Indicates Matter Stricken

Indicates New Matter

 

Committee Report

March 11, 2026

 

S. 385

 

Introduced by Senators Devine and Walker

 

S. Printed 3/11/26--S.

Read the first time February 26, 2025

 

________

 

The committee on Senate Corrections and Penology

To whom was referred a Bill (S. 385) to amend the South Carolina Code of Laws by enacting the "Women's Childbirth Alternatives, Resources, and Education (CARE) Act" by adding Article 21, Chapter 13, etc., respectfully

Report:

That they have duly and carefully considered the same, and recommend that the same do pass with amendment:

 

   Amend the bill, as and if amended, by striking all after the enacting words and inserting:

SECTION 1.  This act may be cited as the "South Carolina Women's Childbirth Alternatives, Resources, and Education (CARE or WCA) Act."

 

SECTION 2.  Chapter 13, Title 24 of the S.C. Code is amended by adding:

 

Article 21

 

"South Carolina Women's Childbirth Alternatives, Resources, and Education (CARE or WCA) Act"

 

    Section 24-13-2210.  (A) For purposes of this section:

       (1) "Pregnant or postpartum defendant" means a person who is pregnant or within one year after the end of pregnancy, regardless of outcome.

       (2) "Newborn" means a child under one year of age.

       (3) "Stay of execution of sentence" means a court-ordered delay in incarceration after sentencing.

       (4) "Deferred sentencing" means postponement of sentencing until not earlier than twelve (12) weeks and not later than twelve (12) months postpartum, unless earlier sentencing is warranted by extraordinary circumstances.

    (B) Upon verified notice that a defendant, charged or convicted of a non-violent offense, as defined in Section 16-1-70, is pregnant or postpartum, there is a rebuttable presumption against immediate incarceration. If incarceration is ordered, the court must make written findings that the defendant poses a substantial and specific risk to public safety that outweighs the medical, psychological, and social risks associated with incarceration.

    (C)(1) For nonviolent offenses, as defined in Section 16-1-70, prosecutors and courts shall consider pregnancy or postpartum status in determining eligibility for, and terms of, diversion or deferred adjudication, consistent with public safety and program criteria, unless the defendant declines. The South Carolina Department of Probation, Parole and Pardon Services will manage and oversee pre-incarceration terms of pregnant defendants as directed by the Court of General Sessions.

       (2) A pregnant defendant must have sentencing deferred not earlier than twelve (12) weeks and not later than twelve (12) months postpartum unless good cause is shown for earlier sentencing unless pregnant defendant declines.

       (3) During deferment, the court may require supervision and participation in health, parenting, or behavioral programs.

       (4) Upon successful completion of deferment, the court may reduce or suspend the custodial term or convert it to community supervision.

    (D) If a custodial sentence is imposed, the court may stay execution through the end of pregnancy for not earlier than twelve (12) weeks and not later than twelve (12) months postpartum. The defendant's bond and conditions remain in effect.

    (E) Medical information related to pregnancy or postpartum status is confidential and may be disclosed only to the court, defense counsel, and the solicitor as necessary.

    (F) An individual in custody may request a pregnancy test at any time after admission to a local detention facility, Department of Juvenile Justice facility, or Department of Corrections facility. The test must be provided within seventy-two (72) hours, and results are confidential medical information used solely for care and treatment.

    (G) Beginning on January 1, 2028, and annually thereafter, the Department of Corrections, Department of Juvenile Justice, and each local detention facility shall report to the Department of Health and Human Services:

       (1) data collected under subsection (F);

       (2) the total number of incarcerated women;

       (3) the total number of pregnant women; and

       (4) the total number of women who declined deferred sentencing.

    (H) Reports submitted under subsection (G) must exclude personally identifying information and comply with all federal and state privacy laws, including the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

    (I) It is the intent of the General Assembly that a pregnant woman temporarily held in a local detention facility pending transfer to the custody of the Department of Corrections be transferred as expeditiously as possible. The Department of Corrections and local law enforcement agencies shall make reasonable efforts to facilitate such transfer without delay. This subsection does not apply to individuals sentenced directly to serve their sentences in a local detention facility.

 

SECTION 3.  Chapter 11, Title 19 of the S.C. Code is amended by adding:

 

    Section 19-11-120. Information obtained solely through pregnancy testing, prenatal or postpartum care, or behavioral-health screening during pregnancy shall be inadmissible in criminal prosecutions except when independently and lawfully obtained.

 

SECTION 4.  Section 24-21-410 of the S.C. Code is amended to read:

 

    Section 24-21-410. (A) After conviction or plea for any offense, except a crime punishable by death or life imprisonment, the judge of a court of record with criminal jurisdiction at the time of sentence may suspend the imposition or the execution of a sentence and place the defendant on probation or may impose a fine and also place the defendant on probation. Probation is a form of clemency. Before a defendant may be placed on probation, he must agree in writing to be subject to a search or seizure, without a search warrant, based on reasonable suspicions, of the defendant's person, any vehicle the defendant owns or is driving, and any of the defendant's possessions by:

    (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or

    (2) any other law enforcement officer.

    A defendant may not be placed on probation by the court if he fails to comply with this provision and instead must be required to serve the suspended portion of the defendant's sentence. However, a defendant who was convicted of or pled guilty or nolo contendere to a Class C misdemeanor or an unclassified misdemeanor that carries a term of imprisonment of not more than one year may not include the requirement that the defendant agree to be subject to search or seizure, without a search warrant, with or without cause, of the defendant's person, any vehicle the defendant owns or is driving, or any of the defendant's possessions.

    Immediately before each search or seizure pursuant to this section, the law enforcement officer seeking to conduct the search or seizure must verify with the Department of Probation, Parole and Pardon Services or by any other means available to the officer that the individual upon whom the search or seizure will be conducted is currently on parole. A law enforcement officer conducting a search or seizure without a warrant pursuant to this section shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant must be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation. If the law enforcement officer fails to report each search or seizure pursuant to this section, he is subject to discipline pursuant to the employing agency's policies and procedures.

    (B) If the defendant is pregnant or in a post-partum period, the judge may impose a term of incarceration to begin not earlier than twelve week (12) weeks and not later than twelve (12) months post-partum. During the pregnancy and post-partum period, the judge may place the defendant on probation, subject to the standard conditions of supervision and other special conditions, as the judge may order. Upon the expiration of the post-partum period, the defendant must surrender to the jail of the county of conviction for the imposition of the incarceration sentence. During this period of probation, agents or the court may respond to violations by pregnant or post-partum defendants according to Sections 24-21-450 and 24-21-460.

 

SECTION 5.  Section 24-21-430 of the S.C. Code is amended to read:

 

    Section 24-21-430. The court may impose by order duly entered and may at any time modify the conditions of probation and may include among them any of the following or any other condition not prohibited in this section; however, the conditions imposed must include the requirement that the probationer must permit the search or seizure, without a search warrant, based on reasonable suspicions, of the probationer's person, any vehicle the probationer owns or is driving, and any of the probationer's possessions by:

    (1) any probation agent employed by the Department of Probation, Parole and Pardon Services; or

    (2) any other law enforcement officer, but the conditions imposed upon a probationer who was convicted of or pled guilty or nolo contendere to a Class C misdemeanor or an unclassified misdemeanor that carries a term of imprisonment of not more than one year may not include the requirement that the probationer agree to be subject to search or seizure, without a search warrant, with or without cause, of the probationer's person, any vehicle the probationer owns or is driving, or any of the probationer's possessions.

    By enacting this provision, the General Assembly intends to provide law enforcement with a means of reducing recidivism and does not authorize law enforcement officers to conduct searches for the sole purpose of harassment. Immediately before each search or seizure pursuant to this section, the law enforcement officer seeking to conduct the search or seizure must verify with the Department of Probation, Parole and Pardon Services or by any other means available to the officer that the individual upon whom the search or seizure will be conducted is currently on probation. A law enforcement officer conducting a search or seizure without a warrant pursuant to this section shall report to the law enforcement agency that employs him all of these searches or seizures, which shall include the name, address, age, gender, and race or ethnicity of the person that is the subject of the search or seizure. The law enforcement agency shall submit this information at the end of each month to the Department of Probation, Parole and Pardon Services for review of abuse. A finding of abuse of the use of searches or seizures without a search warrant must be reported by the Department of Probation, Parole and Pardon Services to the State Law Enforcement Division for investigation. If the law enforcement officer fails to report each search or seizure pursuant to this section, he is subject to discipline pursuant to the employing agency's policies and procedures.

    To effectively supervise probationers, the director shall develop policies and procedures for imposing conditions of supervision on probationers. These conditions may enhance but must not diminish court imposedcourt-imposed conditions. When a defendant is pregnant or postpartum, conditions of probation shall consider maternal and infant health, including access to medical care, treatment, and parenting education.

    The probationer shall:

    (1) refrain from the violations of any state or federal penal laws;

    (2) avoid injurious or vicious habits;

    (3) avoid persons or places of disreputable or harmful character;

    (4) permit the probation agent to visit at his home or elsewhere;

    (5) work faithfully at suitable employment as far as possible;

    (6) pay a fine in one or several sums as directed by the court;

    (7) perform public service work as directed by the court;

    (8) submit to a urinalysis or a blood test or both upon request of the probation agent;

    (9) submit to curfew restrictions;

    (10) submit to house arrest which is confinement in a residence for a period of twenty-four hours a day, with only those exceptions as the court may expressly grant in its discretion;

    (11) submit to intensive surveillance which may include surveillance by electronic means;

    (12) support his dependents; and

    (13) follow the probation agent's instructions and advice regarding recreational and social activities.

 

SECTION 6.  Chapter 15, Title 17 of the S.C. Code is amended by adding:

 

    Section 17-15-45.  At any bond hearing, when notice of pregnancy or postpartum status is provided, the court shall consider such status when determining conditions of release.

 

SECTION 7.  Chapter 27, Title 17 of the S.C. Code is amended by adding:

 

    Section 17-27-170. (A) A solicitor may at any time recommend, by motion to the court, recall of sentence and move the court to re-sentence a pregnant or postpartum defendant in the interests of justice.

    (B) Upon receipt of the motion, the court shall schedule a hearing, notify victims in accordance with the South Carolina Crime Victims' Bill of Rights (Article 15, Chapter 3, Title 16), and determine whether continued incarceration poses an unreasonable risk to public safety.

    (C) Upon recall, the court shall:

       (1) reduce the term of imprisonment;

       (2) convert incarceration to probation or community supervision;

       (3) stay the sentence through the postpartum period pursuant to Section 24-13-2210; or

       (4) impose rehabilitative or maternal-health conditions.

    (D) Resentencing under this section shall not increase the original sentence, and is not subject to the time restrictions contained in Rule 29(a), South Carolina Rules of Criminal Procedure.

 

SECTION 8.  Nothing in this Act shall be construed to authorize criminalization or surveillance of pregnancy outcomes, miscarriage, or abortion, or to limit greater protections afforded under federal or state law.

 

SECTION 9.  This Act shall take effect January 1, 2027, and the first annual report required under Section 24-13-2210(G) shall be submitted to the Department of Health and Human Services by January 1, 2028.

Renumber sections to conform.

Amend title to conform.

 

SHANE MARTIN for Committee.

 

_______

 

 

 

 

 

 

 

 

A bill

 

TO AMEND THE SOUTH CAROLINA CODE OF LAWS BY ENACTING THE "WOMEN'S CHILDBIRTH ALTERNATIVES, RESOURCES, AND EDUCATION (CARE) ACT" BY ADDING ARTICLE 21, CHAPTER 13 TO TITLE 24 SO AS TO PROVIDE FOR PREGNANCY TESTING OF CERTAIN WOMEN AFTER ADMISSION TO CERTAIN INCARCERATION FACILITIES, THE SUPERVISED PREINCARCERATION PROBATION OF PREGNANT WOMEN UNDER CERTAIN CIRCUMSTANCES, THE SELF SURRENDER OF WOMEN SERVING PREINCARCERATION TERMS OF PROBATION TWELVE WEEKS AFTER THE BIRTH OF THEIR CHILDREN, CRIMINAL PENALTIES FOR FAILURE TO SURRENDER, PROCEDURES FOR WOMEN TO FOLLOW IF THEY LOSE THEIR PREGNANCIES WHILE ON PREINCARCERATION PROBATION, AND CERTAIN REPORTING REQUIREMENTS.

 

Be it enacted by the General Assembly of the State of South Carolina:

 

SECTION 1.  This act may be cited as the "Women's Childbirth Alternatives, Resources, and Education (CARE) Act."

 

SECTION 2.  Chapter 13, Title 24 of the S.C. Code is amended by adding:

 

Article 21

 

Women's Childbirth Alternatives, Resources, and Education (CARE) Act

 

    Section 24-13-2210.  (A) Each woman, upon arriving at a state correctional facility, local detention facility, prison camp, or work camp shall inform the individual conducting the initial intake medical screening whether she is pregnant or suspects that she may be pregnant. Upon providing that information, the woman shall be given a urine pregnancy test within three days of her initial intake medical screening, unless the woman declines testing. The results of the pregnancy test must be used solely for the purpose of determining pregnancy.

    (B) If a woman given a pregnancy test pursuant to subsection (A) tests positive for pregnancy, the result must be reported to the court and the county health department. After receiving the report of the positive pregnancy test, the court shall release the woman on bail, provided that the court determines that the pregnant woman does not pose a significant threat of danger to herself, to any person, to the community, or to any property within the community.

 

    Section 24-13-2220.  (A)(1) At the time of sentencing, when a pregnant woman has been sentenced to a term of imprisonment, the court shall include a term of probation that must be served preincarceration, provided that the court determines the pregnant woman does not pose a significant threat or danger to herself, to any person, to the community, or to any property in the community.

       (2) The court shall allow a pregnant woman to be supervised on a preincarceration term of probation for the length of her pregnancy and for twelve weeks after the birth of her child. The woman shall surrender herself to the Department of Corrections, county jail, or local detention facility, as applicable, twelve weeks after the birth of her child.

    (B) Failure of a woman serving a preincarceration term of probation to surrender herself to the Department of Corrections, the county jail, or local detention facility, as applicable, twelve weeks after the birth of her child is a Class A misdemeanor.

    (C)(1) The payment of fines, fees, restitution, or probation fees shall be suspended during a preincarceration term of probation served under this section.

       (2) Supervision for a preincarceration term of probation must be conducted by telephone or other electronic communication.

       (3) The court's jurisdiction during a preincarceration term of probation shall be the same as set forth in this title.

    (D) Time served in a preincarceration term of probation pursuant to this section must be credited to the woman's sentence or disposition.

    (E) A pregnant woman serving a preincarceration term of probation shall maintain perinatal healthcare, treatment, and assessments and participate in education and resource programs to the extent that they are available in her community.

    (F) A pregnant woman serving a preincarceration term of probation shall report any pregnancy loss to her probation officer within seventy-two hours of the loss. The court shall have discretion to determine when a woman loses a pregnancy during a preincarceration term of probation and must surrender herself to the Department of Corrections, county jail, or local detention facility.

    (G) Commencing on January 1, 2026, and annually thereafter, every state correctional facility, local detention facility, prison camp, and work camp institution shall report to the Department of Health and Human Services:

       (1) data collected pursuant to subsection (F);

       (2) the number of women incarcerated;

       (3) the number of pregnant women incarcerated; and

       (4) the number of women who declined deferred sentencing.

    (H) The report contained in subsection (G) shall exclude patient identifying information and must be compliant with state and federal laws regarding confidentiality including the requirements of the federal Health Insurance Portability and Accountability Act of 1996.

 

SECTION 3.  This act takes effect upon approval by the Governor.

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