Sec. 3. Ending solitary confinement and establishing minimum standards
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Chapter 301 of title 18, United States Code, is amended by adding at the end the following: Except in the circumstances described in paragraph (2)(B), a person incarcerated in a Federal facility may not be placed in solitary confinement. Except as provided in clauses
(iii)and
(iv)of subparagraph (B), all persons incarcerated in a Federal facility, regardless of housing unit or detention status, shall have access to not less than 14 hours per day of out-of-cell congregate interaction in a shared space, without physical barriers, that is conducive to meaningful group interaction, including access to— not less than 7 hours per day of structured out-of-cell, congregate programming led by a staff member, incarcerated person, or community member, including access to educational, vocational, volunteer, mental health, violence prevention, alcohol and substance use treatment, financial, religious, and reentry programming; not less than 1 hour per day of out-of-cell congregate recreation; and other unstructured out-of-cell congregate activities, including time in a day room or equivalent space, meals, library and law library, legal visits, social and legal telephone calls, contact social visitation without physical barriers, and personal property and commissary. A person incarcerated in a Federal facility may not be placed in solitary confinement unless such placement is necessary— at night for count or sleep, not to exceed 8 hours in any 24-hour period; during the day for count or required facility business that can only be carried out while a person incarcerated in a Federal facility is placed in a cell, not to exceed 2 hours during any 24-hour period; subject to subparagraphs
(C)and (D), in an emergency situation as a last resort, only if necessary to de-escalate immediate circumstances that pose a specific and significant risk of imminent serious physical injury to the person, staff, or other incarcerated persons, and for as short a time as necessary to de-escalate such circumstances, not to exceed— 4 hours total immediately following such emergency situation; 4 hours total during any 24-hour period; or 12 hours total during any 7-day period; or as part of a Federal agency-wide, Federal facility-wide, or partial Federal facility-wide lockdown, and— only if a head of a Federal facility or Federal agency has determined the lockdown is necessary to de-escalate an emergency that involves several incarcerated persons and poses a specific and significant risk of imminent serious physical injury to the staff or incarcerated persons; only when there are no less restrictive means to address an emergency, as a last resort after exhausting less restrictive measures; if the lockdown is confined to as narrow an area as possible and to as limited number of people as possible; and if the lockdown is reviewed every hour by the head of the Federal facility or Federal agency, with notification provided to the Federal agency regional or field office, or equivalent office responsible for oversight of the Federal facility, beginning at the time the lockdown has lasted 2 hours, and is lifted as quickly as possible, provided that such lockdown shall not exceed— 4 hours total from the time at which the lockdown starts; 4 hours total during any 24-hour period; or 12 hours total during any 7-day period. With respect to any placement pursuant to subparagraph (B)(iii), Federal facility staff shall meet with the incarcerated person not less frequently than once per hour to attempt de-escalation, work toward the release of the person from such confinement, and determine whether it is necessary to continue to hold the person in such confinement, and with respect to any placement pursuant to clause
(iii)or
(iv)of subparagraph
(B)or any placement pursuant to subparagraph (G), health care staff must conduct a thorough medical, mental health, social, and behavioral assessment upon admission to such placement, conduct meaningful check-ins every 15 minutes to engage with the person in custody, evaluate and treat any urgent health needs, and attempt de-escalation. If health care staff determines an incarcerated person should be removed from solitary confinement for assessment or treatment purposes, or because of a negative impact of such confinement, the person shall be relocated to an appropriate setting as determined by health care staff. Health care staff must conduct a thorough medical, mental health, social, and behavioral assessment of any person who would have been placed in confinement under subparagraph (B)(iii) but who is prohibited from such placement under subparagraph (D). Health care staff shall subsequently treat any health needs identified in an assessment conducted under subclause (I). No person may be involuntarily confined in a cell under subparagraph (B)(iii) who— is 25 years of age or younger; is 55 years of age or older; has a disability, as defined in section 3 of the Americans with Disabilities Act of 1990 ( 42 U.S.C. 12102 ); has any diagnosed mental health need; is pregnant, in the first 12 weeks of the postpartum recovery period after giving birth, experiencing a miscarriage, or terminating a pregnancy, or longer if medically necessary, or caring for a child in a facility program; or has identified as, or is known or perceived by any facility staff to be, lesbian, gay, bisexual, transgender, intersex, or gender nonconforming. If a Federal facility determines that a person must be separated from the general facility population, including any placement in protective custody, for any reasons other than, or in a manner other than as provided under clauses
(iii)and
(iv)of subparagraph (B), such separation in an alternative unit must— comply with— subparagraphs
(A)and (F); and paragraphs (3), (4), and (5); and provide appropriate, high quality medical assessment and care and provide access to out-of-cell, congregate, trauma-informed, therapeutic programming aimed at promoting personal development, addressing underlying causes of problematic behavior resulting in the alternative unit placement, and helping prepare for discharge from the unit to the general population and to the community. Immediately upon placement in an alternative unit, health care staff shall conduct a thorough medical, mental health, social, and behavioral assessment and subsequently treat any health needs that result from such assessment. For a person who is aged 55 or over, and for any other person showing any signs of potential cognitive impairment, such assessment shall include an evaluation for cognitive impairment. In all Federal facilities, the following may not be imposed as a form of punishment, discipline, or for any other reason: Limitation on services, programming, treatment, contact visitation, phone calls, email, mail, or basic needs such as clothing, food, or bedding. Involuntary restricted diets or any other involuntary change in diet. Confiscation of approved personal property. A person may be separated from the general facility population into an alternative unit for medical purposes, including medical quarantine, medical isolation, acute intoxication (while awaiting detoxification), and/or an acute psychiatric crisis (such as acute psychosis awaiting optimization of psychiatric medication) but only if— necessary to address immediate, specific, and significant risk of medical contagion or imminent serious physical injury to a person, staff, or other incarcerated persons; and done in a medical unit overseen by health care staff for as limited a time as medically necessary as determined by health care staff. An alternative unit used under subclause
(I)shall be required to— be located in the least restrictive environment that is medically appropriate; be in compliance with subparagraphs (A), (E), and
(F)of this paragraph and paragraph
(5)of this subsection; and provide comparable access granted to persons incarcerated in the general population to phone calls, emails, contact visits, time outdoors, access to reading materials, recreation, interactions with other incarcerated people, out-of-cell time, and programming, all with medically appropriate modifications determined necessary by health care staff, such as maintaining physical distance determined appropriate by health care staff during infectious outbreaks. The lead health care professional at the Federal facility shall immediately review any such placement to determine whether or not the placement is medically necessary and shall provide written authorization of the placement, if medically necessary. An authorization under subclause
(I)shall state— the length of time that the lead health care provider believes the medical quarantine or medical isolation shall last; and for persons placed in medical isolation due to acute psychiatric needs, the length of time the lead health care provider expects for the person to become stabilized, including stabilized on anti-psychotic medication. If any such placement lasts more than 24 hours, the lead health care professional of the relevant Federal agency shall review the placement to determine whether or not the placement is medically necessary and shall provide written authorization if the lead agency health care professional determines the placement to be medically necessary. The lead agency health care professional shall review the placement every 24 hours after the review conducted under subclause
(I)to determine if the continued placement is medically necessary and provide written authorization every 24 hours after the review conducted under subclause
(I)until the person is released from such placement or until the lead agency or facility-level health care professional determines the placement is no longer necessary. If, at any time, the lead facility-level health care professional or the lead agency-level health care professional determines that such placement is no longer medically necessary to address immediate circumstances that pose an immediate, specific, and significant risk of medical contagion or imminent serious physical injury to a person, staff, or other incarcerated persons, the person shall be released from the placement. If a Federal facility is unable to properly treat a person in quarantine or medical isolation, including medical isolation for a person experiencing an acute psychiatric crisis without resorting to the use of solitary confinement beyond uses allowed under clause (i), or
(ii)of subparagraph
(B)or without complying with the requirements of an alternative unit, then the Federal facility shall discharge the person to an appropriate outside community hospital that can provide the requisite care. The reasons and procedures for placement in protective custody shall be subject to the regulations, rules, standards, and procedures (or any successors thereof) applicable to each Federal agency. All hearings under regulations described in clause
(i)shall comply with paragraph (4), and the conditions for all people in protective custody shall comply with— subparagraphs (A), (E), and
(F)of paragraph (2); and paragraph (5). The placement of an incarcerated person in an alternative unit shall be meaningfully reviewed not less than the first 15 days after placement in the alternative unit, and not less frequently than every 15 days thereafter, by a multidisciplinary team, including program and health care staff, to determine whether the release of the incarcerated person to the general facility population continues to present a specific and significant risk of imminent serious physical injury to the person, staff, or other incarcerated persons. If an incarcerated person is not discharged from an alternative unit at a review described under clause (i), the incarcerated person shall promptly receive in writing the reasons for the determination and the program, treatment, service, or corrective action required before discharge. Each incarcerated person shall be given access to the programs, treatment, and services specified under subparagraph (A), and shall be permitted to be discharged from an alternative unit if the person so chooses and does not engage in behavior that presents a specific and significant risk of imminent serious physical injury to the person, staff, or other incarcerated persons during the subsequent 15 days. Other than for purposes of protective custody, or upon written request by the person, no person may be held in an alternative unit for more than 60 days during any 6-month period. No person may be placed in an alternative unit for an act or incident for which the person was previously placed in such unit. Other than separation of persons in protective custody or for purposes of confinement under clauses
(iii)and
(iv)of paragraph (2)(B) and paragraph (2)(G), no person incarcerated in a Federal facility may be placed in an alternative unit unless and until it is determined in writing following a placement hearing that clear and convincing evidence shows that the person committed 1 of the following acts at the time placement is sought, and the specific circumstances of the acts were so heinous or destructive that placement of the person in general facility housing creates a specific and significant risk of imminent serious physical injury to staff or other incarcerated persons: Causing or attempting to cause serious physical injury or death to another person. Compelling or attempting to compel another person, by force or threat of force, to engage in a sexual act. Leading, organizing, inciting, or attempting to cause a riot, or other similarly serious disturbance that results in the taking of a hostage, major property damage, or serious physical harm to another person. Escaping, attempting to escape or facilitating an escape from a Federal facility or escaping, attempting to escape, or facilitating an escape while under supervision outside the Federal facility. Each placement hearing shall be conducted by a neutral decision maker. For all placement hearings involving placement in facilities operated by the Federal Bureau of Prisons or facilities contracting with the Federal Bureau of Prisons or United States Marshals Service for incarcerating people in the care or custody of those facilities or entities, the neutral decision maker shall be— appointed by the Assistant Attorney General for Civil Rights; employed by the Department of Justice; and independent of— any division or unit within the Department of Justice that has people in its care or custody or engages in any prosecuting activities; any other Federal agency; and any prosecuting entity. For all placement hearings involving placement in facilities operated by or contracting with U.S. Immigration and Customs Enforcement, the Department of Homeland Security, or U.S. Customs and Border Protection for incarcerating people in the care or custody of those facilities or entities, the neutral decision maker shall be— appointed by the Officer for Civil Rights and Civil Liberties; employed by the Department of Homeland Security; and independent of— the Office for Civil Rights and Civil Liberties; any division or unit within the Department of Homeland Security that has people in its care or custody or engages in any prosecuting activities; any other Federal agency; and any prosecuting entity. For all placement hearings involving placement in facilities operated by or contracting with the Department of Health and Human Services for incarcerating people in the care or custody of those facilities or entities, the neutral decision maker shall be— appointed by the Director of the Office for Civil Rights; employed by the Department of Health and Human Services; and independent of— the Office for Civil Rights; any division or unit within the Department of Health and Human Services that has people in its care or custody; any other Federal agency; and any prosecuting entity. At any placement hearing, the incarcerated person shall be permitted to offer documentary and testimonial evidence, cross-examine witnesses, and present any mitigating evidence, justification evidence, or other relevant evidence helpful in aiding the defense of the incarcerated person. At such a hearing, the incarcerated person shall be permitted to— engage in self-representation; or be represented by any attorney, law student permitted to practice law, paralegal, community advocate, or other incarcerated person chosen by the person being represented. If a person does not have a representative, the person shall be offered the assistance of a representative as follows: For all placement hearings described in subparagraph (C), if an incarcerated person does not select a representative, an appointed representative shall be— selected by the Assistant Attorney General for Civil Rights; employed by the Department of Justice; and independent of— any division or unit within the Department of Justice that has people in its care or custody or engages in any prosecuting activities; any other Federal agency; and any prosecuting entity. For all placement hearings described in subparagraph (D), if an incarcerated person does not select a representative, an appointed representative shall be— selected by the Officer for Civil Rights and Civil Liberties; employed by the Department of Homeland Security; and independent of— the Office for Civil Rights and Civil Liberties; any division or unit within the Department of Homeland Security that has people in its care or custody or engages in any prosecuting activities; any other Federal agency; and any prosecuting entity. For all placement hearings described in subparagraph (E), if an incarcerated person does not select a representative, any appointed representative shall be— selected by the Director of the Office for Civil Rights; employed by the Department of Health and Human Services; and independent of— the Office for Civil Rights; any division or unit within the Department of Health and Human Services that has people in its care or custody; any other Federal agency; and any prosecuting entity. Not less than 2 days prior to any placement hearing under this paragraph, both the incarcerated person and the chosen representative of the incarcerated person shall be provided detailed written notice of the reason for proposed placement in an alternative unit, including all relevant evidence, during which time the person may not, other than for purposes of protective custody, be placed in such alternative unit. The incarcerated person and the chosen representative shall be provided adequate time to prepare for such hearings and afforded adjournments as appropriate. Any refusal by an incarcerated person to attend such hearings shall be videotaped and made part of the evidentiary record that shall be maintained by the relevant Federal agency. Failure to provide the notice described in clause
(i)or to enter into the record videotaped evidence of an alleged refusal to attend by an incarcerated person shall constitute a basis for resolving the hearing in the favor of the incarcerated person. Not later than 5 business days after the conclusion of the placement hearing, the neutral decision maker shall issue a written determination. Any finding that an incarcerated person meets the criteria of placement in an alternative unit under subparagraph
(A)shall be supported by clear and convincing evidence. The determination shall specify the finding, a summary of the testimony of each witness and an explanation of whether the testimony was credited or rejected, the evidence relied upon in reaching the finding, and the placement imposed, if any. Not later than 24 hours after issuance of the determination, a copy of the determination shall be provided to the incarcerated person and the chosen representative of the incarcerated person. Except as provided in subparagraphs
(B)through (E), no person incarcerated in a Federal facility shall be placed in restraints. Subparagraph
(A)shall not apply if facility staff make an individualized determination at the time of, or immediately following, an incident precipitating placement in restraints that such restraints are necessary to prevent a specific and significant risk of imminent serious physical injury to the person, other incarcerated persons, or staff based on concrete evidence of such risk. If restraints are used pursuant to subsection (B), the least restrictive form of restraints shall be used for no longer than necessary to abate such specific and significant risk of imminent serious physical injury, and in no circumstances shall continue beyond 4 hours unless a supervisory medical provider determines that such restraints are necessary to prevent such risk. Restraints shall not be used on the same person on consecutive days unless a placement hearing with protections established under paragraphs
(3)and
(4)establishes such restraints are necessary to prevent a specific and significant risk of imminent serious physical injury to the incarcerated person, other incarcerated persons, or staff based on concrete evidence of such risk, and subject to the same limitations each day as set forth in this paragraph. Any repeated use of restraints approved at such a due process hearing shall be no longer than 3 days, subject to the same limitations each day as set forth in this paragraph, meaningfully reviewed by a supervisory medical provider at least daily, and discontinued once restraints are no longer necessary to prevent a specific and significant risk of imminent serious physical injury to the person, other incarcerated persons, or staff. Once an approved use of restraints has been discontinued, any subsequent use of restraints on that person shall only be permitted to address a new incident and upon the same requirements under this paragraph. No Federal facility may use special administrative measures. Not later than 15 days after the end of each quarter of the fiscal year, each Federal agency shall report on the website of the Federal agency the following: The total number of incidents at each facility operated by the Federal agency during the preceding quarter of self-harm, suicide attempts, and suicide, disaggregated by race, age, gender identity, documented mental health status, documented disability, pregnancy or postpartum status, identification as lesbian, gay, bisexual, transgender, intersex, or gender nonconforming, type of housing unit including confinement under clause
(iii)or
(iv)of subsection (a)(2)(B), any alternative units under subparagraph
(E)or
(G)of subsection (a)(2), and length of time in such housing unit. The total number of placements at each facility during the preceding quarter, separately listed, in confinement under clauses
(iii)and
(iv)of subsection (a)(2)(B), in protective custody under subsection (a)(2)(E), and in any alternative units under subparagraphs
(E)and
(G)of subsection (a)(2) during that quarter. The total number of people at each facility on the last day of each quarter, separately listed, in confinement under clauses
(iii)and
(iv)of subsection (a)(2)(B), in protective custody under subsection (a)(2)(E), in any other alternative unit under subsection (a)(2)(E), and in any alternative unit under subsection (a)(2)(G), disaggregated by race, age, gender identity, documented mental health status, documented disability, pregnancy or postpartum status, identification as lesbian, gay, bisexual, transgender, intersex, or gender nonconforming, and reason for placement. The total number of placements at each facility during the preceding quarter, separately listed, for which confinement under clauses
(iii)and
(iv)of subsection (a)(2)(B) lasted for less than 1 hour, between 1 and 2 hours, between 2 and 3 hours, between 3 and 4 hours, and for longer than 4 hours, with a listing of the length of time of each placement that exceeded 4 hours. The total number of people at each facility who had reached a total period of time during the preceding quarter, separately listed, in protective custody under subsection (a)(2)(E), in any other alternative unit under subsection (a)(2)(E), and in any alternative unit under subsection (a)(2)(G) of less than 7 days, between 8 days and 15 days, between 16 days and 30 days, between 31 days and 45 days, between 46 days and 60 days, and for longer than 60 days, with a listing of the length of time of each person who had reached a period of time during the preceding quarter that exceeded a total of 60 days in such confinement or housing. Any person who is injured by a violation of subsection
(a)may bring a civil action in the appropriate United States district court against any person, entity, or any other relevant party who violated such subsection for declaratory and injunctive relief, including directing the closure of the facility, building, or unit where the violation took place if that facility, building, or unit is in repeated and systemic noncompliance with this section, and for such money damages as the court determines appropriate, including for emotional pain and suffering. In an action filed under subparagraph (A), the court may, in addition to any other relief awarded under that subparagraph, award reasonable attorney’s fees and costs of the action to a prevailing plaintiff. No Federal agency shall be liable for a Federal agency-wide, facility-wide, or partial facility-wide lockdown that exceeded the 4-hour limit under subsection (a)(2)(B)(iv) if the agency can demonstrate that— the lockdown, and the length of the time of the lockdown, was necessary to address unexpected, extraordinary circumstances involving the detonation of an explosive device, an acute mass contamination or contagion situation, a violent riot, revolt, or insurrection involving a large number of people that resulted in the taking of a hostage, major property damage, or serious physical harm to a person, or other similar emergency of the same magnitude involving a large group of people; the head of facility who authorized the lockdown complied with all notification requirements, and received approval from the agency regional or field office, or equivalent office responsible for oversight of the facility, at the time the lockdown lasted longer than 4 hours; the head of the applicable Federal agency approved of the lockdown if the lockdown exceeded 8 hours and the approval occurred at that time; the lockdown was ended as quickly as possible, did not last longer than necessary to address the unexpected, extraordinary circumstances, and did not exceed 24 hours; and the lockdown was not used as a substitute for medical isolation or quarantine nor individual lock-ins pursuant to subsections (a)(2)(B)(iii) and (a)(2)(B)(iv), nor as a way to circumvent the time limits or protections for people held under those subsections. Any person who is injured by a violation of the Constitution of the United States by a Federal official or person contracting with a Federal agency in a Federal facility may bring a civil action in the appropriate United States district court against any person, entity, or relevant party who violated such constitutional provision for declaratory and injunctive relief, including directing the closure of the facility, building, or unit where the violation took place, and for such money damages as the court determines appropriate, including for emotional pain and suffering. In an action filed under subparagraph (A), the court may, in addition to any other relief awarded under that subparagraph, award reasonable attorney’s fees and costs of the action to a prevailing plaintiff. . The table of contents for chapter 301 of title 18, United States Code, is amended by inserting after the item relating to section 4014 the following: 4015. Ending solitary confinement and establishing minimum standards. .
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Sec. 3
Ending solitary confinement and establishing minimum standards
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