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Private prison companies run or have involvement with five facilities in San Diego County. But even one of the bill’s authors isn’t sure the state could legally force federal agencies to stop using private companies to run its facilities.
Private prison companies run or have involvement with five facilities in San Diego County, yet it’s unclear what impact – if any – a bill passed by the Legislature to ban private prisons in the state would have here.
Advocate hope that, if signed by Gov. Gavin Newsom, the new law could mean a future less dependent on incarceration in the criminal and immigration systems. But it’s also sparked a fear that federal agencies, like Immigration and Customs Enforcement, will simply detain Californians farther away from their families and resources as a result. There’s also a chance that the federal government would push back against the parts of the law that try to end its use of privately operated facilities – and that it may have legal grounds to do so.
The bill, AB 32, was written by Assemblyman Robert Bonta, a Democrat from Alameda. It initially focused on contracts between the state’s prison authority and private, for-profit prison companies. But in June, Bonta amended the bill to ban all private detention facilities in the state, including immigration detention centers. Ending the use of private prisons was one of Newsom’s campaign promises.
“It’s time California takes a stronger stand for the humane treatment of those being detained or incarcerated in our state and be a model for others across the nation,” Bonta said in a statement in June.
Supporters see the bill as a step toward decreasing mass incarceration, which disproportionately impacts communities of color, said Grisel Ruiz, an attorney with the Immigrant Legal Resource Center, who was part of a coalition involved in crafting the bill’s provisions.
“Private incarceration has played a role in driving up mass incarceration in a variety of settings, including immigration and criminal,” Ruiz said. “It’s certainly not the only driver or problem. In both settings we have state actors, local and federal government actors who also incarcerate people, but when it comes to reform and looking at things, we do think this is a piece of the puzzle.”
Private prison companies CoreCivic and the GEO Group have their hands in five facilities in San Diego County.
CoreCivic also operates a community re-entry program, the Boston Avenue facility, in San Diego with the California Department of Corrections and Rehabilitation, and Ocean View, a residential center in southeastern San Diego that serves the Federal Bureau of Prisons and San Diego County. GEO also operates a re-entry program with the Department of Corrections and Rehabilitation in San Diego, the San Diego Day Reporting Center.
The Department of Corrections and Rehabilitation said it does not comment on pending legislation, but AB 32 exempts re-entry programs, so Boston Avenue and the San Diego Day Reporter Center likely won’t be affected by the bill.
County spokeswoman Yvette Urrea Moe said the county does not yet have information on whether the Ocean View facility would be impacted if the bill becomes law.
Immigration and Customs Enforcement and the U.S. Marshals also contract with the private companies to operate two facilities in the county. CoreCivic operates the Otay Mesa Detention Center, which holds ICE and U.S. Marshal detainees, and the GEO Group runs the Western Region Detention Facility, which holds U.S. Marshal detainees in downtown San Diego.
AB 32 contains a provision that says, with some exemptions, that “a person shall not operate a private detention facility within the state.”
That language attempts to address not just state and local contracts with private companies, but federal agencies’ dealings, too.
Yet one of the bill’s own authors, Assemblywoman Lorena Gonzalez, said it’s not clear whether the measure could be enforced against federal facilities.
“If the federal government has a contract, I’m not sure we’ll be able to prevent that if it’s on their land,” Gonzalez said. “I’m assuming it would end up in litigation.”
The legal question would come down to the concept of pre-emption – basically whether the federal government’s authority should trump the state’s. The federal government, for example, tried to argue that its authority pre-empted California’s when it challenged the California Values Act, the so-called “sanctuary state” laws. Courts largely sided with California on that one.
CoreCivic’s contract with ICE for Otay Mesa will expire in June 2020, according to the California attorney general. The facility had been exempt from past state legislation intended to quell the use of private immigration detention facilities, since CoreCivic owns the property where the facility stands and contracts directly with ICE without any state or local intermediaries.
ICE spokeswoman Lori Haley said the agency doesn’t comment on specific pending legislation, but said “the idea that a state law could bind the hands of a federal law enforcement agency managing a national network of detention facilities is wrong.”
The U.S. Marshals and the GEO Group did not respond to requests for comment.
“Our sole job has been and continues to be to help the government solve problems in ways it could not do alone – to help manage unprecedented humanitarian crises, dramatically improve the standard of care for vulnerable people, and meet critical public safety needs efficiently and innovatively,” Brandon Bissel, a CoreCivic spokesman, said in a written statement. “Attempts to eliminate options for other governments in crisis are misguided.”
CoreCivic currently employs 382 people in the San Diego region, Bissel wrote.
“When California’s prison system capacity was at 200 percent and conditions were so challenging as to be deemed unconstitutional, companies like ours were one of the solutions the state turned to,” he said. “For 10 years, we provided safe, secure housing and life-changing reentry programming for inmates that had faced extreme overcrowding.”
For people on the ground who work with those held in these facilities, the legislation’s impact could go multiple ways.
Andrew Nietor, an immigration and federal defense attorney, said it could mean that less people are detained by ICE, the U.S. Marshals and the state. But particularly when it comes to federal agencies, it could also mean that immigrants or other federal detainees from California will be held out of state.
“Some people who might have otherwise been held in state might wind up getting transported outside of the state and further from their families and from the ability to retain local counsel,” Nietor said.
Some people facing federal charges in San Diego are already held up to four hours away in San Luis, Arizona. During the height of the Trump administration’s zero tolerance policy, increasing numbers of people were held in Arizona, causing intense strain on detainees, local attorneys and court officials.
ICE indicated that it indeed would rely more on out-of-state facilities if the bill becomes law.
“If this bill or a bill similar to it were to pass, ICE would simply have to transfer individuals a greater distance from their arrest location to where they’d be detained,” Haley said in a statement. “Thus, the only impact would be felt by the residents of California who would be forced to travel greater distances to visit friends and family in custody.”
Ruiz said it’s possible that there might be a challenge to the law in court if the governor signs the bill.
“We think it’s important for the bill to open the discussion,” Ruiz said. “We hope it will influence a conversation with other states and the federal government – though we recognize this isn’t a federal government that is amenable to this type of reform. When it comes to reform, it’s a long game. We won’t be under this administration in perpetuity.”
Ruiz said if ICE transfers large numbers of people out of state in response, she would view that as a retaliatory action.
There are models, she said, of communities and organizations stepping in to support individuals after such facilities are closed to prevent detainees from sent out of state. For example, the ACLU took legal action in Orange County in May to prevent immigrant detainees in facilities that were closing from being transferred out of state.
“We will see if and when this gets signed how far we can take this,” Gonzalez said. “We know we can apply it to [the California Department of Corrections and Rehabilitation], but what we’re able to do with private prisons and federal agencies – we may be pre-empted, but we have to do what we can and keep working towards that.”