Biden wants to phase out private prisons. GEO Group and a California city have other plans

Three California ACLU affiliates are calling on the White House to uphold President Joe Biden’s efforts to phase out the federal government’s reliance on private, for-profit detention centers by closing a privately run detention center in downtown San Diego and preventing The GEO Group from partnering with a small Kern County city to operate the facility for the U.S. Marshals Service.

Leaders in the city of McFarland last month unanimously agreed to pursue an intergovernmental agreement with the federal marshals for the Western Region Detention Center; it would subcontract with GEO to run the 770-bed facility. The arrangement would net the small city of McFarland approximately $500,000 and help GEO and the Marshals Service keep the facility open, in light of a January executive order requiring the U.S. Attorney General to stop renewing Justice Department contracts with privately operated criminal detention centers.

On Tuesday, about a week before GEO’s contract with the federal marshals was slated to end on Sept. 30, the company announced it had inked a six-month contract extension with the Marshals Service for Western Region. While the temporary deal does not include McFarland, GEO, in a news release, said it has proposed “alternative contracting structures” to the Marshals Service to allow the detention center to “remain in operation in compliance with the Executive Order, beyond the six-month contract extension.”

The ACLU affiliates responded to the news in a Tuesday letter to the White House Domestic Policy Council Office. They said they were “disappointed” that GEO had received a temporary contract extension for Western Region despite the executive order. They predicted GEO would use the six-month period to finalize the agreement with McFarland and called on the Biden administration to use the time instead to wind down GEO’s operations at the detention center.

“Whether the extension is the result of poor planning and bureaucratic inertia in implementing the Executive Order, or a capitulation to prison companies’ concerted efforts to render the Executive Order meaningless, it is an unfortunate setback that exposes serious questions [about] whether the Administration’s commitment to reduce incarceration and phase out private prisons will be proven through concrete action,” wrote attorneys and staff with the ACLU Foundation of San Diego & Imperial Counties, the ACLU of Southern California and the ACLU of Northern California.

They also urged the administration to ensure the San Diego facility shuts down at the end of the six-month contract. Moving forward, they said, the federal marshals should include in any intergovernmental agreement for detention services a provision prohibiting subcontracting to private prison companies.

Jordan Wells, staff attorney at the ACLU of Southern California and one of the signatories to the letter, put the affiliates’ call to action more bluntly.

“GEO is attempting an end-run around the executive order,” he said. “If the Biden administration allows it to succeed, then the executive order is completely toothless.”

McFarland city leaders have not yet responded to requests for comment on the ACLU’s letter. Neither representatives for The GEO Group nor the Marshals Service have provided comments either.

GEO approached McFarland about agreement

McFarland, a city of fewer than 15,000 people located about 25 miles north of Bakersfield, has a history of partnering with GEO on detention facilities.

The city in 2015 entered into an intergovernmental agreement with U.S. Immigration and Customs Enforcement to operate the Mesa Verde ICE Processing Center in Bakersfield through a subcontract with GEO. The city ended that agreement in 2018.

The California State Auditor, in a February 2019 report, found that McFarland, as well as two other cities that subcontracted with private operators to run ICE detention centers, “provided little or no oversight of the private operators and simply passed federal payments from ICE to these subcontractors.” That was despite the fact that federal inspections found “serious health and safety problems at these private detention centers,” it said.

McFarland is currently home to two GEO-owned facilities. Its 700-bed Golden State Annex houses ICE detainees, and its 700-bed Central Valley Detention Facility is housing Marshals Service detainees, through a contract between ICE and GEO, according to an Aug. 18 letter from city officials to the Marshals Service.

So when the Biden administration issued the executive order ending new contracts with private prison companies, it was logical for GEO to approach McFarland about pursuing an intergovernmental agreement, David Venturella, GEO’s senior vice president for client relations, told city leaders during a special council meeting on Aug. 18.

“It seems to make sense for us as a company to approach the city since this practice had been established before without any issues and incidents,” he told the council.

Venturella explained that the city’s vote to pursue an intergovernmental agreement with the federal marshals would be just the first step in the process. The federal government would ultimately make the final decision on the proposed agreement, he said.

The administrative service fee associated with the agreement — approximately $500,000 — could be used to pay for public safety services, city staff told the council.

The ACLU affiliates, meanwhile, call GEO’s proposal to McFarland part of an “open effort to undermine the Executive Order.”

“This shell game would leave GEO in place operating [Western Region Detention Center] while the City of McFarland siphons half a million dollars from the contracting process for merely operating as a middleman,” they said in the Sept. 21 letter. “The six-month extension has gifted GEO an opportunity to see its plan to fruition.”

McFarland, GEO contract could set ‘dangerous precedent,’ ACLU says

Biden issued Executive Order 14006 just days after taking office. It aimed to decrease incarceration levels and reduce profit-based incentives to incarcerate, according to the order.

It acknowledged that “privately operated criminal detention facilities consistently underperform Federal facilities with respect to correctional services, programs, and resources.” It cited a Justice Department Office of Inspector General report, finding that “privately operated criminal detention facilities do not maintain the same levels of safety and security for people in the Federal criminal justice system or for correctional staff.”

While the order phases out the federal government’s use of criminal detention facilities, it does not apply to federal immigration detention facilities.

GEO’s proposal to McFarland is at least the third example of a private prison company “openly attempting an end-run around the Executive Order through such pass-through contracts,” the ACLU affiliates allege.

For example, they said, when another prison company, CoreCivic, was facing the end of a contract with the Marshals Service for the Northeast Ohio Correctional Center in March, the company and the federal marshals extended the contract for 90 days. In May, CoreCivic entered into an agreement with Mahoning County in Ohio, allowing the company to continue incarcerating people at the facility.

CoreCivic has not yet responded to a request for comment regarding the Ohio agreement.

The ACLU affiliates call GEO’s proposal to McFarland “particularly egregious” because the city is about 250 miles away from the San Diego detention center. Such an arrangement, they say, would “set a dangerous precedent to allow prison corporations to recruit far-flung municipalities to help them defy White House criminal justice policy.”

The arrangement would also reduce accountability at Western Region, said Bardis Vakili, senior staff attorney for the ACLU Foundation of San Diego & Imperial Counties and one of the signatories to the letter. The affiliates’ letter alleges there are already dangerous conditions at the facility, including frequent denial of medical care and a lack of social distancing and other protections amid the coronavirus pandemic.

“If the San Diego city council were to authorize this, the local community would be impacted by their family members going into pre-trial detention, and there would be accountability at the local level,” he said. “But here, there’s none. McFarland is dictating what’s going to happen in San Diego communities.”

“Families of people impacted by incarceration have no say in the matter,” he continued, “and this little town from Central California is impacting their lives in the face of federal policies that were meant to help them.”

If the intergovernmental agreement between McFarland, GEO, and the Marshals Service goes through, Vaikili said he is concerned that it would set a “precedent and playbook for undermining the executive order.”

“It’s critical that if the administration is serious and means what it says — that it wants to reduce incarceration and phase out these private companies — that it defends the executive order and not close its eyes while these obvious end-runs around the order are implemented.”

This story was originally published September 22, 2021 at 5:00 AM.