[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[S. 1550 Introduced in Senate (IS)]

111th CONGRESS
  1st Session
                                S. 1550

   To ensure that individuals detained by the Department of Homeland 
  Security are treated humanely, provided adequate medical care, and 
                   granted certain specified rights.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             July 30, 2009

Mr. Menendez (for himself and Mrs. Gillibrand) introduced the following 
    bill; which was read twice and referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
   To ensure that individuals detained by the Department of Homeland 
  Security are treated humanely, provided adequate medical care, and 
                   granted certain specified rights.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Safe Treatment, Avoiding Needless 
Deaths, and Abuse Reduction in the Detention System Act'' or the 
``Strong STANDARDS Act''.

SEC. 2. DEFINITIONS.

    In this Act:
            (1) Detainee.--The term ``detainee'' means an individual 
        who is subject to detention under the Immigration and 
        Nationality Act.
            (2) Detention.--The term ``detention'' means government 
        custody or any other deprivation of an individual's freedom of 
        movement by government agents.
            (3) Detention facility.--The term ``detention facility'' 
        means any Federal, State, local government facility, or 
        privately owned and operated facility that is used to hold 
        detainees for more than 72 hours.
            (4) Secretary.--The term ``Secretary'' means the Secretary 
        of Homeland Security.
            (5) Short-term detention facility.--The term ``short-term 
        detention facility'' means any Federal, State, local 
        government, or privately owned and operated facility that is 
        used to hold immigration detainees for 72 hours or less.
            (6) Unaccompanied alien children.--The term ``unaccompanied 
        alien children'' has the meaning given the term in section 
        462(g) of the Homeland Security Act of 2002 (6 U.S.C. 279(g)).

SEC. 3. DETENTION CONDITIONS.

    (a) In General.--The Secretary shall--
            (1) ensure that all detainees are treated humanely and 
        granted the protections described in this section; and
            (2) comply with the minimum requirements set forth in this 
        section.
    (b) Quality of Medical Care.--
            (1) Right to medical care.--Each detainee has the right 
        to--
                    (A) prompt and adequate medical care, designed to 
                ensure continuity of care, at no cost to the detainee;
                    (B) care to address medical needs that existed 
                prior to detention; and
                    (C) primary care, emergency care, chronic care, 
                reproductive health care, prenatal care, dental care, 
                eye care, mental health care, and other medically 
                necessary specialized care.
            (2) Screenings and examinations.--Each detainee shall 
        receive--
                    (A) a comprehensive medical, dental, and mental 
                health intake screening, including screening for sexual 
                abuse or assault by a licensed health care professional 
                upon arrival at a detention facility or short-term 
                detention facility; and
                    (B) a comprehensive medical and mental health 
                examination by a licensed health care professional not 
                later than 14 days after the detainee's arrival at a 
                detention facility.
            (3) Medications and treatment.--
                    (A) Prescriptions.--Each detainee taking prescribed 
                medications prior to detention shall be allowed to 
                continue taking such medications, on schedule and 
                without interruption, until and unless a licensed 
                health care professional examines the immigration 
                detainee and decides upon an alternative course of 
                treatment. Detainees who arrive at a detention facility 
                without prescription medications and report being on 
                such medications shall be evaluated by a qualified 
                health care professional not later than 24 hours after 
                arrival. All decisions to discontinue or modify a 
                detainee's reported prescription medication regimen 
                shall be conveyed to the detainee in a language that 
                the detainee understands and shall be recorded in 
                writing in the detainee's medical records.
                    (B) Psychotropic medication.--Medication may not be 
                forcibly administered to a detainee to facilitate 
                transport, removal, or otherwise to control the 
                detainee's behavior. Involuntary psychotropic 
                medication may only be used, to the extent authorized 
                by applicable law, in emergency situations after a 
                physician has personally examined the detainee and 
                determined that--
                            (i) the detainee is imminently dangerous to 
                        self or others due to a mental illness; and
                            (ii) involuntary psychotropic medication is 
                        medically appropriate to treat the mental 
                        illness and necessary to prevent harm.
                    (C) Treatment.--Each detainee shall be provided 
                medically necessary treatment, including prenatal care, 
                prenatal vitamins, hormonal therapies, and birth 
                control. Female detainees shall be provided with 
                adequate access to sanitary products.
            (4) Medical care decisions.--Any decision regarding 
        requested medical care for a detainee--
                    (A) shall be made in writing by an on-site licensed 
                health care professional not later than 72 hours after 
                such medical care is requested; and
                    (B) shall be immediately communicated to the 
                detainee.
            (5) Administrative appeals process.--
                    (A) In general.--Detention facilities, in 
                conjunction with the Department of Homeland Security, 
                shall ensure that detainees, medical providers, and 
                legally appointed advocates have the opportunity to 
                appeal a denial of requested health care services by an 
                on-site provider to an independent appeals board.
                    (B) Appeals board.--The appeals board shall include 
                health care professionals in the fields relevant to the 
                request for medical or mental health care.
                    (C) Decision.--Not later than 7 days after an 
                appeal is received by the appeals board under this 
                paragraph, or earlier if medically necessary, the 
                appeals board shall issue a written decision regarding 
                the appeal and notify the detention facility and the 
                appellee of such decision.
            (6) Review of on-site medical provider requests.--
                    (A) In general.--The Secretary shall respond within 
                72 hours to any request by an on-site medical provider 
                for authorization to provide medical or mental health 
                care to a detainee.
                    (B) Written explanation.--If the Secretary denies 
                or fails to grant a request described in subparagraph 
                (A), the Secretary shall immediately provide a written 
                explanation of the reasons for such decision to the on-
                site medical provider and the detainee.
                    (C) Appeals board.--The on-site medical provider 
                and the detainee (or the detainee's legally appointed 
                advocate) shall be permitted to appeal the denial of, 
                or failure to grant, a request described in 
                subparagraph (A) to an independent appeals board.
                    (D) Decision.--Not later than 7 days after an 
                appeal is received by the appeals board under this 
                paragraph, or earlier if medically necessary, the 
                appeals board shall issue a written decision regarding 
                the appeal and notify the on-site medical provider, the 
                detainee, and the detention facility of such decision.
            (7) Conditional release.--
                    (A) In general.--If a licensed health care 
                professional determines that a detainee has a medical 
                or mental health care condition, is pregnant, or is a 
                nursing mother, the Secretary shall consider releasing 
                the detainee on parole, on bond, or into a secure 
                alternatives program.
                    (B) Reevaluation.--If a detainee described in 
                subparagraph (A) is not initially released under this 
                paragraph, the Secretary shall periodically reevaluate 
                the situation of the detainee to determine if such a 
                release would be appropriate.
                    (C) Discharge planning.--Upon removal or release, 
                all detainees with serious medical or mental health 
                conditions and women who are pregnant shall receive 
                discharge planning to ensure continuity of care for a 
                reasonable period of time.
            (8) Medical records.--
                    (A) In general.--The Secretary shall maintain 
                complete, confidential medical records for every 
                detainee and make such records available to a detainee 
                or to individuals authorized by the detainee not later 
                than 72 hours after receiving a request for such 
                records.
                    (B) Transfer of medical records.--Immediately upon 
                a detainee's transfer between detention facilities, the 
                detainee's complete medical records, including any 
                transfer summary, shall be provided to the receiving 
                detention facility.
    (c) Transfers of Detainees.--
            (1) Notice.--Absent exigent circumstances, such as a 
        natural disaster or comparable emergency, the Secretary shall 
        provide not less than 72 hours written notice to any detainee 
        before transferring such detainee to another detention 
        facility. Not later than 24 hours after such transfer, the 
        Secretary shall notify the detainee's legal representative or 
        other person designated by the detainee of the transfer, by 
        telephone and in writing.
            (2) Procedures.--Absent exigent circumstances, such as a 
        natural disaster or comparable emergency, the Secretary shall 
        not transfer a detainee to another detention facility if such 
        transfer would--
                    (A) impair an existing attorney-client 
                relationship;
                    (B) prejudice the rights of the detainee in any 
                legal proceeding, including any Federal, State, or 
                administrative proceeding; or
                    (C) negatively affect the detainee's health, 
                including by interrupting the continuity of medical 
                care or provision of prescription medication.
    (d) Access to Telephones.--
            (1) In general.--Not later than 6 hours after the 
        commencement of a detention of a detainee, the detainee shall 
        be provided reasonable access to a telephone, with at least 1 
        working telephone available for every 25 detainees.
            (2) Contacts.--Each detainee has the right to contact by 
        telephone, free of charge--
                    (A) legal representatives;
                    (B) nongovernmental organizations designated by the 
                Secretary;
                    (C) consular officials;
                    (D) Federal and State courts in which the detainee 
                is, or may become, involved in a legal proceeding; and
                    (E) all government immigration agencies and 
                adjudicatory bodies, including the Office of the 
                Inspector General of the Department of Homeland 
                Security and the Office for Civil Rights and Civil 
                Liberties of the Department of Homeland Security, 
                through confidential toll-free numbers.
            (3) Emergencies.--Each detainee subject to expedited 
        removal or who is experiencing a personal or family emergency, 
        including the need to arrange care for dependents, shall be 
        allowed to make confidential calls at no charge.
            (4) Privacy.--Each detainee has the right to privacy of 
        telephone conversations made for the purpose of obtaining legal 
        representation or related to legal matters.
            (5) Rates.--The Secretary shall ensure that rates charged 
        in detention facilities for telephone calls are reasonable and 
        do not significantly impair the detainee's right to make 
        telephone calls.
    (e) Physical and Sexual Abuse.--
            (1) In general.--No detainee, whether in a detention 
        facility or short-term detention facility, shall be subject to 
        degrading or inhumane treatment such as physical abuse, sexual 
        abuse or harassment, or arbitrary punishment.
            (2) Prevention.--Detention facilities shall take all 
        necessary measures--
                    (A) to prevent sexual abuse and sexual assaults of 
                detainees;
                    (B) to provide medical and mental health treatment 
                to victims of sexual abuse and sexual assaults; and
                    (C) to comply fully with the national standards for 
                the detection, prevention, reduction, and punishment of 
                prison rape adopted pursuant to section 8 of the Prison 
                Rape Elimination Act of 2003 (42 U.S.C. 15607).
    (f) Limitations on Solitary Confinement, Shackling, and Strip 
Searches.--
            (1) Extraordinary circumstances.--The use of solitary 
        confinement, shackling, and strip searches of detainees shall 
        be limited to situations where the use of such techniques is 
        necessitated by extraordinary circumstances when the safety of 
        other persons is at imminent risk. These techniques may not be 
        used for the purpose of humiliating detainees either within or 
        outside the detention facility.
            (2) Protected classes.--Solitary confinement, shackling, 
        and strip searches may not be used on pregnant women, nursing 
        mothers, women in labor or delivery, or children who are 
        younger than 18 years of age. Strip searches may not be 
        conducted in front of children who are younger than 21 years of 
        age.
            (3) Written policies.--Detention facilities shall--
                    (A) adopt written policies pertaining to the use of 
                force and the use of restraints; and
                    (B) train all staff on the proper use of such 
                techniques and devices.
    (g) Location of Detention Facilities.--
            (1) New facilities.--All detention facilities first used by 
        the Department of Homeland Security after the date of the 
        enactment of this Act shall be located within 50 miles of a 
        community in which there is a demonstrated capacity to provide 
        free or low-cost legal representation by--
                    (A) nonprofit legal aid organizations; or
                    (B) pro bono attorneys with expertise in asylum or 
                immigration law.
            (2) Existing facilities.--Not later than January 1, 2012, 
        all detention facilities used by the Department of Homeland 
        Security shall meet the location requirement described in 
        paragraph (1).
            (3) Report.--If the Secretary fails to comply with the 
        requirement under paragraph (2) by January 1, 2012, the 
        Secretary shall submit a report to Congress on such date, and 
        annually thereafter, that--
                    (A) explains the reasons for such failure; and
                    (B) describes the specific plans of the Secretary 
                to meet such requirement.
    (h) Translation Capabilities.--Detention facilities and short-term 
detention facilities shall--
            (1) employ staff who are professionally qualified in any 
        language spoken by more than 10 percent of its detainee 
        population;
            (2) arrange for alternative translation services, as 
        needed, in the exceptional circumstances when trained bilingual 
        staff members are unavailable to translate; and
            (3) provide notices and written materials to detainees in 
        the native language of such detainees if such language is 
        spoken by more than 5 percent of the detainees in the facility.
    (i) Legal Access.--All detention facilities shall provide detainees 
with--
            (1) access to legal information, including an on-site law 
        library with up-to-date legal materials and law databases;
            (2) free access to the necessary equipment and materials 
        for legal research and correspondence, such as computers, 
        printers, copiers, and typewriters;
            (3) information regarding the availability of legal 
        information and services to assist those with limited English 
        proficiency or disabilities;
            (4) confidential meeting space to confer with legal 
        counsel; and
            (5) services to send confidential legal documents to legal 
        counsel, government offices, and legal organizations.
    (j) Visitors.--
            (1) Legal representation.--Detainees in detention 
        facilities have the right to meet privately with current or 
        prospective legal representatives, interpreters, and other 
        legal support staff for at least 8 hours per day on regular 
        business days and 4 hours per day on weekends and holidays, 
        subject to appropriate security procedures. Legal visits may 
        only be restricted for narrowly defined exceptional 
        circumstances, such as a natural disaster or comparable 
        emergency.
            (2) Pro bono organizations.--Detention facilities shall 
        prominently post, in detainee housing units and other 
        appropriate areas, official lists of pro bono legal 
        organizations and their contact information, which shall be 
        updated semiannually by the Secretary.
            (3) Religious, cultural, and spiritual visitors.--Detainees 
        have the right to reasonable access to religious or other 
        qualified individuals to address religious, cultural, and 
        spiritual considerations.
            (4) Children.--Detainees have the right to regular, private 
        contact visits with children who are younger than 18 years of 
        age.
    (k) Recreational Programs and Activities.--Detention facilities 
shall provide detainees with access to at least 1 hour of indoor and 
outdoor recreational programs and activities each day.
    (l) Training of Personnel.--All personnel in detention facilities 
and short-term detention facilities shall be given comprehensive, 
specialized training and regular, periodic updates, including--
            (1) an overview of immigration detention and all detention 
        standards;
            (2) the characteristics of the noncitizen detainee 
        population, including special characteristics of vulnerable 
        groups; and
            (3) the due process and grievance procedures to protect the 
        rights of detainees.
    (m) Transportation.--The Secretary shall ensure that--
            (1) each detainee is safely transported, which shall 
        include the appropriate use of safety harnesses and occupancy 
        limitations of vehicles; and
            (2) female officers are responsible and at all times 
        present during the transfer and transport of female detainees 
        who are in the custody of the Department of Homeland Security.
    (n) Vulnerable Populations.--Detention facility conditions and 
minimum requirements for detention facilities shall recognize and 
accommodate the unique needs of vulnerable detainees, including--
            (1) families with children;
            (2) asylum seekers;
            (3) victims of abuse, torture, or trafficking;
            (4) individuals who are older than 65 years of age;
            (5) pregnant women; and
            (6) nursing mothers.
    (o) Children.--The Secretary shall ensure that unaccompanied alien 
children are--
            (1) physically separated from any adult who is not an 
        immediate family member; and
            (2) separated by sight and sound from--
                    (A) immigration detainees and inmates with criminal 
                convictions;
                    (B) pretrial inmates facing criminal prosecution;
                    (C) children who have been adjudicated delinquents 
                or convicted of adult offenses or are pending 
                delinquency or criminal proceedings; and
                    (D) inmates exhibiting violent behavior while in 
                detention.

SEC. 4. SPECIFIC DETENTION REQUIREMENTS FOR SHORT-TERM DETENTION 
              FACILITIES.

    (a) Access to Basic Needs, People, and Property.--
            (1) Basic needs.--All detainees in short-term detention 
        facilities shall receive--
                    (A) potable water;
                    (B) food, if detained for more than 5 hours;
                    (C) basic toiletries, diapers, sanitary products, 
                and blankets; and
                    (D) access to bathroom facilities.
            (2) People.--The Secretary shall provide consular officials 
        with access to detainees held at any short-term detention 
        facility. Detainees shall be afforded reasonable access to a 
        licensed health care professional. The Secretary shall ensure 
        that nursing mothers in such facilities have access to their 
        children.
            (3) Property.--Any property belonging to a detainee that 
        was confiscated by an official of the Department of Homeland 
        Security shall be returned to the detainee upon repatriation or 
        transfer.
    (b) Protections for Children.--
            (1) Qualified staff.--The Secretary shall ensure that 
        adequately trained and qualified staff are stationed at each 
        major port of entry at which, during the most recent 2 fiscal 
        years, an average of not fewer than 50 unaccompanied alien 
        children per year have been held by United States Customs and 
        Border Protection, which staff shall include--
                    (A) independent licensed social workers dedicated 
                to ensuring the proper temporary care for the children 
                while in the custody of United States Customs and 
                Border Protection; and
                    (B) agents charged primarily with the safe, swift, 
                and humane transportation of such children to the 
                custody of the Office of Refugee Resettlement.
            (2) Specific rights.--The social workers described in 
        paragraph (1)(A) shall ensure that each unaccompanied alien 
        child--
                    (A) receives emergency medical care;
                    (B) receives mental health care in case of trauma;
                    (C) has access to psychosocial health services;
                    (D) is provided with--
                            (i) a pillow, linens, and sufficient 
                        blankets to rest at a comfortable temperature; 
                        and
                            (ii) a bed and mattress placed in an area 
                        specifically designated for residential use;
                    (E) receives adequate nutrition;
                    (F) enjoys a safe and sanitary living environment;
                    (G) receives educational materials; and
                    (H) has access to at least 3 hours of indoor and 
                outdoor recreational programs and activities per day.
    (c) Confidentiality.--
            (1) In general.--The Secretary of Health and Human Services 
        shall maintain the privacy and confidentiality of all 
        information gathered in the course of providing care, custody, 
        placement, and follow-up services to unaccompanied alien 
        children, consistent with the best interest of such children, 
        by not disclosing such information to other government agencies 
        or nonparental third parties, except as provided under 
        paragraph (2).
            (2) Limited disclosure of information.--The Secretary may 
        only disclose information regarding an unaccompanied alien 
        child if--
                    (A) the child authorizes such disclosure and such 
                is consistent with the child's best interest; or
                    (B) the disclosure is to a duly recognized law 
                enforcement entity and is necessary to prevent imminent 
                and serious harm to another individual.
            (3) Written record.--All disclosures under paragraph (2) 
        shall be duly recorded in writing and placed in the child's 
        file.

SEC. 5. RULEMAKING AND ENFORCEMENT.

    (a) Regulations.--
            (1) Notice of proposed rulemaking.--Not later than 60 days 
        after the date of the enactment of this Act, the Secretary 
        shall issue a notice of proposed rulemaking regarding the 
        implementation of this Act.
            (2) Final regulations.--Not later than 180 days after the 
        date of the enactment of this Act, the Secretary shall 
        promulgate regulations, which shall be binding upon all 
        detention facilities and short-term detention facilities, to 
        ensure that the detention requirements under sections 3 and 4 
        are fully implemented and enforced and that all facilities 
        comply with the regulations.
    (b) Enforcement.--
            (1) In general.--The Secretary shall enforce all 
        regulations and standards promulgated under subsection (a). Not 
        later than 180 days after the date of the enactment of this 
        Act, the Secretary shall issue guidance to detention facilities 
        and short-term detention facilities to ensure compliance with 
        all the detention requirements under sections 3 and 4.
            (2) Investigation.--
                    (A) Grievances.--Each detainee has the right to 
                file grievances with the staff of detention facilities, 
                short-term detention facilities, and the Department of 
                Homeland Security, and shall be protected from 
                retaliation for exercising such right.
                    (B) Review.--The Secretary shall--
                            (i) review any grievance or other complaint 
                        containing evidence that a detention facility 
                        or short-term detention facility has violated 
                        any requirement under this Act;
                            (ii) issue a determination in writing to 
                        the complainant indicating the Secretary's 
                        findings regarding the alleged violation not 
                        later than 30 days after receiving such 
                        complaint;
                            (iii) remedy any violation not later than 
                        30 days after issuing a determination under 
                        clause (ii); and
                            (iv) promptly advise the complainant of the 
                        remedy referred to in clause (iii).
                    (C) Written response.--If the Secretary issues a 
                written response under subparagraph (B)(ii) indicating 
                that no violation has occurred, such response shall 
                constitute final agency action for the purposes of 
                section 702 of title 5, United States Code.
            (3) Penalties.--The Secretary shall enforce compliance with 
        the detention requirements under sections 3 and 4 by--
                    (A) imposing financial penalties upon detention 
                facilities and short-term detention facilities that are 
                not in compliance with such requirements; and
                    (B) terminating the contracts of such facilities if 
                such noncompliance persists.
            (4) Compliance officer.--
                    (A) Designation.--Each detention facility and 
                short-term detention facility shall designate an 
                officer to ensure compliance with the provisions of 
                this Act.
                    (B) Duties.--Each officer designated under 
                subparagraph (A) shall--
                            (i) investigate all evidence pertaining to 
                        a violation of this Act; and
                            (ii) if a violation is identified, remedy 
                        the violation within 30 days.
                    (C) Judicial review.--A detainee may not seek 
                judicial review of the detention facility's 
                determination until after the passage of the 30-day 
                period, except where irreparable harm would result.
    (c) Rule of Construction.--Nothing in the section may be construed 
to preclude review of noncompliance with this Act under--
            (1) section 1331 or 2241 of title 28, United States Code; 
        or
            (2) section 1979 of the Revised Statutes (42 U.S.C. 1983).
    (d) Punitive Damages.--No individual may seek punitive damages for 
any violation under this Act.

SEC. 6. IMMIGRATION DETENTION COMMISSION.

    (a) Appointment.--The Secretary shall appoint and convene an 
Immigration Detention Commission (referred to in this section as the 
``Commission''), which shall be comprised of--
            (1) experts from United States Immigration and Customs 
        Enforcement, United States Customs and Border Protection, the 
        Office of Refugee Resettlement, and the Division of Immigration 
        Health Services of the Department of Health and Human Services; 
        and
            (2) independent experts, in a number equal to the number of 
        experts appointed under paragraph (1), from nongovernmental 
        organizations and intergovernmental organizations with 
        expertise in working on behalf of detainees and other 
        vulnerable populations.
    (b) Duties.--The Commission shall conduct independent 
investigations, and evaluate and report on the compliance of detention 
facilities, short-term detention facilities, and the Department of 
Homeland Security with the detention requirements under sections 3 and 
4.
    (c) Biennial Reports.--Not later than 60 days after the end of the 
first fiscal year beginning after the date of the enactment of this 
Act, and every 2 years thereafter, the Commission shall submit a report 
containing the findings of its investigations and evaluations under 
subsection (b) to--
            (1) the Committee on the Judiciary of the Senate;
            (2) the Committee on Homeland Security and Governmental 
        Affairs of the Senate;
            (3) the Committee on the Judiciary of the House of 
        Representatives; and
            (4) the Committee on Homeland Security of the House of 
        Representatives.

SEC. 7. DEATH IN CUSTODY REPORTING REQUIREMENT.

    (a) In General.--If an individual dies while in the custody of the 
Department of Homeland Security or en route to or from such custody--
            (1) the supervising official at the detention facility or 
        short-term detention facility at which the death took place 
        shall immediately notify the Secretary of such death; and
            (2) not later than 48 hours after receiving a notification 
        under paragraph (1), the Secretary shall report the death to--
                    (A) the Office of the Inspector General of the 
                Department of Homeland Security; and
                    (B) the Department of Justice.
    (b) Report to Congress.--Not later than 60 days after the end of 
each fiscal year, the Secretary shall submit a report containing 
detailed information regarding all the deaths of individuals in the 
custody of the Department of Homeland Security during the preceding 
fiscal year to the committees set forth in section 6(c).
    (c) Contents.--The reports submitted under subsection (a)(2) and 
subsection (b) shall include--
            (1) the name, gender, race, ethnicity, and age of the 
        deceased;
            (2) the date, time, and location of death;
            (3) the law enforcement agency that detained, arrested, or 
        was in the process of arresting the deceased;
            (4) a description of the circumstances surrounding the 
        death;
            (5) the status and results of any investigation that has 
        been conducted into the circumstances surrounding the death; 
        and
            (6) all medical records of the deceased.
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