[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[S. 3225 Introduced in Senate (IS)]
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115th CONGRESS
2d Session
S. 3225
To ensure the humane treatment of pregnant women by reinstating the
presumption of release and prohibiting shackling, restraining, and
other inhumane treatment of pregnant detainees.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 17, 2018
Mrs. Murray (for herself, Ms. Baldwin, Mr. Blumenthal, Mr. Booker, Mr.
Carper, Mr. Coons, Ms. Cortez Masto, Ms. Duckworth, Mr. Durbin, Mrs.
Gillibrand, Ms. Harris, Ms. Hirono, Mr. Leahy, Mr. Markey, Mr.
Menendez, Mr. Reed, Mr. Sanders, Ms. Smith, Ms. Warren, Mr. Wyden, Mrs.
Feinstein, and Ms. Klobuchar) introduced the following bill; which was
read twice and referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To ensure the humane treatment of pregnant women by reinstating the
presumption of release and prohibiting shackling, restraining, and
other inhumane treatment of pregnant detainees.
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 a person under any provision
of the Immigration and Nationality Act (8 U.S.C. 1101
et seq.) during pregnancy or postpartum recovery,
pending a decision with respect to whether the person
is to be removed from the United States; and
(B) shall immediately release any detainee found to
be pregnant.
(2) Exceptions.--The Secretary may detain pursuant to the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.) a
person during pregnancy or postpartum recovery under
extraordinary circumstances in which the Secretary makes an
individualized determination that credible, reasonable grounds
exist to believe that the person presents an immediate and
serious threat of hurting herself or others.
(3) Removal.--In a case in which detention is the least
restrictive means of effectuating the removal from the United
States of a pregnant person who is the subject of a final order
of deportation or removal, the Secretary may, solely for the
purpose of such removal, detain the pregnant person for a
period that is--
(A) the shortest possible period immediately
preceding the removal of the person from the United
States; and
(B) not more than 5 days.
(b) Weekly Review Required.--
(1) In general.--With respect to a detainee detained under
paragraph (2) of subsection (a), not less frequently than once
each week, the Secretary shall conduct an individualized review
to determine whether the detainee continues to be subject to
detention under that paragraph.
(2) Release.--In the case of a determination under
paragraph (1) that a pregnant detainee is not subject to
detention under subsection (a)(2), not later than 1 day after
the date on which the Secretary makes the determination, the
Secretary shall release the detainee.
SEC. 3. HUMANE TREATMENT OF PREGNANT WOMEN WHILE IN DETENTION.
(a) Prohibition on Restraint of Pregnant Detainees.--
(1) Prohibition.--Except as provided in paragraph (2), a
detention facility shall not use a restraint on a detainee--
(A) known to be pregnant, including during--
(i) labor;
(ii) transport to a medical facility or
birthing center; and
(iii) delivery; or
(B) during postpartum recovery.
(2) Use of restraints for medical purposes and in
extraordinary circumstances.--
(A) In general.--Notwithstanding paragraph (1),
subject to subparagraph (B), use of a restraint on a
detainee described in paragraph (1) may be permitted
only--
(i) for a medical purpose if the lead
medical staff of the detention facility who is
a licensed health care provider has ordered the
use of the restraint for the medical purpose;
or
(ii) in an extraordinary circumstance,
except for a medical purpose, 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 detainee presents
an immediate and serious threat of
hurting staff or others; or
(II) reasonable grounds exist to
believe the detainee 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)(ii), only the least
restrictive restraint necessary shall be used, except
that--
(i) if a doctor, nurse, or other health
professional treating a detainee described in
paragraph (1) requests that a restraint not be
used, the detention officer accompanying the
detainee shall immediately remove any
restraint;
(ii) under no circumstance shall a leg,
waist, or four-point restraint be used;
(iii) under no circumstance shall a wrist
restraint be used to bind the hands of a
detainee described in paragraph (1) behind her
back or to another person; and
(iv) under no circumstance shall any
restraint be used on any detainee who is in
labor or delivery.
(3) Record of extraordinary circumstances.--
(A) Requirements.--If a restraint is used on a
detainee pursuant to paragraph (2)(A), not later than 5
days after the date on which the restraint was used,
the facility administrator shall--
(i) make a written finding that describes
the extraordinary circumstance that dictated
the use of the restraint; and
(ii) submit the finding to the Director.
(B) Retention.--
(i) Detention facility.--With respect to a
written finding under subparagraph (A)(i), the
facility administrator shall--
(I) keep the finding on file at the
applicable detention facility for not
less than 5 years after the date on
which the restraint was used; and
(II) shall make the finding
available for public inspection.
(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.
(iii) Privacy.--With respect to a written
finding made available for public inspection
under clause (i) or (ii), the individually
identifying information of a detainee shall not
be made available for public inspection without
the prior written consent of the detainee.
(b) Prohibition on Presence of Detention Officers.--
(1) In general.--Except as provided in paragraph (2), no
detention officer shall be present in the room during a pelvic
exam, labor, delivery, or treatment of any other symptom
relating to a pregnancy of a detainee, unless specifically
requested by medical personnel.
(2) Exception.--
(A) In general.--If the presence of a detention
officer is requested by medical personnel, the
detention officer shall--
(i) be female, if practicable; and
(ii) remain at a reasonable distance from
the detainee and toward her head to protect her
privacy.
(3) Use of restraints.--If a restraint is used on a
detainee pursuant to subsection (a)(2)(A), a detention officer
shall remain immediately outside the room at all times so that
the officer may promptly remove the restraint if requested by
medical personnel, as required by subsection (a)(2)(B)(i).
(c) Access to Services.--A pregnant detainee shall have access to
health care services, including comprehensive services relating to
reproductive health care and pregnancy, including--
(1) routine or specialized prenatal care;
(2) comprehensive counseling and assistance;
(3) postpartum follow-up;
(4) lactation services; and
(5) abortion services.
SEC. 4. REPORTING; RULEMAKING.
(a) Reports.--
(1) Reports by facility administrators.--Not later than 30
days after the end of each quarter of a fiscal year, the
facility administrator of each detention facility that detained
a pregnant detainee during the quarter shall submit to the
Secretary a written report that includes, with respect to the
quarter, the following:
(A) An account of every instance of the use of a
restraint on a pregnant detainee, including the
justification for such restraint and the name of the
facility administrator who made the individualized
determination under section 3(a)(2)(A)(ii).
(B) The number of pregnant detainees held at the
facility.
(C) The average length of detention of pregnant
detainees.
(D) The number of pregnant detainees detained
longer than 15 days.
(E) The number of pregnant detainees detained
longer than 30 days.
(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);
and
(B) submit to the appropriate committees of
Congress a report that includes all of the information
submitted to the Secretary under paragraph (1),
disaggregated by facility.
(3) Privacy.--A report submitted under this subsection
shall not contain the individually identifying information of
any detainee.
(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 and the Attorney General shall adopt
regulations or policies to carry out this Act at every detention
facility.
SEC. 5. 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) Committee on the Judiciary and the Committee on
Appropriations of the House of Representatives.
(2) Detainee.--The term ``detainee'' includes any adult or
juvenile person 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.).
(3) Detention facility.--The term ``detention 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
Director of U.S. Immigration and Customs Enforcement or the
Commissioner of U.S. Customs and Border Protection, including a
facility that--
(A) holds such individuals under a contract or
agreement with the Director or Commissioner; or
(B) is used, in whole or in part, to hold
individuals pursuant to an immigration detainer or
similar request.
(4) Detention officer.--The term ``detention officer''
means an individual who works at a detention facility,
including an individual who works at a detention facility
pursuant to contract or subcontract.
(5) Director.--The term ``Director'' means the Director of
U.S. Immigration and Customs Enforcement.
(6) Facility administrator.--The term ``facility
administrator'' means the official who is responsible for
oversight of a detention facility or the designee of such
official.
(7) Postpartum recovery.--The term ``postpartum recovery''
means the 6-week period, or longer, as determined by the
licensed health care provider of a person, following delivery,
including the entire period during which the person is in a
medical facility, birthing center, or infirmary after birth.
(8) Restraint.--The term ``restraint'' means any physical
restraint or mechanical device used to control the movement of
the body or limbs of a detainee body, including--
(A) flex cuffs;
(B) soft restraints;
(C) hard metal handcuffs;
(D) a black box;
(E) Chubb cuffs;
(F) leg irons;
(G) belly chains;
(H) a security (tether) chain; and
(I) a convex shield.
(9) Secretary.--The term ``Secretary'' means the Secretary
of Homeland Security.
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