Pregnant Women in DOJ Custody: U.S. Marshals Service and Bureau of Prisons Should Better Align Policies with National Guidelines

GAO-21-147 Published: Jan 25, 2021. Publicly Released: Feb 24, 2021.
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Fast Facts

Incarcerated pregnant women are a vulnerable population with special needs. For example, national guidance says that they should receive regular prenatal care, screening, and diagnostic tests. However, we found that while the U.S. Marshals Service and the Bureau of Prisons have policies on pregnancy-related care, they do not always align with the national guidance.

We recommended that the Marshals Service and the Bureau take steps to more closely align their policies with national guidance on pregnancy-related care to ensure pregnant and postpartum women in their custody receive appropriate treatment and care.

Prison common room

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Highlights

What GAO Found

GAO analyses of available data show that from calendar year 2017 through 2019, there were at least 1,220 pregnant women in U.S. Marshals Service (USMS) custody and 524 pregnant women in Bureau of Prisons (BOP) custody.

Pregnant Women in USMS and BOP Custody: Number, Age, Race, and Length of Time in Custody from 2017 through 2019

Pregnant Women in USMS and BOP Custody: Number, Age, Race, and Length of Time in Custody from 2017 through 2019

aUSMS does not track pregnancy outcomes, so length of time in custody may include time when the women were not pregnant. For BOP, the length of time represents only the period of pregnancy.

GAO analyses also show that pregnant women were held at a variety of facility types from 2017 through 2019. For example, pregnant women spent 68 percent of their time in USMS custody in non-federal facilities where USMS has an intergovernmental agreement. BOP data show that pregnant women spent 21 percent of their time in BOP custody while pregnant at Carswell—BOP's only female Federal Medical Center.

While USMS and BOP both have policies that address the treatment and care of pregnant women, not all policies fully align with national guidance recommendations on 16 pregnancy-related care topics. For example, national guidance recommends specialized nutrition and when needed, mental health care. USMS policies fully align on three of 16 care topics and BOP policies fully align on eight of 16. By taking steps to more closely align agency standards and policies with national guidance as feasible, USMS and BOP would be better positioned to help ensure the health of pregnant women in their custody.

Why GAO Did This Study

Policymakers and advocacy groups have raised questions about the treatment of incarcerated pregnant women, including the use of restrictive housing—removal from the general prisoner population with the inability to leave the cell for the majority of the day—and restraints. Within DOJ, USMS is responsible for prisoners awaiting trial or sentencing. BOP is responsible for sentenced prisoners. GAO was asked to review issues related to pregnant women in USMS and BOP custody.

This report examines (1) what DOJ data indicate about pregnant women in USMS and BOP custody; (2) the extent to which USMS and BOP policies align with national guidance on pregnancy-related care; and (3) what is known about the care provided and the extent to which USMS and BOP track when pregnant women are placed in restrictive housing or restraints. GAO analyzed available agency data from calendar years 2017 through 2019, which were the most recent data available; compared agency policies to relevant national guidance; and interviewed officials and a non-generalizable sample of prisoners who had been pregnant in USMS or BOP custody.

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Recommendations

GAO is making six recommendations, including that USMS and BOP take steps to more closely align their policies with national guidance on pregnancy-related care as feasible, and that USMS require facilities to collect data on and notify USMS when pregnant or postpartum women are placed in restrictive housing. DOJ concurred with our recommendations.

Recommendations for Executive Action

Agency Affected Recommendation Status
United States Marshals Service The Director of the U.S. Marshals Service should take steps to more closely align its Detention Standards and policies with national guidance recommendations on pregnancy-related treatment and care, as feasible or appropriate. (Recommendation 1)
Open
In January 2021, we reported on various issues related to pregnant women in U.S. Marshals Service (USMS) custody. We found that while USMS has Detention Standards and policies that address the treatment and care of pregnant women, not all policies fully aligned with national guidance recommendations. Specifically, USMS Detention Standards and policies partially aligned on six pregnant-related care topics and did not align on seven care topics. With the partial alignment or nonalignment of USMS Detention Standards and policies with national guidance recommendations we identified, USMS may be less equipped to protect pregnant women against health risks that might correspond with a need for medically necessary care. For example, USMS may miss opportunities to prevent in utero transmission of HIV from mother to child or identify postpartum depression. We recommended that USMS take steps to more closely align its Detention Standards and policies with national guidance recommendations on pregnancy-related treatment and care, as feasible or appropriate. USMS agreed with this recommendation. In January 2022, USMS provided us with its revised Detention Standards, updated in December 2021, which address some of the gaps we identified. Specifically, the updated standards address the gap we identified in the use of restraints topic area, which is now fully aligned with national guidance recommendations. In addition, the updated standards address some, but not all, of the gaps we identified in the mental health services and counseling and nutrition topic areas. While the actions USMS has taken to update its Detention Standards are important, USMS will need to address the gaps we identified in its standards and polices, as feasible, in the remaining 12 topic areas. We will continue to monitor USMS's efforts to address this recommendation.
United States Marshals Service The Director of the U.S. Marshals Service should develop and implement a policy to identify and collect postpartum prisoner data starting with the intake process. (Recommendation 2)
Open
In January 2021, we reported on various issues related to pregnant women in U.S. Marshals Service (USMS) custody. We found that USMS did not identify or track which women in its custody were in postpartum recovery. As a result, USMS did not have awareness of postpartum women in its custody and were not positioned to ensure their treatment and care in accordance with USMS policy. We recommended that USMS develop and implement a policy to identify and collect postpartum data starting with the intake process. USMS agreed with this recommendation. In January 2022, USMS provided documentation to indicate that a postpartum status option has been added to its prisoner management database-Capture. According to USMS officials, this option is available to be recorded during the intake process or at any point during an individual's time in custody. While this is an important addition, USMS will need to develop a policy or guidance for users on when and how to use the postpartum status option to fully address this recommendation. We will continue to monitor USMS's efforts to address this recommendation.
United States Marshals Service The Director of the U.S. Marshals Service should develop a plan with a timeline for updating the Federal Performance Based Detention Standards to reflect updated policy restrictions on the use of restraints on pregnant and postpartum women as well as communicating such updates within USMS and to IGA facilities. (Recommendation 3)
Open
In January 2021, we reported on various issues related to pregnant women in U.S. Marshals Service (USMS) custody. We found that USMS had not updated its Detention Standards to reflect prohibitions on the use of restraints for pregnant and postpartum women. Specifically, USMS's intergovernmental agreements with state and local governments required facilities to follow the 2017 Detention Standards which did not include the restraint prohibition. As a result, women in USMS custody continued to be held in facilities that did not restrict the use of restraints on pregnant and postpartum women. We recommended that USMS develop a plan with a timeline for updating its Detention Standards to reflect the updated policy restrictions on the use of restraints on pregnant and postpartum women. USMS agreed with this recommendation. In January 2022, USMS provided us with its Detention Standards which were updated in December 2021 to include restrictions on the use of restraints for pregnant and postpartum women in accordance with USMS policy. While this is an important step, USMS will need to communicate these restraint restrictions from the updated Detention Standards within USMS and to facilities with which USMS has an intergovernmental agreement to fully address this recommendation. We will continue to monitor USMS's efforts to address this recommendation.
Bureau of Prisons The Director of the U.S. Bureau of Prisons should take steps to more closely align its policies with national guidance recommendations on pregnancy-related treatment and care, as feasible or appropriate. (Recommendation 4)
Closed – Implemented
In January 2021, we reported on various issues related to pregnant women in Bureau of Prisons (BOP) custody. We found that while BOP has policies that address the treatment and care of pregnant women, not all policies fully aligned with national guidance recommendations. Specifically, BOP policies either partially aligned or did not align with such recommendations in 8 of 16 pregnancy-related care topics. The partial alignment or nonalignment of BOP policy with national guidance recommendations we identified-particularly in the areas of nutrition, prenatal, labor and delivery, and postpartum care-increased the risk that pregnant and postpartum women may not receive treatment and care in accordance with national guidance recommendations. We recommended that BOP take steps to more closely align its policies with national guidance recommendations on pregnancy-related treatment and care, as feasible or appropriate. BOP agreed with this recommendation and has taken actions to address all of these gaps. Specifically, in June and December 2021, BOP provided us with documentation showing that it had updated its policies and guidance in five topics areas-mental health services and counseling, pregnancy testing at intake, provision of postpartum care, provision of prenatal care, and use of restraints-to address the gaps we identified and to be fully aligned with national guidance recommendations. For example in regard to the gaps we identified in the mental health services and counseling topic area, BOP developed technical guidance specific to pregnant and postpartum women that has more detailed requirements on mental health assessments. In March 2022, BOP provided updated guidance that addressed the gaps we identified in remaining three topics areas-provision of labor and delivery care, substance use disorder care, and nutrition. For example, BOP added requirements for nutritional assessments for pregnant and postpartum women to its technical guidance. These actions better position BOP to help ensure the health of pregnant and postpartum women in its custody. As a result, this recommendation is closed as implemented.
Bureau of Prisons The Director of the U.S. Bureau of Prisons should develop and implement a policy to identify and collect postpartum prisoner data during the intake process. (Recommendation 5)
Closed – Implemented
In January 2021, we reported on issues related to pregnant women in Bureau of Prisons (BOP) custody. We found that BOP does not identify women in postpartum recovery during the intake process. As a result, BOP was unable to ensure that postpartum women receive medical services and are not unnecessarily restrained. We recommended that BOP develop and implement a policy to identify and collect data on postpartum individuals during the intake process. In October 2021, BOP added an obstetrics and gynecology (OB-GYN) module to its medical records System-Bureau Electronic Medical Records (BEMR). This module, among other things, has a data field for BOP Health Services to staff to document if an individual is postpartum. BOP developed user guides for the OB-GYN BEMR module and held a training session for staff on how to use the module. These actions will better position BOP to identify and collect postpartum individuals during the intake process. In addition, BOP can better ensure its staff has the information needed to provide appropriate postpartum care in accordance with its policies, and that BOP corrections officials do not unnecessarily restrain postpartum women. As a result, this recommendation is closed as implemented.
United States Marshals Service The Director of the U.S. Marshals Service should require IGA and contract facilities that hold USMS prisoners to collect data on and immediately notify USMS when pregnant or postpartum women are placed in restrictive housing, so that USMS can help ensure appropriate use of such housing in accordance with its policies. (Recommendation 6)
Open
In January 2021, we reported on various issues related to pregnant women in U.S. Marshals Service (USMS) custody. We found that although USMS requests that its intergovernmental agreement and contract facilities submit data on a regular basis to USMS on individuals in USMS custody placed in restrictive housing, facilities are not required to indicate whether any of these individuals are pregnant or postpartum. National guidance recommendations state that pregnant and postpartum women should not be placed in restrictive housing except in very rare situations where the individual poses a serious and immediate risk of physical harm. We recommended that USMS should require its intergovernmental agreement and contract facilities to collect data on and immediately notify USMS when pregnant or postpartum women are placed in restrictive housing, so that USMS can help ensure appropriate use of such housing in accordance with its policies. USMS agreed with this recommendation. In January 2022, USMS reported that a restrictive housing component was added to Capture--its prisoner management database--in September 2021. According to USMS officials, administrators from facilities with which USMS has an intergovernmental agreement are required to report in Capture when an individual in USMS custody was transferred to restrictive housing, the rationale, and the length of placement. The restrictive housing component of Capture now includes a data field to indicate if a woman is pregnant or postpartum. In addition, Capture now has three reports for USMS to better track restrictive housing data. USMS officials told us that they are in the process of updating their intergovernmental agreements to require facilities to immediately notify USMS when a pregnant or postpartum women in placed in restrictive housing. Officials estimated this process could take several months. While these additions to Capture are important steps, USMS needs to communicate these new restrictive housing requirements to its intergovernmental agreement facilities and specifically require the immediate notification to USMS when pregnant and postpartum women are placed in restrictive housing in order to fully address this portion of the recommendation. According to USMS officials, the Capture restrictive housing reporting requirements do not apply to its contract facilities; rather on-site Detention Contract Monitors monitor compliance with USMS Detention Standards and policies, including restrictive housing policies. The Detention Contract Monitors maintain records of individuals in USMS custody transferred to restrictive housing, the rationale, and the length of placement. USMS needs to provide updated policies or guidance indicating that Detention Contract Monitors are required to collect data on and immediately notify USMS officials when pregnant or postpartum women are placed in restrictive housing to address this portion of the recommendation. We will continue to monitor USMS's efforts to address this recommendation.

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