Section 1 Short title
This Act may be cited as the “Solitary Confinement Study and Reform Act of 2022”.
Solitary Confinement Study and Reform Act of 2022
A BILL
To develop and implement national standards for the use of solitary confinement in correctional facilities, and for other purposes.
Sec. 2 Purposes
The purposes of this Act are to—
develop and implement national standards for the use of solitary confinement to ensure that it is used infrequently and only under extreme circumstances;
establish a more humane and constitutionally sound practice of segregated detention or solitary confinement in correctional facilities;
accelerate the development of best practices and make reforming solitary confinement a top priority in each correctional facility at the Federal and State levels;
increase the available data and information on the incidence of solitary confinement, consequently improving the management and administration of correctional facilities;
standardize the definitions used for collecting data on the incidence of solitary confinement;
increase the accountability of correctional facility officials who fail to design and implement humane and constitutionally sound solitary confinement practices;
protect the Eighth and Fourteenth Amendment rights of incarcerated individuals at correctional facilities; and
reduce the costs that solitary confinement imposes on interstate commerce.
Sec. 3 National solitary confinement study and reform commission
Establishment— There is established a commission to be known as the National Solitary Confinement Study and Reform Commission.
Members—
In general— The Commission shall be composed of 9 members, of whom—
3 shall be appointed by the President;
2 shall be appointed by the Speaker of the House of Representatives, unless the Speaker is of the same party as the President, in which case 1 shall be appointed by the Speaker of the House of Representatives and 1 shall be appointed by the minority leader of the House of Representatives;
1 shall be appointed by the minority leader of the House of Representatives (in addition to any appointment made under subparagraph (B));
2 shall be appointed by the majority leader of the Senate, unless the majority leader is of the same party as the President, in which case 1 shall be appointed by the majority leader of the Senate and 1 shall be appointed by the minority leader of the Senate; and
1 shall be appointed by the minority leader of the Senate (in addition to any appointment made under subparagraph (D)).
Persons eligible— Each member of the Commission shall be an individual who has knowledge or expertise in matters to be studied by the Commission. Not less than three members of the Commission shall be individuals who have been incarcerated or have had an incarcerated family member.
Consultation required— The President, the Speaker, and the minority leader of the House of Representatives, and the majority leader and minority leader of the Senate shall consult with one another prior to the appointment of the members of the Commission to achieve, to the maximum extent possible, fair and equitable representation of various points of view with respect to the matters to be studied by the Commission.
Term— Each member shall be appointed for the life of the Commission.
Time for initial appointments— The appointment of the members shall be made not later than 180 days after the date of enactment of this Act.
Vacancies— A vacancy in the Commission shall be filled in the manner in which the original appointment was made, and shall be made not later than 60 days after the date on which the vacancy occurred.
Operation—
Chairperson— Not later than 15 days after appointments of all the members are made, the President shall appoint a chairperson for the Commission from among its members.
Meetings— The Commission shall meet at the call of the chairperson. The initial meeting of the Commission shall take place not later than 30 days after the initial appointment of the members is completed.
Quorum— A majority of the members of the Commission shall constitute a quorum to conduct business, but the Commission may establish a lesser quorum for conducting hearings scheduled by the Commission.
Rules— The Commission may establish by majority vote any other rules for the conduct of Commission business, if such rules are not inconsistent with this Act or other applicable law.
Comprehensive study of the impacts of solitary confinement—
In general— The Commission shall carry out a comprehensive legal and factual study of the penological, physical, mental, medical, social, fiscal, and economic impacts of solitary confinement in the United States on—
Federal, State, and local governments; and
communities and social institutions generally, including individuals, families, and businesses within such communities and social institutions.
Matters included— The study under paragraph (1) shall include—
a review of existing Federal, State, and local government policies and practices with respect to the extent and duration of the use of solitary confinement;
an assessment of the relationship between solitary confinement and correctional facility conditions, and existing monitoring, regulatory, and enforcement practices;
an assessment of the characteristics of incarcerated individuals and juvenile detainees most likely to be referred to solitary confinement and the effectiveness of various types of treatment or programs to reduce such likelihood;
an assessment of the impacts of solitary confinement on individuals, families, social institutions, and the economy generally;
an identification of additional scientific and social science research needed on the prevalence of solitary confinement in correctional facilities as well as a full assessment of existing literature;
an assessment of the general relationship between solitary confinement and mental and physical illness;
an assessment of the relationship between solitary confinement and levels of training, supervision, and discipline of the staff of correctional facilities; and
an assessment of existing Federal and State systems for collecting and reporting the number and duration of solitary confinement incidents in correctional facilities nationwide.
Report—
Distribution— Not later than one year after the date of the initial meeting of the Commission, the Commission shall submit a report on the study carried out under this subsection to—
the President;
the Congress;
the Attorney General of the United States;
the Secretary of Health and Human Services;
the Director of the Federal Bureau of Prisons;
the Administrator of the Office of Juvenile Justice and Delinquency Prevention;
the chief executive of each State; and
the head of the department of corrections of each State.
Contents— The report under subparagraph (A) shall include—
the findings and conclusions of the Commission;
the recommended national standards for reducing the use of solitary confinement described in subsection (e); and
a summary of the materials relied on by the Commission in the preparation of the report.
Recommendations—
In general— As part of the report submitted under subsection (d)(3), the Commission shall provide the Attorney General and the Secretary of Health and Human Services with recommended national standards for significantly reducing the use of solitary confinement in correctional facilities.
Matters included— The information provided under paragraph (1) shall include recommended national standards relating to—
how authorities can progress toward significantly limiting the utilization of solitary confinement so that an incarcerated individual may be placed in solitary confinement only under extreme emergency circumstances, as a last resort, for as short a time as possible, subject to independent review, and pursuant to the authorization of a competent authority;
methods that can be employed to ensure that the duration of solitary confinement of an incarcerated individual at an institution can be limited to hours at a time for purposes of emergency de-escalation, except that if the head of a correctional facility makes an individualized determination that the incarcerated individual cannot be safely returned to the general population, the head of the correctional facility may continue to segregate the incarcerated individual from the general population without the use of solitary confinement, while ensuring that the incarcerated individual has access to the type and hours of out-of-cell congregate programming, activities, and engagement comparable to the general population, in accordance with best practices and model programs for improving people's well-being and reducing violence in youth and adult correctional settings, non-correctional settings, and other mental health settings, and in accordance with the United Nations Standard Minimum Rules on the Treatment of Prisoners;
ensuring that prior to being classified, assigned, or subject to long-term segregation, an incarcerated individual shall be entitled to a meaningful hearing on the reason for and duration of the confinement and have access to legal counsel for such hearings;
ensuring that indefinite sentencing of an incarcerated individual to long-term segregation will not be allowed and that the incarcerated individual will be afforded a meaningful review of the segregation at least once every 30 days that the incarcerated individual remains in segregation and that correctional facility officials must record and provide a transcript of the review proceedings for the incarcerated individual under review to the incarcerated individual or the incarcerated individual’s designee;
ensuring that correctional facility officials design and implement programming that allows incarcerated individuals subject to long-term segregation to earn placement in less restrictive housing through positive behavior;
ensuring that protective custody and other custody designations designed to protect vulnerable incarcerated individuals, regardless of the reason for vulnerability, are not characterized by solitary confinement or other type of isolation conditions, and that incarcerated individuals placed in protective custody have access to programs, privileges, education, and work opportunities commensurate with general population incarcerated individuals to the extent possible;
ensuring that correctional facility officials improve access to mental health treatment for incarcerated individuals in solitary confinement;
ensuring that correctional facility officials do all that is feasible to make certain that incarcerated individuals are not held in solitary confinement for any duration;
ensuring that correctional facility officials develop alternative methods to manage issues with incarcerated individuals other than solitary confinement;
ensuring that correctional facility officers do all that is feasible to make certain that incarcerated individuals with mental health, physical, or cognitive disabilities are not held in solitary confinement for any duration;
ensuring that correctional facility officers do all that is feasible to make certain that pregnant and post-partum women are not held in solitary confinement for any duration;
ensuring that correctional facility officers work towards systems that limit the circumstances and conditions under which juveniles are placed in solitary confinement, in compliance with section 5043 of title 18, United States Code;
State and local governments making publicly available, on a monthly basis, information, disaggregated by the demographic characteristics of incarcerated individuals, on the use of solitary confinement, segregation, and any other form of restrictive housing in correctional facilities in the jurisdiction, including—
the average daily number and percentage of incarcerated individuals in each placement;
the total number of such placements;
the reasons for such placements;
the duration incarcerated individuals spent in each placement;
the duration of daily out-of-cell time and congregate programming for incarcerated individuals in each placement; and
the number and percentage self-harm incidents, suicide attempts, suicides, and deaths broken down by cause, for incarcerated individuals in each placement;
ensuring that correctional facilities have in place an independent oversight processes related to the use of solitary confinement and segregation; and
such other matters as may reasonably be related to the goal of reducing solitary confinement in correctional facilities.
Limitation— The Commission shall not propose a recommended standard that would impose substantial additional costs compared to the costs presently expended by correctional facilities, and shall seek to propose standards that reduce the costs of incarceration at such facilities.
Consultation with accreditation organizations— In developing recommended national standards for the reduction of solitary confinement under subsection (e), the Commission shall consider any standards, laws, and policies that have already been developed, or are being developed simultaneously to the deliberations of the Commission. The Commission shall consult with accreditation organizations responsible for the accreditation of correctional facilities that have developed or are developing standards related to solitary confinement. The Commission shall also consult with national associations representing the corrections profession, the legal profession, the medical profession, people who are incarcerated, or any other pertinent professional body that has developed or is developing standards related to solitary confinement.
Hearings—
In general— The Commission shall hold public hearings. The Commission may hold such hearings, sit and act at such times and places, take such testimony, and receive such evidence as the Commission considers advisable to carry out its duties under this section.
Witness expenses— Witnesses requested to appear before the Commission shall be paid the same fees as are paid to witnesses under section 1821 of title 28, United States Code. The per diem and mileage allowances for witnesses shall be paid from funds appropriated to the Commission.
Virtual hearings permitted— Hearings held under this subsection may be held virtually.
Information from Federal or State agencies— The Commission may secure directly from any Federal department or agency such information as the Commission considers necessary to carry out its duties under this section. The Commission may request the head of any State or local department or agency to furnish such information to the Commission.
Personnel matters—
Travel expenses— The members of the Commission shall be allowed travel expenses, including per diem in lieu of subsistence, at rates authorized for employees of agencies under subchapter I of chapter 57 of title 5, United States Code, while away from their homes or regular places of business in the performance of service for the Commission.
Detail of Federal employees— With the affirmative vote of 2⁄3 of the Commission, any Federal Government employee, with the approval of the head of the appropriate Federal agency, may be detailed to the Commission without reimbursement, and such detail shall be without interruption or loss of civil service status, benefits, or privileges.
Procurement of temporary and intermittent services— Upon the request of the Commission, the Attorney General shall provide reasonable and appropriate office space, supplies, and administrative assistance.
Contracts for research—
National Institute of Justice— With a 2⁄3 affirmative vote, the Commission may select nongovernmental researchers and experts to assist the Commission in carrying out its duties under this Act. The National Institute of Justice shall contract with the researchers and experts selected by the Commission to provide funding in exchange for their services.
Other organizations— Nothing in this subsection shall be construed to limit the ability of the Commission to enter into contracts with other entities or organizations for research necessary to carry out the duties of the Commission under this section.
Termination— The Commission shall terminate on the date that is 60 days after the date on which the Commission submits the reports required by this section.
Exemption— The Commission shall be exempt from the Federal Advisory Committee Act.
Authorization of appropriations— There is authorized to be appropriated $500,000 for each of fiscal years 2023 and 2024.
Sec. 4 Adoption and effect of national standards
Publication of standards—
Final rule— Not later than one year after receiving the report specified in section (3)(d)(3), the Attorney General shall publish a final rule adopting national standards for the reduction of solitary confinement in correctional facilities.
Independent judgment— The standards referred to in paragraph (1) shall be based upon the independent judgment of the Attorney General, after giving consideration to the recommended national standards provided by the Commission under section 3(e), and being informed by such data, opinions, and proposals that the Attorney General determines to be appropriate to consider.
Limitation— The Attorney General shall not establish a national standard under this section that would impose substantial additional costs compared to the costs presently expended by Federal and State correctional systems. The Attorney General may, however, provide a list of improvements for consideration by correctional facilities.
Transmission to States— Not later than 60 days after publishing the final rule under paragraph (1), the Attorney General shall transmit the national standards adopted under that paragraph to the chief executive of each State, the head of the department of corrections of each State, the head of the department of juvenile justice of each State, and to the appropriate authorities in those units of local government who oversee operations in one or more correctional facilities.
Applicability to Federal agencies— Immediately upon adoption of the final rule under subsection (a)(1), the national standards referred to in subsection (a) shall apply to each Federal agency that detains or incarcerates individuals (including aliens), and to any entity with which a Federal agency has a contract for the detainment or incarceration of individuals.
Sec. 5 Grant program for mental health in correctional facilities
Authorization— Beginning in the first fiscal year that begins after the date on which the Attorney General issues the final rule under subsection (a)(1), the Attorney General is authorized to make grants to States for the purposes described in subsection (b).
Uses of funds— Grants under this section shall be used solely for purposes of community-based prevention and education programs, community-based mental health care, or community-based drug treatment or harm reduction, including for purposes of diversion from incarceration or release from incarceration.
Application— The chief executive of a State seeking a grant under this section shall submit to the Attorney General an application at such time, in such manner, and containing such information as the Attorney General may reasonably require.
Eligibility— In order to be eligible for a grant under this section, a State shall be in compliance with the national standards for the reduction of solitary confinement in correctional facilities described in section 4(a)(1).
Allocation— Of the total amount appropriated under this part in any fiscal year—
0.4 percent shall be allocated to each of the participating States;
7 percent shall be reserved to provide technical assistance to States in complying with the national standards for the reduction of solitary confinement in correctional facilities described in section 4(a)(1); and
of the total funds remaining after the allocation under paragraph (1), there shall be allocated to each of the participating States an amount which bears the same ratio to the amount of remaining funds described in this paragraph as the State correctional facility population of such State bears to the total correctional facility population of all the participating States.
Limitation— Not more than 5 percent of grant funds received by a State may be used for administrative purposes.
Authorization of appropriations— There is authorized to be appropriated $20,000,000 for each of fiscal years 2023 and 2024 to carry out this section.
Sec. 6 Definitions
For purposes of this Act, the following definitions shall apply:
Attorney General— The term Attorney General means the Attorney General of the United States.
Commission— The term Commission means the National Solitary Confinement Study and Reform Commission established under section 3 of this Act.
Long-term— The term long-term means any period lasting more than 15 days in a 60-day period.
Solitary confinement— The term solitary confinement means confinement of an incarcerated individual or juvenile detainee in a cell or other place, alone or with other persons, with severely restricted activity, movement, and social interaction.
Segregation— The term segregation means housing of an incarcerated individual separate from the general population of a correctional facility.
Correctional facility— The term correctional facility means a Federal, State, local, or privately run prison, jail, or juvenile detention facility.
State— The term State means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American Samoa, Guam, and the Northern Mariana Islands.
Sec. 7 Rule of construction related to Bivens remedies
Consistent with the Supreme Court’s decisions in Carlson v. Green, 446 U.S. 14 (1980) and Farmer v. Brennan, 511 U.S. 825 (1994), Congress recognizes that people in prison and detention may bring a Bivens action to seek damages for violations of their Constitutional rights in prison, and nothing in this Act may be construed to limit that remedy.