The Florida Senate
BILL ANALYSIS AND FISCAL IMPACT STATEMENT
(This document is based on the provisions contained in the legislation as of the latest date listed below.)
Prepared By: The Professional Staff of the Committee on Criminal Justice
BILL: CS/SB 1426
INTRODUCER: Criminal Justice Committee and Senator Jones
SUBJECT: Pregnant Women in Custody
DATE: March 10, 2021 REVISED:
ANALYST STAFF DIRECTOR REFERENCE ACTION
1. Siples Jones CJ Fav/CS
2. JU
3. AP
Please see Section IX. for Additional Information:
COMMITTEE SUBSTITUTE - Substantial Changes
I. Summary:
CS/SB 1426 requires that every female, who is arrested, be notified that she has a right to request
a pregnancy test if she is still in custody 72 hours after her arrest. Such notification must occur at
the time of booking. If the female has not been released on bond within 72 hours after her arrest,
the facility where she is being held must administer a pregnancy test, if requested. The
pregnancy test must be performed within 24 hours of the request and may be conducted through
urine or blood tests, by ultrasound scan, or by any other standard pregnancy testing protocols
adopted by the facility. The bill provides that “female” includes a juvenile or adult woman.
The bill requires a judge to offer a pregnant woman who is convicted of any crime the
opportunity to defer her sentence until 12 weeks after delivery of the baby so that the woman
may receive necessary health care for herself and her child. The pregnancy must have been
verified by a pregnancy test or through a medical examination performed by a physician. The
judge may order the pregnant woman to comply with any terms and conditions that may be
ordered for probation. If a pregnant woman fails to comply with the terms and conditions ordered
by the judge or is convicted of a new crime, the judge may order sanctions, including
incarcerating the pregnant woman to serve the sentence for which she was granted the deferral.
If the pregnancy ends prior to the delivery of a baby, the bill requires the deferral to end 12
weeks from the date the pregnancy ends. If a woman declines the referral, she must be
incarcerated as directed by the judge.
BILL: CS/SB 1426 Page 2
The bill requires that within 10 days after the end of the deferral period and the woman is
incarcerated to serve the imposed sentence, she must be offered an appropriate assessment by a
licensed health care practitioner or telehealth provider. If requested, the licensed health care
practitioner or telehealth provider must provide a postpartum pregnancy assessment, which
includes assessing the need for any medical tests, procedures, lactation support, mental health
support, or treatments associated with her postpartum condition. Such assessments and
treatments must be developed and offered in consultation with community support organizations,
licensed health care professionals, social services programs, and local and state government
agencies, including nonprofit organizations.
The bill requires county and municipal detention facilities and the Department of Corrections
(DOC) to report the number of sentence deferrals granted, the number of prisoners who
requested postpartum assistance, and information on the outcomes of the pregnancies, as well as
refusals to provide information on pregnancy outcomes. The DOC must compile this information
and publish it on its website, quarterly. The information may not include personally identifiable
information and must comply with all state and federal confidentiality laws.
The bill may have an indeterminate fiscal impact on the DOC and municipal and county
detention facilities. See Section V. Fiscal Impact Statement.
The bill is effective July 1, 2021.
II. Present Situation:
Arrest and Trial
After a person is arrested or charged with a crime, he or she will often be taken into custody and
held in a municipal or county jail until first appearance. Within 24 hours of being arrested, the
defendant will have his or her first appearance before the court.1 The presiding judge will advise
the defendant whether he or she will receive pretrial release. If granted, the judge will set the
requirements for pretrial release, including the amount of bail or bond the defendant must pay to
be released. If a person has no right to pretrial release or bond, he or she is immediately delivered
into the custody of the sheriff of the county identified in the indictment, information, or affidavit
is filed.2
Once the state has filed formal charges, a defendant may enter a not guilty plea and the case will
move forward to trial. Alternatively, a defendant may enter a plea of guilty and be sentenced by
the judge; or pursuant to a plea agreement, the defendant may plead guilty or nolo contendere
and be sentenced accordingly, if approved by the court. Once a trial is held and evidence is
presented, the jury or the judge will find the defendant guilty or not guilty. If, at the conclusion
of all the evidence, the defendant is found guilty beyond a reasonable doubt, the judge will
decide the sentence or other punishment, as required under Florida law.3
1
Rule 3.130, Fla. R. of Crim. Proc.
2
Section 907.04, F.S.
3
The Criminal Punishment Code is the state’s primary sentencing policy and provides a method by which a judge can
calculate the minimum and maximum sentencing range for felonies. See ch. 921, F.S. Sections 775.082 and 775.083, F.S.,
also provides guidelines for sentencing and the assessment of fines, respectively.
BILL: CS/SB 1426 Page 3
The U.S. Constitution provides that “in all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial.”4 If a defendant asserts his or her right to a speedy trial under
the Florida Rules of Criminal Procedure and, barring any procedural issues or delays by the
defendant, the trial must commence within 60 days.
Pregnancy while Incarcerated
Women are the fastest growing segment of the incarcerated population.5 Reports predict that an
estimated four to ten percent of women are pregnant upon being committed to prison or jail.6 In a
survey of 53 jails across the United States, 38 percent reported performing pregnancy tests on all
women entering their facilities, and 45 percent relied on inmates to self-report pregnancies and
then performing confirmation testing as needed.7
Documentation of pregnancies and pregnancy care while incarcerated is sparse. The most recent
data from the Bureau of Justice Statistics (BJS) was collected more than 15 years ago. In 2002,
the BJS found that five percent of women in local jails were pregnant when admitted. In 2004,
the BJS reported that four percent of women in state prisons and three percent of women in
federal prisons were pregnant upon admission. The government has not released any further
national data since.8
The American College of Obstetricians and Gynecologists report that pregnancies among
incarcerated women are often higher risk due to a number of factors, including that such
pregnancies are often unplanned and are compromised by a lack of prenatal care, poor nutrition,
domestic violence, mental illness, and drug and alcohol abuse.9 Pregnant women also lack
control over their environments while incarcerated, which may negatively affect sleep, dietary
requirements, and medication administration.10 Compared with the general public, incarcerated
women are at higher risk for having premature delivery and low birth-weight infants.11
4
U.S. Const. Amend. V. See also Rule 3.191, Fla. R. Crim. Pro.
5
Sawyer, Wendy, Prison Policy Initiative, The Gender Divide: Tracking Women’s State Prison Growth, p.17, January 9,
2018, available at https://www.prisonpolicy.org/reports/women_overtime.html (last visited March 4, 2021).
6
Ferszt, G., Palmer, M., and McGrane, C., Nursing for Women’s Health, Where Does Your State Stand on Shackling of
Pregnant Incarcerated Women?, February 2018, available at https://nwhjournal.org/article/S1751-4851(17)30335-5/pdf (last
visited March 4, 2021); Daniel, R., Prison Policy Initiative, Prisons Neglect Pregnant Women in Their Healthcare Policies,
December 5, 2019, available at https://www.prisonpolicy.org/blog/2019/12/05/pregnancy/ (last visited March 4, 2021).
7
Friedman, S., Kaempf, Aimee, and Kaufman, Sarah, The Realities of Pregnancy and Mothering while Incarcerated, Journal
of the American Academy of Psychiatry and the Law, 48(3), November 3, 2020, available at
http://jaapl.org/content/early/2020/05/13/JAAPL.003924-20 (last visited March 4, 2021).
8
Daniel, R., Prison Policy Initiative, Prisons Neglect Pregnant Women in Their Healthcare Policies, December 5, 2019,
available at https://www.prisonpolicy.org/blog/2019/12/05/pregnancy/ (last visited March 4, 2021). See also Sufrin, C., Beal,
L., Clarke, J., Jones, R., and Mosher, W., The American Journal of Public Health, Pregnancy Outcomes in US Prison, 2016-
2017, January 15, 2019, available at https://ajph.aphapublications.org/doi/full/10.2105/AJPH.2019.305006 (last visited
March 4, 2021).
9
The American College of Obstetricians and Gynecologists, Committee Opinion, Health Care for Pregnancy and
Postpartum Incarcerated Women and Adolescent Females, November 2011, available at https://www.acog.org/Clinical-
Guidance-and-Publications/Committee-Opinions/Committee-on-Health-Care-for-Underserved-Women/Health-Care-for-
Pregnant-and-Postpartum-Incarcerated-Women-and-Adolescent-Females?IsMobileSet=false (last visited March 4, 2021); See
also Nursing for Women’s Health Report.
10
Supra note 7, at p. 2.
11
Supra note 3, at p. 3.
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For some women, incarceration may improve pregnancy outcomes. Women in prison experience
forced sobriety, regular nutrition, regular prenatal care, a lack of partner violence, and no
homelessness.12 However, these outcomes vary by the woman’s personal situation and the
facility-specific circumstances.
Pregnant Women in Florida Correctional Facilities
The DOC has five female correctional institutions statewide.13 The DOC assigns prisoners to
institutions based on current classification procedures while facilitating the individual risk and
needs of prisoners to the extent possible considering security and health care needs.14 The DOC
also considers other factors, such as the programmatic and education needs of the prisoner. All
newly committed females receive a complete physical examination, which includes a complete
gynecological and obstetrical history, pelvic examination, and serum pregnancy test.15 All
inmates who are visibly pregnant or confirmed to be pregnant are housed at the Lowell
Correctional Institution which houses all pregnant prisoners for the duration of the pregnancy,
unless a medical condition prohibits transfer to or housing at the facility.
The DOC has guidelines for the health care of pregnant prisoners. A senior health care
professional examines the pregnant prisoner as soon as possible to confirm the pregnancy,
determine the stage of pregnancy, and determine the anticipated due date. Pregnant prisoners are
transferred to a contract hospital for the actual delivery and then returned to the institution when
discharged by the attending obstetrician. The DOC reports that postpartum care is provided at the
institution according to the discharge orders of the attending obstetrician, but that the six-week
checkup is provided by the obstetrician.16
The DOC reports the pregnant prisoner population over the last three fiscal years is as follows:
 69 prisoners in Fiscal Year 2019-2020;
 101 in Fiscal Year 2018-2019; and
 98 in Fiscal Year 2017-2018.17
12
Id.
13
These facilities are Gadsden Correctional Facility in Quincy, Lowell Correctional Institution in Ocala, Florida Women’s
Reception Center in Ocala, Hernando Correctional Institution in Brooksville, and Homestead Correctional Institution in
Florida City. Office of Program Policy Analysis and Government Accountability, Florida Correctional Facilities, Report No.
19-08, (October 2019), p. 2, available at https://oppaga.fl.gov/Documents/Reports/19-08.pdf (last visited March 4, 2021).
14
Id. at pp. 7-8.
15
The DOC, Agency Analysis for SB 1426, March 8, 2021, p. 2, (on file with the Senate Criminal Justice Committee).
16
Id.
17
Id. This measures the number of different prisoners who were pregnant at some point during the fiscal year; however, some
prisoners may be counted in more than one fiscal year.
BILL: CS/SB 1426 Page 5
Protections for Pregnant Prisoners under State Law
Section 944.241, F.S., prohibits restraints18 from being used on a prisoner19 who is known to be
pregnant during labor,20 delivery, and postpartum recovery,21 unless the corrections official22
makes an individualized determination that the prisoner presents an extraordinary
circumstance.23 This section applies to any facility under the authority of the DOC, the
Department of Juvenile Justice, a county or municipal detention facility, or a detention facility
operated by a private entity.24
State law also limits the involuntary placement of a pregnant prisoner in restrictive housing. 25 A
pregnant prisoner may be involuntarily placed in restrictive housing if the corrections official of
the correctional institution makes an individualized determination that such housing is necessary
to protect the health and safety of the pregnant prisoner or others.26 Pregnant prisoners placed in
restrictive housing must be seen by a qualified healthcare professional every 24 hours and a
corrections officer every hour. Pregnant prisoners must be given a medical treatment plan that
has been developed and approved by a qualified healthcare professional at the correctional
institution.
If a pregnant woman needs medical care or has passed her due date, she must be placed in a
designated medical housing unit or admitted to the infirmary. She must have access to outdoor
recreation, visitation, mail, telephone calls, and other privileges and classes available to the
general population unless:
 A corrections official, in consultation with a qualified health care professional, determines
such access poses a threat to the safety and security of the correctional institution; or
 A qualified health care professional determines that such access poses a danger of adverse
clinical consequences for the pregnant prisoner or others.27
18
Section 944.241(2)(h), F.S., defines “restraints” to mean any physical restraint or mechanical device used to control the
movement of a prisoner’s body 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 or tether chain, or a convex shield.
19
Section 944.241(2)(g), F.S., defines “prisoner” to mean any person incarcerated or detained in any correctional institution
who is accused of, convicted of, sentenced for, or adjudicated delinquent for a violation of criminal law or the terms and
conditions of parole, probation, community control, pretrial release, or a diversionary program. Additionally, the term
includes any woman detained under the immigration laws of the United States at any correctional institution.
20
Section 944.241(2)(e), F.S., defines “labor” to mean 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.
21
Section 944.241(2)(f), F.S., defines “postpartum recovery” to mean, as determined by her physician, the period
immediately following delivery, including the recovery period when a woman is in the hospital or infirmary following birth,
up to 24 hours after delivery unless the physician after consultation with the DOC or correctional institution recommends a
longer period of time.
22
Section 944.241(2)(b), F.S., defines “corrections official” to mean the official who is responsible for oversight of a
correctional institution, or his or her designee.
23
Section 944.241(2)(d), F.S., defines “extraordinary circumstance” to mean a substantial flight risk or some other
extraordinary medical or security circumstance that dictates restraints be used to ensure the safety and security of the
prisoner, the staff of the correctional institution or medical facility, other prisoners, or the public.
24
See s. 944.241(2)(a), F.S.
25
Section 944.241(2)(k), F.S., defines “restrictive housing” to mean housing a prisoner separately from the general