[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3247 Introduced in Senate (IS)]

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118th CONGRESS
  1st Session
                                S. 3247

  To safeguard the humane treatment of pregnant women by ensuring the 
  presumption of release and prohibiting shackling, restraining, and 
  other inhumane treatment of pregnant detained noncitizens, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            November 8, 2023

 Mrs. Murray (for herself, Mr. Blumenthal, Mr. Booker, Ms. Butler, Mr. 
  Cardin, Mr. Coons, Ms. Cortez Masto, Ms. Duckworth, Mr. Durbin, Mr. 
Fetterman, Mrs. Gillibrand, Ms. Hirono, Ms. Klobuchar, Mr. Markey, Mr. 
  Menendez, Mr. Merkley, Mr. Padilla, Mr. Reed, Mr. Sanders, Mr. Van 
     Hollen, Ms. Warren, Mr. Welch, Mr. Whitehouse, and Mr. Wyden) 
introduced the following bill; which was read twice and referred to the 
                       Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
  To safeguard the humane treatment of pregnant women by ensuring the 
  presumption of release and prohibiting shackling, restraining, and 
  other inhumane treatment of pregnant detained noncitizens, and for 
                            other purposes.

    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 ``Stop Shackling and Detaining 
Pregnant Women Act''.

SEC. 2. LIMITATION ON DETENTION OF PREGNANT WOMEN AND MOTHERS OF 
              NEWBORNS.

    (a) Presumption of Release.--
            (1) In general.--Except as provided in paragraph (2), the 
        Secretary--
                    (A) shall not detain an individual under any 
                provision of the Immigration and Nationality Act (8 
                U.S.C. 1101 et seq.) who is known to be pregnant, 
                lactating, or postpartum, pending a decision with 
                respect to whether the individual is to be removed from 
                the United States; and
                    (B) shall immediately release any detained 
                noncitizen found to be pregnant.
            (2) Exceptions.--The Secretary may detain pursuant to the 
        Immigration and Nationality Act (8 U.S.C. 1101 et seq.) an 
        individual who is known to be pregnant, lactating, or 
        postpartum--
                    (A) under extraordinary circumstances in which the 
                Secretary makes an individualized determination that 
                credible, reasonable grounds exist to believe that the 
                individual presents an immediate and serious threat of 
                hurting themselves or others; and
                    (B) if such detention is the least restrictive 
                means available to mitigate such threat.
            (3) Removal.--In a case in which detention is the least 
        restrictive means of effectuating the removal from the United 
        States of a pregnant individual subject to a final order of 
        deportation or removal, the Secretary may, solely for the 
        purpose of such deportation or removal, detain the pregnant 
        individual for a period that is--
                    (A) the shortest possible period immediately 
                preceding the deportation or removal of the individual 
                from the United States; and
                    (B) not more than 5 days.
    (b) Biweekly Review Required.--
            (1) In general.--With respect to a noncitizen detained 
        under paragraph (2) of subsection (a), not less frequently than 
        every 14 days, the Secretary shall conduct an individualized 
        review to determine whether the detained noncitizen continues 
        to be subject to detention under that paragraph.
            (2) Release.--In the case of a determination under 
        paragraph (1) that a pregnant noncitizen is no longer subject 
        to detention under subsection (a)(2), not later than 24 hours 
        after the Secretary makes the determination, the Secretary 
        shall release the noncitizen.

SEC. 3. HUMANE TREATMENT OF PREGNANT DETAINED NONCITIZENS WHILE IN 
              DETENTION AND CUSTODY.

    (a) Prohibition on Restraint of Pregnant Detained Noncitizens.--
            (1) Prohibition.--Except as provided in paragraph (2), 
        restraints shall not be used on a noncitizen in the physical 
        custody of the Department of Homeland Security who is known to 
        be--
                    (A) pregnant, including during--
                            (i) labor;
                            (ii) transport to a medical facility or 
                        birthing center; or
                            (iii) delivery;
                    (B) lactating; or
                    (C) postpartum.
            (2) Exceptions.--
                    (A) In general.--Notwithstanding paragraph (1), 
                subject to subparagraph (B), use of a restraint on a 
                detained noncitizen described in paragraph (1) may be 
                permitted only in an extraordinary circumstance, except 
                in the case of a medical contraindication, in which the 
                facility administrator has ordered the use of the 
                restraint after making an individualized determination 
                that--
                            (i) credible, reasonable grounds exist to 
                        believe the detained noncitizen presents an 
                        immediate and serious threat of hurting 
                        themselves, staff, or others; or
                            (ii) reasonable grounds exist to believe 
                        the detained noncitizen presents an immediate 
                        and credible risk of escape that cannot be 
                        reasonably minimized through any other method.
                    (B) Requirement for least restrictive restraints.--
                In the rare event of an extraordinary circumstance 
                described in subparagraph (A), only the least 
                restrictive restraint necessary shall be used, except 
                that--
                            (i) if a doctor, nurse, or other health 
                        professional treating a detained noncitizen 
                        requests that a restraint not be used, the 
                        detention officer accompanying the detained 
                        noncitizen shall immediately remove any 
                        restraint; and
                            (ii) under no circumstance shall--
                                    (I) a leg, waist, or 4-point 
                                restraint be used;
                                    (II) a wrist restraint be used to 
                                bind the hands of such a detained 
                                noncitizen behind the back of the 
                                detained noncitizen or to another 
                                individual;
                                    (III) a detained noncitizen be 
                                restrained in a face-down position or 
                                on their back; or
                                    (IV) any restraint be used on any 
                                detained noncitizen who is in labor or 
                                delivering.
            (3) Record of extraordinary circumstances.--
                    (A) Requirements.--If a restraint is used on a 
                detained noncitizen pursuant to paragraph (2)(A), not 
                later than 5 days after the date on which the restraint 
                was used, the facility administrator shall--
                            (i) record in writing the finding that 
                        describes the medical purpose or extraordinary 
                        circumstance that dictated the use of the 
                        restraint; and
                            (ii) submit the finding to the Director.
                    (B) Retention.--
                            (i) Facility.--With respect to a written 
                        finding under subparagraph (A)(i), the facility 
                        administrator shall--
                                    (I) keep the finding on file at the 
                                applicable facility for not less than 5 
                                years after the date on which the 
                                restraint was used; and
                                    (II) make a copy of the finding 
                                available for public inspection on 
                                request, only after making appropriate 
                                redactions so as to protect personally 
                                identifiable information.
                            (ii) Immigration and customs enforcement.--
                        With respect to a written finding submitted to 
                        the Director under subparagraph (A)(ii), the 
                        Director shall maintain the written finding and 
                        make the finding available for public 
                        inspection only after making appropriate 
                        redactions so as to protect personally 
                        identifiable information.
    (b) Prohibition on Presence of Nonmedical Staff.--
            (1) In general.--Except as provided in paragraph (2), 
        nonmedical staff shall not be present in the room during a 
        pelvic exam, labor, delivery, or treatment of any other symptom 
        relating to a pregnancy of a detained noncitizen, unless 
        specifically requested by medical personnel.
            (2) Exception.--If the presence of nonmedical staff is 
        requested by medical personnel, the nonmedical staff shall--
                    (A) be of the detained noncitizen's gender of 
                choice, if practicable; and
                    (B) remain at a reasonable distance from the 
                detained noncitizen and face toward the detained 
                noncitizen's head to protect the privacy of the 
                detained noncitizen.
            (3) Use of restraints.--If a restraint is used on a 
        detained noncitizen pursuant to subsection (a)(2)(A), an 
        employee of the Department of Homeland Security shall remain 
        immediately outside the room at all times so that the employee 
        may promptly remove the restraint if requested by medical 
        personnel, as required by subsection (a)(2)(B)(i).
    (c) Access to Services.--
            (1) U.S. immigration and customs enforcement custody.--A 
        pregnant detained noncitizen in the custody of U.S. Immigration 
        and Customs Enforcement shall have access to health care 
        services, including comprehensive services relating to 
        reproductive health care and pregnancy, including--
                    (A) routine or specialized prenatal care;
                    (B) comprehensive counseling and assistance;
                    (C) postpartum physical and mental health care, 
                including substance use disorder treatment;
                    (D) lactation services; and
                    (E) abortion services.
            (2) U.S. customs and border protection custody.--The 
        Commissioner shall ensure that minimum standards of care are 
        met for pregnant detained noncitizens in the custody of U.S. 
        Customs and Border Protection.

SEC. 4. NOTICE OF RIGHTS AND TRAINING.

    (a) Notice of Detained Noncitizen Rights.--The Secretary shall 
provide to each detained noncitizen, in the detained noncitizen's 
native language, notice of the detained noncitizen's rights under this 
Act.
    (b) Training for DHS Employees.--At the time of hiring, and 
annually thereafter, the Secretary shall provide training on the 
requirements of this Act to each employee of the Department of Homeland 
Security who has a role in the detention or care of a pregnant detained 
noncitizen or a postpartum parent of a newborn detained under the 
Immigration and Nationality Act (8 U.S.C. 1101 et seq.).

SEC. 5. REPORTING; RULEMAKING.

    (a) Reports.--
            (1) Reports by facility administrators.--Not later than 30 
        days after the end of each quarter fiscal year, the facility 
        administrator of each facility that detained a pregnant 
        noncitizen during the quarter shall submit to the Secretary a 
        written report that includes, with respect to the facility 
        during the quarter, the following:
                    (A) An account of every instance of the use of a 
                restraint on a pregnant detained noncitizen during 
                pregnancy, labor, or postpartum recovery, including the 
                type of restraint, the justification for the use of 
                such restraint, and the name of the facility 
                administrator who made the individualized determination 
                under section 3(a)(2)(A).
                    (B) The number of pregnant noncitizens held at the 
                facility.
                    (C) The average length of detention of pregnant 
                noncitizens.
                    (D) The number of pregnant noncitizens detained 
                longer than 15 days.
                    (E) The number of pregnant noncitizens detained 
                longer than 30 days.
                    (F) The number of pregnant noncitizens who gave 
                birth while detained, and a description of the outcomes 
                of such pregnancies, including any pregnancy that 
                resulted in a live birth, stillbirth, miscarriage, 
                abortion, ectopic pregnancy, maternal death, neonatal 
                death, or preterm birth.
            (2) Audit and reports by secretary.--Not later than 90 days 
        after the end of each fiscal year, the Secretary shall--
                    (A) complete an audit of the information submitted 
                under subparagraphs (B) through (E) of paragraph (1);
                    (B) submit to the appropriate committees of 
                Congress a report that includes all information 
                submitted under paragraph (1), disaggregated by 
                facility; and
                    (C) issue regulations in accordance with national 
                standards regarding minimum standards facilities should 
                provide.
            (3) Privacy.--A report submitted under this subsection 
        shall not contain the individually identifying information of 
        any detained noncitizen.
            (4) Public inspection.--
                    (A) In general.--Except as provided in subparagraph 
                (B), a report submitted under this subsection shall be 
                made available for public inspection.
                    (B) Facility administrator.--A report submitted 
                under this subsection that is made available for public 
                inspection shall not contain the name of the facility 
                administrator otherwise included under paragraph 
                (1)(A).
    (b) Rulemaking.--The Secretary shall adopt regulations or policies 
to carry out this Act at each facility.

SEC. 6. DEFINITIONS.

    In this Act:
            (1) Appropriate committees of congress.--The term 
        ``appropriate committees of Congress'' means--
                    (A) the Committee on the Judiciary and the 
                Committee on Appropriations of the Senate; and
                    (B) the Committee on the Judiciary and the 
                Committee on Appropriations of the House of 
                Representatives.
            (2) Commissioner.--The term ``Commissioner'' means the 
        Commissioner of U.S. Customs and Border Protection.
            (3) Detained noncitizen.--The term ``detained noncitizen'' 
        includes any adult or juvenile individual detained by any 
        Federal, State, or local law enforcement agency (including 
        under contract or agreement with such agency) under the 
        Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
            (4) Detention officer.--The term ``detention officer'' 
        means an individual who--
                    (A) works at a facility, including an individual 
                who works at a facility pursuant to a contract or 
                subcontract; and
                    (B) performs duties relating to the security, 
                custody, or transport of individuals in custody.
            (5) Director.--The term ``Director'' means the Director of 
        U.S. Immigration and Customs Enforcement.
            (6) Facility.--The term ``facility'' means a Federal, 
        State, or local government facility, or a privately owned and 
        operated facility, that is used, in whole or in part, to hold 
        individuals under the authority of the Secretary of Homeland 
        Security, including a facility that--
                    (A) holds such individuals under a contract or 
                agreement with the Director or the Commissioner; or
                    (B) is used, in whole or in part, to hold 
                individuals pursuant to an immigration detainer or 
                similar request.
            (7) Facility administrator.--The term ``facility 
        administrator'' means the official responsible for oversight of 
        a facility, or the designee of such official.
            (8) Postpartum.--The term ``postpartum'' means the 1-year 
        period, or longer, as determined by the licensed health care 
        provider of the individual concerned, following delivery, 
        including the entire period during which the individual is in a 
        medical facility, birthing center, or infirmary after birth.
            (9) Restraint.--The term ``restraint''--
                    (A) means any physical restraint or mechanical 
                device used to control the movement of the body or 
                limbs of a detained noncitizen's body, including--
                            (i) flex cuffs;
                            (ii) soft restraints;
                            (iii) hard metal handcuffs;
                            (iv) a black box;
                            (v) Chubb cuffs;
                            (vi) leg irons;
                            (vii) belly chains;
                            (viii) a security (tether) chain;
                            (ix) a convex shield; and
                            (x) any other type of shackles; and
                    (B) does not include medical restraints.
            (10) Secretary.--The term ``Secretary'' means the Secretary 
        of Homeland Security.
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