IN THE SENATE OF THE UNITED STATES
March 5, 2019
Mrs. Murray (for herself, Ms. Baldwin, Mr. Blumenthal, Mr. Booker, Mr. Carper, Mr. Casey, Mr. Coons, Ms. Cortez Masto, Mr. Durbin, Ms. Duckworth, Mrs. Feinstein, Mrs. Gillibrand, Ms. Harris, Ms. Hirono, Ms. Klobuchar, Mr. Leahy, Mr. Markey, Mr. Menendez, Mr. Murphy, Mr. Reed, Mr. Sanders, Ms. Smith, Mr. Udall, Ms. Warren, and Mr. Wyden) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
To ensure the humane treatment of pregnant women by reinstating the presumption of release and prohibiting shackling, restraining, and other inhumane treatment of pregnant detainees, and for other purposes.
This Act may be cited as the
Stop Shackling and Detaining Pregnant Women Act.
Limitation on detention of pregnant women and mothers of newborns
Presumption of release
Except as provided in paragraph (2), the Secretary—
shall not detain a person under any provision of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) during pregnancy or postpartum recovery, pending a decision with respect to whether the person is to be removed from the United States; and
shall immediately release any detainee found to be pregnant.
The Secretary may detain pursuant to the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) a person during pregnancy or postpartum recovery under extraordinary circumstances in which the Secretary makes an individualized determination that credible, reasonable grounds exist to believe that the person presents an immediate and serious threat of hurting herself or others.
In a case in which detention is the least restrictive means of effectuating the removal from the United States of a pregnant person who is the subject of a final order of deportation or removal, the Secretary may, solely for the purpose of such removal, detain the pregnant person for a period that is—
the shortest possible period immediately preceding the removal of the person from the United States; and
not more than 5 days.
Weekly review required
With respect to a detainee detained under paragraph (2) of subsection (a), not less frequently than once each week, the Secretary shall conduct an individualized review to determine whether the detainee continues to be subject to detention under that paragraph.
In the case of a determination under paragraph (1) that a pregnant detainee is not subject to detention under subsection (a)(2), not later than 1 day after the date on which the Secretary makes the determination, the Secretary shall release the detainee.
Humane treatment of pregnant women while in detention
Prohibition on restraint of pregnant detainees
Except as provided in paragraph (2), a detention facility shall not use a restraint on a detainee—
known to be pregnant, including during—
transport to a medical facility or birthing center; and
during postpartum recovery.
Use of restraints for medical purposes and in extraordinary circumstances
Notwithstanding paragraph (1), subject to subparagraph (B), use of a restraint on a detainee described in paragraph (1) may be permitted only—
for a medical purpose if the lead medical staff of the detention facility who is a licensed health care provider has ordered the use of the restraint for the medical purpose; or
in an extraordinary circumstance, except for a medical purpose, in which the facility administrator has ordered the use of the restraint after making an individualized determination that—
credible, reasonable grounds exist to believe the detainee presents an immediate and serious threat of hurting staff or others; or
reasonable grounds exist to believe the detainee presents an immediate and credible risk of escape that cannot be reasonably minimized through any other method.
Requirement for least restrictive restraints
In the rare event of an extraordinary circumstance described in subparagraph (A)(ii), only the least restrictive restraint necessary shall be used, except that—
if a doctor, nurse, or other health professional treating a detainee described in paragraph (1) requests that a restraint not be used, the detention officer accompanying the detainee shall immediately remove any restraint;
under no circumstance shall a leg, waist, or four-point restraint be used;
under no circumstance shall a wrist restraint be used to bind the hands of a detainee described in paragraph (1) behind her back or to another person; and
under no circumstance shall any restraint be used on any detainee who is in labor or delivery.
Record of extraordinary circumstances
If a restraint is used on a detainee pursuant to paragraph (2)(A), not later than 5 days after the date on which the restraint was used, the facility administrator shall—
make a written finding that describes the extraordinary circumstance that dictated the use of the restraint; and
submit the finding to the Director.
With respect to a written finding under subparagraph (A)(i), the facility administrator shall—
keep the finding on file at the applicable detention facility for not less than 5 years after the date on which the restraint was used; and
shall make the finding available for public inspection.
Immigration and Customs Enforcement
With respect to a written finding submitted to the Director under subparagraph (A)(ii), the Director shall maintain the written finding and make the finding available for public inspection.
With respect to a written finding made available for public inspection under clause (i) or (ii), the individually identifying information of a detainee shall not be made available for public inspection without the prior written consent of the detainee.
Prohibition on presence of detention officers
Except as provided in paragraph (2), no detention officer shall be present in the room during a pelvic exam, labor, delivery, or treatment of any other symptom relating to a pregnancy of a detainee, unless specifically requested by medical personnel.
If the presence of a detention officer is requested by medical personnel, the detention officer shall—
be female, if practicable; and
remain at a reasonable distance from the detainee and toward her head to protect her privacy.
Use of restraints
If a restraint is used on a detainee pursuant to subsection (a)(2)(A), a detention officer shall remain immediately outside the room at all times so that the officer may promptly remove the restraint if requested by medical personnel, as required by subsection (a)(2)(B)(i).
Access to services
A pregnant detainee shall have access to health care services, including comprehensive services relating to reproductive health care and pregnancy, including—
routine or specialized prenatal care;
comprehensive counseling and assistance;
lactation services; and
Reports by facility administrators
Not later than 30 days after the end of each quarter of a fiscal year, the facility administrator of each detention facility that detained a pregnant detainee during the quarter shall submit to the Secretary a written report that includes, with respect to the quarter, the following:
An account of every instance of the use of a restraint on a pregnant detainee, including the justification for such restraint and the name of the facility administrator who made the individualized determination under section 3(a)(2)(A)(ii).
The number of pregnant detainees held at the facility.
The average length of detention of pregnant detainees.
The number of pregnant detainees detained longer than 15 days.
The number of pregnant detainees detained longer than 30 days.
Audit and reports by Secretary
Not later than 90 days after the end of each fiscal year, the Secretary shall—
complete an audit of the information submitted under subparagraphs (B) through (E) of paragraph (1); and
submit to the appropriate committees of Congress a report that includes all of the information submitted to the Secretary under paragraph (1), disaggregated by facility.
A report submitted under this subsection shall not contain the individually identifying information of any detainee.
Except as provided in subparagraph (B), a report submitted under this subsection shall be made available for public inspection.
A report submitted under this subsection that is made available for public inspection shall not contain the name of the facility administrator otherwise included under paragraph (1)(A).
The Secretary and the Attorney General shall adopt regulations or policies to carry out this Act at every detention facility.
In this Act:
Appropriate committees of Congress
The term appropriate committees of Congress means—
the Committee on the Judiciary and the Committee on Appropriations of the Senate; and
Committee on the Judiciary and the Committee on Appropriations of the House of Representatives.
The term detainee includes any adult or juvenile person detained by any Federal, State, or local law enforcement agency (including under contract or agreement with such agency) under the Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
The term detention facility means a Federal, State, or local government facility, or a privately owned and operated facility, that is used, in whole or in part, to hold individuals under the authority of the Director of U.S. Immigration and Customs Enforcement or the Commissioner of U.S. Customs and Border Protection, including a facility that—
holds such individuals under a contract or agreement with the Director or Commissioner; or
is used, in whole or in part, to hold individuals pursuant to an immigration detainer or similar request.
The term detention officer means an individual who works at a detention facility, including an individual who works at a detention facility pursuant to contract or subcontract.
The term Director means the Director of U.S. Immigration and Customs Enforcement.
The term facility administrator means the official who is responsible for oversight of a detention facility or the designee of such official.
The term postpartum recovery means the 6-week period, or longer, as determined by the licensed health care provider of a person, following delivery, including the entire period during which the person is in a medical facility, birthing center, or infirmary after birth.
The term restraint means any physical restraint or mechanical device used to control the movement of the body or limbs of a detainee body, including—
hard metal handcuffs;
a black box;
a security (tether) chain; and
a convex shield.
The term Secretary means the Secretary of Homeland Security.