IN THE SENATE OF THE UNITED STATES
July 30, 2009
Mr. Menendez (for himself and Mrs. Gillibrand) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To ensure that individuals detained by the Department of Homeland Security are treated humanely, provided adequate medical care, and granted certain specified rights.
This Act may be cited as
Safe Treatment, Avoiding Needless
Deaths, and Abuse Reduction in the Detention System Act
In this Act:
The term detainee means an individual who is subject to detention under the Immigration and Nationality Act.
The term detention means government custody or any other deprivation of an individual’s freedom of movement by government agents.
The term detention facility means any Federal, State, local government facility, or privately owned and operated facility that is used to hold detainees for more than 72 hours.
The term Secretary means the Secretary of Homeland Security.
Short-term detention facility
The term short-term detention facility means any Federal, State, local government, or privately owned and operated facility that is used to hold immigration detainees for 72 hours or less.
Unaccompanied alien children
The term unaccompanied alien children has the meaning given the term in section 462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)).
The Secretary shall—
ensure that all detainees are treated humanely and granted the protections described in this section; and
comply with the minimum requirements set forth in this section.
Quality of medical care
Right to medical care
Each detainee has the right to—
prompt and adequate medical care, designed to ensure continuity of care, at no cost to the detainee;
care to address medical needs that existed prior to detention; and
primary care, emergency care, chronic care, reproductive health care, prenatal care, dental care, eye care, mental health care, and other medically necessary specialized care.
Screenings and examinations
Each detainee shall receive—
a comprehensive medical, dental, and mental health intake screening, including screening for sexual abuse or assault by a licensed health care professional upon arrival at a detention facility or short-term detention facility; and
a comprehensive medical and mental health examination by a licensed health care professional not later than 14 days after the detainee’s arrival at a detention facility.
Medications and treatment
Each detainee taking prescribed medications prior to detention shall be allowed to continue taking such medications, on schedule and without interruption, until and unless a licensed health care professional examines the immigration detainee and decides upon an alternative course of treatment. Detainees who arrive at a detention facility without prescription medications and report being on such medications shall be evaluated by a qualified health care professional not later than 24 hours after arrival. All decisions to discontinue or modify a detainee’s reported prescription medication regimen shall be conveyed to the detainee in a language that the detainee understands and shall be recorded in writing in the detainee’s medical records.
Medication may not be forcibly administered to a detainee to facilitate transport, removal, or otherwise to control the detainee’s behavior. Involuntary psychotropic medication may only be used, to the extent authorized by applicable law, in emergency situations after a physician has personally examined the detainee and determined that—
the detainee is imminently dangerous to self or others due to a mental illness; and
involuntary psychotropic medication is medically appropriate to treat the mental illness and necessary to prevent harm.
Each detainee shall be provided medically necessary treatment, including prenatal care, prenatal vitamins, hormonal therapies, and birth control. Female detainees shall be provided with adequate access to sanitary products.
Medical care decisions
Any decision regarding requested medical care for a detainee—
shall be made in writing by an on-site licensed health care professional not later than 72 hours after such medical care is requested; and
shall be immediately communicated to the detainee.
Administrative appeals process
Detention facilities, in conjunction with the Department of Homeland Security, shall ensure that detainees, medical providers, and legally appointed advocates have the opportunity to appeal a denial of requested health care services by an on-site provider to an independent appeals board.
The appeals board shall include health care professionals in the fields relevant to the request for medical or mental health care.
Not later than 7 days after an appeal is received by the appeals board under this paragraph, or earlier if medically necessary, the appeals board shall issue a written decision regarding the appeal and notify the detention facility and the appellee of such decision.
Review of on-site medical provider requests
The Secretary shall respond within 72 hours to any request by an on-site medical provider for authorization to provide medical or mental health care to a detainee.
If the Secretary denies or fails to grant a request described in subparagraph (A), the Secretary shall immediately provide a written explanation of the reasons for such decision to the on-site medical provider and the detainee.
The on-site medical provider and the detainee (or the detainee’s legally appointed advocate) shall be permitted to appeal the denial of, or failure to grant, a request described in subparagraph (A) to an independent appeals board.
Not later than 7 days after an appeal is received by the appeals board under this paragraph, or earlier if medically necessary, the appeals board shall issue a written decision regarding the appeal and notify the on-site medical provider, the detainee, and the detention facility of such decision.
If a licensed health care professional determines that a detainee has a medical or mental health care condition, is pregnant, or is a nursing mother, the Secretary shall consider releasing the detainee on parole, on bond, or into a secure alternatives program.
If a detainee described in subparagraph (A) is not initially released under this paragraph, the Secretary shall periodically reevaluate the situation of the detainee to determine if such a release would be appropriate.
Upon removal or release, all detainees with serious medical or mental health conditions and women who are pregnant shall receive discharge planning to ensure continuity of care for a reasonable period of time.
The Secretary shall maintain complete, confidential medical records for every detainee and make such records available to a detainee or to individuals authorized by the detainee not later than 72 hours after receiving a request for such records.
Transfer of medical records
Immediately upon a detainee’s transfer between detention facilities, the detainee’s complete medical records, including any transfer summary, shall be provided to the receiving detention facility.
Transfers of detainees
Absent exigent circumstances, such as a natural disaster or comparable emergency, the Secretary shall provide not less than 72 hours written notice to any detainee before transferring such detainee to another detention facility. Not later than 24 hours after such transfer, the Secretary shall notify the detainee’s legal representative or other person designated by the detainee of the transfer, by telephone and in writing.
Absent exigent circumstances, such as a natural disaster or comparable emergency, the Secretary shall not transfer a detainee to another detention facility if such transfer would—
impair an existing attorney-client relationship;
prejudice the rights of the detainee in any legal proceeding, including any Federal, State, or administrative proceeding; or
negatively affect the detainee’s health, including by interrupting the continuity of medical care or provision of prescription medication.
Access to telephones
Not later than 6 hours after the commencement of a detention of a detainee, the detainee shall be provided reasonable access to a telephone, with at least 1 working telephone available for every 25 detainees.
Each detainee has the right to contact by telephone, free of charge—
nongovernmental organizations designated by the Secretary;
Federal and State courts in which the detainee is, or may become, involved in a legal proceeding; and
all government immigration agencies and adjudicatory bodies, including the Office of the Inspector General of the Department of Homeland Security and the Office for Civil Rights and Civil Liberties of the Department of Homeland Security, through confidential toll-free numbers.
Each detainee subject to expedited removal or who is experiencing a personal or family emergency, including the need to arrange care for dependents, shall be allowed to make confidential calls at no charge.
Each detainee has the right to privacy of telephone conversations made for the purpose of obtaining legal representation or related to legal matters.
The Secretary shall ensure that rates charged in detention facilities for telephone calls are reasonable and do not significantly impair the detainee’s right to make telephone calls.
Physical and sexual abuse
No detainee, whether in a detention facility or short-term detention facility, shall be subject to degrading or inhumane treatment such as physical abuse, sexual abuse or harassment, or arbitrary punishment.
Detention facilities shall take all necessary measures—
to prevent sexual abuse and sexual assaults of detainees;
to provide medical and mental health treatment to victims of sexual abuse and sexual assaults; and
to comply fully with the national standards for the detection, prevention, reduction, and punishment of prison rape adopted pursuant to section 8 of the Prison Rape Elimination Act of 2003 (42 U.S.C. 15607).
Limitations on solitary confinement, shackling, and strip searches
The use of solitary confinement, shackling, and strip searches of detainees shall be limited to situations where the use of such techniques is necessitated by extraordinary circumstances when the safety of other persons is at imminent risk. These techniques may not be used for the purpose of humiliating detainees either within or outside the detention facility.
Solitary confinement, shackling, and strip searches may not be used on pregnant women, nursing mothers, women in labor or delivery, or children who are younger than 18 years of age. Strip searches may not be conducted in front of children who are younger than 21 years of age.
Detention facilities shall—
adopt written policies pertaining to the use of force and the use of restraints; and
train all staff on the proper use of such techniques and devices.
Location of detention facilities
All detention facilities first used by the Department of Homeland Security after the date of the enactment of this Act shall be located within 50 miles of a community in which there is a demonstrated capacity to provide free or low-cost legal representation by—
nonprofit legal aid organizations; or
pro bono attorneys with expertise in asylum or immigration law.
Not later than January 1, 2012, all detention facilities used by the Department of Homeland Security shall meet the location requirement described in paragraph (1).
If the Secretary fails to comply with the requirement under paragraph (2) by January 1, 2012, the Secretary shall submit a report to Congress on such date, and annually thereafter, that—
explains the reasons for such failure; and
describes the specific plans of the Secretary to meet such requirement.
Detention facilities and short-term detention facilities shall—
employ staff who are professionally qualified in any language spoken by more than 10 percent of its detainee population;
arrange for alternative translation services, as needed, in the exceptional circumstances when trained bilingual staff members are unavailable to translate; and
provide notices and written materials to detainees in the native language of such detainees if such language is spoken by more than 5 percent of the detainees in the facility.
All detention facilities shall provide detainees with—
access to legal information, including an on-site law library with up-to-date legal materials and law databases;
free access to the necessary equipment and materials for legal research and correspondence, such as computers, printers, copiers, and typewriters;
information regarding the availability of legal information and services to assist those with limited English proficiency or disabilities;
confidential meeting space to confer with legal counsel; and
services to send confidential legal documents to legal counsel, government offices, and legal organizations.
Detainees in detention facilities have the right to meet privately with current or prospective legal representatives, interpreters, and other legal support staff for at least 8 hours per day on regular business days and 4 hours per day on weekends and holidays, subject to appropriate security procedures. Legal visits may only be restricted for narrowly defined exceptional circumstances, such as a natural disaster or comparable emergency.
Pro bono organizations
Detention facilities shall prominently post, in detainee housing units and other appropriate areas, official lists of pro bono legal organizations and their contact information, which shall be updated semiannually by the Secretary.
Religious, cultural, and spiritual visitors
Detainees have the right to reasonable access to religious or other qualified individuals to address religious, cultural, and spiritual considerations.
Detainees have the right to regular, private contact visits with children who are younger than 18 years of age.
Recreational programs and activities
Detention facilities shall provide detainees with access to at least 1 hour of indoor and outdoor recreational programs and activities each day.
Training of personnel
All personnel in detention facilities and short-term detention facilities shall be given comprehensive, specialized training and regular, periodic updates, including—
an overview of immigration detention and all detention standards;
the characteristics of the noncitizen detainee population, including special characteristics of vulnerable groups; and
the due process and grievance procedures to protect the rights of detainees.
The Secretary shall ensure that—
each detainee is safely transported, which shall include the appropriate use of safety harnesses and occupancy limitations of vehicles; and
female officers are responsible and at all times present during the transfer and transport of female detainees who are in the custody of the Department of Homeland Security.
Detention facility conditions and minimum requirements for detention facilities shall recognize and accommodate the unique needs of vulnerable detainees, including—
families with children;
victims of abuse, torture, or trafficking;
individuals who are older than 65 years of age;
pregnant women; and
The Secretary shall ensure that unaccompanied alien children are—
physically separated from any adult who is not an immediate family member; and
separated by sight and sound from—
immigration detainees and inmates with criminal convictions;
pretrial inmates facing criminal prosecution;
children who have been adjudicated delinquents or convicted of adult offenses or are pending delinquency or criminal proceedings; and
inmates exhibiting violent behavior while in detention.
Specific detention requirements for short-term detention facilities
Access to basic needs, people, and property
All detainees in short-term detention facilities shall receive—
food, if detained for more than 5 hours;
basic toiletries, diapers, sanitary products, and blankets; and
access to bathroom facilities.
The Secretary shall provide consular officials with access to detainees held at any short-term detention facility. Detainees shall be afforded reasonable access to a licensed health care professional. The Secretary shall ensure that nursing mothers in such facilities have access to their children.
Any property belonging to a detainee that was confiscated by an official of the Department of Homeland Security shall be returned to the detainee upon repatriation or transfer.
Protections for children
The Secretary shall ensure that adequately trained and qualified staff are stationed at each major port of entry at which, during the most recent 2 fiscal years, an average of not fewer than 50 unaccompanied alien children per year have been held by United States Customs and Border Protection, which staff shall include—
independent licensed social workers dedicated to ensuring the proper temporary care for the children while in the custody of United States Customs and Border Protection; and
agents charged primarily with the safe, swift, and humane transportation of such children to the custody of the Office of Refugee Resettlement.
The social workers described in paragraph (1)(A) shall ensure that each unaccompanied alien child—
receives emergency medical care;
receives mental health care in case of trauma;
has access to psychosocial health services;
is provided with—
a pillow, linens, and sufficient blankets to rest at a comfortable temperature; and
a bed and mattress placed in an area specifically designated for residential use;
receives adequate nutrition;
enjoys a safe and sanitary living environment;
receives educational materials; and
has access to at least 3 hours of indoor and outdoor recreational programs and activities per day.
The Secretary of Health and Human Services shall maintain the privacy and confidentiality of all information gathered in the course of providing care, custody, placement, and follow-up services to unaccompanied alien children, consistent with the best interest of such children, by not disclosing such information to other government agencies or nonparental third parties, except as provided under paragraph (2).
Limited disclosure of information
The Secretary may only disclose information regarding an unaccompanied alien child if—
the child authorizes such disclosure and such is consistent with the child’s best interest; or
the disclosure is to a duly recognized law enforcement entity and is necessary to prevent imminent and serious harm to another individual.
All disclosures under paragraph (2) shall be duly recorded in writing and placed in the child’s file.
Rulemaking and enforcement
Notice of proposed rulemaking
Not later than 60 days after the date of the enactment of this Act, the Secretary shall issue a notice of proposed rulemaking regarding the implementation of this Act.
Not later than 180 days after the date of the enactment of this Act, the Secretary shall promulgate regulations, which shall be binding upon all detention facilities and short-term detention facilities, to ensure that the detention requirements under sections 3 and 4 are fully implemented and enforced and that all facilities comply with the regulations.
The Secretary shall enforce all regulations and standards promulgated under subsection (a). Not later than 180 days after the date of the enactment of this Act, the Secretary shall issue guidance to detention facilities and short-term detention facilities to ensure compliance with all the detention requirements under sections 3 and 4.
Each detainee has the right to file grievances with the staff of detention facilities, short-term detention facilities, and the Department of Homeland Security, and shall be protected from retaliation for exercising such right.
The Secretary shall—
review any grievance or other complaint containing evidence that a detention facility or short-term detention facility has violated any requirement under this Act;
issue a determination in writing to the complainant indicating the Secretary’s findings regarding the alleged violation not later than 30 days after receiving such complaint;
remedy any violation not later than 30 days after issuing a determination under clause (ii); and
promptly advise the complainant of the remedy referred to in clause (iii).
If the Secretary issues a written response under subparagraph (B)(ii) indicating that no violation has occurred, such response shall constitute final agency action for the purposes of section 702 of title 5, United States Code.
The Secretary shall enforce compliance with the detention requirements under sections 3 and 4 by—
imposing financial penalties upon detention facilities and short-term detention facilities that are not in compliance with such requirements; and
terminating the contracts of such facilities if such noncompliance persists.
Each detention facility and short-term detention facility shall designate an officer to ensure compliance with the provisions of this Act.
Each officer designated under subparagraph (A) shall—
investigate all evidence pertaining to a violation of this Act; and
if a violation is identified, remedy the violation within 30 days.
A detainee may not seek judicial review of the detention facility’s determination until after the passage of the 30-day period, except where irreparable harm would result.
Rule of construction
Nothing in the section may be construed to preclude review of noncompliance with this Act under—
section 1331 or 2241 of title 28, United States Code; or
section 1979 of the Revised Statutes (42 U.S.C. 1983).
No individual may seek punitive damages for any violation under this Act.
Immigration Detention Commission
The Secretary shall appoint and convene an
Immigration Detention Commission (referred to in this section as the
Commission), which shall be comprised of—
experts from United States Immigration and Customs Enforcement, United States Customs and Border Protection, the Office of Refugee Resettlement, and the Division of Immigration Health Services of the Department of Health and Human Services; and
independent experts, in a number equal to the number of experts appointed under paragraph (1), from nongovernmental organizations and intergovernmental organizations with expertise in working on behalf of detainees and other vulnerable populations.
The Commission shall conduct independent investigations, and evaluate and report on the compliance of detention facilities, short-term detention facilities, and the Department of Homeland Security with the detention requirements under sections 3 and 4.
Not later than 60 days after the end of the first fiscal year beginning after the date of the enactment of this Act, and every 2 years thereafter, the Commission shall submit a report containing the findings of its investigations and evaluations under subsection (b) to—
the Committee on the Judiciary of the Senate;
the Committee on Homeland Security and Governmental Affairs of the Senate;
the Committee on the Judiciary of the House of Representatives; and
the Committee on Homeland Security of the House of Representatives.
Death in custody reporting requirement
If an individual dies while in the custody of the Department of Homeland Security or en route to or from such custody—
the supervising official at the detention facility or short-term detention facility at which the death took place shall immediately notify the Secretary of such death; and
not later than 48 hours after receiving a notification under paragraph (1), the Secretary shall report the death to—
the Office of the Inspector General of the Department of Homeland Security; and
the Department of Justice.
Report to Congress
Not later than 60 days after the end of each fiscal year, the Secretary shall submit a report containing detailed information regarding all the deaths of individuals in the custody of the Department of Homeland Security during the preceding fiscal year to the committees set forth in section 6(c).
The reports submitted under subsection (a)(2) and subsection (b) shall include—
the name, gender, race, ethnicity, and age of the deceased;
the date, time, and location of death;
the law enforcement agency that detained, arrested, or was in the process of arresting the deceased;
a description of the circumstances surrounding the death;
the status and results of any investigation that has been conducted into the circumstances surrounding the death; and
all medical records of the deceased.