Stop Shackling and Detaining Pregnant Women Act

II 117TH CONGRESS 1ST SESSION S. 2128 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. IN THE SENATE OF THE UNITED STATES JUNE 17, 2021 Mrs. MURRAY (for herself, Mr. BLUMENTHAL, Mr. MARKEY, Mr. REED, Mr. COONS, Ms. WARREN, Ms. KLOBUCHAR, Mr. MENENDEZ, Ms. SMITH, Mr. BOOKER, Mrs. GILLIBRAND, Ms. DUCKWORTH, Ms. BALDWIN, Mr. LEAHY, Ms. HIRONO, Mrs. FEINSTEIN, Mr. WYDEN, Ms. CORTEZ MASTO, and Mr. PADILLA) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL 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. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Stop Shackling and 4 Detaining Pregnant Women Act’’. 5 VerDate Sep 11 2014 06:30 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S2128.IS S2128 pbinns on DSKJLVW7X2PROD with BILLS 2 •S 2128 IS SEC. 2. LIMITATION ON DETENTION OF PREGNANT WOMEN 1 AND MOTHERS OF NEWBORNS. 2 (a) PRESUMPTION OF RELEASE.— 3 (1) IN GENERAL.—Except as provided in para- 4 graph (2), the Secretary— 5 (A) shall not detain an individual under 6 any provision of the Immigration and Nation- 7 ality Act (8 U.S.C. 1101 et seq.) during preg- 8 nancy or postpartum recovery, pending a deci- 9 sion with respect to whether the individual is to 10 be removed from the United States; and 11 (B) shall immediately release any detainee 12 found to be pregnant. 13 (2) EXCEPTIONS.—The Secretary may detain 14 pursuant to the Immigration and Nationality Act (8 15 U.S.C. 1101 et seq.) an individual during pregnancy 16 or postpartum recovery under extraordinary cir- 17 cumstances in which the Secretary makes an individ- 18 ualized determination that credible, reasonable 19 grounds exist to believe that the individual presents 20 an immediate and serious threat of hurting them- 21 selves or others. 22 (3) REMOVAL.—In a case in which detention is 23 the least restrictive means of effectuating the re- 24 moval from the United States of a pregnant indi- 25 vidual subject to a final order of deportation or re- 26 VerDate Sep 11 2014 06:30 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2128.IS S2128 pbinns on DSKJLVW7X2PROD with BILLS 3 •S 2128 IS moval, the Secretary may, solely for the purpose of 1 such deportation or removal, detain the pregnant in- 2 dividual for a period that is— 3 (A) the shortest possible period imme- 4 diately preceding the deportation or removal of 5 the individual from the United States; and 6 (B) not more than 5 days. 7 (b) WEEKLY REVIEW REQUIRED.— 8 (1) IN GENERAL.—With respect to a detainee 9 detained under paragraph (2) of subsection (a), not 10 less frequently than weekly, the Secretary shall con- 11 duct an individualized review to determine whether 12 the detainee continues to be subject to detention 13 under that paragraph. 14 (2) RELEASE.—In the case of a determination 15 under paragraph (1) that a pregnant detainee is not 16 subject to detention under subsection (a)(2), not 17 later than 1 day after the date on which the Sec- 18 retary makes the determination, the Secretary shall 19 release the detainee. 20 SEC. 3. HUMANE TREATMENT OF PREGNANT WOMEN 21 WHILE IN DETENTION. 22 (a) PROHIBITION ON RESTRAINT OF PREGNANT DE- 23 TAINEES.— 24 VerDate Sep 11 2014 06:30 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2128.IS S2128 pbinns on DSKJLVW7X2PROD with BILLS 4 •S 2128 IS (1) PROHIBITION.—Except as provided in para- 1 graph (2), a detention facility shall not use a re- 2 straint on a detainee— 3 (A) known to be pregnant, including dur- 4 ing— 5 (i) labor; 6 (ii) transport to a medical facility or 7 birthing center; and 8 (iii) delivery; or 9 (B) during postpartum recovery. 10 (2) USE OF RESTRAINTS FOR MEDICAL PUR- 11 POSES AND IN EXTRAORDINARY CIRCUMSTANCES.— 12 (A) IN GENERAL.—Notwithstanding para- 13 graph (1), subject to subparagraph (B), use of 14 a restraint on a detainee described in para- 15 graph (1) may be permitted only— 16 (i) for a medical purpose if the lead 17 medical staff of the detention facility who 18 is a licensed health care provider has or- 19 dered the use of the restraint for the med- 20 ical purpose; or 21 (ii) in an extraordinary circumstance, 22 except for a medical purpose, in which the 23 facility administrator has ordered the use 24 VerDate Sep 11 2014 06:30 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2128.IS S2128 pbinns on DSKJLVW7X2PROD with BILLS 5 •S 2128 IS of the restraint after making an individual- 1 ized determination that— 2 (I) credible, reasonable grounds 3 exist to believe the detainee presents 4 an immediate and serious threat of 5 hurting staff or others; or 6 (II) reasonable grounds exist to 7 believe the detainee presents an imme- 8 diate and credible risk of escape that 9 cannot be reasonably minimized 10 through any other method. 11 (B) REQUIREMENT FOR LEAST RESTRIC- 12 TIVE RESTRAINTS.—In the rare event of an ex- 13 traordinary circumstance described in subpara- 14 graph (A)(ii), only the least restrictive restraint 15 necessary shall be used, except that— 16 (i) if a doctor, nurse, or other health 17 professional treating a detainee described 18 in paragraph (1) requests that a restraint 19 not be used, the detention officer accom- 20 panying the detainee shall immediately re- 21 move any restraint; 22 (ii) under no circumstance shall a leg, 23 waist, or 4-point restraint be used; 24 VerDate Sep 11 2014 06:30 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2128.IS S2128 pbinns on DSKJLVW7X2PROD with BILLS 6 •S 2128 IS (iii) under no circumstance shall a 1 wrist restraint be used to bind the hands 2 of such a detainee behind the back of the 3 detainee or to another individual; and 4 (iv) under no circumstance shall any 5 restraint be used on any detainee who is in 6 labor or delivering. 7 (3) RECORD OF EXTRAORDINARY CIR- 8 CUMSTANCES.— 9 (A) REQUIREMENTS.—If a restraint is 10 used on a detainee pursuant to paragraph 11 (2)(A), not later than 5 days after the date on 12 which the restraint was used, the facility ad- 13 ministrator shall— 14 (i) make a written finding that de- 15 scribes the medical purpose or extraor- 16 dinary circumstance that dictated the use 17 of the restraint; and 18 (ii) submit the finding to the Director. 19 (B) RETENTION.— 20 (i) DETENTION FACILITY.—With re- 21 spect to a written finding under subpara- 22 graph (A)(i), the facility administrator 23 shall— 24 VerDate Sep 11 2014 06:30 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2128.IS S2128 pbinns on DSKJLVW7X2PROD with BILLS 7 •S 2128 IS (I) keep the finding on file at the 1 applicable detention facility for not 2 less than 5 years after the date on 3 which the restraint was used; and 4 (II) make the finding available 5 for public inspection. 6 (ii) IMMIGRATION AND CUSTOMS EN- 7 FORCEMENT.—With respect to a written 8 finding submitted to the Director under 9 subparagraph (A)(ii), the Director shall 10 maintain the written finding and make the 11 finding available for public inspection. 12 (iii) PRIVACY.—With respect to a 13 written finding made available for public 14 inspection under clause (i) or (ii), the indi- 15 vidually identifying information of a de- 16 tainee shall not be made available for pub- 17 lic inspection without the prior written 18 consent of the detainee. 19 (b) PROHIBITION ON PRESENCE OF DETENTION OF- 20 FICERS.— 21 (1) IN GENERAL.—Except as provided in para- 22 graph (2), no detention officer shall be present in 23 the room during a pelvic exam, labor, delivery, or 24 treatment of any other symptom relating to a preg- 25 VerDate Sep 11 2014 06:30 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2128.IS S2128 pbinns on DSKJLVW7X2PROD with BILLS 8 •S 2128 IS nancy of a detainee, unless specifically requested by 1 medical personnel. 2 (2) EXCEPTION.—If the presence of a detention 3 officer is requested by medical personnel, the deten- 4 tion officer shall— 5 (A) be female, if practicable; and 6 (B) remain at a reasonable distance from 7 the detainee and toward the detainee’s head to 8 protect detainee’s privacy. 9 (3) USE OF RESTRAINTS.—If a restraint is used 10 on a detainee pursuant to subsection (a)(2)(A), a de- 11 tention officer shall remain immediately outside the 12 room at all times so that the officer may promptly 13 remove the restraint if requested by medical per- 14 sonnel, as required by subsection (a)(2)(B)(i). 15 (c) ACCESS TO SERVICES.—A pregnant detainee shall 16 have access to health care services, including comprehen- 17 sive services relating to reproductive health care and preg- 18 nancy, including— 19 (1) routine or specialized prenatal care; 20 (2) comprehensive counseling and assistance; 21 (3) postpartum follow-up; 22 (4) lactation services; and 23 (5) abortion services. 24 VerDate Sep 11 2014 06:30 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2128.IS S2128 pbinns on DSKJLVW7X2PROD with BILLS 9 •S 2128 IS SEC. 4. NOTICE OF RIGHTS AND TRAINING. 1 (a) NOTICE OF DETAINEE RIGHTS.—The Secretary 2 shall provide to each detainee, in the detainee’s native lan- 3 guage, notice of the detainee’s rights under this Act. 4 (b) TRAINING FOR DHS EMPLOYEES.—At the time 5 of hiring, and annually thereafter, the Secretary shall pro- 6 vide training on the requirements of this Act to each em- 7 ployee of the Department of Homeland Security who has 8 a role in the detention or care of a pregnant detainee or 9 a postpartum parent of a newborn detained under the Im- 10 migration and Nationality Act (8 U.S.C. 1101 et seq.). 11 SEC. 5. REPORTING; RULEMAKING. 12 (a) REPORTS.— 13 (1) REPORTS BY FACILITY ADMINISTRATORS.— 14 Not later than 30 days after the end of each quarter 15 fiscal year, the facility administrator of each deten- 16 tion facility that detained a pregnant detainee dur- 17 ing the quarter shall submit to the Secretary a writ- 18 ten report that includes, with respect to the deten- 19 tion facility during the quarter, the following: 20 (A) An account of every instance of the 21 use of a restraint on a pregnant detainee, in- 22 cluding the justification for such restraint and 23 the name of the facility administrator who 24 made the individualized determination under 25 section 3(a)(2)(A)(ii). 26 VerDate Sep 11 2014 06:30 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2128.IS S2128 pbinns on DSKJLVW7X2PROD with BILLS 10 •S 2128 IS (B) The number of pregnant detainees 1 held at the detention facility. 2 (C) The average length of detention of 3 pregnant detainees. 4 (D) The number of pregnant detainees de- 5 tained longer than 15 days. 6 (E) The number of pregnant detainees de- 7 tained longer than 30 days. 8 (2) AUDIT AND REPORTS BY SECRETARY.—Not 9 later than 90 days after the end of each fiscal year, 10 the Secretary shall— 11 (A) complete an audit of the information 12 submitted under subparagraphs (B) through 13 (E) of paragraph (1); 14 (B) submit to the appropriate committees 15 of Congress a report that includes all informa- 16 tion submitted under paragraph (1), disaggre- 17 gated by detention facility; and 18 (C) issue regulations in accordance with 19 national standards regarding minimum stand- 20 ards facilities should provide. 21 (3) PRIVACY.—A report submitted under this 22 subsection shall not contain the individually identi- 23 fying information of any detainee. 24 (4) PUBLIC INSPECTION.— 25 VerDate Sep 11 2014 06:30 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2128.IS S2128 pbinns on DSKJLVW7X2PROD with BILLS 11 •S 2128 IS (A) IN GENERAL.—Except as provided in 1 subparagraph (B), a report submitted under 2 this subsection shall be made available for pub- 3 lic inspection. 4 (B) FACILITY ADMINISTRATOR.—A report 5 submitted under this subsection that is made 6 available for public inspection shall not contain 7 the name of the facility administrator otherwise 8 included under paragraph (1)(A). 9 (b) RULEMAKING.—The Secretary and the Attorney 10 General shall adopt regulations or policies to carry out this 11 Act at each detention facility. 12 SEC. 6. DEFINITIONS. 13 In this Act: 14 (1) APPROPRIATE COMMITTEES OF CON- 15 GRESS.—The term ‘‘appropriate committees of Con- 16 gress’’ means— 17 (A) the Committee on the Judiciary and 18 the Committee on Appropriations of the Senate; 19 and 20 (B) the Committee on the Judiciary and 21 the Committee on Appropriations of the House 22 of Representatives. 23 (2) DETAINEE.—The term ‘‘detainee’’ includes 24 any adult or juvenile individual detained by any Fed- 25 VerDate Sep 11 2014 06:30 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2128.IS S2128 pbinns on DSKJLVW7X2PROD with BILLS 12 •S 2128 IS eral, State, or local law enforcement agency (includ- 1 ing under contract or agreement with such agency) 2 under the Immigration and Nationality Act (8 3 U.S.C. 1101 et seq.). 4 (3) DETENTION FACILITY.—The term ‘‘deten- 5 tion facility’’ means a Federal, State, or local gov- 6 ernment facility, or a privately owned and operated 7 facility, that is used, in whole or in part, to hold in- 8 dividuals under the authority of the Director of U.S. 9 Immigration and Customs Enforcement or the Com- 10 missioner of U.S. Customs and Border Protection, 11 including a facility that— 12 (A) holds such individuals under a contract 13 or agreement with the Director or Commis- 14 sioner; or 15 (B) is used, in whole or in part, to hold in- 16 dividuals pursuant to an immigration detainer 17 or similar request. 18 (4) DETENTION OFFICER.—The term ‘‘deten- 19 tion officer’’ means an individual who works at a de- 20 tention facility, including an individual who works at 21 a detention facility pursuant to contract or sub- 22 contract. 23 VerDate Sep 11 2014 06:30 Jul 07, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2128.IS S2128 pbinns on DSKJLVW7X2PROD with BILLS 13 •S 2128 IS (5) DIRECTOR.—The term ‘‘Director’’ means 1 the Director of U.S. Immigration and Customs En- 2 forcement. 3 (6) FACILITY ADMINISTRATOR.—The term ‘‘fa- 4 cility administrator’’ means the official responsible 5 for oversight of a detention facility or the designee 6 of such official. 7 (7) POSTPARTUM RECOVERY.—The [Text truncated for display. 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