Florida Senate - 2011                                    SB 1086
       
       
       
       By Senator Hill
       
       
       
       
       1-00691B-11                                           20111086__
    1                        A bill to be entitled                      
    2         An act relating to the restraint of incarcerated
    3         pregnant women; providing a short title; defining
    4         terms; prohibiting a correctional institution or
    5         county or municipal detention facility from using
    6         restraints on a prisoner known to be pregnant unless a
    7         corrections official makes an individualized
    8         determination that the prisoner presents an
    9         extraordinary circumstance requiring restraints;
   10         providing that a doctor, nurse, or other health care
   11         professional treating the prisoner may request that
   12         restraints not be used, in which case the corrections
   13         official accompanying the prisoner shall remove all
   14         restraints; requiring that any restraint applied must
   15         be done in the least restrictive manner necessary;
   16         requiring the corrections official to make written
   17         findings within 10 days as to the extraordinary
   18         circumstance that dictated the use of restraints;
   19         requiring that the findings be kept on file by the
   20         correctional institution or detention facility for at
   21         least 5 years and be made available for public
   22         inspection under certain circumstances; authorizing
   23         any woman who is restrained in violation of the act to
   24         file a complaint within a specified period; providing
   25         that these remedies do not prevent a woman harmed from
   26         filing a complaint under any other relevant provision
   27         of federal or state law; directing the Department of
   28         Corrections and the Department of Juvenile Justice to
   29         adopt rules; requiring correctional institutions and
   30         detention facilities to inform prisoners of the rules
   31         upon admission, including the policies and practices
   32         in the prisoner handbook, and post the policies and
   33         practices in the correctional institution or detention
   34         facility; requiring the Secretary of Corrections, the
   35         Secretary of Juvenile Justice, and county and
   36         municipal corrections officials to annually file
   37         written reports with the Executive Office of the
   38         Governor detailing each incident of shackling;
   39         providing an effective date.
   40  
   41         WHEREAS, restraining a pregnant prisoner can pose undue
   42  health risks and increase the potential for physical harm to the
   43  woman and her pregnancy, and
   44         WHEREAS, the vast majority of female prisoners in this
   45  state are nonviolent offenders, and
   46         WHEREAS, the impact of such harm to a pregnant woman can
   47  negatively affect her pregnancy, and
   48         WHEREAS, freedom from physical restraints is especially
   49  critical during labor, delivery, and postpartum recovery after
   50  delivery as women often need to move around during labor and
   51  recovery, including moving their legs as part of the birthing
   52  process, and
   53         WHEREAS, restraints on a pregnant woman can interfere with
   54  the medical staff’s ability to appropriately assist in
   55  childbirth or to conduct sudden emergency procedures, and
   56         WHEREAS, the Federal Bureau of Prisons, the United States
   57  Marshals Service, the American Correctional Association, the
   58  American College of Obstetricians and Gynecologists, and the
   59  American Public Health Association all oppose restraining women
   60  during labor, delivery, and postpartum recovery because it is
   61  unnecessary and dangerous to a woman’s health and well-being,
   62  NOW, THEREFORE,
   63  
   64  Be It Enacted by the Legislature of the State of Florida:
   65  
   66         Section 1. Shackling of incarcerated pregnant women.—
   67         (1) SHORT TITLE.—This section may be cited as the “Healthy
   68  Pregnancies for Incarcerated Women Act.”
   69         (2) DEFINITIONS.—As used in this section, the term:
   70         (a) “Correctional institution” means any facility under the
   71  authority of the department, the Department of Juvenile Justice,
   72  or a county or municipal detention facility.
   73         (b) “Corrections official” means the official who is
   74  responsible for oversight of a correctional institution, or his
   75  or her designee.
   76         (c) “Department means the Department of Corrections.
   77         (d) “Extraordinary circumstance” means a substantial flight
   78  risk or some other extraordinary medical or security
   79  circumstance that dictates restraints be used to ensure the
   80  safety and security of the prisoner, the staff of the
   81  correctional institution or medical facility, other prisoners,
   82  or the public.
   83         (e) “Labor” means the period of time before a birth during
   84  which contractions are of sufficient frequency, intensity, and
   85  duration to bring about effacement and progressive dilation of
   86  the cervix.
   87         (f) “Postpartum recovery” means, as determined by her
   88  physician, the period immediately following delivery, including
   89  the recovery period when a woman is in the hospital or infirmary
   90  following birth.
   91         (g) “Prisoner” means any person incarcerated or detained in
   92  any correctional institution who is accused of, convicted of,
   93  sentenced for, or adjudicated delinquent for a violation of
   94  criminal law or the terms and conditions of parole, probation,
   95  community control, pretrial release, or a diversionary program.
   96  For purposes of this section, the term includes any woman
   97  detained under the immigration laws of the United States at any
   98  correctional institution.
   99         (h) “Restraints” means any physical restraint or mechanical
  100  device used to control the movement of a prisoner’s body or
  101  limbs, including, but not limited to, flex cuffs, soft
  102  restraints, hard metal handcuffs, a black box, chubb cuffs, leg
  103  irons, belly chains, a security or tether chain, or a convex
  104  shield.
  105         (3) RESTRAINT OF PRISONERS.—
  106         (a) A corrections official may not use restraints on a
  107  prisoner known to be pregnant, including during labor, transport
  108  to a medical facility, delivery, and postpartum recovery, unless
  109  the corrections official makes an individualized determination
  110  that the prisoner presents an extraordinary circumstance, except
  111  that:
  112         1. If the doctor, nurse, or other health care professional
  113  treating the prisoner requests that restraints not be used, the
  114  corrections official accompanying the pregnant prisoner shall
  115  remove all restraints; and
  116         2. Under no circumstances shall leg or waist restraints be
  117  used on any pregnant prisoner who is in labor or delivery.
  118         (b) If restraints are used on a pregnant prisoner pursuant
  119  to paragraph (a):
  120         1. The type of restraint applied and the application of the
  121  restraint must be done in the least restrictive manner
  122  necessary; and
  123         2. The corrections official shall make written findings
  124  within 10 days as to the extraordinary circumstance that
  125  dictated the use of the restraints. These findings shall be kept
  126  on file by the correctional institution for at least 5 years and
  127  be made available for public inspection, except that the
  128  identifying information of a prisoner may not be made public
  129  without the prisoner’s prior written consent.
  130         (4) ENFORCEMENT.—
  131         (a) Notwithstanding any relief or claims afforded by
  132  federal or state law, any prisoner who is restrained in
  133  violation of this section may file a complaint within 1 year
  134  after the incident.
  135         (b) This section does not prevent a woman harmed under this
  136  section from filing a complaint under any other relevant
  137  provision of federal or state law.
  138         (5) NOTICE TO PRISONERS.—
  139         (a) By September 1, 2011, the department and the Department
  140  of Juvenile Justice shall adopt rules pursuant to ss. 120.536(1)
  141  and 120.54, Florida Statutes, to administer this section.
  142         (b) Each correctional institution shall inform prisoners of
  143  the rules developed pursuant to paragraph (a) upon admission to
  144  the correctional institution, including the policies and
  145  practices in the prisoner handbook, and post the policies and
  146  practices in locations in the correctional institution where
  147  such notices are commonly posted, including common housing areas
  148  and medical care facilities.
  149         (6)ANNUAL REPORT.—By June 30 of each year, the Secretary
  150  of Corrections, the Secretary of Juvenile Justice, and the
  151  corrections official of each municipal and county detention
  152  facility where a pregnant prisoner had been shackled during that
  153  previous year shall submit a written report to the Executive
  154  Office of the Governor which includes an account of every
  155  instance using restraints pursuant to this section. The written
  156  reports may not contain identifying information of any prisoner.
  157  Such reports shall be made available for public inspection.
  158         Section 2. This act shall take effect July 1, 2011.