skip to main content

S. 2870: Restricting Solitary Confinement in Immigration Detention Act of 2019


The text of the bill below is as of Nov 14, 2019 (Introduced).


II

116th CONGRESS

1st Session

S. 2870

IN THE SENATE OF THE UNITED STATES

November 14, 2019

(for himself, Mr. Booker, Ms. Harris, and Mr. Schatz) introduced the following bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To limit the use of solitary confinement and other forms of restrictive housing in immigration detention, and for other purposes.

1.

Short title; table of contents

(a)

Short title

This Act may be cited as the Restricting Solitary Confinement in Immigration Detention Act of 2019.

(b)

Table of contents

The table of contents for this Act is as follows:

Sec. 1. Short title; table of contents.

Sec. 2. Definitions.

Sec. 3. Solitary confinement reforms.

Sec. 4. Reassessment of detained alien mental health.

Sec. 5. Oversight responsibilities.

Sec. 6. Rulemaking.

Sec. 7. Authorization of appropriations.

Sec. 8. Effective date.

2.

Definitions

In this Act:

(1)

Administrative segregation

The term administrative segregation means a nonpunitive form of solitary confinement that removes a detained alien from the general population of a detention center or other facility in which the alien is being detained for—

(A)

investigative, protective, or preventative reasons because of a substantial and immediate threat to the safety or security of the detained alien, other detained aliens, staff, or the public; or

(B)

temporary administrative reasons.

(2)

Appropriate level of care

The term appropriate level of care means the appropriate treatment setting for mental health care that a detained alien with mental illness requires, which may include outpatient care, emergency or crisis services, day treatment, supported residential housing, infirmary care, or inpatient psychiatric hospitalization services.

(3)

Intellectual disability

The term intellectual disability means a significant mental impairment characterized by significant limitations in intellectual functioning and adaptive behavior.

(4)

Multidisciplinary staff committee

The term multidisciplinary staff committee means a committee—

(A)

composed of staff at the facility at which a detained alien resides who are responsible for reviewing the initial placement of the alien in solitary confinement and any extensions of time in solitary confinement; and

(B)

that includes—

(i)

not fewer than 1 licensed mental health professional;

(ii)

not fewer than 1 medical professional; and

(iii)

not fewer than 1 member of the leadership of the facility.

(5)

Protection case

The term protection case means a detained alien who, by the request of the alien or through a staff determination, requires protection.

(6)

Secretary

The term Secretary means the Secretary of Homeland Security.

(7)

Serious mental illness

The term serious mental illness means—

(A)

a finding by a qualified mental health professional that the detained alien is at serious risk of substantially deteriorating mentally or emotionally while confined in solitary confinement, or already has so deteriorated while confined in solitary confinement, such that diversion or removal is deemed to be clinically appropriate by a qualified mental health professional; or

(B)

a current or recent diagnosis by a qualified mental health professional of 1 or more of the following disorders described in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders:

(i)

Schizophrenia or another psychotic disorder.

(ii)

Major depressive disorder.

(iii)

Any type of bipolar disorder.

(iv)

A neurodevelopmental disorder, dementia or other cognitive disorder.

(v)

Any disorder commonly characterized by breaks with reality or perceptions of reality.

(vi)

Any type of anxiety disorders.

(vii)

Trauma or stressor related disorder.

(viii)

Severe personality disorders.

(8)

Solitary confinement

The term solitary confinement means confinement characterized by substantial isolation in a cell, whether alone or with other detained aliens, including administrative segregation and disciplinary segregation.

(9)

Substantial and immediate threat

The term substantial and immediate threat means any set of circumstances that require immediate action in order to combat a significant threat to the safety of a detained alien, other detained aliens, staff, or the public.

(10)

U.S. immigration and customs enforcement facility

The term U.S. Immigration and Customs Enforcement facility means—

(A)

a detention facility owned and administered by U.S. Immigration and Customs Enforcement; or

(B)

a Federal, State, local, or private facility that has contracted (directly or indirectly) with U.S. Immigration and Customs Enforcement to detain aliens in Federal custody, including a U.S. Marshals facility that houses alien detainees, and regardless of any time limits that exist for the duration of the detention in such a facility.

3.

Solitary confinement reforms

(a)

Use of solitary confinement

(1)

In general

A detained alien may not be placed in solitary confinement within a U.S. Immigration and Customs Enforcement facility unless such confinement—

(A)

is limited to the briefest term and the least restrictive conditions practicable, including not fewer than 4 hours of out-of-cell time every day;

(B)

is consistent with the rationale for placement and with the progress achieved by the detained alien;

(C)

allows the detained alien to participate in meaningful programming opportunities and privileges that are similar to those available in the general population as practicable, either individually or in a classroom setting;

(D)

allows the detained alien to have as much meaningful interaction with others, such as other detained aliens, counsel, visitors, clergy, or licensed mental health professionals, as practicable; and

(E)

complies with the provisions of this section.

(2)

Specific limitations on administrative segregation and disciplinary segregation

The Secretary—

(A)

shall limit administrative segregation in U.S. Immigration and Customs Enforcement facilities—

(i)

to situations in which such segregation is necessary to control a substantial and immediate threat that cannot be addressed through alternative housing; and

(ii)

to a duration of not more than 14 consecutive days, and not more than 14 days in a 21-day period, unless—

(I)

the detained alien is considered a protection case and requests to remain in administrative segregation under paragraph (3)(B)(i); or

(II)

to address the continued existence of a substantial and immediate threat, a multidisciplinary staff committee approves a temporary extension, which—

(aa)

shall be in writing and include a thorough explanation of the reasons for which the extension is warranted, including any factors weighing against the extension;

(bb)

shall be reviewed—

(AA)

by the multidisciplinary staff committee every 3 days during the period of the extension, in order to confirm the continued existence of the substantial and immediate threat;

(BB)

by the appropriate Enforcement and Removal Operations Field Office Director within U.S. Immigration and Customs Enforcement after the initial extension and every 7 days thereafter during the period of the extension, in order to review the findings of the multidisciplinary staff committee and determine whether such extensions are permissible; and

(CC)

by a subcommittee of the Detention Monitoring Council within U.S. Immigration and Customs Enforcement, which shall be chaired by the Custody Management Division and shall include representatives from Enforcement and Removal Operations Field Operations, the Health Service Corps, the Office of the Principal Legal Advisor, the Office of Professional Responsibility, the Office of Acquisition Management, and the Department of Homeland Security’s Office for Civil Rights and Civil Liberties, after any extension is approved by an Enforcement and Removal Operations Field Office Director; and

(cc)

shall include additional out of cell time, socialization, and programming opportunities for the detained alien, so that each detained alien placed in solitary confinement for more than 14 days is given not fewer than 4 hours of out of cell time each day; and

(B)

may not permit the use of solitary confinement as a form of discipline.

(3)

Protective custody

The Secretary—

(A)

shall establish policies to ensure that an alien who is considered a protection case, upon the request of the alien, is transferred to a safer alternative, such as—

(i)

an alternative general population unit in the U.S. Immigration and Customs Enforcement facility;

(ii)

an alternative U.S. Immigration and Customs Enforcement facility; or

(iii)

an alternative to detention; and

(B)

may not place a detained alien who is considered to be a protection case in solitary confinement due to the status of the alien as a protection case unless—

(i)

the alien requests to be placed in solitary confinement, in which case, at the request of the alien to be released from solitary confinement, the alien shall be transferred to a safer alternative, such as—

(I)

an alternative general population unit;

(II)

an alternative U.S. Immigration and Customs Enforcement facility; or

(III)

an alternative to detention; or

(ii)

such confinement is limited to—

(I)

not more than 5 days of administrative segregation; and

(II)

is necessary to protect the alien during preparation for transfer to a safer alternative, such as 1 of the alternatives described in subclauses (I) through (III) of clause (i).

(4)

Vulnerable populations

A U.S. Immigration and Customs Enforcement facility may not place a detained alien in solitary confinement if—

(A)

the detained alien is younger than 18 years of age, unless—

(i)

such confinement is a temporary response to the behavior of the detained alien, which poses a substantial and immediate threat;

(ii)

all other options to de-escalate the situation have been exhausted, including less restrictive techniques such as—

(I)

penalizing the detained alien through loss of privileges;

(II)

speaking with the detained alien in an attempt to de-escalate the situation; and

(III)

providing an appropriate level of care through a licensed mental health professional;

(iii)

such confinement is limited to—

(I)

3 hours after the detained alien is placed in solitary confinement, if the alien poses a substantial and immediate threat to others; or

(II)

30 minutes after the detained alien is placed in solitary confinement, if the alien poses a substantial and immediate threat only to his self or her self; and

(iv)

if, after the applicable maximum period of confinement under subclause (I) or (II) of clause (iii) has expired, the detained alien continues to pose a substantial and immediate threat described in that subclause—

(I)

the detained alien shall be transferred to another facility or internal location where services can be provided to the alien without relying on solitary confinement; or

(II)

if a qualified mental health professional believes the level of crisis service needed is not currently available, a staff member of the facility shall initiate a referral to a location that can meet the needs of the detained alien;

(B)

the detained alien has a serious mental illness, has an intellectual disability, has a physical disability that a licensed medical professional determines is likely to be exacerbated by placement in solitary confinement or that solitary confinement is clinically contraindicated, is pregnant, or is in the first 8 weeks of the post-partum recovery period after giving birth, or has been determined by a licensed mental health professional to likely be significantly adversely affected by placement in solitary confinement, unless—

(i)

the detained alien poses a substantial and immediate threat;

(ii)

all other options to de-escalate the situation have been exhausted, including less restrictive techniques such as—

(I)

penalizing the detained alien through loss of privileges;

(II)

speaking with the detained alien in an attempt to de-escalate the situation; and

(III)

providing an appropriate level of care through a licensed mental health professional;

(iii)

such confinement is limited to the briefest term and the least restrictive conditions practicable, including access to medical and mental health treatment;

(iv)

such confinement is reviewed by a multidisciplinary staff committee for appropriateness every 24 hours; and

(v)

as soon as practicable, but not later than 5 days after such confinement begins, the detained alien is diverted, upon release from solitary confinement, to a general population unit, a mental health treatment program described in subsection (b)(2), or an alternative to detention;

(C)

the detained alien is lesbian, gay, bisexual, transgender (as defined in section 115.5 of title 28, Code of Federal Regulations, or any successor regulation), intersex (as defined in section 115.5 of title 28, Code of Federal Regulations, or any successor regulation), or gender nonconforming (as defined in section 115.5 of title 28, Code of Federal Regulations, or any successor regulation), if such placement is based (in whole or in part) on such identification or status;

(D)

the alien is HIV positive, if the placement is based (in whole or in part) on the HIV positive status of the alien;

(E)

the placement is based (in whole or in part) on the alien’s race, religion, or nationality; or

(F)

the placement is based (in whole or in part) on a detained alien’s report of an incident of abuse or misconduct, a detained alien’s decision to engage in a hunger strike, or any other form of retaliation against a detained alien, unless the alien has been classified as a protection case under paragraph (3).

(5)

Access to counsel

Aliens placed in solitary confinement shall be offered access to counsel to the same extent that detained aliens in the general population are offered access to counsel.

(6)

Right to review placement in solitary confinement

The Secretary shall ensure that each alien placed in solitary confinement has access to—

(A)

written and verbal notice provided in a language that the alien understands that thoroughly details the basis for placement or continued placement in solitary confinement not later than 6 hours after the beginning of such placement, including—

(i)

thorough documentation explaining why such confinement is permissible and necessary under this subsection; and

(ii)

if an exception under paragraph (2)(A)(ii), (3)(B), (4)(A), or (4)(B) is used to justify placement in solitary confinement, thorough documentation explaining why such an exception applies;

(B)

a timely, thorough, and continuous review process that—

(i)

occurs not fewer than 3 days after placement in solitary confinement, and thereafter at least on a weekly basis, unless required more frequently under this section;

(ii)

includes private, face-to-face interviews with a multidisciplinary staff committee; and

(iii)

examines whether—

(I)

placement in solitary confinement was and remains necessary;

(II)

the conditions of confinement comply with this section; and

(III)

any exception under paragraph (2)(A)(ii), (3)(B), (4)(A), or (4)(B) used to justify placement in solitary confinement was and remains warranted;

(C)

a process to appeal the initial placement or continued placement of the detained alien in solitary confinement;

(D)

prompt and timely written notice of the appeal procedures; and

(E)

copies of all documents, files, and records relating to the detained alien’s placement in solitary confinement, unless such documents contain contraband, classified information, or sensitive security-related information.

(b)

Mental health care for aliens in solitary confinement

(1)

Mental health screening

Not later than 6 hours after a detained alien is placed in solitary confinement in a U.S. Immigration and Customs Enforcement facility, the alien shall receive a comprehensive, face-to-face mental health evaluation by a licensed mental health professional in a confidential setting.

(2)

Mental health treatment program

A detained alien diagnosed with a serious mental illness after an evaluation under paragraph (1)—

(A)

may not be placed in solitary confinement under subsection (a)(4)(B); and

(B)

shall receive an appropriate level of care to address the detained alien’s mental health needs.

(3)

Continuing evaluations

After each 7-day period during which a detained alien is held in continuous placement in solitary confinement—

(A)

a licensed mental health professional shall conduct a comprehensive, face-to-face, out-of-cell mental health evaluation of the alien in a confidential setting; and

(B)

the Secretary shall adjust the placement of the alien in accordance with this subsection.

(c)

Training for detention center staff

(1)

Training

All employees of a U.S. Immigration and Customs Enforcement facility who interact with aliens on a regular basis shall be required to complete training in—

(A)

recognizing the symptoms of mental illness;

(B)

the potential risks and side effects of psychiatric medications;

(C)

de-escalation techniques for safely managing individuals with mental illness;

(D)

the consequences of untreated mental illness;

(E)

the long- and short-term psychological effects of solitary confinement; and

(F)

de-escalation and communication techniques to divert detained aliens from situations that may lead to the alien being placed in solitary confinement.

(2)

Notification to medical staff

An employee of a U.S. Immigration and Customs Enforcement facility shall immediately notify a member of the facility’s medical or mental health staff if the employee—

(A)

observes a detained alien with signs of mental illness, unless such employee has knowledge that the alien’s signs of mental illness have previously been reported; or

(B)

observes a detained alien with signs of a mental health crisis;

(d)

Reporting requirements

(1)

Daily tracking of use of solitary confinement

Each U.S. Immigration and Customs Enforcement facility shall submit a daily report to the Director of U.S. Immigration and Customs Enforcement that identifies, for the applicable day—

(A)

any detained aliens who were placed in solitary confinement, including—

(i)

the rationale behind each such placement; and

(ii)

whether any exception under subsection (a) used to justify placement in solitary confinement or increased restrictive conditions in solitary confinement was applied;

(B)

the continued detention of any aliens in solitary confinement, including—

(i)

the number of days such aliens have been detained in solitary confinement; and

(ii)

an explanation of the application of any exception under subsection (a) used to justify an adjustment to the alien’s time or conditions in solitary confinement; and

(C)

the release of any detained aliens from solitary confinement.

(2)

Publication of use of solitary confinement

Without revealing personally identifiable information, the Secretary shall publish online weekly updates regarding—

(A)

the number of aliens in solitary confinement at each U.S. Immigration and Customs Enforcement facility; and

(B)

any instances in which a facility has placed a detained alien in solitary confinement for more than 15 days.

(3)

Internal review of data

(A)

Weekly reviews

The appropriate Enforcement and Removal Operations Field Office Director within U.S. Immigration and Customs Enforcement shall—

(i)

on a weekly basis, review the daily reports from each U.S. Immigration and Customs Enforcement facility under his or her jurisdiction to ensure that each facility is in compliance with this Act;

(ii)

report any instances in which a U.S. Immigration and Customs Enforcement facility failed to comply, or is suspected of failing to comply, with this Act to the subcommittee established under subsection (a)(2)(A)(ii)(II)(bb)(CC) for review; and

(iii)

direct a U.S. Immigration and Customs Enforcement facility that failed to comply, or is suspected of failing to comply, with this Act to immediately address any such failures to comply, including by immediately removing a detained alien from solitary confinement if the alien’s placement or continued detention in solitary confinement was not in compliance with this Act.

(B)

Monthly reports

The subcommittee established under subsection (a)(2)(A)(ii)(II)(bb)(CC) shall—

(i)

promptly review any reports received pursuant to subparagraph (A)(ii); and

(ii)

submit monthly reports to the full Detention Monitoring Council and the Director of U.S. Immigration and Customs Enforcement that identify areas of concern regarding particular cases or facilities that warrant further examination.

4.

Reassessment of detained alien mental health

Not later than 180 days after the date of the enactment of this Act, the Secretary shall—

(1)

assemble a team of licensed mental health professionals, which may include licensed mental health professionals who are not employed by the Department of Homeland Security, to conduct a comprehensive mental health reevaluation for each alien held in solitary confinement for more than 14 days (as of the date of enactment of this Act), including a confidential, face-to-face, out-of-cell interview by a licensed mental health professional; and

(2)

adjust the placement of each alien in accordance with this Act.

5.

Oversight responsibilities

(a)

In general

Section 705 of the Homeland Security Act of 2002 (6 U.S.C. 345) is amended by adding at the end the following:

(c)

Immigration detention

(1)

Defined term

In this subsection, the term U.S. Immigration and Customs Enforcement facility has the meaning given the term in section 2 of the Restricting Solitary Confinement in Immigration Detention Act of 2019.

(2)

Internal reporting

The Secretary shall ensure that each U.S. Immigration and Customs Enforcement facility provides multiple internal ways for aliens and others to promptly report violations of section 3 of the Restricting Solitary Confinement in Immigration Detention Act of 2019 to the Officer for Civil Rights and Civil Liberties, including—

(A)

not less than 2 procedures for aliens and others to report violations of section 3 of such Act to an entity or office that is not part of the facility, and that is able to receive and immediately forward reports to the Officer for Civil Rights and Civil Liberties, allowing the alien to remain anonymous upon request; and

(B)

not less than 2 procedures for aliens and others to report violations of section 3 of such Act to the Officer for Civil Rights and Civil Liberties in a confidential manner, allowing the alien to remain anonymous upon request.

(3)

Notice to detainees

The Secretary shall ensure that each U.S. Immigration and Customs Enforcement facility provides aliens with—

(A)

notice of how to report violations of section 4 of the Restricting Solitary Confinement in Immigration Detention Act of 2019 in accordance with paragraph (2), including—

(i)

notice prominently posted in the living and common areas of each such facility;

(ii)

individual notice to aliens at initial intake into a U.S. Immigration and Customs Enforcement facility, when transferred to a new facility, and when placed in solitary confinement;

(iii)

notice to aliens with disabilities in accessible formats; and

(iv)

written or verbal notice in a language the alien understands; and

(B)

notice of permissible practices related to solitary confinement in U.S. Immigration and Customs Enforcement facilities, including the requirements under section 3 of such Act.

(4)

Access

The Officer for Civil Rights and Civil Liberties—

(A)

shall have unrestricted access to U.S. Immigration and Customs Enforcement facilities; and

(B)

shall be able to review documents, request and review information, and speak privately with aliens, contractors, volunteers, and U.S. Immigration and Customs Enforcement facility staff.

(5)

Annual assessment of solitary confinement use in immigration detention

(A)

Objectives

Not later than 90 days after the last day of each fiscal year, the Officer for Civil Rights and Civil Liberties shall submit an assessment to the Committee on Homeland Security and Governmental Affairs of the Senate, the Committee on the Judiciary of the Senate, the Committee on Homeland Security of the House of Representatives, and the Committee on the Judiciary of the House of Representatives that analyzes the use of solitary confinement in U.S. Immigration and Customs Enforcement facilities during such fiscal year.

(B)

Data

Each assessment submitted under subparagraph (A) shall include aggregated and disaggregated data reported by U.S. Immigration and Customs Enforcement facilities, to be provided by U.S. Immigration and Customs Enforcement to the Officer for Civil Rights and Civil Liberties not later than 30 days after the last day of each fiscal year, including—

(i)

the policies and regulations of U.S. Immigration and Customs Enforcement, including—

(I)

any changes in policies and regulations, for determining which aliens are placed in solitary confinement; and

(II)

a detailed description of the conditions and restrictions of solitary confinement;

(ii)

the number of aliens in U.S. Immigration and Customs Enforcement facilities who were housed in solitary confinement for any period and the percentage of all aliens who spent at least some time in solitary confinement during the reporting period;

(iii)

the demographics of all aliens housed in solitary confinement, including race, ethnicity, religion, age, and gender;

(iv)

the policies and regulations of U.S. Immigration and Customs Enforcement facilities, including any updates in policies and regulations, for subsequent reviews or appeals of the placement of a detained alien into or out of solitary confinement;

(v)

the number of reviews of and challenges to the placement of a detained alien in solitary confinement during the reporting period and the number of reviews or appeals that directly resulted in a change of placement;

(vi)

a detailed description of the conditions and restrictions for solitary confinement, including the number of hours spent in isolation and the percentage of time these conditions involve 2 aliens celled together in solitary confinement;

(vii)

the mean and median length of stay in solitary confinement, based on all individuals released from solitary confinement during the reporting period, and any maximum length of stay during the reporting period;

(viii)

the cost for each form of solitary confinement described in subparagraph (A) in use during the reporting period, including as compared with the average daily cost of housing a detained alien in the general population;

(ix)

the policies for mental health screening, mental health treatment, and subsequent mental health reviews for all detained aliens, including any update to the policies, and any additional screening, treatment, and monitoring for detained aliens in solitary confinement;

(x)

a statement of the types of mental health staff that conducted mental health assessments for U.S. Immigration and Customs Enforcement facilities during the reporting period, a description of the different positions in the mental health staff of U.S. Immigration and Customs Enforcement facilities, and the number of part- and full-time psychologists and psychiatrists employed by U.S. Immigration and Customs Enforcement facilities during the reporting period;

(xi)

data on mental health and medical indicators for all detained aliens in solitary confinement, including—

(I)

the number of aliens requiring medication for mental health conditions;

(II)

the number diagnosed with an intellectual disability;

(III)

the number diagnosed with serious mental illness;

(IV)

the number of suicides;

(V)

the number of attempted suicides and number of aliens placed on suicide watch;

(VI)

the number of instances of self-harm committed by aliens;

(VII)

the number of aliens with physical disabilities, including blind, deaf, and mobility-impaired aliens; and

(VIII)

the number of instances of forced feeding of aliens;

(xii)

any instances in which an Enforcement and Removal Operations Field Office Director reported that a U.S. Immigration and Customs Enforcement facility in his or her jurisdiction failed to comply with or was suspected of failing to comply with the Restricting Solitary Confinement in Immigration Detention Act of 2019; and

(xiii)

any other relevant data.

(C)

Content

Each assessment submitted under subparagraph (A) shall include—

(i)

an analysis of the data provided under subparagraph (B);

(ii)

recommendations for reform offered to the Director of U.S. Immigration and Customs Enforcement and the Secretary under paragraph (6); and

(iii)

the response from U.S. Immigration and Customs Enforcement and the Department to such recommendations for reform.

(D)

Authority on final report

Each assessment submitted under subparagraph (A) may be reviewed by U.S. Immigration and Customs Enforcement and the Secretary before submission, but the Officer for Civil Rights and Civil Liberties has final authority on the text and release of the assessment.

(6)

Regular meetings with the secretary and the director of u.s. immigration and customs enforcement

The Officer for Civil Rights and Civil Liberties shall meet regularly with the Secretary and the Director of U.S. Immigration and Customs Enforcement—

(A)

to identify problems with the solitary confinement policies and practices in U.S. Immigration and Customs Enforcement facilities, including overuse of solitary confinement; and

(B)

to present recommendations for such administrative action as may be appropriate to resolve problems relating to solitary confinement policies and practices in U.S. Immigration and Customs Enforcement facilities.

.

(b)

Annual report

Not later than December 31 of each year, the Inspector General of the Department of Homeland Security shall issue a report analyzing—

(1)

the use of solitary confinement in U.S. Immigration and Customs Enforcement facilities; and

(2)

the Department’s compliance with this Act and the amendments made by this Act.

6.

Rulemaking

The Secretary and the Director of U.S. Immigration and Customs Enforcement shall prescribe rules, in accordance with section 553 of title 5, United States Code, to carry out this Act and the amendments made by this Act.

7.

Authorization of appropriations

There are authorized to be appropriated to the Secretary such sums as may be necessary to carry out this Act and the amendments made by this Act.

8.

Effective date

Except as otherwise provided, this Act and the amendments made by this Act shall take effect on the date that is 18 months after the date of the enactment of this Act.