California ban on private prisons, immigration detention centers ‘extreme,’ feds say
This story is part of the Central Valley News Collaborative — a bilingual, community journalism project funded by the Central Valley Community Foundation and with technology and training support from Microsoft Corp. The collaboration includes The Fresno Bee, Valley Public Radio, Vida en el Valle, Radio Bilingüe and the Institute for Media & Public Trust at Fresno State.
An ongoing battle between state officials and federal immigration authorities over a California law that bans privately run immigration facilities intensified Monday during a Ninth Circuit Court of Appeals hearing, when attorneys representing the Biden administration urged the court to strike down the “extreme” measure.
The hearing represented the latest attempt by attorneys for the federal government and the private prison company GEO Group to overturn AB 32, a 2019 law that phases out the use of private prisons and for-profit immigration detention facilities in California by 2028. A district court upheld the law in October, spurring the government — then under the Trump administration — and company to appeal the decision to the Ninth Circuit.
The GEO Group, one of the country’s largest private prison companies, owns and operates federal immigration detention centers in the Kern County cities of Bakersfield and McFarland, as well as Adelanto in San Bernardino County.
AB 32 would force the shut down of the seven privately operated immigration detention centers across the state, which can house up to about 7,400 people, according to a January report from the California Department of Justice. The GEO Group operates five of those facilities, including three in Kern County, and stands to lose billions of dollars if the law is upheld.
Does state law regulate immigration detention?
During Monday’s hearing, attorneys for the company and the federal government argued that the California law is unconstitutional because it aims to regulate immigration facilities, a move they said is a “federal function” and extends beyond the state’s authority. The attorneys argued the measure unlawfully prevents the federal government from detaining unauthorized immigrants in California as part of federal immigration proceedings.
“The state purports to regulate — not only the federal contractor — but the effective terms of the federal contract itself,” said Michael Kirk, an attorney representing the GEO Group. “It doesn’t simply regulate the terms of the contract, but actually prohibits the contract from coming into being. It’s clearly unconstitutional and that’s what AB 32 does here.”
U.S. Department of Justice Attorney Mark Stern added that “there is not a case that we’re aware of, which has ever upheld a restriction that’s remotely like this one.”
Stern called for the panel of three judges to block the measure, arguing that upholding the law would set an “extraordinary” and “extreme” precedent that would allow the state to undermine federal immigration protocols.
“If we picture states throughout the country deciding for various public policy reasons that they’re going to — maybe not even as extreme as this — make it difficult for the federal government to contract, to perform its operations, that would be extraordinary,” Stern said.
But California Deputy Attorney General Gabrielle Boutin argued the law was not regulating immigration detention centers, but rather the “health and safety” of the detainees within the facilities.
In a ruling last fall, U.S. District Judge Janis Sammartino found the state has the right to regulate the health and welfare of inmates and detainees in facilities within its jurisdiction, ruling the ban largely constitutional.
“These facilities create threats to the health and welfare of these detainees — there is a well-documented record of that and that was the purpose of this law,” Boutin said.
Advocates call on Biden to end use of private detention centers
The first-of-its-kind law was signed by Gov. Gavin Newsom in October 2019 and took effect in January 2020. It bans the renewal of private prison contracts and the use of private immigration detention centers within state lines. It exempts private prisons operated by the U.S. Marshals Service.
Criminal justice reform and immigrant advocates hailed the law as a landmark piece of legislation, hoping it could become a model for other states interested in ridding themselves of private prisons and detention centers. They claim privately run facilities have long housed immigrants in poor and unkempt conditions, which were only exacerbated by the COVID-19 pandemic.
Jordan Wells, an attorney with the ACLU of Southern California, argued in support of the bill during Monday’s hearing. He said immigration laws were not created to protect contracts between private prison companies and the federal government.
“Across decades of passing federal immigration laws, Congress has never authorized ICE to outsource detention functions to private prison companies,” Wells said in an interview with The Bee Monday. “This lack of authorization has been hidden in plain view for years, but AB 32 and the lawsuits over it have brought this stark reality to the surface.”
Wells said ICE does not need to detain people in privately run detention centers, arguing that courts have already been mandating the release of “thousands of people from custody to ensure their safety during the pandemic.”
“This past year has shown that wide-scale ICE detention is wholly unnecessary,” Wells added. “The overwhelming majority of people released during the pandemic are now living safely at home with their families, providing support to their communities and loved ones, and complying with the terms of their release.”
Advocates are also calling on President Joe Biden to uphold his campaign promise to end for-profit immigration facilities and withdraw the federal government from the lawsuit. As president, Biden has ordered the Department of Justice to terminate its private contracts with federal prisons, but he did not expand the directive to include the Department of Homeland Security, which oversees immigration detention centers.
“The Biden administration should own up to its campaign promises and end the use of private immigration detention facilities,” Jackie Gonzalez, policy director for Immigrant Defense Advocates, said in a statement. “It is deeply contradictory and hypocritical to ban private federal prisons, fail to act on immigration detention, and sue California for acting in the face of ongoing deaths and abuse in these facilities. Absent the political will in Washington to end the use of private facilities, and end the unnecessary detention of immigrants as a whole, states can and must act to save lives.”
This story was originally published June 8, 2021 at 10:15 AM.