Solitary Confinement Reform Act

II 116TH CONGRESS 1ST SESSION S. 719 To reform the use of solitary confinement and other forms of restrictive housing in the Bureau of Prisons, and for other purposes. IN THE SENATE OF THE UNITED STATES MARCH 7, 2019 Mr. DURBIN (for himself, Mr. COONS, Mr. BOOKER, Ms. HARRIS, Mr. LEAHY, Mr. SCHATZ, and Ms. WARREN) introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To reform the use of solitary confinement and other forms of restrictive housing in the Bureau of Prisons, 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 ‘‘Solitary Confinement 4 Reform Act’’. 5 SEC. 2. SOLITARY CONFINEMENT REFORMS. 6 (a) AMENDMENT.—Chapter 303 of title 18, United 7 States Code, is amended by adding at the end the fol- 8 lowing: 9 VerDate Sep 11 2014 19:34 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBFK8HB2PROD with BILLS 2 •S 719 IS ‘‘§ 4051. Solitary confinement 1 ‘‘(a) DEFINITIONS.—In this section: 2 ‘‘(1) ADMINISTRATIVE MAXIMUM FACILITY.— 3 The term ‘administrative maximum facility’ means a 4 maximum-security facility, including the Administra- 5 tive Maximum facility in Florence, Colorado, de- 6 signed to house inmates who present an ongoing sig- 7 nificant and serious threat to other inmates, staff, 8 and the public. 9 ‘‘(2) ADMINISTRATIVE SEGREGATION.—The 10 term ‘administrative segregation’ means a nonpuni- 11 tive form of solitary confinement that removes an in- 12 dividual from the general population of a correc- 13 tional facility for— 14 ‘‘(A) investigative, protective, or preventa- 15 tive reasons resulting in a substantial and im- 16 mediate threat; or 17 ‘‘(B) transitional reasons, including a 18 pending transfer, pending classification, or 19 other temporary administrative matter. 20 ‘‘(3) APPROPRIATE LEVEL OF CARE.—The term 21 ‘appropriate level of care’ means the appropriate 22 treatment setting for mental health care that an in- 23 mate with mental illness requires, which may include 24 outpatient care, emergency or crisis services, day 25 VerDate Sep 11 2014 19:34 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBFK8HB2PROD with BILLS 3 •S 719 IS treatment, supported residential housing, infirmary 1 care, or inpatient psychiatric hospitalization services. 2 ‘‘(4) DIRECTOR.—The term ‘Director’ means 3 the Director of the Bureau of Prisons. 4 ‘‘(5) DISCIPLINARY HEARING OFFICER.—The 5 term ‘disciplinary hearing officer’ means an em- 6 ployee of the Bureau of Prisons who is responsible 7 for conducting disciplinary hearings for which soli- 8 tary confinement may be a sanction, as described in 9 section 541.8 of title 28, Code of Federal Regula- 10 tions, or any successor thereto. 11 ‘‘(6) DISCIPLINARY SEGREGATION.—The term 12 ‘disciplinary segregation’ means a punitive form of 13 solitary confinement imposed only by a Disciplinary 14 Hearing Officer as a sanction for committing a sig- 15 nificant and serious disciplinary infraction. 16 ‘‘(7) INTELLECTUAL DISABILITY.—The term 17 ‘intellectual disability’ means a significant mental 18 impairment characterized by significant limitations 19 in both intellectual functioning and in adaptive be- 20 havior. 21 ‘‘(8) MULTIDISCIPLINARY STAFF COM- 22 MITTEE.—The term ‘multidisciplinary staff com- 23 mittee’ means a committee— 24 VerDate Sep 11 2014 19:34 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBFK8HB2PROD with BILLS 4 •S 719 IS ‘‘(A) made up of staff at the facility where 1 an inmate resides who are responsible for re- 2 viewing the initial placement of the inmate in 3 solitary confinement and any extensions of time 4 in solitary confinement; and 5 ‘‘(B) which shall include— 6 ‘‘(i) not less than 1 licensed mental 7 health professional; 8 ‘‘(ii) not less than 1 medical profes- 9 sional; and 10 ‘‘(iii) not less than 1 member of the 11 leadership of the facility. 12 ‘‘(9) ONGOING SIGNIFICANT AND SERIOUS 13 THREAT.—The term ‘ongoing significant and serious 14 threat’ means an ongoing set of circumstances that 15 require the highest level of security and staff super- 16 vision for an inmate who, by the behavior of the in- 17 mate— 18 ‘‘(A) has been identified as assaultive, 19 predacious, riotous, or a serious escape risk; 20 and 21 ‘‘(B) poses a great risk to other inmates, 22 staff, and the public. 23 ‘‘(10) PROTECTION CASE.—The term ‘protec- 24 tion case’ means an inmate who, by the request of 25 VerDate Sep 11 2014 19:34 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBFK8HB2PROD with BILLS 5 •S 719 IS the inmate or through a staff determination, re- 1 quires protection, as described by section 2 541.23(c)(3) of title 28, Code of Federal Regula- 3 tions, or any successor thereto. 4 ‘‘(11) SERIOUS MENTAL ILLNESS.—The term 5 ‘serious mental illness’ means a substantial disorder 6 of thought or mood that significantly impairs judg- 7 ment, behavior, capacity to recognize reality, or abil- 8 ity to cope with the ordinary demands of life. 9 ‘‘(12) SIGNIFICANT AND SERIOUS DISCIPLINARY 10 INFRACTION.—The term ‘significant and serious dis- 11 ciplinary infraction’ means— 12 ‘‘(A) an act of violence that either— 13 ‘‘(i) resulted in or was likely to result 14 in serious injury or death to another; or 15 ‘‘(ii) occurred in connection with any 16 act of nonconsensual sex; 17 ‘‘(B) an escape, attempted escape, or con- 18 spiracy to escape from within a security perim- 19 eter or custody, or both; or 20 ‘‘(C) possession of weapons, possession of 21 illegal narcotics with intent to distribute, or 22 other similar, severe threats to the safety of the 23 inmate, other inmates, staff, or the public. 24 VerDate Sep 11 2014 19:34 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBFK8HB2PROD with BILLS 6 •S 719 IS ‘‘(13) SOLITARY CONFINEMENT.—The term 1 ‘solitary confinement’ means confinement character- 2 ized by substantial isolation in a cell, alone or with 3 other inmates, including administrative segregation, 4 disciplinary segregation, and confinement in any fa- 5 cility designated by the Bureau of Prisons as a spe- 6 cial housing unit, special management unit, or ad- 7 ministrative maximum facility. 8 ‘‘(14) SPECIAL ADMINISTRATIVE MEASURES.— 9 The term ‘special administrative measures’ means 10 reasonably necessary measures used to— 11 ‘‘(A) prevent disclosure of classified infor- 12 mation upon written certification to the Attor- 13 ney General by the head of an element of the 14 intelligence community (as specified or des- 15 ignated under section 3(4) of the National Se- 16 curity Act of 1947 (50 U.S.C. 3003(4))) that 17 the unauthorized disclosure of such information 18 would pose a threat to the national security and 19 that there is a danger that the inmate will dis- 20 close such information, as described by section 21 501.2 of title 28, Code of Federal Regulations, 22 or any successor thereto; or 23 ‘‘(B) protect persons against the risk of 24 death or serious bodily injury, upon written no- 25 VerDate Sep 11 2014 19:34 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBFK8HB2PROD with BILLS 7 •S 719 IS tification to the Director by the Attorney Gen- 1 eral or, at the Attorney General’s direction, by 2 the head of a Federal law enforcement agency, 3 or the head of an element of the intelligence 4 community (as specified or designated under 5 section 3(4) of the National Security Act of 6 1947 (50 U.S.C. 3003(4))), that there is a sub- 7 stantial risk that the communications of an in- 8 mate or contacts by the inmate with other per- 9 sons could result in death or serious bodily in- 10 jury to persons, or substantial damage to prop- 11 erty that would entail the risk of death or seri- 12 ous bodily injury to persons, as described by 13 section 501.3 of title 28, Code of Federal Regu- 14 lations, or any successor thereto. 15 ‘‘(15) SPECIAL HOUSING UNIT.—The term ‘spe- 16 cial housing unit’ means a housing unit in an insti- 17 tution of the Bureau of Prisons in which inmates 18 are securely separated from the general inmate pop- 19 ulation for disciplinary or administrative reasons, as 20 described in section 541.21 of title 28, Code of Fed- 21 eral Regulations, or any successor thereto. 22 ‘‘(16) SPECIAL MANAGEMENT UNIT.—The term 23 ‘special management unit’ means a nonpunitive 24 housing program with multiple, step-down phases for 25 VerDate Sep 11 2014 19:34 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBFK8HB2PROD with BILLS 8 •S 719 IS inmates whose history, behavior, or situation re- 1 quires enhanced management approaches in order to 2 ensure the safety of other inmates, the staff, and the 3 public. 4 ‘‘(17) SUBSTANTIAL AND IMMEDIATE 5 THREAT.—The term ‘substantial and immediate 6 threat’ means any set of temporary and unforeseen 7 circumstances that require immediate action in order 8 to combat a threat to the safety of an inmate, other 9 inmates, staff, or the public. 10 ‘‘(b) USE OF SOLITARY CONFINEMENT.— 11 ‘‘(1) IN GENERAL.—The placement of a Federal 12 inmate in solitary confinement within the Bureau of 13 Prisons or any facility that contracts with the Bu- 14 reau of Prisons to provide housing for inmates in 15 Federal custody shall be limited to situations in 16 which such confinement— 17 ‘‘(A) is limited to the briefest term and the 18 least restrictive conditions practicable, including 19 not less than 4 hours of out-of-cell time every 20 day, unless the inmate poses a substantial and 21 immediate threat; 22 ‘‘(B) is consistent with the rationale for 23 placement and with the progress achieved by 24 the inmate; 25 VerDate Sep 11 2014 19:34 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBFK8HB2PROD with BILLS 9 •S 719 IS ‘‘(C) allows the inmate to participate in 1 meaningful programming opportunities and 2 privileges as consistent with those available in 3 the general population as practicable, either in- 4 dividually or in a classroom setting; 5 ‘‘(D) allows the inmate to have as much 6 meaningful interaction with others, such as 7 other inmates, visitors, clergy, or licensed men- 8 tal health professionals, as practicable; and 9 ‘‘(E) complies with the provisions of this 10 section. 11 ‘‘(2) TRANSITIONAL PROCESS FOR INMATES IN 12 SOLITARY CONFINEMENT.— 13 ‘‘(A) INMATES WITH UPCOMING RELEASE 14 DATES.—The Director shall establish— 15 ‘‘(i) policies to ensure that an inmate 16 with an anticipated release date of 180 17 days or less is not housed in solitary con- 18 finement, unless— 19 ‘‘(I) such confinement is limited 20 to not more than 5 days of adminis- 21 trative segregation relating to the up- 22 coming release of the inmate; or 23 ‘‘(II) the inmate poses a substan- 24 tial and immediate threat; and 25 VerDate Sep 11 2014 19:34 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBFK8HB2PROD with BILLS 10 •S 719 IS ‘‘(ii) a transitional process for each 1 inmate with an anticipated release date of 2 180 days or less who is held in solitary 3 confinement under clause (i)(II), which 4 shall include— 5 ‘‘(I) substantial re-socialization 6 programming in a group setting; 7 ‘‘(II) regular mental health coun- 8 seling to assist with the transition; 9 and 10 ‘‘(III) re-entry planning services 11 offered to inmates in a general popu- 12 lation setting. 13 ‘‘(B) INMATES IN LONG-TERM SOLITARY 14 CONFINEMENT.—The Director shall establish a 15 transitional process for each inmate who has 16 been held in solitary confinement for more than 17 30 days and who will transition into a general 18 population unit, which shall include— 19 ‘‘(i) substantial re-socialization pro- 20 gramming in a group setting; and 21 ‘‘(ii) regular mental health counseling 22 to assist with the transition. 23 ‘‘(3) PROTECTIVE CUSTODY UNITS.—The Di- 24 rector— 25 VerDate Sep 11 2014 19:34 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBFK8HB2PROD with BILLS 11 •S 719 IS ‘‘(A) shall establish within the Federal 1 prison system additional general population 2 protective custody units that provide sheltered 3 general population housing to protect inmates 4 from harm that they may otherwise be exposed 5 to in a typical general population housing unit; 6 ‘‘(B) shall establish policies to ensure that 7 an inmate who is considered a protection case 8 shall, upon request of the inmate, be placed in 9 a general population protective custody unit; 10 ‘‘(C) shall create an adequate number of 11 general population protective custody units to— 12 ‘‘(i) accommodate the requests of in- 13 mates who are considered to be protection 14 cases; and 15 ‘‘(ii) ensure that inmates who are con- 16 sidered to be protection cases are placed in 17 facilities as close to their homes as prac- 18 ticable; and 19 ‘‘(D) may not place an inmate who is con- 20 sidered to be a protection case in solitary con- 21 finement due to the status of the inmate as a 22 protection case unless— 23 ‘‘(i) the inmate requests to be placed 24 in solitary confinement, in which case, at 25 VerDate Sep 11 2014 19:34 Mar 20, 2019 Jkt 089200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S719.IS S719 pamtmann on DSKBFK8HB2PROD with BILLS 12 •S 719 IS the request of the inmate the inmate shall 1 be transferred to a general population pro- 2 tective custody unit or, if appropriate, a 3 different general population unit; or 4 ‘‘(ii) such confinement is limited to— 5 ‘‘(I) not more than 5 days of ad- 6 ministrative segregation; and 7 ‘‘(II) is necessary to protect the 8 inmate during preparation for trans- 9 fer to a general population protective 10 custody unit or a different general 11 population unit. 12 ‘‘(4) VULNERABLE POPULATIONS.—The Bureau 13 of Prisons or any facility that contracts with the Bu- 14 reau of Prisons shall not place an inmate in solitary 15 confinement if— 16 ‘‘(A) the inmate has a serious mental ill- 17 ness, has an intellectual disability, has a phys- 18 ical disability that a licensed medical profes- 19 sional finds is likely to be exacerbated by place- 20 ment in solitary confinement, is pregnant or in 21 the first 8 weeks of the postpartum recovery pe- 22 riod after giving birth, or has been determined 23 by a licensed mental health professional to like- 24 VerDate Sep 11 2014 19:34 Ma [Text truncated for display. 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