1     
PREGNANT AND POSTPARTUM INMATE AMENDMENTS

2     
2024 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Candice B. Pierucci

5     
Senate Sponsor: ____________

6     

7     LONG TITLE
8     General Description:
9          This bill amend provisions related to pregnant and postpartum inmates.
10     Highlighted Provisions:
11          This bill:
12          ▸     provides that the Department of Corrections may not establish a nursery for a
13     female inmate and the inmate's infant within a correctional facility;
14          ▸     amends the Correctional Postnatal and Early Childhood Advisory Board;
15          ▸     establishes guidelines for pregnant or postpartum inmates to enter community-based
16     programming; and
17          ▸     makes technical and conforming changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          26B-1-434, as enacted by Laws of Utah 2023, Chapter 420
25          63I-1-264, as enacted by Laws of Utah 2023, Chapter 420
26          64-13-46, as last amended by Laws of Utah 2023, Chapter 420
27     REPEALS:
28          64-13-46.5, as enacted by Laws of Utah 2023, Chapter 420
29     

30     Be it enacted by the Legislature of the state of Utah:
31          Section 1. Section 26B-1-434 is amended to read:
32          26B-1-434. Correctional Postnatal and Early Childhood Advisory Board -- Duties
33     -- Rulemaking.
34          (1) As used in this part:
35          (a) "Advisory board" means the Correctional Postnatal and Early Childhood Advisory
36     Board.
37          (b) "Incarcerated mother" means [the same as that term is defined in Section
38     64-13-46.5] an inmate who gives birth after entering the department's custody.
39          (2) The advisory board shall consist of the following members:
40          (a) two individuals from the Department of Corrections, appointed by the executive
41     director of the Department of Corrections;
42          (b) one individual appointed by the Board of Pardons and Parole; and
43          (c) six individuals appointed by the executive director of the department, including:
44          (i) two individuals from the department with experience in child care licensing;
45          (ii) two pediatric healthcare providers;
46          (iii) one individual with expertise in early childhood development; and
47          (iv) one individual with experience advocating for incarcerated women.
48          (3) (a) Except as provided in Subsection (3)(b), a member of the advisory board shall
49     be appointed for a four-year term.
50          (b) A member that is appointed to complete an unexpired term may complete the
51     unexpired term and serve a subsequent four-year term.
52          (c) Appointments and reappointments may be staggered so that one-fourth of the
53     advisory board changes each year.
54          (d) The advisory board shall annually elect a chair and co-chair of the board from
55     among the members of the board to serve a two-year term.
56          (4) The advisory board shall meet at least bi-annually, or more frequently as
57     determined by the executive director, the chair, or three or more members of the advisory
58     board.
59          (5) A majority of the board constitutes a quorum and a vote of the majority of the
60     members present constitutes an action of the advisory board.
61          (6) A member of the advisory board may not receive compensation or benefits for the
62     member's service, but may receive per diem and travel expenses as allowed in:
63          (a) Section 63A-3-106;
64          (b) Section 63A-3-107; and
65          (c) rules made by the Division of Finance in accordance with Sections 63A-3-106 and
66     63A-3-107.
67          (7) The advisory board shall:
68          (a) review research regarding childhood development and best practices for [infants
69     placed in a nursery located within a secure correctional environment] placing an infant or
70     incarcerated mother in a diversion program not located in a secure correctional environment;
71          [(b) as part of the advisory board's review of research under Subsection (7)(a), study
72     the benefits of having a nursery for infants and incarcerated mothers located within a secure
73     correctional environment and the benefits of placing an infant or incarcerated mother in a
74     diversion program removed from a secure correctional environment;]
75          [(c)] (b) study the costs of implementing a diversion program for infants and
76     incarcerated mothers removed from a secure correctional environment;
77          [(d)] (c) create a provisional plan for implementing a diversion program for infants and
78     incarcerated mothers removed from a secure correctional environment; and
79          [(e)] (d) advise and make recommendations to the department regarding rules and
80     policies for [any nursery established by the Department of Corrections to provide space for
81     incarcerated mothers and infants.] placing an infant or incarcerated mother in a diversion
82     program not located in a secure correctional environment.
83          [(8) The advisory board, upon request from the Department of Corrections, may:]
84          [(a) after considering the specific circumstances of an infant and the infant's
85     incarcerated mother, extend the age that qualifies the infant for a nursery under Subsection
86     64-13-46.5(2) up to 24 months old if:]
87          [(i) the extension is in the best interest of the infant; and]
88          [(ii) without the extension the infant would be separated from the incarcerated mother
89     while the incarcerated mother remains in the correctional facility; or]
90          [(b) allow an incarcerated mother who has committed a violent felony to be provided
91     space in a nursery if it is in the best interest of the incarcerated mother's infant.]
92          [(9)] (8) On or before November 30, 2024, the advisory board shall provide a report of
93     the advisory board's research and study under Subsections (7)(a) through [(d)] (c), including
94     any proposed legislation, to:
95          (a) the Law Enforcement and Criminal Justice Interim Committee; and
96          (b) the Executive Offices and Criminal Justice Appropriations Subcommittee.
97          [(10) The department shall:]
98          [(a) after receiving recommendations from the advisory board under Subsection (7)(e),
99     adopt rules, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, for
100     certification of a nursery established in a secure correctional environment that address:]
101          [(i) the safety of the nursery for infants and incarcerated mothers;]
102          [(ii) the childhood development needs of the infants in the nursery;]
103          [(iii) the specific medical needs of the infants and incarcerated mothers in the nursery;]
104          [(iv) the appropriate needs of the incarcerated mothers in the nursery; and]
105          [(v) any other requirements recommended by the advisory board that the department
106     deems necessary for the nursery; and]
107          [(b) certify that any nursery established by the Department of Corrections is in
108     compliance with the rules established under this section before the nursery begins operations.]
109          [(11) The department may make rules in accordance with Title 63G, Chapter 3, Utah
110     Administrative Rulemaking Act, regarding corrective action, including closure of a nursery
111     established by the Department of Corrections, if the Department of Corrections fails to comply
112     with the rules established under this section.]
113          Section 2. Section 63I-1-264 is amended to read:
114          63I-1-264. Repeal dates: Title 64.
115          [Section 64-13-46.5, Correctional Facility Nursery, is repealed July 1, 2026] Reserved.
116          Section 3. Section 64-13-46 is amended to read:
117          64-13-46. Pregnant inmates.
118          (1) As used in this section:
119          (a) "Postpartum recovery" means, as determined by the pregnant inmate's physician,
120     the period immediately following delivery, including the entire period the inmate is in the
121     hospital or health care facility after birth.
122          (b) "Restraints" means any physical restraint or mechanical device used to control the
123     movement of an inmate's body or limbs, including flex cuffs, soft restraints, shackles, or a
124     convex shield.
125          (c) (i) "Shackles" means metal restraints, including leg irons, belly chains, or a security
126     or tether chain.
127          (ii) "Shackles" does not include hard metal handcuffs.
128          (d) "Violent felony" means the same as that term is defined in Section 76-3-203.5.
129          (2) Subject to Subsections (3) and (4), if the staff of a correctional facility knows or has
130     reason to believe that an inmate is pregnant or is in postpartum recovery, the staff shall, when
131     restraining the inmate at any time or location, use the least restrictive restraints necessary to
132     ensure the safety and security of the inmate and others.
133          (3) A correctional staff member may not use restraints on an inmate during the third
134     trimester of pregnancy, labor, or childbirth unless a correctional staff member makes an
135     individualized determination that there are compelling grounds to believe that the inmate
136     presents:
137          (a) an immediate and serious risk of harm to the inmate, the inmate's infant, medical
138     staff, correctional staff, or the public; or
139          (b) a substantial risk of escape that cannot reasonably be reduced by the use of other
140     existing means.
141          (4) Notwithstanding Subsection (3), under no circumstances may shackles, leg
142     restraints, or waist restraints be used on an inmate during the third trimester of pregnancy,
143     labor, childbirth, or postpartum recovery.
144          (5) Correctional staff present during labor or childbirth shall:
145          (a) be stationed in a location that offers the maximum privacy to the inmate, while
146     taking into consideration safety and security concerns; and
147          (b) be female, if practicable.
148          (6) If a correctional staff member authorizes restraints under Subsection (2) or (3), the
149     correctional staff member shall make a written record of the authorization and use of the
150     restraints that includes:
151          (a) an explanation of the grounds for the correctional staff member's authorization on
152     the use of restraints;
153          (b) the type of restraints that were used; and
154          (c) the length of time the restraints were used.
155          (7) The record described in Subsection (6):
156          (a) shall be retained by the correctional facility for five years;
157          (b) shall be available for public inspection with individually identifying information
158     redacted; and
159          (c) may not be considered a medical record under state or federal law.
160          (8) For a minimum of 48 hours after an inmate has given birth, a correctional facility
161     shall, if directed by the inmate's physician, allow the infant to remain with the inmate at the
162     health care facility.
163          (9) A correctional facility shall provide:
164          (a) an inmate who is pregnant, or who has given birth within the past six weeks, access
165     to a social worker to help the inmate:
166          (i) arrange childcare;
167          (ii) establish a reunification plan; and
168          (iii) establish a substance abuse treatment plan, if needed; and
169          (b) an inmate in postpartum recovery access to postpartum care for up to 12 weeks as
170     determined by the inmate's physician.
171          (10) The department may transfer an inmate who is pregnant or has given birth within
172     the past 24 months to a community-based program not located in a secure correctional
173     environment and not operated by the department if:
174          (a) the inmate has not been convicted of, or has charges pending for, a violent felony,
175     including attempt, solicitation, or conspiracy to commit a violent felony; and
176          (b) the community-based program:
177          (i) is approved by the department and the Department of Health and Human Services;
178          (ii) is aimed at rehabilitating inmates through community-based treatment and reentry
179     services; and
180          (iii) allows an inmate who has recently given birth, or an inmate who is about to give
181     birth, to remain with the inmate's child in the same room of a designated residential facility or a
182     half-way house until the child turns 36 months old.
183          (11) The department may not create or operate a nursery in a correctional facility to
184     provide space for a female inmate and the inmate's child.
185          Section 4. Repealer.
186          This bill repeals:
187          Section 64-13-46.5, Correctional facility nursery.
188          Section 5. Effective date.
189          (1) This bill takes effect on May 1, 2024.