September 27, 2013

American Civil Liberties Union of Virginia

Comments on Minimum Standards for Jails and Lockups [6 VAC 15 - 40]

The American Civil Liberties Union of Virginia strongly supports the proposed regulations that will create uniform rules governing the use of restraints on pregnant inmates. Under current rules, local and regional jails are not required to publicly disclose data on the number of pregnant inmates who are restrained, the type of restraint(s) used, or under what circumstance(s) a restraint can be used. Currently, the policies on the use of restraints on pregnant inmates can vary across locality, and some jails have no policy at all. We applaud the Board of Corrections for adopting proposed rules to create a uniform standard that will ensure the safety and dignity of women and their pregnancies. We urge the Board of Corrections to make the proposed regulations final with the inclusion of three crucial amendments.

Amend the Proposed Regulations to Include a Public Reporting Requirement

When so little is known about when and what types of restraints are used on pregnant inmates, to ensure accountability and compliance, the final regulations amending the minimum standards for jails and lockups must include a public reporting requirement. The proposed regulations currently protect correctional officials by requiring that they document their use of restraints to ensure that it is in compliance with the law.  A public reporting requirement would provide lawmakers and the public with a tool to ensure that the regulations are being followed.  A public reporting requirement could also ensure privacy by requiring the redaction of all personally identifiable information.

Chicago, IL provides an example of the cost to taxpayers of not ensuring accountability and compliance. In 2012, a federal court approved a settlement of $4.1 million to women held in the Cook County Jail in Chicago, Illinois who alleged that they were restrained while in labor, despite federal constitutional and state law protections preventing the use of restraints. In 1999, Illinois became the first state in the nation to pass a law banning the practice of restraining pregnant women prisoners and detainees during childbirth. As we saw in Chicago, a law was on the books for over a decade, but Cook County Jail still persisted in restraining pregnant women and placing mothers and their pregnancy at risk. Public reporting is necessary to ensure compliance from Virginia’s local and regional jails.

In addition, a reporting requirement would not create burdensome paperwork for corrections officials. Facilities have reported that they rarely restrain pregnant offenders. Thus, the burden placed on facilities to ensure that there are complying with the regulations is minimal, and far outweighed by the increased health and transparency and accountability benefits created by a reporting process,, including a reduction in the potential litigation costs if compliance is found to be lacking. 

Amend the Proposed Regulations to Include the Word “Serious”

We urge the Board of Corrections to amend the proposed regulations to include the following language in all sections of the regulations that provide an exception to limits on the use of restraints. The regulations must state “…unless an individualized determination is made that the inmate is a serious flight risk or danger to herself or others, and cannot be reasonably contained by other means...” Given that corrections officials have reported that they consider all inmates to be a flight or safety risk just by the nature of their being an inmate, it is necessary that an individualized assessment of a serious flight and safety risk is made to prevent the exception from swallowing the rule. This language will ensure that officers will base their assessment on the particular history or behavior of the inmate in question.

 In addition to federal rules that require individualized determinations of the serious nature of the risk an inmate poses in all instances of restraining pregnant inmates, Courts have not accepted a blanket flight or safety risk as an acceptable reason to restrain an inmate. In Nelson v. Norris, the United States Court of Appeals for the Eighth Circuit found that the Constitution forbids the restraint of pregnant women in labor. The court held that “the key constitutional question is whether [the inmate] posed a security risk sufficient to justify being shackled … .” Thus, the security risk posed must be sufficient to justify the use of restraints; a blanket use of restraints that does not consider the individualized circumstances or the serious nature of the flight or safety risk is constitutionally unacceptable. Our position is that this standard outlined in Nelson, and cited in Juana Villegas v. The Metropolitan Government of Nashville and Davidson County, regarding the use of restraints during recovery, extends to all stages of pregnancy.

Amend the Subsection on Post-Partum Recovery

The proposed regulations state that inmates “shall be restrained in the least restrictive method” during post-partum recovery. We urge that the proposed regulations be amended to make clear that restraints may only be used if there is an individualized determination that the inmate poses a serious flight or safety risk. The language should be amended to parallel all other subsections pertaining to exceptions to the limits on the use of restraints. The subsection on post-partum recovery should state that a pregnant inmate shall be restrained only by “the least restrictive alternative, in consultation with the medical professional, and only if there is an individualized determination that the inmate poses a serious flight or safety risk.”

Following birth, it is critical for a woman to remain unrestrained to prevent post-partum hemorrhage. Women often need to move around during recovery. Such a bar on restraints during recovery will not jeopardize the safety of the officers or public, as corrections officials would still be allowed to use restraints to ensure safety when an individualized determination of a serious flight or safety risk is made. The vast majority of female inmates in Virginia are non-violent offenders who pose a low security risk. Among the states that have restricted the restraint of pregnant inmates, none have documented instances of women in labor or delivery escaping or causing harm to themselves, the public, corrections officials, or medical staff.

The unwarranted restraint of women during post-partum recovery can also be a drain on our tax dollars. Juana Villegas was recently awarded $200,000 for being restrained during labor and post-partum recovery, and the federal court in Juana Villegas found that post-partum restraint was an Eighth Amendment violation. A policy that allows post-partum restraint without an individual determination of a serious flight or safety risk could place our tax dollars on the hook.

Additionally, we urge the Board to include consideration for the health and safety of the mother in addition to “the mother’s safe handling of her infant and mother-infant bonding” as a factor in determining the application of “the least restrictive method” of restraints during recovery.

Conclusion:

We commend the Board of Corrections for supporting these proposed rules, and ask that they adopt our amendments and make these regulations final. Until regulatory change is made, pregnant inmates will face the possibility of unnecessary and dangerous health risks, degrading treatment, and little accountability will be placed on local and regional jails.