1.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
.
2.In this Act:
(1)The
term detainee means an individual who is subject to detention
under the Immigration and Nationality Act.
(2)The
term detention means government custody or any other deprivation
of an individual’s freedom of movement by government agents.
(3)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)The
term Secretary means the Secretary of Homeland Security.
(5)Short-term
detention facilityThe 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 childrenThe 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)).
3.
(a)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)
(1)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
examinationsEach 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)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)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)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)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)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)The appeals board shall include health care professionals
in the fields relevant to the request for medical or mental health care.
(C)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)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)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)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)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)
(A)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)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)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)
(A)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 recordsImmediately 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)
(1)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)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)
(1)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)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)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)Each
detainee has the right to privacy of telephone conversations made for the
purpose of obtaining legal representation or related to legal matters.
(5)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)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)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
circumstancesThe 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)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)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)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)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)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)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)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)
(1)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)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 visitorsDetainees have the right to
reasonable access to religious or other qualified individuals to address
religious, cultural, and spiritual considerations.
(4)Detainees
have the right to regular, private contact visits with children who are younger
than 18 years of age.
(k)Recreational
programs and activitiesDetention facilities shall provide
detainees with access to at least 1 hour of indoor and outdoor recreational
programs and activities each day.
(l)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)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)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)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.
4.Specific
detention requirements for short-term detention facilities
(a)Access to basic
needs, people, and property
(1)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)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)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)
(1)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)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)
(1)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 informationThe 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)All disclosures under paragraph (2) shall be duly recorded
in writing and placed in the child’s file.
5.Rulemaking and
enforcement
(a)
(1)Notice of
proposed rulemakingNot 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)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)
(1)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)
(A)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)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)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)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)
(A)Each
detention facility and short-term detention facility shall designate an officer
to ensure compliance with the provisions of this Act.
(B)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)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)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)No individual may seek punitive damages for any violation
under this Act.
6.Immigration
Detention Commission
(a)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)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)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.
7.Death in custody
reporting requirement
(a)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)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)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.