II 116TH CONGRESS 1ST SESSION S. 2870 To limit the use of solitary confinement and other forms of restrictive housing in immigration detention, and for other purposes. IN THE SENATE OF THE UNITED STATES NOVEMBER 14, 2019 Mr. DURBIN (for himself, Mr. BOOKER, Ms. HARRIS, and Mr. SCHATZ) intro- duced the following bill; which was read twice and referred to the Com- mittee 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. 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; TABLE OF CONTENTS. 3 (a) SHORT TITLE.—This Act may be cited as the 4 ‘‘Restricting Solitary Confinement in Immigration Deten- 5 tion Act of 2019’’. 6 (b) TABLE OF CONTENTS.—The table of contents for 7 this Act is as follows: 8 Sec. 1. Short title; table of contents. Sec. 2. Definitions. VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6211 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 2 •S 2870 IS 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. SEC. 2. DEFINITIONS. 1 In this Act: 2 (1) ADMINISTRATIVE SEGREGATION.—The term 3 ‘‘administrative segregation’’ means a nonpunitive 4 form of solitary confinement that removes a detained 5 alien from the general population of a detention cen- 6 ter or other facility in which the alien is being de- 7 tained for— 8 (A) investigative, protective, or preventa- 9 tive reasons because of a substantial and imme- 10 diate threat to the safety or security of the de- 11 tained alien, other detained aliens, staff, or the 12 public; or 13 (B) temporary administrative reasons. 14 (2) APPROPRIATE LEVEL OF CARE.—The term 15 ‘‘appropriate level of care’’ means the appropriate 16 treatment setting for mental health care that a de- 17 tained alien with mental illness requires, which may 18 include outpatient care, emergency or crisis services, 19 day treatment, supported residential housing, infir- 20 mary care, or inpatient psychiatric hospitalization 21 services. 22 VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 3 •S 2870 IS (3) INTELLECTUAL DISABILITY.—The term ‘‘in- 1 tellectual disability’’ means a significant mental im- 2 pairment characterized by significant limitations in 3 intellectual functioning and adaptive behavior. 4 (4) MULTIDISCIPLINARY STAFF COMMITTEE.— 5 The term ‘‘multidisciplinary staff committee’’ means 6 a committee— 7 (A) composed of staff at the facility at 8 which a detained alien resides who are respon- 9 sible for reviewing the initial placement of the 10 alien in solitary confinement and any extensions 11 of time in solitary confinement; and 12 (B) that includes— 13 (i) not fewer than 1 licensed mental 14 health professional; 15 (ii) not fewer than 1 medical profes- 16 sional; and 17 (iii) not fewer than 1 member of the 18 leadership of the facility. 19 (5) PROTECTION CASE.—The term ‘‘protection 20 case’’ means a detained alien who, by the request of 21 the alien or through a staff determination, requires 22 protection. 23 (6) SECRETARY.—The term ‘‘Secretary’’ means 24 the Secretary of Homeland Security. 25 VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 4 •S 2870 IS (7) SERIOUS MENTAL ILLNESS.—The term ‘‘se- 1 rious mental illness’’ means— 2 (A) a finding by a qualified mental health 3 professional that the detained alien is at serious 4 risk of substantially deteriorating mentally or 5 emotionally while confined in solitary confine- 6 ment, or already has so deteriorated while con- 7 fined in solitary confinement, such that diver- 8 sion or removal is deemed to be clinically appro- 9 priate by a qualified mental health professional; 10 or 11 (B) a current or recent diagnosis by a 12 qualified mental health professional of 1 or 13 more of the following disorders described in the 14 most recent edition of the Diagnostic and Sta- 15 tistical Manual of Mental Disorders: 16 (i) Schizophrenia or another psychotic 17 disorder. 18 (ii) Major depressive disorder. 19 (iii) Any type of bipolar disorder. 20 (iv) A neurodevelopmental disorder, 21 dementia or other cognitive disorder. 22 (v) Any disorder commonly character- 23 ized by breaks with reality or perceptions 24 of reality. 25 VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 5 •S 2870 IS (vi) Any type of anxiety disorders. 1 (vii) Trauma or stressor related dis- 2 order. 3 (viii) Severe personality disorders. 4 (8) SOLITARY CONFINEMENT.—The term ‘‘soli- 5 tary confinement’’ means confinement characterized 6 by substantial isolation in a cell, whether alone or 7 with other detained aliens, including administrative 8 segregation and disciplinary segregation. 9 (9) SUBSTANTIAL AND IMMEDIATE THREAT.— 10 The term ‘‘substantial and immediate threat’’ means 11 any set of circumstances that require immediate ac- 12 tion in order to combat a significant threat to the 13 safety of a detained alien, other detained aliens, 14 staff, or the public. 15 (10) U.S. IMMIGRATION AND CUSTOMS EN- 16 FORCEMENT FACILITY.—The term ‘‘U.S. Immigra- 17 tion and Customs Enforcement facility’’ means— 18 (A) a detention facility owned and adminis- 19 tered by U.S. Immigration and Customs En- 20 forcement; or 21 (B) a Federal, State, local, or private facil- 22 ity that has contracted (directly or indirectly) 23 with U.S. Immigration and Customs Enforce- 24 ment to detain aliens in Federal custody, in- 25 VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 6 •S 2870 IS cluding a U.S. Marshals facility that houses 1 alien detainees, and regardless of any time lim- 2 its that exist for the duration of the detention 3 in such a facility. 4 SEC. 3. SOLITARY CONFINEMENT REFORMS. 5 (a) USE OF SOLITARY CONFINEMENT.— 6 (1) IN GENERAL.—A detained alien may not be 7 placed in solitary confinement within a U.S. Immi- 8 gration and Customs Enforcement facility unless 9 such confinement— 10 (A) is limited to the briefest term and the 11 least restrictive conditions practicable, including 12 not fewer than 4 hours of out-of-cell time every 13 day; 14 (B) is consistent with the rationale for 15 placement and with the progress achieved by 16 the detained alien; 17 (C) allows the detained alien to participate 18 in meaningful programming opportunities and 19 privileges that are similar to those available in 20 the general population as practicable, either in- 21 dividually or in a classroom setting; 22 (D) allows the detained alien to have as 23 much meaningful interaction with others, such 24 as other detained aliens, counsel, visitors, cler- 25 VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 7 •S 2870 IS gy, or licensed mental health professionals, as 1 practicable; and 2 (E) complies with the provisions of this 3 section. 4 (2) SPECIFIC LIMITATIONS ON ADMINISTRATIVE 5 SEGREGATION AND DISCIPLINARY SEGREGATION.— 6 The Secretary— 7 (A) shall limit administrative segregation 8 in U.S. Immigration and Customs Enforcement 9 facilities— 10 (i) to situations in which such seg- 11 regation is necessary to control a substan- 12 tial and immediate threat that cannot be 13 addressed through alternative housing; and 14 (ii) to a duration of not more than 14 15 consecutive days, and not more than 14 16 days in a 21-day period, unless— 17 (I) the detained alien is consid- 18 ered a protection case and requests to 19 remain in administrative segregation 20 under paragraph (3)(B)(i); or 21 (II) to address the continued ex- 22 istence of a substantial and immediate 23 threat, a multidisciplinary staff com- 24 VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 8 •S 2870 IS mittee approves a temporary exten- 1 sion, which— 2 (aa) shall be in writing and 3 include a thorough explanation of 4 the reasons for which the exten- 5 sion is warranted, including any 6 factors weighing against the ex- 7 tension; 8 (bb) shall be reviewed— 9 (AA) by the multidisci- 10 plinary staff committee 11 every 3 days during the pe- 12 riod of the extension, in 13 order to confirm the contin- 14 ued existence of the substan- 15 tial and immediate threat; 16 (BB) by the appro- 17 priate Enforcement and Re- 18 moval Operations Field Of- 19 fice Director within U.S. 20 Immigration and Customs 21 Enforcement after the initial 22 extension and every 7 days 23 thereafter during the period 24 of the extension, in order to 25 VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 9 •S 2870 IS review the findings of the 1 multidisciplinary staff com- 2 mittee and determine wheth- 3 er such extensions are per- 4 missible; and 5 (CC) by a sub- 6 committee of the Detention 7 Monitoring Council within 8 U.S. Immigration and Cus- 9 toms Enforcement, which 10 shall be chaired by the Cus- 11 tody Management Division 12 and shall include representa- 13 tives from Enforcement and 14 Removal Operations Field 15 Operations, the Health Serv- 16 ice Corps, the Office of the 17 Principal Legal Advisor, the 18 Office of Professional Re- 19 sponsibility, the Office of 20 Acquisition Management, 21 and the Department of 22 Homeland Security’s Office 23 for Civil Rights and Civil 24 Liberties, after any exten- 25 VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 10 •S 2870 IS sion is approved by an En- 1 forcement and Removal Op- 2 erations Field Office Direc- 3 tor; and 4 (cc) shall include additional 5 out of cell time, socialization, and 6 programming opportunities for 7 the detained alien, so that each 8 detained alien placed in solitary 9 confinement for more than 14 10 days is given not fewer than 4 11 hours of out of cell time each 12 day; and 13 (B) may not permit the use of solitary con- 14 finement as a form of discipline. 15 (3) PROTECTIVE CUSTODY.—The Secretary— 16 (A) shall establish policies to ensure that 17 an alien who is considered a protection case, 18 upon the request of the alien, is transferred to 19 a safer alternative, such as— 20 (i) an alternative general population 21 unit in the U.S. Immigration and Customs 22 Enforcement facility; 23 (ii) an alternative U.S. Immigration 24 and Customs Enforcement facility; or 25 VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 11 •S 2870 IS (iii) an alternative to detention; and 1 (B) may not place a detained alien who is 2 considered to be a protection case in solitary 3 confinement due to the status of the alien as a 4 protection case unless— 5 (i) the alien requests to be placed in 6 solitary confinement, in which case, at the 7 request of the alien to be released from sol- 8 itary confinement, the alien shall be trans- 9 ferred to a safer alternative, such as— 10 (I) an alternative general popu- 11 lation unit; 12 (II) an alternative U.S. Immigra- 13 tion and Customs Enforcement facil- 14 ity; or 15 (III) an alternative to detention; 16 or 17 (ii) such confinement is limited to— 18 (I) not more than 5 days of ad- 19 ministrative segregation; and 20 (II) is necessary to protect the 21 alien during preparation for transfer 22 to a safer alternative, such as 1 of the 23 alternatives described in subclauses 24 (I) through (III) of clause (i). 25 VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 12 •S 2870 IS (4) VULNERABLE POPULATIONS.—A U.S. Im- 1 migration and Customs Enforcement facility may 2 not place a detained alien in solitary confinement 3 if— 4 (A) the detained alien is younger than 18 5 years of age, unless— 6 (i) such confinement is a temporary 7 response to the behavior of the detained 8 alien, which poses a substantial and imme- 9 diate threat; 10 (ii) all other options to de-escalate the 11 situation have been exhausted, including 12 less restrictive techniques such as— 13 (I) penalizing the detained alien 14 through loss of privileges; 15 (II) speaking with the detained 16 alien in an attempt to de-escalate the 17 situation; and 18 (III) providing an appropriate 19 level of care through a licensed mental 20 health professional; 21 (iii) such confinement is limited to— 22 (I) 3 hours after the detained 23 alien is placed in solitary confinement, 24 VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 13 •S 2870 IS if the alien poses a substantial and 1 immediate threat to others; or 2 (II) 30 minutes after the de- 3 tained alien is placed in solitary con- 4 finement, if the alien poses a substan- 5 tial and immediate threat only to his 6 self or her self; and 7 (iv) if, after the applicable maximum 8 period of confinement under subclause (I) 9 or (II) of clause (iii) has expired, the de- 10 tained alien continues to pose a substantial 11 and immediate threat described in that 12 subclause— 13 (I) the detained alien shall be 14 transferred to another facility or in- 15 ternal location where services can be 16 provided to the alien without relying 17 on solitary confinement; or 18 (II) if a qualified mental health 19 professional believes the level of crisis 20 service needed is not currently avail- 21 able, a staff member of the facility 22 shall initiate a referral to a location 23 that can meet the needs of the de- 24 tained alien; 25 VerDate Sep 11 2014 03:38 Nov 20, 2019 Jkt 099200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\S2870.IS S2870 kjohnson on DSK79L0C42 with BILLS 14 •S 2870 IS (B) the detained alien has a serious mental 1 illness, has an intellectual disability, has a phys- 2 ical disability that a licensed medical profes- 3 sional determines is likely to be exacerbated by 4 placement in solitary confinement or that soli- 5 tary confinement is clinically cont [Text truncated for display. 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