Originally Published in the Los Angeles Times
Kristina Davis - October 9, 2020
A federal judge in San Diego largely upheld California’s law banning private prisons in a ruling late Thursday, acknowledging that the state has the authority to ensure the health and welfare of federal detainees within its borders.
Under the ruling, at least four immigration detention centers with the capacity to house about 5,000 people would be phased out over the coming years.
However, the ruling carved out an exception when it comes to privately operated facilities that house pretrial inmates charged with federal crimes who are in the custody of the U.S. Marshals Service. U.S. District Judge Janis Sammartino issued a preliminary injunction that prohibits the state from enforcing the ban, known as Assembly Bill 32, on those detention centers while litigation on the matter proceeds.
Immigrant advocates celebrated the ruling, calling it a “major rebuke” to both U.S. Immigration and Customs Enforcement and The GEO Group, the for-profit contractor that runs several detention centers in California.
“AB 32 is a groundbreaking law, and we feel yesterday’s ruling deals a critical blow to the private prison industry,” said Christina Fialho, co-founder and executive director of Freedom for Immigrants, an advocacy group which filed an amicus brief in the case in support of the state.
There are currently four privately operated ICE detention facilities in California: Otay Mesa Detention Facility in San Diego; Mesa Verde ICE Processing Center in Bakersfield; Imperial Region Detention Facility in Calexico; and Adelanto ICE Processing Center in Adelanto.
ICE also has contracts to operate three other “annexes,” including the newly opened Golden State Modified Community Correctional Facility in McFarland, which is at the center of a separate legal battle.
CoreCivic, another private prison contractor, runs Otay Mesa; Management & Training Corp. runs the Calexico facility; and GEO operates the rest.
Assembly Bill 32, which took effect Jan. 1, prohibits agencies from signing new contracts with privately operated prisons and from making changes to existing contracts. Use of existing facilities must be phased out by 2028. The law built on prior measures that had limited immigration detention contracts in the state.
Immigration facilities run by contractors have come under increased scrutiny by immigrant advocates and oversight groups, which accuse the prison corporations of operating without transparency and housing detainees in substandard conditions.
The GEO Group, based in Florida, filed its lawsuit against Gov. Gavin Newsom and Atty. Gen. Xavier Becerra just before AB 32 was to take effect. The Trump administration followed soon after with its own suit on similar grounds.
The lawsuits were consolidated, and Sammartino in July listened to arguments that the law was unconstitutional, that it discriminated against the federal government and its contractors, and that it was a ploy by the state to regulate federal enforcement actions.
The judge largely dismissed those challenges, both in tentative findings she voiced at the hearing over the summer and later in greater detail in her 75-page ruling.
The judge also declined to validate 15-year contracts totaling nearly $6.5 billion that GEO and two other operators inked with the federal government after the law had been passed but just before it went into effect. The contracts, five years with two five-year extensions, would not adhere to AB 32’s prohibition on changes to existing contracts, she suggested.
But not all federal detention agencies appeared to be on the same footing under AB 32, she ruled.
“Congress clearly authorized [U.S. Marshals Service] to use private detention facilities in limited circumstances, such as where the number of USMS detainees in a given district exceeds the available capacity of federal, state, and local facilities,” Sammartino wrote.
Not so with the U.S. Bureau of Prisons or ICE, she wrote.
In California, the Marshals Service houses about 1,100 of its 5,000 inmates in private detention facilities — including many at Otay Mesa and the Western Region Detention Facility in San Diego.
If forced to close them, the agency would have to relocate nearly 30% of its California inmates, with many likely ending up out of state. Because these inmates are awaiting criminal proceedings, that would create problems with transportation to court, potentially delay hearings and could cause overcrowding elsewhere, the Marshals Service noted.
Noting the irreparable harm apparently facing the U.S. and GEO, Sammartino agreed to the preliminary injunction as to pretrial detainees.
While the Marshals piece of the case continues to proceed, the rest of the litigation is likely to be challenged at the appellate level. The GEO Group has said that forced closures would result in hundreds of millions of dollars in company losses in the coming years.
“We remain confident this matter will ultimately be decided in our favor by the courts,” a GEO spokesperson said in a statement Friday, “but until then we will continue to provide safe, secure and humane care to individuals who are being adjudicated under federal immigration law, consistent with the high quality services we have provided in the state of California for several decades under both Democratic and Republican administrations.”