Facing lawsuit, SLO County says it no longer charges jail inmates for tampons

Boxes of tampons are displayed in a pharmacy, Monday, March 7, 2016, in New York.
Boxes of tampons are displayed in a pharmacy, Monday, March 7, 2016, in New York. AP

After a lawsuit challenged the San Luis Obispo County Sheriff’s Office’s practice of charging female jail inmates for tampons, the county says that it now provides the items free of charge.

The lawsuit filed in March on behalf of past, present and future female inmates said Sheriff Ian Parkinson, the Sheriff’s Office and the County of San Luis Obispo were in violation of Title 15 Minimum Standards for Local Detention Facilities by requiring inmates pay $3.23 for a box of 10 tampons through the jail commissary.

But the county’s hired legal counsel reported to a Superior Court judge last week that the Sheriff’s Office changed its custody policy in March to now provide both tampons and sanitary napkins to inmates at no charge, making it one of a few California counties to do so.

Paula Canny, a Bay Area attorney who won a $5 million settlement for the family of deceased County Jail inmate Andrew Holland, filed the lawsuit demanding not only that the county provide the hygienic items for free, but after an accounting, also refund all money paid by inmates.

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Canny said Monday that she’s offered to drop her lawsuit as well as the demand for refunds and promise to not seek reimbursement for her own legal fees if the county provides the items for free and removes them from a list of purchasable items in the jail commissary.

Canny also demands the county solidify in policy that the items will remain free. The county has not been willing to write in that language, however, Canny said.

SLO Sheriff tampon policy.JPG
San Luis Obispo County Sheriff’s Office revised policy effective March 2018. San Luis Obispo Superior Court record

Adult Title 15 laws define minimum standards for the operation of local detention facilities, and specifically state: “Each female inmate shall be issued sanitary napkins and/or tampons as needed.”

In court documents, the county previously argued that it is in compliance with Title 15 because it provides all female inmates sanitary napkins at no charge, even though tampons must be bought through the commissary.

According to the lawsuit, SLO County policy stated at the time: “personal hygiene items .... will be provided in accordance with applicable laws and regulations” and later stated that an indigent woman may receive materials as appropriate to “the special hygiene needs of women.”

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In a court filing in June, the county’s legal counsel attached a new policy document effective March 2018 that states the jail now provides “materials as appropriate to the special hygiene needs of women,” and that “each female inmate shall be issued sanitary napkins and tampons as needed.”

County Counsel Rita Neal said in an email Tuesday that the county maintains its position that it was always in compliance with the law. Regardless, Neal said, Parkinson “changed the policy and began providing, free of charge, either sanitary napkins or tampons to female inmates.”

She said the issue had never been raised prior to Canny’s lawsuit.

Neal also said that although tampons are provided free, a “higher-quality” tampon will continue to be sold through the commissary.

Canny said Monday that she still takes issue with the county’s newly written policy because it doesn’t specifically ensure that items will be provided without charge.

“There’s nothing ‘special’ about menstruation,” Canny said, adding that she wants the Sheriff’s Office policy to add “without charge” and take tampons off the commissary list. “I just want them to write it down — this is such a waste of their money.”

The county hired San Francisco law firm Skane Wilcox LLP to defend against the lawsuit per its third-party liability program, under which all litigation seeking damages is sent to outside counsel.

Neal said Tuesday the county has so far spent $13,000 to defend against the lawsuit.

Enforcement of Title 15 laws falls under the regulatory purview of the Board of State and Community Corrections (BSCC), which regularly inspects county jails for compliance, but has no regulatory ability to force local governments to correct violations if they are found.

Superior Court Judge Barry LaBarbera has not weighed in on whether the county violated Title 15 standards in the lawsuit proceedings. In a tentative ruling to several legal challenges filed by the county against Canny’s lawsuit last week, however, LaBarbera disagreed with the county’s argument that there was no legal basis to proceed because the policy has been changed.

Noting that Canny still disputes that the county has indeed set in stone and implemented the new, free-tampons policy, LaBarbera wrote: “(While) the court takes judicial notice of the statement in the custody manual, the court cannot take judicial notice of whether or how that policy has been implemented, as that is disputed.”

Neal said Tuesday that the county will continue to defend against the lawsuit.

A case management conference is scheduled before LaBarbera on Sept. 25.

According to a 2016 report by the non-profit Vera Institute of Justice, women currently comprise the fastest growing population of inmates in the U.S., and a lack of appropriate access to hygienic items exposes all inmates who menstruate not only to shame, but also serious health risks.

The issue has led to litigation on behalf of county jail inmates in Michigan and spurred legislative review in New York and Wisconsin. Canny said two other California counties — San Francisco and San Mateo — currently provide free tampons and pads.

Federal prisons now also issue both free tampons and pads, and some states, such as Arizona, have announced they will start providing both products for free.

Matt Fountain 781-7909, @mattfountain1