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H.R. 994: Justice is Not For Sale Act of 2021


The text of the bill below is as of Feb 11, 2021 (Introduced).

Summary of this bill

Should public governments use private prisons?

Context

As of 2017, 8.2 percent of federal and state prisoners were housed in private prisons. Run by companies with for-profit motives beginning in the 1980s, the institutions have become increasingly controversial in recent years, with attention drawn to cost-cutting measures such as the well-publicized case of maggots in the food.

Critics also say the private prison system encourages mass incarceration, especially in states where judges are elected, because their biggest campaign funders are often private prisons whose incentives are electing particularly punitive judges to hand down especially long sentences.

In August 2016, President Barack Obama’s Justice Department announced it would phase …


I

117th CONGRESS

1st Session

H. R. 994

IN THE HOUSE OF REPRESENTATIVES

February 11, 2021

(for himself, Mr. Rush, Ms. Schakowsky, Ms. Lee of California, Mr. Blumenauer, Ms. Meng, Mr. Gallego, Ms. Norton, Mr. Espaillat, Ms. Velázquez, Mr. Carson, Ms. Omar, Mr. Smith of Washington, Mr. Gomez, Mr. McGovern, Mr. San Nicolas, Mr. Pocan, Mrs. Watson Coleman, Mr. Jones, Mr. Takano, Mrs. Napolitano, Ms. Garcia of Texas, Ms. McCollum, Mr. Vargas, Ms. Bass, Mr. Johnson of Georgia, Ms. Jayapal, Ms. Tlaib, Mr. Welch, Ms. Barragán, Mr. Connolly, Ms. Ocasio-Cortez, and Ms. Escobar) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committees on Energy and Commerce, Financial Services, and Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL

To prohibit the use of for-profit facilities and detention centers, and for other purposes.

1.

Short title

This Act may be cited as the Justice is Not For Sale Act of 2021.

2.

Definitions

In this Act—

(1)

the term core correctional services means the housing, transporting, safeguarding, protecting, and disciplining of individuals—

(A)

charged with or convicted of an offense; or

(B)

who are in custody for purposes of enforcing the immigration laws, as defined in section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a));

(2)

the term local government means a city, county, township, town, borough, parish, village, or other general purpose political subdivision of a State;

(3)

the term State means a State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or another commonwealth, territory, or possession of the United States; and

(4)

the term facility housing adult prisoners or detainees in the custody of a State or local government includes for-profit civil commitment centers, return to custody units, community corrections and treatment centers, halfway houses and re-entry programs, restitution or day reporting centers, transitional centers, mental health facilities, or other facilities or programs that are under contract with a government entity to provide custody, control, supervision, treatment, and rehabilitation of prisoners or detainees.

3.

Elimination of Federal contracts for privately run prisons within 2 years

(a)

Operational control

Except as provided in subsection (b), not later than 2 years after the date of enactment of this Act—

(1)

each facility housing adult prisoners or detainees in the custody of the Federal Government shall be under the direct, operational control of the Federal Government; and

(2)

core correctional services at each such facility shall be performed by employees of the Federal Government.

(b)

Waiver authorized

If the Attorney General determines that the Federal Government is unable to comply with subsection (a) by the date that is 2 years after the date of enactment of this Act, the Attorney General may waive the application of subsection (a) for not more than 1 year.

(c)

Electronic monitoring of released persons

Electronic monitoring of the location of a person released from the custody of the Federal Government may be conducted only by a public entity under the supervision and control of the Federal Government or a non-profit entity that has a contract with the Federal Government to perform such monitoring.

4.

Prohibition on private for-profit entities running State and local prisons or detention alternatives after 2 years

(a)

Operational control

Except as provided in subsection (b), on and after the date that is 2 years after the date of enactment of this Act—

(1)

no private for-profit entity engaged in or affecting interstate commerce shall own or have direct, operational control over a facility housing adult prisoners or detainees in the custody of the State or local government; and

(2)

no private for-profit entity engaged in or affecting interstate commerce shall perform core correctional services at such a facility.

(b)

Waiver authorized

If the Attorney General determines that a State or local government requires services from a private for-profit entity that are described in subsection (a) after the date that is 2 years after the date of enactment of this Act, the Attorney General may waive the application of subsection (a) as to that private for-profit entity for not more than 1 year.

(c)

Electronic monitoring of released persons

No private for-profit entity engaged in or affecting interstate commerce may operate electronic monitoring of the location of a person released from the custody of a State or local government.

(d)

Enforcement

The Attorney General may bring a civil action in an appropriate district court of the United States for such declaratory or injunctive relief as is necessary to carry out this section.

5.

CFPB oversight of providers of money transfer services for correctional and immigration detention facilities

(a)

Definitions

In this section—

(1)

the term Bureau means the Bureau of Consumer Financial Protection;

(2)

the term correctional facility means a jail, prison, or other detention facility used to house people who have been arrested, detained, held, or convicted by a criminal justice agency or a court;

(3)

the term covered inmate means—

(A)

an individual who is being held, detained, or incarcerated in a correctional facility; and

(B)

an individual who is being held in an immigration detention facility;

(4)

the term covered provider means a provider of a service, including a money transfer service, that—

(A)

facilitates the electronic transfer of funds from an individual who is not a covered inmate to a covered inmate;

(B)

provides a payment to a covered inmate who is being released from a correctional facility or an immigration detention facility; or

(C)

provides a payment on behalf of a covered inmate; and

(5)

the term immigration 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, including facilities that hold such individuals under a contract or agreement with the Department of Homeland Security.

(b)

Reasonable and proportional fee or charge

The amount of any fee or charge that a covered provider may impose with respect to a service described in subparagraph (A), (B), or (C) of subsection (a)(4) shall be reasonable and proportional to the relative cost or value of the service.

(c)

Requirement To issue regulations

(1)

In general

Not later than 3 years after the date of enactment of this Act, the Bureau shall issue final rules to establish standards for assessing whether the amount of any fee or charge described in subsection (b) is reasonable and proportional to the relative cost or value of the service provided by a covered provider.

(2)

Considerations

In issuing the final rules under paragraph (1), the Bureau shall consider—

(A)

whether there are alternative means for transferring funds into correctional facilities and immigration detention facilities;

(B)

whether those alternatives can reasonably be considered comparable;

(C)

differing cost structures for transferring funds into correctional facilities and immigration detention facilities; and

(D)

such other factors as the Bureau may determine necessary or appropriate.

(3)

Differentiation permitted

In issuing the final rules under paragraph (1), the Bureau may establish different standards for different types of fees and charges, as appropriate.

6.

Requirements for confinement facility communications services

(a)

In general

Section 276 of the Communications Act of 1934 (47 U.S.C. 276) is amended by adding at the end the following:

(e)

Additional requirements for confinement facility communications services

(1)

Authority

(A)

In general

All charges, practices, classifications, and regulations for and in connection with confinement facility communications services shall be just and reasonable, and any such charge, practice, classification, or regulation that is unjust or unreasonable is declared to be unlawful.

(B)

Rulemaking required

Not later than 18 months after the date of the enactment of this subsection, the Commission shall issue rules to adopt, for the provision of confinement facility communications services, rates and ancillary service charges that are just and reasonable, which shall be the maximum such rates and charges that a provider of confinement facility communications services may charge for such services. In determining rates and charges that are just and reasonable, the Commission shall adopt such rates and charges based on the average industry costs of providing such services using data collected from providers of confinement facility communications services.

(C)

Biennial review

Not less frequently than every 2 years following the issuance of rules under subparagraph (B), the Commission shall—

(i)

determine whether the rates and ancillary service charges authorized by the rules issued under such subparagraph remain just and reasonable; and

(ii)

if the Commission determines under clause (i) that any such rate or charge does not remain just and reasonable, revise such rules so that such rate or charge is just and reasonable.

(2)

Interim rate caps

Until the Commission issues the rules required by paragraph (1)(B), a provider of confinement facility communications services may not charge a rate for any voice service communication using confinement facility communications services that exceeds the following:

(A)

For debit calling or prepaid calling, $0.04 per minute.

(B)

For collect calling, $0.05 per minute.

(3)

Assessment on per-minute basis

Except as provided in paragraph (4), a provider of confinement facility communications services—

(A)

shall assess all charges for a communication using such services on a per-minute basis for the actual duration of the communication, measured from communication acceptance to termination, rounded up to the next full minute, except in the case of charges for services that the confinement facility offers free of charge or for amounts below the amounts permitted under this subsection; and

(B)

may not charge a per-communication or per-connection charge for a communication using such services.

(4)

Ancillary service charges

(A)

General prohibition

A provider of confinement facility communications services may not charge an ancillary service charge other than—

(i)

if the Commission has not yet issued the rules required by paragraph (1)(B), a charge listed in subparagraph (B) of this paragraph; or

(ii)

a charge authorized by the rules adopted by the Commission under paragraph (1).

(B)

Permitted charges and rates

If the Commission has not yet issued the rules required by paragraph (1)(B), a provider of confinement facility communications services may not charge a rate for an ancillary service charge in excess of the following:

(i)

In the case of an automated payment fee, 2.9 percent of the total charge on which the fee is assessed.

(ii)

In the case of a fee for single-call and related services, the exact transaction fee charged by the third-party provider, with no markup.

(iii)

In the case of a live agent fee, $5.95 per use.

(iv)

In the case of a paper bill or statement fee, $2 per use.

(v)

In the case of a third-party financial transaction fee, the exact fee, with no markup, charged by the third party for the transaction.

(5)

Prohibition on site commissions

A provider of confinement facility communications services may not assess a site commission.

(6)

Relationship to State law

A State or political subdivision of a State may not enforce any law, rule, regulation, standard, or other provision having the force or effect of law relating to confinement facility communications services that allows for higher rates or other charges to be assessed for such services than is permitted under any Federal law or regulation relating to confinement facility communications services.

(7)

Definitions

In this subsection:

(A)

Ancillary service charge

The term ancillary service charge means any charge a consumer may be assessed for the setting up or use of a confinement facility communications service that is not included in the per-minute charges assessed for individual communications.

(B)

Automated payment fee

The term automated payment fee means a credit card payment, debit card payment, or bill processing fee, including a fee for a payment made by means of interactive voice response, the internet, or a kiosk.

(C)

Collect calling

The term collect calling means an arrangement whereby a credit-qualified party agrees to pay for charges associated with a communication made to such party using confinement facility communications services and originating from within a confinement facility.

(D)

Confinement facility

The term confinement facility

(i)

means a jail or a prison; and

(ii)

includes any juvenile, detention, work release, or mental health facility that is used primarily to hold individuals who are—

(I)

awaiting adjudication of criminal charges or an immigration matter; or

(II)

serving a sentence for a criminal conviction.

(E)

Confinement facility communications service

The term confinement facility communications service means a service that allows incarcerated persons to make electronic communications (whether intrastate, interstate, or international and whether made using video, audio, or any other communicative method, including advanced communications services) to individuals outside the confinement facility, or to individuals inside the confinement facility, where the incarcerated person is being held, regardless of the technology used to deliver the service.

(F)

Consumer

The term consumer means the party paying a provider of confinement facility communications services.

(G)

Debit calling

The term debit calling means a presubscription or comparable service which allows an incarcerated person, or someone acting on an incarcerated person’s behalf, to fund an account set up through a provider that can be used to pay for confinement facility communications services originated by the incarcerated person.

(H)

Fee for single-call and related services

The term fee for single-call and related services means a billing arrangement whereby communications made by an incarcerated person using collect calling are billed through a third party on a per-communication basis, where the recipient does not have an account with the provider of confinement facility communications services.

(I)

Incarcerated person

The term incarcerated person means a person detained at a confinement facility, regardless of the duration of the detention.

(J)

Jail

The term jail

(i)

means a facility of a law enforcement agency of the Federal Government or of a State or political subdivision of a State that is used primarily to hold individuals who are—

(I)

awaiting adjudication of criminal charges;

(II)

post-conviction and committed to confinement for sentences of one year or less; or

(III)

post-conviction and awaiting transfer to another facility; and

(ii)

includes—

(I)

city, county, or regional facilities that have contracted with a private company to manage day-to-day operations;

(II)

privately-owned and operated facilities primarily engaged in housing city, county, or regional incarcerated persons; and

(III)

facilities used to detain individuals pursuant to a contract with U.S. Immigration and Customs Enforcement.

(K)

Live agent fee

The term live agent fee means a fee associated with the optional use of a live operator to complete a confinement facility communications service transaction.

(L)

Paper bill or statement fee

The term paper bill or statement fee means a fee associated with providing a consumer an optional paper billing statement.

(M)

Per-communication or per-connection charge

The term per-communication or per-connection charge means a one-time fee charged to a consumer at the initiation of a communication.

(N)

Prepaid calling

The term prepaid calling means a calling arrangement that allows a consumer to pay in advance for a specified amount of confinement facility communications services.

(O)

Prison

The term prison

(i)

means a facility operated by a State or Federal agency that is used primarily to confine individuals convicted of felonies and sentenced to terms in excess of one year; and

(ii)

includes—

(I)

public and private facilities that provide outsource housing to State or Federal agencies such as State Departments of Correction and the Federal Bureau of Prisons; and

(II)

facilities that would otherwise be jails but in which the majority of incarcerated persons are post-conviction or are committed to confinement for sentences of longer than one year.

(P)

Provider of confinement facility communications services

The term provider of confinement facility communications services means any communications service provider that provides confinement facility communications services, regardless of the technology used.

(Q)

Site commission

The term site commission means any monetary payment, in-kind payment, gift, exchange of services or goods, fee, technology allowance, or product that a provider of confinement facility communications services or an affiliate of a provider of confinement facility communications services may pay, give, donate, or otherwise provide to—

(i)

an entity that operates a confinement facility;

(ii)

an entity with which the provider of confinement facility communications services enters into an agreement to provide confinement facility communications services;

(iii)

a governmental agency that oversees a confinement facility;

(iv)

the State or political subdivision of a State where a confinement facility is located; or

(v)

an agent or other representative of an entity described in any of clauses (i) through (iv).

(R)

Third-party financial transaction fee

The term third-party financial transaction fee means the exact fee, with no markup, that a provider of confinement facility communications services is charged by a third party to transfer money or process a financial transaction to facilitate the ability of a consumer to make an account payment via a third party.

(S)

Voice service

The term voice service

(i)

means any service that is interconnected with the public switched telephone network and that furnishes voice communications to an end user using resources from the North American Numbering Plan or any successor to the North American Numbering Plan adopted by the Commission under section 251(e)(1); and

(ii)

includes—

(I)

transmissions from a telephone facsimile machine, computer, or other device to a telephone facsimile machine; and

(II)

without limitation, any service that enables real-time, two-way voice communications, including any service that requires internet protocol-compatible customer premises equipment (commonly known as CPE) and permits out-bound calling, whether or not the service is one-way or two-way voice over internet protocol.

.

(b)

Conforming amendment

Section 276(d) of the Communications Act of 1934 (47 U.S.C. 276(d)) is amended by striking inmate telephone service in correctional institutions and inserting confinement facility communications services (as defined in subsection (e)(7)).

(c)

Existing contracts

(1)

In general

In the case of a contract that was entered into and under which a provider of confinement facility communications services was providing such services at a confinement facility on or before the date of the enactment of this Act—

(A)

paragraphs (1) through (5) of subsection (e) of section 276 of the Communications Act of 1934, as added by subsection (a) of this section, shall apply to the provision of confinement facility communications services by such provider at such facility beginning on the earlier of—

(i)

the date that is 60 days after such date of enactment; or

(ii)

the date of the termination of the contract; and

(B)

the terms of such contract may not be extended after such date of enactment, whether by exercise of an option or otherwise.

(2)

Definitions

In this subsection, the terms confinement facility, confinement facility communications service, and provider of confinement facility communications services have the meanings given such terms in paragraph (7) of subsection (e) of section 276 of the Communications Act of 1934, as added by subsection (a) of this section.

(d)

Authority

Section 2(b) of the Communications Act of 1934 (47 U.S.C. 152(b)) is amended by inserting section 276, after 227, inclusive,.

7.

Oversight of detention facilities

(a)

Definitions

In this section:

(1)

Applicable standards

The term applicable standards means the most recent version of detention standards and detention-related policies issued by the Secretary of Homeland Security or the Director of U.S. Immigration and Customs Enforcement.

(2)

Detention facility

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, including facilities that hold such individuals under a contract or agreement with the Department of Homeland Security.

(b)

Detention requirements

The Secretary of Homeland Security shall ensure that all persons detained pursuant to the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) are treated humanely and benefit from the protections set forth in this section.

(c)

Oversight requirements

(1)

Annual inspection

All detention facilities housing noncitizens in the custody of the Department of Homeland Security shall be inspected, for compliance with applicable detention standards issued by the Secretary and other applicable regulations, by—

(A)

the Immigration Detention Ombudsman at least biannually; and

(B)

an independent, third-party auditor at least biannually.

(2)

Routine oversight

In addition to the inspections required under paragraph (1), the Secretary shall conduct routine oversight of the detention facilities described in paragraph (1), including unannounced inspections.

(3)

Availability of records

All detention facility contracts, memoranda of agreement, audits, inspections, evaluations and reviews, include those conducted by the Office for Civil Rights and Civil Liberties and the Office of Inspector General of the Department of Homeland Security, shall be considered public records for purposes of section 552(f)(2) of title 5, United States Code.

(4)

Consultation

The Secretary shall seek input from nongovernmental organizations regarding their independent opinion of specific facilities.

(5)

Report of Immigration Detention Ombudsman

The Immigration Detention Ombudsman shall submit a report to Congress on a bi-annual basis on its activities, findings, and recommendations, based on the inspections conducted under paragraph (1), including a copy of any complaint form or mechanism created, the number and types of complaints received, the number of complaints investigated, and the number of inspections under paragraph (1) that the Ombudsman conducted during the previous 6-month period, including any unannounced inspections.

(d)

Compliance mechanisms

(1)

Agreements

(A)

New agreements

Compliance with applicable standards of the Secretary of Homeland Security and all applicable regulations, and meaningful financial penalties for failure to comply, shall be a material term in any new contract, memorandum of agreement, or any renegotiation, modification, or renewal of an existing contract or agreement, including fee negotiations, executed with detention facilities.

(B)

Existing agreements

Not later than 180 days after the date of the enactment of this Act, the Secretary shall secure a modification incorporating these terms for any existing contracts or agreements that will not be renegotiated, renewed, or otherwise modified.

(C)

Cancellation of agreements

Unless the Secretary provides a reasonable extension to a specific detention facility that is negotiating in good faith, contracts or agreements with detention facilities that are not modified within 1 year of the date of the enactment of this Act will be cancelled.

(D)

Provision of information

In making modifications under this paragraph, the Secretary shall require that detention facilities provide to the Secretary all contracts, memoranda of agreement, evaluations, and reviews regarding the facility on a regular basis. The Secretary shall make these materials publicly available on a timely and regular basis.

(2)

Financial penalties

(A)

Requirement to impose

Subject to subparagraph (C), the Secretary shall impose meaningful financial penalties upon facilities that fail to comply with applicable detention standards issued by the Secretary and other applicable regulations.

(B)

Timing of imposition

Financial penalties imposed under subparagraph (A) shall be imposed immediately after a facility fails to achieve an adequate or the equivalent median score in any performance evaluation.

(C)

Waiver

The requirements of subparagraph (A) may be waived if the facility corrects the noted deficiencies and receives an adequate score in not more than 90 days.

(D)

Multiple offenders

If the Secretary determines that a facility has been persistently and substantially violating the detention standards issued by the Secretary, including by scoring less than adequate or the equivalent median score in 2 consecutive inspections—

(i)

the Secretary shall terminate contracts or agreements with such facilities within 60 days; or

(ii)

in the case of facilities operated by the Secretary, the Secretary shall close such facilities within 90 days.

(e)

Reporting requirements

(1)

Objectives

Not later than June 30 of each year, the Secretary of Homeland Security shall submit a report to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives that describes the inspection and oversight activities at detention facilities.

(2)

Contents

Each report submitted under paragraph (1) shall include—

(A)

a description of each detention facility found to be in noncompliance with applicable detention standards issued by the Department of Homeland Security and other applicable regulations;

(B)

a description of the actions taken by the Department to remedy any findings of noncompliance or other identified problems, including financial penalties, contract or agreement termination, or facility closure; and

(C)

information regarding whether the actions described in subparagraph (B) resulted in compliance with applicable detention standards and regulations.

8.

Replacement of family detention with alternatives

Section 236 of the Immigration and Nationality Act (8 U.S.C. 1226) is amended by adding at the end the following:

(f)

Prohibition on detention of families

(1)

Prohibition

Notwithstanding any other provision of this Act, the Secretary of Homeland Security is prohibited from—

(A)

detaining a family unit under the authority of this section; or

(B)

separating a family unit whose members were apprehended together in order to detain a family member under this section.

(2)

Alternatives to detention

(A)

In general

The Secretary of Homeland Security shall establish community-based and community-supported case management programs operated by nonprofit organizations for family units who are prohibited from being detained pursuant to paragraph (1), which programs shall impose the least onerous obligations possible on participants.

(B)

Prohibition on certain alternatives

The Secretary may not use an ankle-worn or other GPS tracking device as an alternative to detention under this paragraph.

.

9.

Private right of action

(a)

In general

A person aggrieved of any violation of this Act or an amendment made by this Act may bring a civil action in an appropriate district court of the United States.

(b)

Relief

For a prevailing plaintiff in a civil action brought under subsection (a), the court—

(1)

shall award damages in the amount equal to the greater of—

(A)

the actual damages of the plaintiff; or

(B)

$1,000 for each violation of this Act or an amendment made by this Act;

(2)

may order injunctive relief; and

(3)

shall award reasonable attorney fees.