[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 3409 Introduced in Senate (IS)]
<DOC>
118th CONGRESS
1st Session
S. 3409
To end the use of solitary confinement and other forms of restrictive
housing in all Federal agencies and entities with which Federal
agencies contract.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 5, 2023
Mr. Markey (for himself, Ms. Warren, Mr. Sanders, and Mr. Welch)
introduced the following bill; which was read twice and referred to the
Committee on the Judiciary
_______________________________________________________________________
A BILL
To end the use of solitary confinement and other forms of restrictive
housing in all Federal agencies and entities with which Federal
agencies contract.
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 ``End Solitary Confinement Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the use of solitary confinement as a carceral practice
causes devastating harm and constitutes a form of torture;
(2) solitary confinement of any length of time, measured in
days or even hours, can cause self-mutilation, suicide, heart
disease, anxiety, depression, psychosis, mental and physical
deterioration, and a significantly heightened risk of death;
(3) over 120,000 people are estimated to be in solitary
confinement on any given day in Federal, State, local, and
immigration detention facilities;
(4) solitary confinement and other forms of restrictive
housing and practices are disproportionately inflicted on
Black, Latinx, Native, and other people of color, as well as
transgender and gender nonconforming people, people with mental
health needs, and young people;
(5) survivors of solitary confinement often carry
significant trauma and other physical and psychological harm
with them for the rest of their lives;
(6) solitary confinement has directly caused the deaths of
far too many people and has increased violence and harm in
prisons, detention facilities, and communities;
(7) solitary confinement derives from, and helps
perpetuate, a horrific and brutal incarceration system that is
rooted in racism and focuses on extreme punishment and abuse,
rather than on providing opportunities for growth, healing,
redemption, and transformation;
(8) the United States is an outlier among advanced
democracies in the use of solitary confinement;
(9) evidence shows that out-of-cell, prosocial engagement
and programming increase safety, well-being, and reentry
outcomes;
(10) solitary confinement is expensive, and cost analyses
at the Federal and State levels indicate that the elimination
of solitary confinement would save taxpayers billions of
dollars; and
(11) solitary confinement is costly to taxpayers, does not
make communities safer, jeopardizes the safety of incarcerated
people and correctional staff, constitutes inhumane and
degrading treatment, and has no place in a civilized society.
SEC. 3. ENDING SOLITARY CONFINEMENT AND ESTABLISHING MINIMUM STANDARDS.
(a) In General.--Chapter 301 of title 18, United States Code, is
amended by adding at the end the following:
``Sec. 4015. Ending solitary confinement and establishing minimum
standards
``(a) Prohibition on the Use of Solitary Confinement and
Establishment of Minimum Standards.--
``(1) In general.--Except in the circumstances described in
paragraph (2)(B), a person incarcerated in a Federal facility
may not be placed in solitary confinement.
``(2) Minimum standards for out-of-cell time and meaningful
human engagement.--
``(A) Congregate interaction required.--Except as
provided in subparagraphs (B)(iii), (B)(iv), and
(B)(v), 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--
``(i) 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;
``(ii) not less than 1 hour per day of out-
of-cell congregate recreation; and
``(iii) 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.
``(B) Prohibition on solitary confinement.--A
person incarcerated in a Federal facility may not be
placed in solitary confinement unless such placement is
necessary--
``(i) at night for count or sleep, not to
exceed 8 hours in any 24-hour period;
``(ii) 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;
``(iii) for purposes of medical quarantine
or medical isolation, only if done in a medical
unit overseen by health care staff--
``(I) for as limited a time as
medically necessary as determined by
health care staff; and
``(II) with comparable access
granted to persons incarcerated in the
general population to phone calls,
emails, and programming at a physical
distance determined appropriate by
health care staff;
``(iv) 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--
``(I) 4 hours total immediately
following such emergency situation;
``(II) 4 hours total during any 24-
hour period; or
``(III) 12 hours total during any
7-day period; or
``(v) as part of a Federal agency-wide,
Federal facility-wide, or partial Federal
facility-wide lockdown, and--
``(I) 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;
``(II) only when there are no less
restrictive means to address an
emergency, as a last resort after
exhausting less restrictive measures;
``(III) if the lockdown is confined
to as narrow an area as possible and to
as limited number of people as
possible; and
``(IV) 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--
``(aa) 4 hours total from
the time at which the lockdown
starts;
``(bb) 4 hours total during
any 24-hour period; or
``(cc) 12 hours total
during any 7-day period.
``(C) De-escalation.--
``(i) In general.--With respect to any
placement pursuant to subparagraph (B)(iv),
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 subparagraph (B)(iv) or
(B)(v), 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 any de-escalation.
``(ii) Removal by health care staff.--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 removed
to an appropriate setting as determined by
health care staff.
``(D) Prohibition on involuntary confinement.--No
person may be involuntarily confined in a cell under
subparagraph (B)(iv) who--
``(i) is 25 years of age or younger;
``(ii) is 55 years of age or older;
``(iii) has a disability, as defined in
section 3 of the Americans with Disabilities
Act of 1990 (42 U.S.C. 12102);
``(iv) has any diagnosed mental health
need;
``(v) is pregnant, in the first 8 weeks of
the postpartum recovery period, or caring for a
child in a facility program; or
``(vi) has identified as, or is known or
perceived by any facility staff to be, lesbian,
gay, bisexual, transgender, intersex, or gender
nonconforming.
``(E) Requirements for separation.--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
subparagraph (B)(iii), (B)(iv), or (B)(v), such
separation in an alternative unit must--
``(i) comply with--
``(I) subparagraphs (A) and (F);
and
``(II) paragraphs (3), (4), and
(5); and
``(ii) 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.
``(F) Prohibition on limitation of services.--In
all Federal facilities, the following may not be
imposed as a form of punishment, discipline, or for any
other reason:
``(i) Limitation on services, programming,
treatment, contact visitation, phone calls,
email, mail, or basic needs such as clothing,
food, or bedding.
``(ii) Involuntary restricted diets or any
other involuntary change in diet.
``(iii) Confiscation of approved personal
property.
``(3) Due process requirements.--
``(A) Hearing regulations.--
``(i) In general.--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.
``(ii) Requirements.--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--
``(I) subparagraphs (A), (E), and
(F) of paragraph (2); and
``(II) paragraph (5).
``(B) Review of placement.--
``(i) In general.--The placement of an
incarcerated person in an alternative unit
shall be meaningfully reviewed not less than
the first 15 days after placement in solitary
confinement, 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.
``(ii) Notice of reasons for
determination.--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.
``(iii) Access to services; 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.
``(iv) Duration.--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.
``(C) No placement based on previous incident.--No
person may be placed in an alternative unit for an act
or incident for which the person was previously placed
in such unit.
``(4) Placement hearings.--
``(A) Placement in alternative unit.--Other than
separation of persons in protective custody or for
purposes of confinement under paragraphs (2)(B)(iii),
(2)(B)(iv), and (2)(B)(v), no person incarcerated in a
Federal facility may be placed in an alternative unit
unless and until it is determined in writing following
a pl