Crimes and Criminal Procedure

Prisons and Prisoners

CHAPTER 66. Restraint of Pregnant Persons in Custody

83 Del. Laws, c. 365, § 1
§ 6601. Findings and purposes.

The General Assembly hereby finds that the physical restraint of persons in custody during pregnancy, labor, and recovery presents serious risks to the health and well-being of mother and baby. In most circumstances, the use of restraints is unnecessary and dangerous.

78 Del. Laws, c. 330, §  170 Del. Laws, c. 186, §  183 Del. Laws, c. 365, § 1

§ 6602. Definitions.

As used in this chapter:

(1) “Correctional institution” means any entity under the authority of any state, county, or municipal law-enforcement division that has the power to detain or restrain a person under the laws of the State.

(2) “Corrections official” means the official responsible for oversight of a correctional institution, or his or her designee.

(3) “Extraordinary circumstances” means an immediate and serious threat of harm to themselves, staff, or others, or a substantial flight risk that cannot reasonably be contained by any other means.

(4) “Immediate postpartum period” means the 13-week period following childbirth.

(5) “Labor” means the period of time before a birth during which contractions are of sufficient frequency, intensity, and duration to bring about effacement and progressive dilation of the cervix.

(6) “Prisoner” means any person incarcerated or detained in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for, violations of a criminal law or the terms and conditions of parole, probation, pretrial release, or diversionary program. Included is any person detained under the immigration laws of the United States at any correctional facility.

(7) “Restraints” means any physical restraint or mechanical device used to control the movement of a prisoner’s body and/or limbs, including, but not limited to, flex cuffs, soft restraints, hard metal handcuffs, a black box, Chubb cuffs, leg irons, belly chains, a security (tether) chain, or a convex shield.

78 Del. Laws, c. 330, §  170 Del. Laws, c. 186, §  183 Del. Laws, c. 365, § 1

§ 6603. Use of restraints on pregnant prisoners; other prohibitions.

(a) (1) Except as provided in paragraphs (a)(2) and (3) of this section, a correctional institution may not use restraints on a pregnant prisoner who is in the second or third trimester of pregnancy, in labor, in delivery, or in the immediate postpartum period. Under no circumstances shall leg or waist restraints be used on any prisoner or detainee who is in labor or delivery. Where allowed, wrist restraints must be fastened in front of the body.

(2) If a corrections official makes an individualized determination that an extraordinary circumstance exists, restraints may be used for the limited period that such circumstance exists, subject to the limitations in paragraphs (a)(2)a., b., and c. of this section.

a. A licensed medical professional must be notified as soon as practicable upon the application of leg or waist restraints and shall examine the restrained prisoner within 10 minutes of the notification.

b. If a doctor, nurse, or other health professional treating the prisoner requests that restraints not be used, the corrections officer accompanying the prisoner shall immediately remove all restraints.

(3) Wrist restraints fastened in the front of the body may be used when a prisoner who is pregnant or in the immediate postpartum period is being transported outside of the facility for medical or other appointments. Absent extraordinary circumstances, no restraints may be used, including in transport, on a woman who is in labor, delivery, or being transported with a newborn.

(b) If restraints are used on a prisoner pursuant to paragraph (a)(2) of this section:

(1) The type of restraint applied and the application of the restraint must be done in the least restrictive manner necessary.

(2) The corrections official shall make written findings within 10 days as to the extraordinary circumstances that dictated the use of the restraints. These findings shall be kept on file by the correctional institution for at least 5 years.

(c) A pregnant prisoner who is required to squat and cough must be provided with accommodations or supports to prevent the risk of falls.

(d) A pregnant prisoner may not be required to undergo a vaginal examination unless prescribed and performed by a licensed health-care professional.

78 Del. Laws, c. 330, §  183 Del. Laws, c. 365, § 1

§ 6604. Enforcement.

(a) By August 11, 2012, all affected correctional institutions in Delaware shall adopt policies and procedures, pursuant to this chapter as contemplated by § 4322(d) of this title.

(b) Correctional institutions shall inform pregnant and postpartum prisoners of the rules developed pursuant to subsection (a) of this section upon determination of the pregnancy.

(c) Notwithstanding any other provisions to the contrary or § 4322(c) and (d) of this title, correctional institutions shall inform all staff contractors, medical providers, prisoners and detainees in the custody of the affected correctional institutions about the policies and procedures developed pursuant to subsection (a) of this section.

(d) The Department of Correction shall develop training guidelines regarding the use of restraints on prisoners during pregnancy, labor, and postpartum recovery and shall incorporate guidelines into appropriate training programs. Training guidelines must include all of the following:

(1) How to identify certain symptoms of pregnancy that require immediate referral to a health-care professional.

(2) Circumstances under which the exceptions under subsection (a) of this section would apply and in the case that an exception under subsection (a) of this section applies, all of the following:

a. How to apply restraints in a way that does not harm the prisoner or fetus.

b. The information required to be reported under subsection (b) of this section.

c. The right of a health-care professional to request that restraints not be used and the requirement under paragraph (a)(2)a. of this section to comply with the request.

78 Del. Laws, c. 330, §  183 Del. Laws, c. 365, § 1

§ 6605. Annual report.

No later than 30 days before the end of each fiscal year, the Commissioner of the Department of Correction shall submit a written report to the Office of the Governor, the Chairs of the House Corrections Committee and the Senate Corrections and Public Safety Committee, the Director and the Librarian of the Division of Research of Legislative Council, and the Public Archives that certifies compliance with this chapter and includes an account of every instance where restraints were used on a prisoner who is pregnant, in labor, in delivery, or in the immediate postpartum period, other than the use of wrist restraints fastened in front of the body. The written report shall not contain any individually identifying information of any prisoner. Such reports shall be made available for public inspection.

78 Del. Laws, c. 330, §  183 Del. Laws, c. 365, § 1