Shackling and Tasering of Incarcerated Pregnant Women in Pennsylvania and Centre County: New Changes in State Law and County Policy

New State Law

On March 17, 2010, the Pennsylvania Senate unanimously passed SB 1074 that prohibits the shackling of pregnant women except in "extraordinary circumstances" in the second or third trimester of pregnancy and immediately postpartum.  The Pennsylvania House of Representatives then followed by unanimously passing the bill on June 29, 2010.  And Governor Rendell signed the bill into law on July 2, 2010.  This new law goes into effect statewide on August 31, 2010. 

The new law states:

1. [A] correctional institution shall not apply restraints to a prisoner or detainee known to be pregnant during any stage of labor, any pregnancy-related medical distress, any period of delivery, any period of postpartum,...or transport to a medical facility as a result of any of the preceding conditions or transport to a medical facility after the beginning of the second trimester of pregnancy.


(2) Paragraph (1) shall not bar reasonable restraint provided the correctional institution staff assigned to the prisoner or detainee makes an individualized determination that the prisoner or detainee presents a substantial risk of imminent flight or some other extraordinary medical or security circumstance dictates that the prisoner or detainee be restrained to ensure the safety and security of the prisoner or detainee, the staff of the correctional institution or medical facility, other prisoners or detainees or the public.

If an "extraordinary circumstance" occurs that results in restraint of the pregnant woman, the prison must NOT leave the inmate unattended so that these restraints can be removed immediately should the removal become "medically necessary."  It also requires that the "least restrictive" type of restraint be used should this become necessary.  And the correctional facility must then report this incidence of restraint in a report to the PA Department of Public Welfare.  County jails must include these incidences in their "County Extraordinary Occurrence Monthly Report" to the Secretary of the Department of Public Welfare.
 
New Centre County Policy
 
Meanwhile, the Centre County Prison Board has been working on this issue since January when Pennsylvania NOW called upon the Board and the Warden to compassionately use their power to not shackle a woman who went into labor two days after we received a call from the woman's mother about this situation.  The warden agreed and the woman was not shackled during her labor and delivery. 
 
Five days later at their monthly prison board meeting, the Prison Board agreed to add this issue to the review of their entire "Inmate Transport"  policy.  Today at 8:25 am, the Prison Board unanimously passed their revised "Inmate Transport" policy. 
 
The newly revised  policy, which goes into effect immediately, covers the protocol for transporting inmates incarcerated at the Centre County Correctional Center.  This policy is designed to "ensure the security and safety of inmates, officers, and the community during the course of inmate transports."  This includes how prisoners are handled when they are transported by the prison and by ambulance as well as what happens when they are take to a doctor's office or hospital.

This new policy follows the new state law and goes several steps further.  The first difference is that any pregnant woman - no matter age of gestation - is covered. The second difference is that, unlike the new state law, the Shift Commander, not the correctional officer,  makes the determination if an extraordinary situation allowing limited shackling is present and will be allowed.. Third, only handcuffs are allowed if restraint is required.  Forth, under no circumstance will a pregnant woman ever be tasered!  In fact, correctional officers are not allowed to carry a taser if the inmate is pregnant. And finally, if only one correctional officer is assigned for the transportation of the pregnant female inmate, that officer must be a woman.  If two officers are assigned, the second one can be either male or female.

Pennsylvania NOW would like to thank the General Assembly and Governor Rendell for passage of this new, compassionate law.  We also thank the Centre County Prison Board for taking the issue of tasering and shackling pregnant women seriously and creating an even stronger policy on shackling and for completely prohibiting the tasering of all pregnant women. 

THANK YOU! THANK YOU! THANK YOU ALL!

Anti-Shackling Bill Passes in the PA Senate

It now goes to the Pennsylvania House Representatives.
Here's an email from Dee Johnson, Philadelphia NOW member and Communications Manager at the Pennsylvania Prison Society that announces passage of the bill.

Our anti-shackling bill just passed unanimously in the Senate; now onto the House! Woohoo! Following is the vote history of the Shackling Ban bill: http://www.legis.state.pa.us/cfdocs/billinfo/bill_history.cfm?syear=2009&sind=0&body=S&type=B&bn=1074

Dee Johnson
Communications Manager/Managing Editor
Pennsylvania Prison Society
245 North Broad Street
Suite 300
Philadelphia, PA 19107
215.564.6005, ext. 112
215.564.7926 (Fax)
djohnson@prisonsociety.org
http://www.prisonsociety.org/
www.facebook.com/PennsylvaniaPrisonSociety

Three Bills for Women on the Ides of March

Monday, March 15, 2010 was the Ides of March 2010.  And it was a good day for women!

Eating Disorders to be Addressed in New Legislation

On Friday, March 12, Senator Daylin Leach's office contacted me and asked if I'd come to Harrisburg and support a bill that would mandate insurance coverage of recommended treatment for individuals with eating disorders.  This bill, like the law mandating coverage of mammograms, would stop insurance companies from limiting coverage to solely stabelizing the woman's weight.  It would allow women the time to have the full medical and psycholigical treatment necessary for the woman to effectively deal with not only the physical issues but also the underlying issues surrounding her disorder.

So at 11 am yesterday, I attended a press conference in the Capital Rotunda on SB 1138 to increase awareness and show support for this legislation that would require insurance companies to cover non-hospital residential care for eating disorder patients, thereby allowing doctors and patients the ability to choose the best treatment plans for the individual patient.

You can read the latest version of this bill on the PA General Assembly website.

Marital and Familial Status Protections in Employment

Following a short lunch, I had a meeting with Representative Michael Carroll.  He is the prime sponsor of HB 2245, the newest incarnation of a bill that would add marital and familal status protections to the employment section of the Pennsylvania Human Relations Act.  This is Pennsylvania's anti-discrimination law.  The bill passed out of the State House Government Committee on Monday, March 8, 2010 and is now in the House Appropriations Committee. 

I met with him to ask about next steps and to request that the General Assembly expand the definition of family status to include family responsibilities across the life span.  As currently defined in this bill, an individual would be protected from discrimination in employment based either on their marital status (married, single, separated) or because they have children under the age of 18 living in the home.  However, if they are perceived to be responsible for the care of another adult family member (such as a spouse, parent, aunt, adult child, etc) and are denied employment or treated disparately at work, then there are no protections.  Expanding the family status definition to include these family responsibilities would eliminate this form of family-based discrimination and, as with flex-time, make for a better family-friendly work environment.  These protections should also increase the committment and productivity of workers at their workplace by reducing the work-family stress associated with work environments that don't recognize family responsibilities.

Representative Carroll felt this would strengthen the bill and agreed to offer this idea as an amendment to the the bill when it comes up again in the Appropriations Committee hearing.  However, at this point he does not know when that hearing will be held.

The WorkLife Law Center at University of California Hastings College of Law contains detailed background information on this form of legislation.  Their home page for this issue is at http://www.worklifelaw.org/FRD.html. 

You can read the latest version of this bill on the PA General Assembly website.  Note that this version (HB 2245, PN 3182) does NOT contain the proposed amendment that Representative Carroll and I discussed.

Anti-Shackling Bill Moves Another Step Towards Passage

Finally, before returning home, I sat in on the Senate Appropriations Hearing.  SB 1074 was the last item on their agenda.  This is the bill that prohibits correctional facilities within the state from shackling pregnant women during labor and delivery.

Like in the hearing in the Senate Judiciary Committee in January, there were some technical amendments made to the bill.  And then without any discussion, the bill was unanimously passed.

Senator Leach, the prime sponsor of this bill, said that the Senate is expected to place the bill on the floor of the Senate on Wednesday and will then vote for final passage.  It will then go to the PA House of Representatives for their review.

You can read the latest version of this bill on the PA General Assembly website.

It was a GREAT day!

Three bills - access to treatment for eating disorders, prohibiting family-based employment discrimination, and prohibiting the shackling of pregnant women.  Maybe the Ides of March will change the tide for women in Pennsylvania!  Yea!

NOW Actions on Shackling in RI and AZ

Yesterday, I sent out an email to the National NOW Presidents' listserv to let them know that the PA Department of Corrections had sent us most of their policy on shackling of pregnant women that we had requested. 

I later received emails from Rhode Island and Arizona on what's happening there.  Here's the text from those emails:

----- ARIZONA -----

Joanne,

Congratulations....Our state dept. of corrections has a policy against shackling. However, we in Phoenix have "The world's toughest sherriff (Joe Arpaio)" and the Maricopa County jail, which houses a very large population of undocumented immigrants who statutorily cannot be released on bail, routinely shackles pregnant prisoners during labor and delivery.

Thanks,
Eric Ehst
Arizona NOW

----- RHODE ISLAND -----

Congratulations to you and all of PA NOW! You're an inspiration for the work we're doing in this area in RI.

Laura Costa
RI NOW (Vice President)

and

Rhode Island is working on this issue as well. We filed a law suit with the ACLU and have only received redacted info from the Department of Corrections so far. We're also pushing legislation on this issue, so it'd be great to be in touch on this, and we'd love to see your materials.

Carolyn Mark
RI NOW (President)

Victory: PA Department of Corrections Releases Shackling Policy

On January 12th, Pennsylvania NOW, Inc. submitted a Right to Know request to the PA Department of Correcetion for a copy of their written policy on shackling pregnant women. On January 20th they sent back an email refusing to release this information. So with the help of the Pennsylvania ACLU, we filled an appeal to Pennslyvania's Right to Know Office.

Here's our argument for releasing this information:

Pennsylvania NOW’s request does not seek details of the use of restraints that could in any way compromise personal safety or institutional security. Based on our research into the use of restraints on pregnant women, Pennsylvania NOW challenges the DOC's claim that any aspect of this policy could be considered "confidential" or secret information that if disclosed could result in a threat to public safety or harm to an individual. I have received full, unredacted copies of the restraint policies used by both the Federal Bureau of Prisons and the Centre County Correctional Facility here in Centre County PA. In addition, six states—California, Illinois, New Mexico, New York, Texas, and Vermont—have laws on the books open to the public. Whether release of the policy has been by regulation, internal policy, or public law, in no case has there been any apparent loss of security or increase in risk to anyone's safety.

Today, the Department of Corrections reversed their initial refusal and sent us a redacted copy of their restraint policy.

WE WON!

What appears to be missing from this DOC policy from my initial read is a requirement to provide written documentation whenever a pregnant woman is restrained under one of the exceptions to the ban. This should change if the current proposed bill (SB 1074), introduced by Senator Daylin Leach, becomes law.  SB1074 was unanimously passed out of the Senate Judiciary Committee on January 26, 2010 and is now waiting for a floor vote in the Senate before moving to the PA House of Representatives.

If your NOW chapter wants to work on this issue, let me know and I'll send you all the materials I have in addition to the talking points that Dee Johnson of Philadelphia NOW and the Pennsylvania Prison Society sent out to the PA NOW leadership yesterday. This would include:

1. The Federal Bureau of Prison policy
2. The PA Dept of Corrections policy
3. The Centre County Prison Board policy (that is being rewritten to ban this procedure; the current copy I have still allows it, even though verbally they have already agreed to stop this action against women)
4. Amnesty International's statement on shackling.
5. The American College of OB/GYN's letter opposing the shackling of pregnant women
6. National Advocates for Pregnant Women's press release on the 8th Circuit Court of Appeals decision
7. Copy of the proposed state law (SB 1074)
8. Copy of the complaint currently before the US District Court of Western Washington on this issue (Brawley v State of Washington, Washington Department of Corrections, et al).
9. Copy of the 8th Circuit Court of Appeals decision on the Nelson v Correctional Medical Services on shackling pregnant women that states, "The Eighth Amendment prohibits "cruel and unusual punishments," U.S.Const. amend. VIII, and well before September 20, 2003 the Supreme Court and the lower federal courts had concluded that the Amendment forbids actions like those taken by Turensky in shackling Nelson."

Unshackled Updates

Since I posted my last blog, there have been a couple of updates.

I sent a thank you email to the members of the Centre County Prison Board along with a recommendation to expand the ban on TASERing "visibly pregnant" women to include women "known to be pregnant." I received an email back from the Sheriff aggreeing with me. He said he'd include this in his recommended updates to that policy.

At the state level, Senator Daylin Leach introduced a bill last September to outlaw the shackling of pregant women. This bill is now starting to move. The PA Senate Judiciary Committee will "consider" SB 1074 on Tuesday, January 26, 2010 at 11:30 am in Room 8E-B East Wing of the Capital Building in Harrisburg. The announcement of this meeting is at http://pwr.com/1KJ. The members of this committee can be found at http://pwr.com/1KK and a copy of the bill can be found at http://pwr.com/1KL.

Unshackled

She's Nine Months Pregnant and the Jail Wants to Shackle Her During Labor

Here in Centre County, PA I received a phone call from the mother of a pregnant women who was incarcerated in the county jail for shoplifting. I received the call on Friday January 8, 2010. Her daughter was expecting to go into labor over the weekend. The mother told me that the warden had told her that her daughter would be shackled during labor and delivery.

I told her I'd see what I could do. I contacted the county sheriff, the county commissioner who is head of the county's prison board, and his assistant. Working through the assistant, I was able to get the warden to agree not to shackle the woman should she go into labor over the weekend. During the process, I highlighted the following:

1. Shackling is a form of cruel and unusual punishment for pregnant women.
2. Shackling can cause serious medical complications to the fetus.

I noted that this is also a violation of international treaty, that it has been outlawed in six states, and as of Oct 2009 been prohibited in North Dakota, South Dakota, Iowa, Nebraska, Missouri, Minnesota, and Arkansas by the 8th Circuit Court of Appeals as cruel and unusual punishment. In addition there is pending legislation in the Pennsylvania General Assembly to outlaw restraints on "a prisoner or detainee known to be pregnant during any stage of labor, any pregnancy related medical distress, transport to a medical facility, delivery or postpartum."
As a result of the phone calls and emails, I got an agreement from the warden that they would not shackle the woman should she go into labor over the weekend. They also agreed to place this issue on the prison board's meeting agenda on Thursday, January 14 to review the policy of shackling everyone, pregnant or not.

The Prison Board Meeting

Subsequent to the agreement not to shackle, I received a copy of the current restraint policy. The only exception to any form of restraint in the current policy is to prohibit the use of leg irons during transport or labor of the pregnant woman. I let the sherrif, the county commissioner, and his assistant know that this was still unaceptable and that I would still be doing a presentation at the board meeting.

So Thursday morning, I made my presentation. Present at the meeting were the Warden, all three county Commissioners, one of our four Court of Common Pleas judges, the new District Attorney, the county Sheriff, and several other people that I didn't recognize. In addition, Barbara Price from the Centre County chapter of the Prison Society and Colina Jordan-Seeley from Ni-Ta-Nee NOW also attended. (Barbara didn't know about this policy in Centre County before the meeting, but was quite supportive). Thanks Barbara and Colina!

First off, we were told that the woman had her child on Sunday or Monday. She was not restrained at all according to the Warden. After the birth, she was paroled and is now out with her child. Yea!

I made a 20-minute presentation. The warden was a bit defensive, saying that the mother had never brought this issue up to him. He said she only raised the issue of custody of the child after birth. But he did agree that the policy did need to be looked at.

At the end of my comments, I requested that they also include in the policy training officers on how to place a seat belt across a pregnant woman when transporting so as not to place undue pressure on the fetus. They agreed to consider adding this to the policy as well.

They all thanked me for bringing this issue up before them and said that as a result they would be adding a new section to their policy specifically focusing on pregnant women. Sheriff Denny Nau also said at the end of my presentation that he wants to see words similar to SB 1074 in the final policy. They agreed that once the new policy is drafted that they will send me a copy and notify me of the meeting date when it will be on the agenda.

Following my presentation, they brought up a policy revision they are discussing on tasering inmates and detainees. I was allowed to ask a question. I asked if there was a prohibition against tasering any pregnant woman. The warden immediately said that yes, that is in the policy. The corrections officers, however, are still required to carry tasers when transporting and at the medical facility whether or not the prisoner is pregnant. He said the reason for carrying is that they have had experiences with the boyfriend or other family members of the pregnant woman attacking others during the prenatal examinations. They don't use the TASER on the woman, but have used it to subdue others.

I got a copy of the policy. Here's what it says about pregnant women:

The TASER will not be used:

...to awaken unconscious or intoxicated individual; or when the subject is visibly pregnant, unless deadly force is the only other option.

This too needs to be tweaked since it only prohibits tasering if the woman is "visibly pregnant."

But all in all, this looks like a victory for reproductive and human rights. :-) Will let you know what happens once they actually create the new policy.