Family Notification of Death, Injury, or Illness in Custody Act of 2021

To establish Federal policies and procedures to notify the next-of-kin or other emergency contact upon the death, or serious illness or serious injury, of an individual in Federal custody, to provide model policies for States, units of local government, and Indian Tribes to implement and enforce similar policies and procedures, and for other purposes. 1. Short title This Act may be cited as the Family Notification of Death, Injury, or Illness in Custody Act of 2021 2. Findings Congress finds the following: (1) In the event an individual dies or becomes seriously ill or injured while being detained, arrested, or while in law enforcement custody, their family members deserve to be notified in a timely and compassionate manner. Such notification is necessary to uphold the basic human dignity of incarcerated people, a concept rooted in the Eighteenth Amendment and Due Process Clause of the Fourteenth Amendment. (2) The lack of a national standard governing notification of death, illness, and injury that occur in prisons, jails and police custody can lead to inhumane treatment of incarcerated people and their loved ones. Poor communication regarding the death of a loved one may exacerbate the grief and other physical and psychological reactions of surviving relatives. (3) On Easter Sunday of 2016, Wakiesha Wilson was found dead in her cell in the Los Angeles Police Department’s Metropolitan Detention Center. Her mother called the police to determine Ms. Wilson’s whereabouts but was not initially given any information. It was not until March 30, 3 days later, when Ms. Wilson’s mother was told to call the coroner that she learned her daughter had died. (4) In Georgia, Jennifer Bradley testified before the General Assembly in September 2021 that she is still waiting for answers about the stabbing death of her 23-year-old son at Macon State Prison in March 2020. She told the committee that it was an incarcerated person, not a prison official, who first notified her of her son’s death. As of the hearing, she had not yet received his belongings. (5) Jordan Fisher found out about the death of her father, Thomas Willis, at Valdosta State Prison in Georgia when a letter she had sent her father was returned back to her stamped: Return to sender: inmate dead (6) Sara Roth did not receive notice from the Clayton County Jail in Georgia that her mother, Regina Salman, had fallen and suffered serious injuries, including a collapsed lung that required hospitalization. When her mother’s longtime boyfriend went to visit the jail, he was told Ms. Salman was no longer there but was not provided additional information. More than a month later, the hospital called Ms. Roth and informed her that her mother was on a ventilator and dying of a severe brain tumor. Her mother was taken off the ventilator 3 days later without ever regaining consciousness. (7) The failure to release autopsy results can prevent families and loved ones from seeking justice for wrongful deaths. After Harvey Hill was arrested for trespassing and booked into jail in Canton, Mississippi, guards beat him severely and kicked him repeatedly in the head. Mr. Hill died in an isolation cell. The State medical examiner’s report recorded his death as a homicide, but it was not released until 25 months after his death and 13 months after the statute of limitations expired for assault. (8) In recent years, deaths in custody have reached the highest levels on record. In 2018, two years prior to the rapid spread of COVID–19 behind bars, at least 1,120 people died while detained in local jails and 4,513 people died in the custody of State and Federal prisons. This represented an all-time high in the number of deaths in both local jails and State prisons since the Bureau of Justice Statistics (BJS) started collecting mortality data. (9) The spread of COVID–19 behind bars significantly increased the death toll of people in custody. At least 2,700 people are estimated to have died of COVID–19 in prisons, jails and detention centers, and the COVID–19 death rate in State and Federal prisons between April 2020 and April 2021 was more than double that of the general population. This is likely a significant undercount, given uneven and inconsistent reporting. In some instances, people are released from local jails to die in hospitals, whether of COVID–19 or other causes, and their deaths are not recorded as a death in custody. 3. Definitions In this Act: (1) Custodial record The term custodial record (2) Detention agency The term detention agency (3) In custody of a detention agency The term in the custody of a detention agency (4) Taking custody The term taking custody 4. Emergency contact notification policies and procedures (a) Emergency contact notification policies and procedures Not later than 1 year after the date of enactment of this Act, the Attorney General shall, consistent with the requirements in this section— (1) implement policies and procedures for the detention agencies of the Department of Justice to notify the next-of-kin or other emergency contact in the event of the death, or serious illness or serious injury, of an individual in the custody of a detention agency of the Department of Justice; and (2) develop and distribute model policies and procedures for detention agencies of States, territories of the United States, Tribes, and units of local government to notify the next-of-kin or other emergency contact in the event of the death, or serious illness or serious injury, of an individual in the custody of that detention agency, and provide assistance to such detention agencies so that the agencies may implement such procedures or substantially similar processes. (b) Contents of emergency contact notification policies and procedures (1) Emergency contact information The policies and procedures described in subsection (a) shall address the collection and use of emergency contact information for individuals in custody, including the following: (A) Emergency contact information requested upon taking custody In the case of an individual taken into the custody of a detention agency, the agency shall, at the time of taking custody, ask the individual— (i) for the name, last known address, telephone number, and email of any person or persons who shall be notified in the event of the individual in custody’s death or serious illness or serious injury, and who are authorized to receive the individual’s body; (ii) the order in which the individual in custody prefers the emergency contacts described in clause (i) to be notified; (iii) whether the individual in custody would like a faith leader to participate in such notification process and, if so, of what denomination; and (iv) whether the individual has in place a medical proxy decision maker or medical power of attorney, advanced directive, or do not resuscitate order. (B) Emergency contact list modification The detention agency shall permit an individual in custody to modify their emergency contact information at any time and provide a periodic opportunity, but not less than annually, for individuals in custody to update their emergency contact information and to fill out a medical power of attorney, health care proxy, advanced directive, a do not resuscitate order, or any other similar document that complies with the State law in the location of detention. (C) Disclosure of purpose and permissible uses of emergency contact information The detention agency shall provide the individual in custody information about the purpose and permissible uses of the emergency contact information provided pursuant to this section. (D) Standardized emergency contact form The policies and procedures described in subsection (a) shall include a template form for recording the individual in custody’s next-of-kin or other emergency contact and other information under subsection (b)(1)(A). (E) Custodial record The detention agency shall record the individual’s next-of-kin or other emergency contact information on the form described in subparagraph (D) and include that form in the individual’s custodial record. (2) Notification requirements for death, serious illness, and serious injury while in custody The policies and procedures described in subsection (a) shall describe the notification requirements in the event an individual dies, is seriously injured or becomes seriously ill while in the custody of a detention agency, including the following: (A) Notification timeframe (i) Notification of death In the event an individual dies while in the custody of the detention agency, the detention agency shall notify the individual’s emergency contact not later than 12 hours after the declaration of death and between the hours of 6:00 a.m. and to midnight local time. (ii) Notification of serious illness or serious injury Notice to the next-of-kin or other emergency contact shall be made as soon as practicable after the serious injury or serious illness occurs, but in any event not later than 48 hours from such determination and between the hours of 6:00 a.m. and to midnight local time. The notification should occur prior to any required medical procedure, where practical and if such timeframe will not delay treatment, but in any event, not later than any medical discharge or clearance. (B) Death notification information required (i) In general Such notification shall include all pertinent circumstances surrounding the death, including— (I) the official time of death; (II) the cause of death (if determined); and (III) whether the individual’s death is under investigation and the reason for opening an investigation. (ii) No cause of death determined If the cause of death has not been determined at the time of the notification, the detention agency shall follow up with the individual’s emergency contact once such a determination has been made to provide that information within 24 hours of such determination. (C) Serious illness or serious injury notification information required Such notification shall include pertinent details of the serious injury or serious illness, including— (i) the cause and nature of the serious injury or serious illness event; (ii) whether the individual is incapacitated, unconscious, or unable to speak; (iii) whether any medical procedures or lifesaving measures were, or will be, performed in response to the incident; and (iv) contact information of the facility and provider that is providing medical treatment. (D) Definition of serious illness or serious injury The policies and procedures described in subsection (a) shall define when a medical event, episode, condition, accident, or other incident constitutes a serious illness or serious injury. In defining such term, the Attorney General shall require notification in at least in cases in which— (i) without immediate treatment for the condition, death is imminent; (ii) admission to a hospital is required; (iii) an individual is unconscious or incapacitated such that they are incapable of providing consent for medical treatment; and (iv) an individual has been diagnosed with a terminal illness. (E) Additional requirements related to notification The policies and procedures described in subsection (a) shall include the following: (i) Compassionate and professional notification Standards for providing notification in a compassionate and professional manger to minimize confusion and trauma suffered by the next-of-kin or other emergency contact, including— (I) a description of what information cannot be included in a voicemail, such as notification of death or serious illness; (II) an offer for an in-person or virtual face-to-face meeting in the event a notification of a death in custody is provided to the emergency contact during a live conversation over the phone; and (III) a requirement that notifications are provided in a private setting and, when practicable, in person and by a mental health professional, designated case worker, or chaplain trained in notification best practices. (3) Notification opt out Standards to ensure that notifications should not occur where the individual is advised of their right to notification and instructs the agency not to do so, or where they request the opportunity to provide such notification personally, in which case the detention agency shall provide an opportunity for the individual to deliver such notification within the time period identified above. (4) Belongings and remains Standards for handling the belongings and remains of an individual who died in custody, including— (A) returning the individual’s belongings and remains, if desired, to the next-of-kin or other emergency contact and providing at least 7 days for the emergency contact to make a decision as to the disposition of the belongings and remains; (B) following up with the individual’s next-of-kin or other emergency contact in the event of a death in custody with the outcome of any critical incident review or other internal investigations not available at the time of the initial notification; and (C) documenting and maintaining within the individual’s custodial record any incident of unclaimed or a rejected claim for the body or property of the deceased, including a detailed description of where any unclaimed body and property have been disposed. (5) Documentation of attempts Requirements that each notification attempt shall be documented and maintained within the custodial record, including— (A) the staff name and corresponding agency or department contact information for each individual responsible for carrying out the notification; (B) the date and time of each successful and unsuccessful contact; and (C) the name and contact information to which each attempt was made, and any reason for failed or unsuccessful contact. (6) Additional procedures in the event of serious illness or injury Standards to ensure that detention agencies— (A) implement medical proxy decision maker or medical power of attorney, advanced directive, or do not resuscitate (B) provide meaningful opportunity for communication between the emergency contact and medical staff caring for an individual in custody; (C) ensure emergency contacts are given the meaningful opportunity to visit with a seriously ill or seriously injured individual in custody, with the opportunity for in-person visitation when practicable; and (D) provide information about an individual’s emergency contact at to an outside hospital facility, and allow the hospital to follow its established bylaws concerning communication with next-of-kin or other emergency contacts. (7) Autopsy notifications Requirements that, in the event an autopsy is performed following a death in custody— (A) the next-of-kin or other emergency contact shall be informed not later than 12 hours after any determination that an autopsy shall be performed and given the option to receive the results of the autopsy described in subparagraph (B). Such notification shall include the reason that the autopsy is being performed and the procedures by which the next-of-kin or other emergency contact can obtain the autopsy report; and (B) pursuant to subparagraph (A), a copy of the autopsy report and results shall be made available to the next-of-kin or emergency contact upon completion. (c) Written notification plan The policies and procedures described in subsection (a) shall instruct detention agencies to develop a written notification plan, or revise an existing written notification plan, that provides for notification of a death, serious illness, or serious injury of an individual in custody that conforms with the policies described in subsection (b). Such written notification plans shall be published on the detention agency’s website and made accessible to individuals in the agency’s custody through inclusion in any intake information, manuals, or other materials distributed or made available to individuals upon being taken into custody. (d) Additional requirements (1) DOJ support of state and local implementation of model policies To support implementation of the model policies and procedures described in subsection (a)(2), the Attorney General shall provide ongoing online training and directed outreach to law enforcement, prosecution and defense agencies through national and State membership associations and by other means. (2) Publication of emergency contact policies and procedures The Attorney General, acting through the Assistant Attorney General of the Office of Justice Programs, shall publish the policies and procedures described in subsection (b) on its website and shall include a copy of the procedures described subsection (b)(1) in any intake information, manuals, or other materials distributed or made available to individuals upon being taken into custody of a detention agency of the Department of Justice. (3) Intergovernmental service contracts Any Department of Justice detention agency, including the U.S. Marshals Service, that contracts with State, municipality, Tribal, private, or other entities to house individuals in custody shall require adoption of the procedures or substantially similar processes as described in subsection (b)(2) as a condition of such contract or contract renewal as soon as practicable but not later than 7 days of taking the individual into custody. (4) Department of justice office of inspector general to monitor compliance with notification and communication requirements The Attorney General shall appoint an Ombudsman within the Department of Justice with the authority to receive and investigate complaints regarding the failure to provide the notifications required in the Act, and inadequate notifications, and the failure to provide opportunities for communication and visitation in accordance with this Act. (e) Confidentiality Information collected under this Act by a detention agency, or any agent working on behalf of such detention agency, may not be disclosed or used for any purpose except as provided in this Act. (f) Voluntary collection (1) Rule of construction Nothing in this Act shall be construed to require the individual in custody to provide the emergency contact information described in subsection (a). (2) No coercion The detention agency may not— (A) attempt to coerce or persuade the individual in custody to provide the information described in subsection (a); or (B) impose a penalty, fine, or fee on the individual for the individual’s failure or refusal to provide the information requested or for providing information that is later determined to be inaccurate. (g) Inadmissibility No information disclosed or used in violation of this Act may be admitted into any State, Federal, or other court as evidence or for any other purpose, except in the case of information that has been discovered through any independent means. 5. Rule of construction Nothing in this Act may be construed to create any legal or financial obligation on the part of any individual designated as a next-of-kin or other emergency contact under this Act.

Summary: Family Notification of Death, Injury, or Illness in Custody Act of 2021 This bill requires the Department of Justice (DOJ) to develop policies and procedures for notifying next-of-kin or other emergency contacts in the event of the death, or serious illness or serious injury, of an individual in custody. The bill requires DOJ to implement the policies and procedures at its detention agencies. Further, the bill requires DOJ to distribute model policies and procedures to state, territorial, tribal, and local detention agencies.