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[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 2128 Introduced in Senate (IS)]

<DOC>

117th CONGRESS
  1st Session
                                S. 2128

  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, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             June 17, 2021

  Mrs. Murray (for herself, Mr. Blumenthal, Mr. Markey, Mr. Reed, Mr. 
Coons, Ms. Warren, Ms. Klobuchar, Mr. Menendez, Ms. Smith, Mr. Booker, 
  Mrs. Gillibrand, Ms. Duckworth, Ms. Baldwin, Mr. Leahy, Ms. Hirono, 
     Mrs. Feinstein, Mr. Wyden, Ms. Cortez Masto, and Mr. Padilla) 
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, 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.) during pregnancy or postpartum 
                recovery, pending a decision with respect to whether 
                the individual 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.) an 
        individual 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 individual presents an immediate and 
        serious threat of hurting themselves 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 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) Weekly Review Required.--
            (1) In general.--With respect to a detainee detained under 
        paragraph (2) of subsection (a), not less frequently than 
        weekly, 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 4-point restraint be used;
                            (iii) under no circumstance shall a wrist 
                        restraint be used to bind the hands of such a 
                        detainee behind the back of the detainee or to 
                        another individual; and
                            (iv) under no circumstance shall any 
                        restraint be used on any detainee who is in 
                        labor or delivering.
            (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 medical purpose or 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) 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.--If the presence of a detention officer is 
        requested by medical personnel, the detention officer shall--
                    (A) be female, if practicable; and
                    (B) remain at a reasonable distance from the 
                detainee and toward the detainee's head to protect 
                detainee's 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. NOTICE OF RIGHTS AND TRAINING.

    (a) Notice of Detainee Rights.--The Secretary shall provide to each 
detainee, in the detainee's native language, notice of the detainee'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 detainee 
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 detention facility that detained a 
        pregnant detainee during the quarter shall submit to the 
        Secretary a written report that includes, with respect to the 
        detention facility during 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 
                detention 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);
                    (B) submit to the appropriate committees of 
                Congress a report that includes all information 
                submitted under paragraph (1), disaggregated by 
                detention 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 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 each detention 
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) Detainee.--The term ``detainee'' 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.).
            (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 responsible for oversight of 
        a detention facility or the designee of such official.
            (7) Postpartum recovery.--The term ``postpartum recovery'' 
        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.
            (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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