CA’s Ban on Private Prisons Challenged in Court

By: Patricio Muñoz-Hernandez

On January 1, 2020, California became the fourth state to ban the use of private, for-profit detention facilities, including prisons. New York, Illinois and Nevada adopted similar bans on private prisons, and nearly half of all states have no such facilities, according to the Bureau of Justice Statistics (BJS). 

Governor Gavin Newsom signed Assembly Bill 32 (AB 32) into law last October, which prohibits new private detention contracts in California and adopts changes to current contracts, including phasing out existing facilities entirely by 2028. 

Roughly five percent of California’s total prison population, or 7,000 inmates, were locked up as recently as 2016, according to the BJS. However, in recent years, thousands of people in private prisons have been transferred back into state-run facilities. As of June 2019, private prisons held 2,222 people, representing a roughly 68 percent decrease over three years. 

AB 32 sets the stage for the three remaining private prisons in California, collectively housing about 1,400 inmates, to close four years from now, when their contracts expire with the State’s Department of Corrections and Rehabilitation. 

Meanwhile, the federal Immigration and Customs Enforcement (ICE) agency will lose four privately-run detention facilities in California next year that hold roughly 4,000 people, according to Reuters. ICE said in an official statement that detainees would be relocated to facilities outside California. The average daily population in those facilities accounts for under 10 percent of the 52,000 detainees ICE holds nationwide, according to the statement. 

When asked about the motivation behind the bill, Rob Bonta, California Assemblymember representing the 18th District and author of AB 32, said that “[private prisons] were profiteering on the backs of Californians. People are not commodities.” Bonta explained that “the message was being sent that we needed to end mass incarceration; the for-profit prison industries’ values do not align with ours in California.”

Photo by Emiliano Bar on Unsplash

However, the bill contains exceptions that will allow private prison companies to continue to do business in California. Specifically, AB 32 does not apply to “any facility providing educational, vocational, medical, or other ancillary services to an inmate,” or “any privately owned property or facility that is leased and operated” by a law enforcement agency or any private, for-profit prison facility “to provide housing for state prison inmates in order to comply with the requirements of any court-ordered population cap.”  

The exceptions are noteworthy because they could allow companies like GEO Group, a Florida-based security firm that operates dozens of private prisons and detainment centers across the U.S., to continue running prisons in the state. For example, the “housing” exception could allow the state to use out-of-state private prisons. 

Nevertheless, GEO Group sued California on December 30, 2019 over AB 32. The security firm currently manages seven of the 10 privately managed prison and immigrant detention facilities in California. GEO Group alleged in the complaint that AB 32’s total prohibition on private detention facilities violates the Supremacy Clause of the U.S. Constitution, citing the federal government’s inability to contract with private security companies to run such facilities inside California. 

In the complaint, GEO Group said the bill is an effort to subvert the power of the federal government and “undermine the United States government in the exercise of sovereign powers undoubtedly within the supreme sphere of federal action.” 

The following month, the U.S. Attorney’s Office sued the State of California, also citing the Supremacy Clause. The lawsuit asked the judge to ban the enforcement of the law against the federal government, stating that “California, of course, is free to decide that it will no longer use private detention facilities for its state prisoners and detainees.” But, the complaint continued, “it cannot dictate that choice for the federal government, especially in a manner that discriminates against the federal government and those with whom it contracts.” 

AB 32 has been praised by some, including Abolish Private Prisons, a non-profit organization dedicated to ending for-profit private prisons in the United States. “The prisoners’ mere presence in a cell becomes slavish to corporate profits. In our view, this violates the United States Constitution,” said John Dacey, the Executive Director of Abolish Private Prisons. Dacey continued, “I think you have to start the conversation by asking–– why does anyone think that incarcerating people for-profit is constitutional in the first instance? If private prisons are not constitutional, you don’t then get to the other conversations about [whether] they save the taxpayers money.”

About 3,200 federal inmates in California are currently housed in private detention facilities, according to the U.S. Attorney’s Office complaint, which said that ICE has contracted with private companies to house about 5,000 detainees in California,accounting for 96 percent of the agency’s total detention space in the state. 

The Immigrant Defense Project and Immigrant Legal Resource Center joined with other immigration advocacy groups to denounce the federal government’s lawsuit in a statement that argues the state has the right to keep inmates and detained immigrants out of private prisons. 

“It is outrageous, though not surprising, that the Trump Administration is colluding with the for-profit prison industry to guard the immoral profits reaped from mass incarceration,” said the immigration advocacy coalition’s statement. 

The United States District Court for the Southern District of California is hearing both lawsuits against the State of California. In the case involving GEO Group, Judge Sammartino has scheduled a hearing for joint motions to dismiss and for preliminary injunctions. In the case involving the federal government, the docket has not developed beyond the original filings at this time.

(Editor's Note: This article was originally published in the March 2020 [Volume 50, Issue 3] version of The Advocate.)