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Read twice and referred to the Committee on the Judiciary.
Introduced February 19, 2025 by Tammy Duckworth · Last progress February 19, 2025
Prohibits imprisoning or detaining a person solely because of who they are by adding a statutory ban on detention based on specified "protected characteristics." It defines a set of protected characteristics (race, ethnicity, national origin, religion, sex, gender identity, sexual orientation, disability) and allows the Attorney General to add more characteristics, while forbidding the Attorney General from removing the enumerated list.
Amend 18 U.S.C. §4001 by redesignating existing subsection (b) as subsection (c).
Insert a new subsection (b) into 18 U.S.C. §4001 establishing a prohibition on detention based on protected characteristics.
Define the term “protected characteristic” to include: (A) Race; (B) Ethnicity; (C) National origin; (D) Religion; (E) Sex; (F) Gender identity; (G) Sexual orientation; (H) Disability; and (I) Any additional characteristic that the Attorney General determines to be a protected characteristic.
Prohibit imprisonment or other detention of any individual that is based solely on an actual or perceived protected characteristic of the individual.
Rule of construction: Specify that nothing in the new subsection allows the Attorney General to remove any characteristic listed in subparagraphs (A) through (H).
Who is affected and how:
Individuals: People from the enumerated groups (race, ethnicity, national origin, religion, sex, gender identity, sexual orientation, disability) and any future additions gain a statutory protection against detention that is motivated only by those characteristics. This is intended to reduce or eliminate identity-based detention and provide a legal basis to challenge such detentions.
Federal law enforcement and detention authorities: Agencies and officers who arrest, detain, or confine people will need to ensure that the factual and legal basis for detention is not solely tied to someone's protected characteristic. That could change intake screening, arrest justification documentation, and internal oversight.
Department of Justice and Attorney General: The Attorney General acquires a one-way power to add protected characteristics but cannot remove the enumerated list, creating a constrained rulemaking/administrative role over the scope of protection. DOJ policy and guidance may be updated to implement the statute.
Courts and litigants: The courts will likely adjudicate disputes over what constitutes detention "solely because of who they are," including mixed-motive cases, evidentiary standards, and available remedies. The absence of explicit remedial text means remedies may derive from constitutional claims or existing statutes.
Indirect effects on immigration and national-security detention: Although the text does not change the substantive immigration or national security detention authorities, it could be invoked in lawsuits challenging detentions alleged to be motivated solely by protected characteristics, potentially affecting enforcement practices where identity-based targeting is alleged.
Overall impact: The amendment is a targeted rule aimed at preventing identity-based detention. Its practical effect will depend on agency implementation, rulemaking or guidance by DOJ, and judicial interpretation of causation and remedies. It is a straightforward statutory prohibition but leaves open many operational and legal questions that courts and agencies will resolve.
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Read twice and referred to the Committee on the Judiciary.
Introduced in Senate