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Colorado Law Creates “Rebuttable Presumption” Against Incarcerating Pregnant Women

On August 7, 2023, a new law took effect in Colorado directing judges to provide bonds and alternatives to incarceration for defendants who are pregnant or who recently gave birth. HB23-1187 was signed into law by Gov. Jared Polis (D) in May 2023 after it was adopted by state lawmakers goaded by release of video of the horrific ordeal suffered by Diana Sanchez, who gave birth alone in a cell in the Denver County Jail on July 31, 2018.

As PLN reported, Sanchez was eight months pregnant when she was booked into the jail for writing a bad check. She had a high-risk pregnancy, and following a medical examination a nurse told her to call for help if she went into labor. When she began having contractions the next day, she informed a guard, who told a nurse—who took no action. No ambulance was called, either. Instead, jail staff watched on security video while she went through five hours of labor before giving birth unattended in her cell. “That pain was indescribable,” she said. “What hurts me more though is the fact that nobody cared.” [See: PLN, Oct. 2019, p.49].

Represented by attorney Mari Newman with Killmer Lane & Newman LLC in Denver, Sanchez filed suit against the City and County of Denver, the city’s Health and Hospital Authority, four guards and two nurses, claiming she suffered unnecessary pain and received inadequate medical care. But that’s a charitable summary of the callous indifference they showed. Sanchez informed a guard that her water broke at 5:00 a.m. on July 31, 2018; when labor pains became acute over four hours later, guard Alexandra Wherry relayed the information to nurses Nina Chacon and Dorothy Gilkey, who sent technician Rikki Warmus to examine Sanchez. That trio then adopted a “wait and see” approach to her care, though Chacon provided Sanchez an absorbent pad to place under her body. Policy dictated that an ambulance should be called, but Chancon ordered a non-emergency transport to the hospital, which took an hour and 17 minutes to arrive. By that time, Sanchez’s son, Jordan, had been born. The case settled in 2020 with an agreement by the City and County to pay $160,000 to Sanchez and Jordan; Denver Health Medical Center settled its part of the suit for an additional payment of $320,000. See: Sanchez v. City & Cty. of Denver, USDC (D. Colo.), Case No. 1:19-cv-02437.

The ordeal that Sanchez experienced resulted in policy changes at the jail, but the most far-reaching result is undoubtedly the new law. “While no system is perfect in responding to the medical conditions of pregnancy, correctional facilities and county jails are particularly ill-equipped to do so,” the bill stated. It creates a “rebuttable presumption against detention” for pregnant and postpartum women that prohibits them from being jailed unless a court finds they pose a risk to public safety. In addition to bonds, sentencing alternatives include diversion programs, deferred sentences, and stays of execution.

Women who are already incarcerated can request a pregnancy test, which must be provided within 24 hours; the law also extends to pregnant and postpartum juveniles. Notably, the rebuttable presumption against detention does not apply to pregnant or postpartum defendants convicted of a crime of violence. The legislation, codified at C.R.S. 18-1.3-103. 7, also removes the requirement under previous Colorado law for courts to admit information in a criminal case related to a defendant’s substance abuse discovered during the course of pregnancy-related care.

Newman advocated for the new law, noting that it could have saved her client “and her baby from the horrible experience that they had to endure.”

“Pregnant people should not be incarcerated,” Newman emphasized. “That is my fundamental belief. I think this is a good start, and there’s a lot more than can still be done.”

Sadly, Sanchez is not the only pregnant detainee forced to give birth alone in a cell. Most recently, it was an unnamed detainee at Tennessee’s Montgomery County Jail on August 29, 2023. Before that it happened to Kelsey Love at Kentucky’s Franklin County Jail on May 15, 2017; as PLN reported, that cost the county a $200,000 settlement in 2021. [See: PLN, July 2021, p.53.] It also happened to Jazmin Valentine at Maryland’s Washington County Detention Center on July 3, 2021; attorney’s from Killmer Lane LLP are among those representing her in a suit pending at the federal court for the District of Maryland against jail healthcare contractor PrimeCare Medical. See: Valentine v. PrimeCare Med., Inc., USDC (D. Md.), Case No. 1:22-cv-02446. It also happened to Ashley Caswell at Alabama’s Etowah County Detention Center on October 16, 2021; she is represented by attorneys with nonprofit Pregnancy Justice in a suit pending at the federal court for the Northern District of Alabama. See: Caswell v. Etowah Cty., USDC (N.D. Ala.), Case No. 4:23-cv-01380.


Additional sources: KDVR, Miami Herald, New York Times, Washington Post, Westward, WTOP

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