[Discussion Draft] MDM19G56 116TH CONGRESS 1ST SESSION S.L.C. S. ll 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 Mr. DURBIN llllllllll introduced the following bill; which was read twice and referred to the Committee on llllllllll A BILL To limit the use of solitary confinement and other forms of restrictive housing in immigration detention, and for other purposes. 1 Be it enacted by the Senate and House of Representa- 2 tives of the United States of America in Congress assembled, 3 4 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. (a) SHORT TITLE.—This Act may be cited as the 5 ‘‘Restricting Solitary Confinement in Immigration Deten6 tion Act of 2019’’. 7 (b) TABLE OF CONTENTS.—The table of contents for 8 this Act is as follows: Sec. 1. Short title; table of contents. Sec. 2. Definitions. Sec. 3. Solitary confinement reforms. V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 2 Sec. Sec. Sec. Sec. Sec. 4. 5. 6. 7. 8. Reassessment of detained alien mental health. Oversight responsibilities. Rulemaking. Authorization of appropriations. Effective date. 1 SEC. 2. DEFINITIONS. 2 In this Act: 3 (1) ADMINISTRATIVE SEGREGATION.—The term 4 ‘‘administrative segregation’’ means a nonpunitive 5 form of solitary confinement that removes a detained 6 alien from the general population of a detention cen- 7 ter or other facility in which the alien is being de- 8 tained for— 9 (A) investigative, protective, or preventa- 10 tive reasons because of a substantial and imme- 11 diate threat to the safety or security of the de- 12 tained alien, other detained aliens, staff, or the 13 public; or 14 15 (B) temporary administrative reasons. (2) APPROPRIATE LEVEL OF CARE.—The term 16 ‘‘appropriate level of care’’ means the appropriate 17 treatment setting for mental health care that a de- 18 tained alien with mental illness requires, which may 19 include outpatient care, emergency or crisis services, 20 day treatment, supported residential housing, infir- 21 mary care, or inpatient psychiatric hospitalization 22 services. V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 3 1 (3) INTELLECTUAL DISABILITY.—The term ‘‘in- 2 tellectual disability’’ means a significant mental im- 3 pairment characterized by significant limitations in 4 intellectual functioning and adaptive behavior. 5 (4) MULTIDISCIPLINARY STAFF COMMITTEE.— 6 The term ‘‘multidisciplinary staff committee’’ means 7 a committee— 8 (A) composed of staff at the facility at 9 which a detained alien resides who are respon- 10 sible for reviewing the initial placement of the 11 alien in solitary confinement and any extensions 12 of time in solitary confinement; and 13 (B) that includes— 14 (i) not fewer than 1 licensed mental 15 health professional; 16 (ii) not fewer than 1 medical profes- 17 sional; and 18 (iii) not fewer than 1 member of the 19 20 leadership of the facility. (5) PROTECTION CASE.—The term ‘‘protection 21 case’’ means a detained alien who, by the request of 22 the alien or through a staff determination, requires 23 protection. 24 25 (6) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of Homeland Security. V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 4 1 2 (7) SERIOUS MENTAL ILLNESS.—The term ‘‘se- rious mental illness’’ means— 3 (A) a finding by a qualified mental health 4 professional that the detained alien is at serious 5 risk of substantially deteriorating mentally or 6 emotionally while confined in solitary confine- 7 ment, or already has so deteriorated while con- 8 fined in solitary confinement, such that diver- 9 sion or removal is deemed to be clinically appro- 10 priate by a qualified mental health professional; 11 or 12 (B) a current or recent diagnosis by a 13 qualified mental health professional of 1 or 14 more of the following disorders described in the 15 most recent edition of the Diagnostic and Sta- 16 tistical Manual of Mental Disorders: 17 (i) Schizophrenia or another psychotic 18 disorder. 19 (ii) Major depressive disorder. 20 (iii) Any type of bipolar disorder. 21 (iv) A neurodevelopmental disorder, 22 dementia or other cognitive disorder. 23 (v) Any disorder commonly character- 24 ized by breaks with reality or perceptions 25 of reality. V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 5 1 (vi) Any type of anxiety disorders. 2 (vii) Trauma or stressor related dis- 3 order. 4 5 (viii) Severe personality disorders. (8) SOLITARY CONFINEMENT.—The term ‘‘soli- 6 tary confinement’’ means confinement characterized 7 by substantial isolation in a cell, whether alone or 8 with other detained aliens, including administrative 9 segregation and disciplinary segregation. 10 (9) SUBSTANTIAL AND IMMEDIATE THREAT.— 11 The term ‘‘substantial and immediate threat’’ means 12 any set of circumstances that require immediate ac- 13 tion in order to combat a significant threat to the 14 safety of a detained alien, other detained aliens, 15 staff, or the public. 16 (10) U.S. IMMIGRATION AND CUSTOMS 17 FORCEMENT FACILITY.—The 18 tion and Customs Enforcement facility’’ means— EN- term ‘‘U.S. Immigra- 19 (A) a detention facility owned and adminis- 20 tered by U.S. Immigration and Customs En- 21 forcement; or 22 (B) a Federal, State, local, or private facil- 23 ity that has contracted (directly or indirectly) 24 with U.S. Immigration and Customs Enforce- 25 ment to detain aliens in Federal custody, in- V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 6 1 cluding a U.S. Marshals facility that houses 2 alien detainees, and regardless of any time lim- 3 its that exist for the duration of the detention 4 in such a facility. 5 6 7 SEC. 3. SOLITARY CONFINEMENT REFORMS. (a) USE OF SOLITARY CONFINEMENT.— (1) IN GENERAL.—A detained alien may not be 8 placed in solitary confinement within a U.S. Immi- 9 gration and Customs Enforcement facility unless 10 such confinement— 11 (A) is limited to the briefest term and the 12 least restrictive conditions practicable, including 13 not fewer than 4 hours of out-of-cell time every 14 day; 15 (B) is consistent with the rationale for 16 placement and with the progress achieved by 17 the detained alien; 18 (C) allows the detained alien to participate 19 in meaningful programming opportunities and 20 privileges that are similar to those available in 21 the general population as practicable, either in- 22 dividually or in a classroom setting; 23 (D) allows the detained alien to have as 24 much meaningful interaction with others, such 25 as other detained aliens, counsel, visitors, cler- V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 7 1 gy, or licensed mental health professionals, as 2 practicable; and 3 (E) complies with the provisions of this 4 section. 5 (2) SPECIFIC LIMITATIONS ON ADMINISTRATIVE 6 SEGREGATION AND DISCIPLINARY SEGREGATION.— 7 The Secretary— 8 (A) shall limit administrative segregation 9 in U.S. Immigration and Customs Enforcement 10 facilities— 11 (i) to situations in which such seg- 12 regation is necessary to control a substan- 13 tial and immediate threat that cannot be 14 addressed through alternative housing; and 15 (ii) to a duration of not more than 14 16 consecutive days, and not more than 14 17 days in a 21-day period, unless— 18 (I) the detained alien is consid- 19 ered a protection case and requests to 20 remain in administrative segregation 21 under paragraph (3)(B)(i); or 22 (II) to address the continued ex- 23 istence of a substantial and immediate 24 threat, a multidisciplinary staff com- V49 FW L4T MDM19G56 [Discussion Draft] S.L.C. 8 1 mittee approves a temporary exten- 2 sion, which— 3 (aa) shall be in writing and 4 include a thorough explanation of 5 the reasons for which the exten- 6 sion is warranted, including any 7 factors weighing against the ex- 8 tension; 9 (bb) shall be reviewed— 10 (AA) by the multidisci- 11 plinary 12 every 3 days during the pe- 13 riod of the extension, in 14 order to confirm the contin- 15 ued existence of the substan- 16 tial and immediate threat; staff committee 17 (BB) by the appro- 18 priate Enforcement and Re- 19 moval Operations Field Of- 20 fice Director within U.S. 21 Immigration and Customs 22 Enforcement after the initial 23 extension and every 7 days 24 thereafter during the period 25 of the extension, in order to V49 FW L4T MDM19G56 [Discussion Draft] S.L.C. 9 1 review the findings of the 2 multidisciplinary staff com- 3 mittee and determine wheth- 4 er such extensions are per- 5 missible; 6 (CC) by a sub- 7 committee of the Detention 8 Monitoring Council within 9 U.S. Immigration and Cus- 10 toms 11 shall be chaired by the Cus- 12 tody Management Division 13 and shall include representa- 14 tives from Enforcement and 15 Removal Operations Field 16 Operations, the Health Serv- 17 ice Corps, the Office of the 18 Principal Legal Advisor, the 19 Office of Professional Re- 20 sponsibility, the Office of 21 Acquisition 22 and 23 Homeland Security’s Office 24 for Civil Rights and Civil 25 Liberties, after any exten- V49 FW L4T Enforcement, the which Management, Department of [Discussion Draft] MDM19G56 S.L.C. 10 1 sion is approved by an En- 2 forcement and Removal Op- 3 erations Field Office Direc- 4 tor; and 5 (cc) shall include additional 6 out of cell time, socialization, and 7 programming opportunities for 8 the detained alien, so that each 9 detained alien placed in solitary 10 confinement for more than 14 11 days is given not fewer than 4 12 hours of out of cell time each 13 day; and 14 (B) may not permit the use of solitary con- 15 finement as a form of discipline. 16 (3) PROTECTIVE CUSTODY.—The Secretary— 17 (A) shall establish policies to ensure that 18 an alien who is considered a protection case, 19 upon the request of the alien, is transferred to 20 a safer alternative, such as— 21 (i) an alternative general population 22 unit in the U.S. Immigration and Customs 23 Enforcement facility; 24 (ii) an alternative U.S. Immigration 25 and Customs Enforcement facility; or V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 11 1 (iii) an alternative to detention; and 2 (B) may not place a detained alien who is 3 considered to be a protection case in solitary 4 confinement due to the status of the alien as a 5 protection case unless— 6 (i) the alien requests to be placed in 7 solitary confinement, in which case, at the 8 request of the alien to be released from sol- 9 itary confinement, the alien shall be trans- 10 ferred to a safer alternative, such as— 11 (I) an alternative general popu- 12 lation unit; 13 (II) an alternative U.S. Immigra- 14 tion and Customs Enforcement facil- 15 ity; or 16 (III) an alternative to detention; 17 or 18 (ii) such confinement is limited to— 19 (I) not more than 5 days of ad- 20 ministrative segregation; and 21 (II) is necessary to protect the 22 alien during preparation for transfer 23 to a safer alternative, such as 1 of the 24 alternatives described in subclauses 25 (I) through (III) of clause (i). V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 12 1 (4) VULNERABLE POPULATIONS.—A U.S. Im- 2 migration and Customs Enforcement facility may 3 not place a detained alien in solitary confinement 4 if— 5 6 (A) the detained alien is younger than 18 years of age, unless— 7 (i) such confinement is a temporary 8 response to the behavior of the detained 9 alien, which poses a substantial and imme- 10 diate threat; 11 (ii) all other options to de-escalate the 12 situation have been exhausted, including 13 less restrictive techniques such as— 14 (I) penalizing the detained alien 15 through loss of privileges; 16 (II) speaking with the detained 17 alien in an attempt to de-escalate the 18 situation; and 19 (III) providing an appropriate 20 level of care through a licensed mental 21 health professional ; 22 (iii) such confinement is limited to— 23 (I) 3 hours after the detained 24 alien is placed in solitary confinement, V49 FW L4T MDM19G56 [Discussion Draft] S.L.C. 13 1 if the alien poses a substantial and 2 immediate threat to others; or 3 (II) 30 minutes after the de- 4 tained alien is placed in solitary con- 5 finement, if the alien poses a substan- 6 tial and immediate threat only to his 7 self or her self; and 8 (iv) if, after the applicable maximum 9 period of confinement under subclause (I) 10 or (II) of clause (iii) has expired, the de- 11 tained alien continues to pose a substantial 12 and immediate threat described in that 13 subclause— 14 (I) the detained alien shall be 15 transferred to another facility or in- 16 ternal location where services can be 17 provided to the alien without relying 18 on solitary confinement; or 19 (II) if a qualified mental health 20 professional believes the level of crisis 21 service needed is not currently avail- 22 able, a staff member of the facility 23 shall initiate a referral to a location 24 that can meet the needs of the de- 25 tained alien; V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 14 1 (B) the detained alien has a serious mental 2 illness, has an intellectual disability, has a phys- 3 ical disability that a licensed medical profes- 4 sional determines is likely to be exacerbated by 5 placement in solitary confinement or that soli- 6 tary confinement is clinically contraindicated, is 7 pregnant, or is in the first 8 weeks of the post- 8 partum recovery period after giving birth, or 9 has been determined by a licensed mental 10 health professional to likely be significantly ad- 11 versely affected by placement in solitary con- 12 finement, unless— 13 (i) the detained alien poses a substan- 14 tial and immediate threat; 15 (ii) all other options to de-escalate the 16 situation have been exhausted, including 17 less restrictive techniques such as— 18 (I) penalizing the detained alien 19 through loss of privileges; 20 (II) speaking with the detained 21 alien in an attempt to de-escalate the 22 situation; and 23 (III) providing an appropriate 24 level of care through a licensed mental 25 health professional; V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 15 1 (iii) such confinement is limited to the 2 briefest term and the least restrictive con- 3 ditions practicable, including access to 4 medical and mental health treatment; 5 (iv) such confinement is reviewed by a 6 multidisciplinary staff committee for ap- 7 propriateness every 24 hours; and 8 (v) as soon as practicable, but not 9 later than 5 days after such confinement 10 begins, the detained alien is diverted, upon 11 release from solitary confinement, to a 12 general population unit, a mental health 13 treatment program described in subsection 14 (b)(2), or an alternative to detention; 15 (C) the detained alien is lesbian, gay, bi- 16 sexual, transgender (as defined in section 115.5 17 of title 28, Code of Federal Regulations, or any 18 successor regulation), intersex (as defined in 19 section 115.5 of title 28, Code of Federal Regu- 20 lations, or any successor regulation), or gender 21 nonconforming (as defined in section 115.5 of 22 title 28, Code of Federal Regulations, or any 23 successor regulation), if such placement is 24 based (in whole or in part) on such identifica- 25 tion or status; V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 16 1 (D) the alien is HIV positive, if the place- 2 ment is based (in whole or in part) on the HIV 3 positive status of the alien; 4 (E) the placement is based (in whole or in 5 part) on the alien’s race, religion, or nation- 6 ality; or 7 (F) the placement is based (in whole or in 8 part) on a detained alien’s report of an incident 9 of abuse or misconduct, a detained alien’s deci- 10 sion to engage in a hunger strike, or any other 11 form of retaliation against a detained alien, un- 12 less the alien has been classified as a protection 13 case under paragraph (3). 14 (5) ACCESS TO COUNSEL.—Aliens placed in sol- 15 itary confinement shall be offered access to counsel 16 to the same extent that detained aliens in the gen- 17 eral population are offered access to counsel. 18 (6) RIGHT TO REVIEW PLACEMENT IN SOLI- 19 TARY CONFINEMENT.—The 20 that each alien placed in solitary confinement has 21 access to— Secretary shall ensure 22 (A) written and verbal notice provided in a 23 language that the alien understands that thor- 24 oughly details the basis for placement or contin- 25 ued placement in solitary confinement not later V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 17 1 than 6 hours after the beginning of such place- 2 ment, including— 3 (i) thorough documentation explaining 4 why such confinement is permissible and 5 necessary under this subsection; and 6 (ii) if an exception under paragraph 7 (2)(A)(ii), (3)(B), (4)(A), or (4)(B) is used 8 to justify placement in solitary confine- 9 ment, thorough documentation explaining 10 why such an exception applies; 11 (B) a timely, thorough, and continuous re- 12 view process that— 13 (i) occurs not fewer than 3 days after 14 placement in solitary confinement, and 15 thereafter at least on a weekly basis, un- 16 less required more frequently under this 17 section; 18 (ii) includes private, face-to-face inter- 19 views with a multidisciplinary staff com- 20 mittee; and 21 (iii) examines whether— 22 (I) placement in solitary confine- 23 ment was and remains necessary; 24 (II) the conditions of confinement 25 comply with this section; and V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 18 1 (III) any exception under para- 2 graph (2)(A)(ii), (3)(B), (4)(A), or 3 (4)(B) used to justify placement in 4 solitary confinement was and remains 5 warranted; 6 (C) a process to appeal the initial place- 7 ment or continued placement of the detained 8 alien in solitary confinement; 9 (D) prompt and timely written notice of 10 the appeal procedures; and 11 (E) copies of all documents, files, and 12 records relating to the detained alien’s place- 13 ment in solitary confinement, unless such docu- 14 ments contain contraband, classified informa- 15 tion, or sensitive security-related information. 16 17 18 (b) MENTAL HEALTH CARE TARY FOR ALIENS IN SOLI- CONFINEMENT.— (1) MENTAL HEALTH SCREENING.—Not later 19 than 6 hours after a detained alien is placed in soli- 20 tary confinement in a U.S. Immigration and Cus- 21 toms Enforcement facility, the alien shall receive a 22 comprehensive, face-to-face mental health evaluation 23 by a licensed mental health professional in a con- 24 fidential setting. V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 19 1 (2) MENTAL HEALTH TREATMENT PROGRAM.— 2 A detained alien diagnosed with a serious mental ill- 3 ness after an evaluation under paragraph (1)— 4 5 (A) may not be placed in solitary confinement under subsection (a)(4)(B); and 6 (B) shall receive an appropriate level of 7 care to address the detained alien’s mental 8 health needs. 9 (3) CONTINUING EVALUATIONS.—After each 7- 10 day period during which a detained alien is held in 11 continuous placement in solitary confinement— 12 (A) a licensed mental health professional 13 shall conduct a comprehensive, face-to-face, out- 14 of-cell mental health evaluation of the alien in 15 a confidential setting; and 16 (B) the Secretary shall adjust the place- 17 ment of the alien in accordance with this sub- 18 section. 19 (c) TRAINING FOR DETENTION CENTER STAFF.— 20 (1) TRAINING.—All employees of a U.S. Immi- 21 gration and Customs Enforcement facility who inter- 22 act with aliens on a regular basis shall be required 23 to complete training in— 24 25 (A) recognizing the symptoms of mental illness; V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 20 1 2 (B) the potential risks and side effects of psychiatric medications; 3 4 (C) de-escalation techniques for safely managing individuals with mental illness; 5 6 (D) the consequences of untreated mental illness; 7 8 (E) the long- and short-term psychological effects of solitary confinement; and 9 (F) de-escalation and communication tech- 10 niques to divert detained aliens from situations 11 that may lead to the alien being placed in soli- 12 tary confinement. 13 (2) NOTIFICATION TO MEDICAL STAFF.—An 14 employee of a U.S. Immigration and Customs En- 15 forcement facility shall immediately notify a member 16 of the facility’s medical or mental health staff if the 17 employee— 18 (A) observes a detained alien with signs of 19 mental illness, unless such employee has knowl- 20 edge that the alien’s signs of mental illness 21 have previously been reported; or 22 23 24 (B) observes a detained alien with signs of a mental health crisis; (d) REPORTING REQUIREMENTS.— V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 21 1 (1) DAILY TRACKING OF USE OF SOLITARY 2 CONFINEMENT.—Each 3 toms Enforcement facility shall submit a daily report 4 to the Director of U.S. Immigration and Customs 5 Enforcement that identifies, for the applicable day— 6 (A) any detained aliens who were placed in 7 U.S. Immigration and Cus- solitary confinement, including— 8 (i) the rationale behind each such 9 placement; and 10 (ii) whether any exception under sub- 11 section (a) used to justify placement in sol- 12 itary confinement or increased restrictive 13 conditions in solitary confinement was ap- 14 plied; 15 (B) the continued detention of any aliens 16 in solitary confinement, including— 17 (i) the number of days such aliens 18 have been detained in solitary confinement; 19 and 20 (ii) an explanation of the application 21 of any exception under subsection (a) used 22 to justify an adjustment to the alien’s time 23 or conditions in solitary confinement; and 24 (C) the release of any detained aliens from 25 solitary confinement. V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 22 1 (2) PUBLICATION OF USE OF SOLITARY CON- 2 FINEMENT.—Without 3 able information, the Secretary shall publish online 4 weekly updates regarding— revealing personally identifi- 5 (A) the number of aliens in solitary con- 6 finement at each U.S. Immigration and Cus- 7 toms Enforcement facility; and 8 (B) any instances in which a facility has 9 placed a detained alien in solitary confinement 10 for more than 15 days. 11 (3) INTERNAL 12 REVIEW OF DATA.— (A) WEEKLY REVIEWS.—The appropriate 13 Enforcement and Removal Operations Field Of- 14 fice Director within U.S. Immigration and Cus- 15 toms Enforcement shall— 16 (i) on a weekly basis, review the daily 17 reports from each U.S. Immigration and 18 Customs Enforcement facility under his or 19 her jurisdiction to ensure that each facility 20 is in compliance with this Act; 21 (ii) report any instances in which a 22 U.S. Immigration and Customs Enforce- 23 ment facility failed to comply, or is sus- 24 pected of failing to comply, with this Act 25 to the subcommittee established under sub- V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 23 1 section (a)(2)(A)(ii)(II)(bb)(CC) for re- 2 view; and 3 (iii) direct a U.S. Immigration and 4 Customs Enforcement facility that failed to 5 comply, or is suspected of failing to com- 6 ply, with this Act to immediately address 7 any such failures to comply, including by 8 immediately removing a detained alien 9 from solitary confinement if the alien’s 10 placement or continued detention in soli- 11 tary confinement was not in compliance 12 with this Act. 13 (B) MONTHLY REPORTS.—The 14 committee 15 (a)(2)(A)(ii)(II)(bb)(CC) shall— established under sub- subsection 16 (i) promptly review any reports re- 17 ceived pursuant to subparagraph (A)(ii); 18 and 19 (ii) submit monthly reports to the full 20 Detention Monitoring Council and the Di- 21 rector of U.S. Immigration and Customs 22 Enforcement that identify areas of concern 23 regarding particular cases or facilities that 24 warrant further examination. V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 24 1 SEC. 4. REASSESSMENT OF DETAINED ALIEN MENTAL 2 3 HEALTH. Not later than 180 days after the date of the enact- 4 ment of this Act, the Secretary shall— 5 (1) assemble a team of licensed mental health 6 professionals, which may include licensed mental 7 health professionals who are not employed by the 8 Department of Homeland Security, to conduct a 9 comprehensive mental health reevaluation for each 10 alien held in solitary confinement for more than 14 11 days (as of the date of enactment of this Act), in- 12 cluding a confidential, face-to-face, out-of-cell inter- 13 view by a licensed mental health professional; and 14 15 16 17 (2) adjust the placement of each alien in accordance with this Act. SEC. 5. OVERSIGHT RESPONSIBILITIES. (a) IN GENERAL.—Section 705 of the Homeland Se- 18 curity Act of 2002 (6 U.S.C. 345) is amended by adding 19 at the end the following: 20 21 ‘‘(c) IMMIGRATION DETENTION.— ‘‘(1) DEFINED TERM.—In this subsection, the 22 term ‘U.S. Immigration and Customs Enforcement 23 facility’ has the meaning given the term in section 24 2 of the Restricting Solitary Confinement in Immi- 25 gration Detention Act of 2019. V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 25 1 ‘‘(2) INTERNAL REPORTING.—The Secretary 2 shall ensure that each U.S. Immigration and Cus- 3 toms Enforcement facility provides multiple internal 4 ways for aliens and others to promptly report viola- 5 tions of section 3 of the Restricting Solitary Con- 6 finement in Immigration Detention Act of 2019 to 7 the Officer for Civil Rights and Civil Liberties, in- 8 cluding— 9 ‘‘(A) not less than 2 procedures for aliens 10 and others to report violations of section 3 of 11 such Act to an entity or office that is not part 12 of the facility, and that is able to receive and 13 immediately forward reports to the Officer for 14 Civil Rights and Civil Liberties, allowing the 15 alien to remain anonymous upon request; and 16 ‘‘(B) not less than 2 procedures for aliens 17 and others to report violations of section 3 of 18 such Act to the Officer for Civil Rights and 19 Civil Liberties in a confidential manner, allow- 20 ing the alien to remain anonymous upon re- 21 quest. 22 ‘‘(3) NOTICE TO DETAINEES.—The Secretary 23 shall ensure that each U.S. Immigration and Cus- 24 toms Enforcement facility provides aliens with— V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 26 1 ‘‘(A) notice of how to report violations of 2 section 4 of the Restricting Solitary Confine- 3 ment in Immigration Detention Act of 2019 in 4 accordance with paragraph (2), including— 5 ‘‘(i) notice prominently posted in the 6 living and common areas of each such fa- 7 cility; 8 ‘‘(ii) individual notice to aliens at ini- 9 tial intake into a U.S. Immigration and 10 Customs Enforcement facility, when trans- 11 ferred to a new facility, and when placed 12 in solitary confinement; 13 ‘‘(iii) notice to aliens with disabilities 14 in accessible formats; and 15 ‘‘(iv) written or verbal notice in a lan- 16 guage the alien understands; and 17 ‘‘(B) notice of permissible practices related 18 to solitary confinement in U.S. Immigration 19 and Customs Enforcement facilities, including 20 the requirements under section 3 of such Act. 21 ‘‘(4) ACCESS.—The Officer for Civil Rights and 22 Civil Liberties— 23 ‘‘(A) shall have unrestricted access to U.S. 24 Immigration and Customs Enforcement facili- 25 ties; V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 27 1 ‘‘(B) shall be able to review documents, re- 2 quest and review information, and speak pri- 3 vately with aliens, contractors, volunteers, and 4 U.S. Immigration and Customs Enforcement 5 facility staff. 6 ‘‘(5) ANNUAL 7 ASSESSMENT OF SOLITARY CON- FINEMENT USE IN IMMIGRATION DETENTION.— 8 ‘‘(A) OBJECTIVES.—Not later than 90 9 days after the last day of each fiscal year, the 10 Officer for Civil Rights and Civil Liberties shall 11 submit an assessment to the Committee on 12 Homeland Security and Governmental Affairs 13 of the Senate, the Committee on the Judiciary 14 of the Senate, the Committee on Homeland Se- 15 curity of the House of Representatives, and the 16 Committee on the Judiciary of the House of 17 Representatives that analyzes the use of solitary 18 confinement in U.S. Immigration and Customs 19 Enforcement facilities during such fiscal year. 20 ‘‘(B) DATA.—Each assessment submitted 21 under subparagraph (A) shall include aggre- 22 gated and disaggregated data reported by U.S. 23 Immigration and Customs Enforcement facili- 24 ties, to be provided by U.S. Immigration and 25 Customs Enforcement to the Officer for Civil V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 28 1 Rights and Civil Liberties not later than 30 2 days after the last day of each fiscal year, in- 3 cluding— 4 ‘‘(i) the policies and regulations of 5 U.S. Immigration and Customs Enforce- 6 ment, including— 7 ‘‘(I) any changes in policies and 8 regulations, for determining which 9 aliens are placed in solitary confine- 10 ment; and 11 ‘‘(II) a detailed description of the 12 conditions and restrictions of solitary 13 confinement; 14 ‘‘(ii) the number of aliens in U.S. Im- 15 migration and Customs Enforcement facili- 16 ties who were housed in solitary confine- 17 ment for any period and the percentage of 18 all aliens who spent at least some time in 19 solitary confinement during the reporting 20 period; 21 ‘‘(iii) the demographics of all aliens 22 housed in solitary confinement, including 23 race, ethnicity, religion, age, and gender; 24 ‘‘(iv) the policies and regulations of 25 U.S. Immigration and Customs Enforce- V49 FW L4T MDM19G56 [Discussion Draft] S.L.C. 29 1 ment facilities, including any updates in 2 policies and regulations, for subsequent re- 3 views or appeals of the placement of a de- 4 tained alien into or out of solitary confine- 5 ment; 6 ‘‘(v) the number of reviews of and 7 challenges to the placement of a detained 8 alien in solitary confinement during the re- 9 porting period and the number of reviews 10 or appeals that directly resulted in a 11 change of placement; 12 ‘‘(vi) a detailed description of the con- 13 ditions and restrictions for solitary confine- 14 ment, including the number of hours spent 15 in isolation and the percentage of time 16 these conditions involve 2 aliens celled to- 17 gether in solitary confinement; 18 ‘‘(vii) the mean and median length of 19 stay in solitary confinement, based on all 20 individuals released from solitary confine- 21 ment during the reporting period, and any 22 maximum length of stay during the report- 23 ing period; 24 ‘‘(viii) the cost for each form of soli- 25 tary confinement described in subpara- V49 FW L4T MDM19G56 [Discussion Draft] S.L.C. 30 1 graph (A) in use during the reporting pe- 2 riod, including as compared with the aver- 3 age daily cost of housing a detained alien 4 in the general population; 5 ‘‘(ix) the policies for mental health 6 screening, mental health treatment, and 7 subsequent mental health reviews for all 8 detained aliens, including any update to 9 the policies, and any additional screening, 10 treatment, and monitoring for detained 11 aliens in solitary confinement; 12 ‘‘(x) a statement of the types of men- 13 tal health staff that conducted mental 14 health assessments for U.S. Immigration 15 and Customs Enforcement facilities during 16 the reporting period, a description of the 17 different positions in the mental health 18 staff of U.S. Immigration and Customs 19 Enforcement facilities, and the number of 20 part- and full-time psychologists and psy- 21 chiatrists employed by U.S. Immigration 22 and Customs Enforcement facilities during 23 the reporting period; V49 FW L4T MDM19G56 [Discussion Draft] S.L.C. 31 1 ‘‘(xi) data on mental health and med- 2 ical indicators for all detained aliens in sol- 3 itary confinement, including— 4 ‘‘(I) the number of aliens requir- 5 ing medication for mental health con- 6 ditions; 7 ‘‘(II) the number diagnosed with 8 an intellectual disability; 9 ‘‘(III) the number diagnosed with 10 serious mental illness; 11 ‘‘(IV) the number of suicides; 12 ‘‘(V) the number of attempted 13 suicides and number of aliens placed 14 on suicide watch; 15 ‘‘(VI) the number of instances of 16 self-harm committed by aliens; 17 ‘‘(VII) the number of aliens with 18 physical disabilities, including blind, 19 deaf, and mobility-impaired aliens; 20 and 21 ‘‘(VIII) the number of instances 22 of forced feeding of aliens; 23 ‘‘(xii) any instances in which an En- 24 forcement and Removal Operations Field 25 Office Director reported that a U.S. Immi- V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 32 1 gration and Customs Enforcement facility 2 in his or her jurisdiction failed to comply 3 with or was suspected of failing to comply 4 with the Restricting Solitary Confinement 5 in Immigration Detention Act of 2019; and 6 ‘‘(xiii) any other relevant data. 7 ‘‘(C) CONTENT.—Each assessment sub- 8 mitted under subparagraph (A) shall include— 9 ‘‘(i) an analysis of the data provided 10 under subparagraph (B); 11 ‘‘(ii) recommendations for reform of- 12 fered to the Director of U.S. Immigration 13 and Customs Enforcement and the Sec- 14 retary under paragraph (6); and 15 ‘‘(iii) the response from U.S. Immi- 16 gration and Customs Enforcement and the 17 Department to such recommendations for 18 reform. 19 ‘‘(D) AUTHORITY ON FINAL REPORT.— 20 Each assessment submitted under subpara- 21 graph (A) may be reviewed by U.S. Immigra- 22 tion and Customs Enforcement and the Sec- 23 retary before submission, but the Officer for 24 Civil Rights and Civil Liberties has final au- V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 33 1 thority on the text and release of the assess- 2 ment. 3 ‘‘(6) REGULAR MEETINGS WITH THE SEC- 4 RETARY AND THE DIRECTOR OF U.S. IMMIGRATION 5 AND 6 Civil Rights and Civil Liberties shall meet regularly 7 with the Secretary and the Director of U.S. Immi- 8 gration and Customs Enforcement— CUSTOMS ENFORCEMENT.—The Officer for 9 ‘‘(A) to identify problems with the solitary 10 confinement policies and practices in U.S. Im- 11 migration and Customs Enforcement facilities, 12 including overuse of solitary confinement; and 13 ‘‘(B) to present recommendations for such 14 administrative action as may be appropriate to 15 resolve problems relating to solitary confine- 16 ment policies and practices in U.S. Immigration 17 and Customs Enforcement facilities.’’. 18 (b) ANNUAL REPORT.—Not later than December 31 19 of each year, the Inspector General of the Department of 20 Homeland Security shall issue a report analyzing— 21 22 23 24 (1) the use of solitary confinement in U.S. Immigration and Customs Enforcement facilities; and (2) the Department’s compliance with this Act and the amendments made by this Act. V49 FW L4T [Discussion Draft] MDM19G56 S.L.C. 34 1 SEC. 6. RULEMAKING. 2 The Secretary and the Director of U.S. Immigration 3 and Customs Enforcement shall prescribe rules, in accord4 ance with section 553 of title 5, United States Code, to 5 carry out this Act and the amendments made by this Act. 6 SEC. 7. AUTHORIZATION OF APPROPRIATIONS. 7 There are authorized to be appropriated to the Sec- 8 retary such sums as may be necessary to carry out this 9 Act and the amendments made by this Act. 10 SEC. 8. EFFECTIVE DATE. 11 Except as otherwise provided, this Act and the 12 amendments made by this Act shall take effect on the date 13 that is 18 months after the date of the enactment of this 14 Act. V49 FW L4T