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Shackled and Secret: Legislators Consider Availability of Documents on Pregnant Inmates

Should jails be able to suppress information from the public?

Virginia's Capitol in Richmond.

Virginia's Capitol in Richmond. Photo by Michael Lee Pope.

Virginia already has a reputation for tightly controlling the availability of law-enforcement documents. Now that reputation may be re-affirmed in the upcoming General Assembly session, when the Virginia Sheriffs’ Association will oppose efforts to share documents about when and how pregnant inmates are restrained.

“It would jeopardize our ability to safely and securely run our operations by putting our security out there for all to see,” said Arlington County Sheriff Beth Arthur, who is president of the Virginia Sheriffs’ Association.

Del. Patrick Hope (D-47) has been pushing for public access to information since he learned about the 2010 case of Tiarra Fain, a 22-year-old inmate who was detained on charges of forgery at the Rappahannock Regional Jail. According to a lawsuit she filed against the commonwealth of Virginia, she was shackled during labor and recovery. Hope approached the Virginia Board of Corrections, which recently approved draft regulations that would create new guidelines for the use of restraints on pregnant inmates.

“All we are asking is for law-enforcement officers is to use discretion for each inmate,” said Hope. “If they do have to use more restraints, then all they need to do is document the reasons why.”

THOSE DRAFT REGULATIONS are currently in a 30-day comment period. After that, they’ll need to be approved by the attorney general and governor. But even then, Hope said, they’ll still be regulations that can be changed at the whim of the administration. So in the upcoming session, he said, he’ll be pushing for the guidelines to become part of the Virginia code.

But he’ll also be pushing for something else.

When the Board of Corrections took up the issue of when and how pregnant inmates could be restrained, one issue sparked so much debate that board members removed it from the draft regulations to take up at a later date. That was the availability of use-of-force incident reports, which the Virginia Sheriffs’ Association wants to keep secret. Hope and others say the documents should be public.

“Let’s say, for example, that a jail has 25 inmates that are pregnant,” said Hope. “And if they are unnecessarily restraining all 25, then that tell me that they are not using any discretion.”

EARLIER THIS YEAR, the State Integrity Investigation sponsored by the Center for Public Integrity Gave Virginia a grade of “F” for public accountability, transparency and corruption. Virginia’s Freedom of Information Act does just the opposite, allowing public-safety agencies to shield access to almost any document at will — in any kind of case, regardless of what it’s about, regardless of whether the case is open or closed.

“There is no question that under some circumstances that it is in the public interest to protect the identities of some victims and some witnesses,” said Lucy Dalglish, director of the Arlington-based Reporters Committee for Freedom of the Press earlier this year. “I just don’t think it is necessary to protect the identities of all victims and all witnesses in all circumstances.”

Meanwhile, the National Women’s Law Center has also given Virginia a failing grade for its treatment of pregnant inmates. One area where the commonwealth received particularly low marks is the shackling of pregnant inmates. Some jurisdictions have guidelines and standards while others do not. That’s why many groups are calling for action — not just with regulations, but for statutory changes in the upcoming session of the General Assembly.

“Not only is it extremely uncomfortable, it’s very hard for women to labor appropriately,” said Kelly Garcia, senior counsel at the National Women’s Law Center. “You want women to be able to be able to walk around and move and have freedom. It also impedes the access that the doctors and medical providers have.”