facility shall help the prisoner develop necessary
  162  plans, in coordination with social service agencies, for
  163  alternative care for the infant following the 72 hours after the
  164  infant’s birth. For any arrangements contemplated, a prisoner
  165  shall be informed of the consequences for the prisoner’s
  166  parental rights. When a prisoner and infant are separated, the
  167  prisoner must be provided with counseling and other mental
  168  health support.
  169         (e)A child’s birth certificate may not state that he or
  170  she was born in a correctional facility.
  172         (a)Except as provided under paragraph (b), an invasive
  173  body cavity search of a pregnant prisoner may be conducted only
  174  by a medical professional.
  175         (b)A correctional officer may conduct an invasive body
  176  cavity search of a pregnant prisoner only if the officer has a
  177  reasonable belief that the prisoner is concealing contraband. An
  178  officer who conducts an invasive body cavity search must submit
  179  a written report to the warden within 72 hours after the search.
  180  The report must:
  181         1.Explain the reasons for the search; and
  182         2.Identify any contraband recovered in the search.
  183         (6)RESTRICTIVE HOUSING.—
  184         (a) Except as provided in paragraph (b), a pregnant
  185  prisoner may not be involuntarily placed in restrictive housing.
  186         (b) A pregnant prisoner may be involuntarily placed in
  187  restrictive housing only if the corrections official of the
  188  correctional institution, in consultation with a medical
  189  professional at the correctional institution, determines that an
  190  extraordinary circumstance exists such that restrictive housing
  191  is necessary and that there are no less restrictive means
  192  available.
  193         1. The corrections official shall, before placing a
  194  prisoner in restrictive housing, write a report that states:
  195         a. The extraordinary circumstance that is present; and
  196         b. The reason less restrictive means are not available.
  197         2. The corrections official shall review the report at
  198  least every 24 hours to confirm that the extraordinary
  199  circumstance cited in the report still exists. A copy of the
  200  report and each review must be provided to the prisoner.
  201         (c) A pregnant prisoner who is placed in restrictive
  202  housing under this section shall be:
  203         1. Examined at least every 8 hours by a medical
  204  professional at the facility;
  205         2. Housed in the least restrictive setting consistent with
  206  the health and safety of the individual; and
  207         3. Given a treatment plan developed and approved by a
  208  medical professional at the facility.
  209         (d) If a pregnant prisoner needs infirmary care, a primary
  210  care nurse practitioner or obstetrician must provide an order
  211  for the prisoner to be admitted to the infirmary. If the
  212  prisoner has passed her due date, she must be admitted to the
  213  infirmary until labor begins or until the primary care nurse
  214  practitioner or obstetrician makes other housing arrangements. A
  215  pregnant prisoner who has been placed in the infirmary shall be
  216  provided:
  217         1. The same access to outdoor recreation, visitation, mail,
  218  and telephone calls as other prisoners; and
  219         2. The ability to continue to participate in other
  220  privileges and classes granted to the general population of the
  221  correctional institution.
  222         (c) During the third trimester of pregnancy or when
  223  requested by the physician treating a pregnant prisoner, unless
  224  there are significant documentable security reasons noted by the
  225  department or correctional institution to the contrary that
  226  would threaten the safety of the prisoner, the unborn child, or
  227  the public in general:
  228         1. Leg, ankle, and waist restraints may not be used; and
  229         2. If wrist restraints are used, they must be applied in
  230  the front so the pregnant prisoner is able to protect herself in
  231  the event of a forward fall.
  232         (d) In addition to the specific requirements of paragraphs
  233  (a)-(c), any restraint of a prisoner who is known to be pregnant
  234  must be done in the least restrictive manner necessary in order
  235  to mitigate the possibility of adverse clinical consequences.
  236         (7)(4) ENFORCEMENT.—
  237         (a) Notwithstanding any relief or claims afforded by
  238  federal or state law, any prisoner who is restrained in
  239  violation of this section may file a grievance with the
  240  correctional institution, and be granted a 45-day extension if
  241  requested in writing pursuant to rules promulgated by the
  242  correctional institution.
  243         (b) This section does not prevent a woman harmed through
  244  the use of restraints under this section from filing a complaint
  245  under any other relevant provision of federal or state law.
  246         (8)(5) NOTICE TO PRISONERS.—
  247         (a) By September 1, 2012, the department and the Department
  248  of Juvenile Justice shall adopt rules pursuant to ss. 120.536(1)
  249  and 120.54 to administer this section.
  250         (b) Each correctional institution shall inform female
  251  prisoners of the rules developed pursuant to paragraph (a) upon
  252  admission to the correctional institution, including the
  253  policies and practices in the prisoner handbook, and post the
  254  policies and practices in locations in the correctional
  255  institution where such notices are commonly posted and will be
  256  seen by female prisoners, including common housing areas and
  257  medical care facilities.
  258         Section 2. This act shall take effect July 1, 2020.