9th Circuit Overturns California’s Law Banning For-Profit Prisons

In a 2-1 decision, the 9th Circuit Court of Appeals struck down California’s AB 32 ban on privately owned immigration detention facilities on Tuesday, finding that it interfered with the federal government’s ability to uphold the law.

In 2019, Assembly Bill 32, written by then Assemblyman and current state Attorney General Rob Bonta, was signed into law by Governor Gavin Newsom. The end, which would end all privately-run prison in California by 2028, including all 4 ICE detention centers, was backed by most Democratic lawmakers, as well as a few moderate Republicans.

While it officially became law on January 1, 2020, AB 32 was quickly halted by a legal challenge by then-President Donald Trump that February. A key part of United States of America V. Gavin Newson, etc. all was the United States’ Supremacy Clause challenge, in which they argued that AB 32 was breaking as it superseded federal law. For the next year and a half, for-profit prisons in California, as well as state leaders, were on their toes as the lawsuit, which had been delayed by the COVID-19 pandemic, rose up to the Appellate Court.

On Tuesday, Appellate Court judges Kenneth Lee and Bridget Bade, both Trump appointees, agreed with the United States that AB 32 did interfere with their ability to enforce immigration law.

In their ruling, Judge Lee noted, “AB 32 cannot stand because it conflicts with this federal power and discretion given to the Secretary of Homeland Security in an area that remains in the exclusive realm of the federal government, and it bars the Secretary from doing what federal immigration law explicitly permits him or her to do.”

The lone dissenter, Judge Mary Murguia, an Obama appointee, wrote that AB 32 did not hinder the US government’s ability from apprehending illegal immigrants, as they could be held outside of California.

“Nothing in AB 32 prevents the federal government from apprehending and detaining noncitizens who are present in the country unlawfully,” Judge Murguia said. “Nobody meaningfully disputes that the health, safety, and welfare of detainees within a state is within the state’s historic police powers. There is no support in our case law for narrowing our view of AB 32 to its potential effects in the immigration context.”

The likely end of AB 32

Supporters of the ban, who wanted for-profit prisons out of California by 2028, decried the Appellate Court’s ruling, with the bill’s original author, Attorney General Bonta, expressing that it wasn’t over.

“California is committed to protecting the health and safety of all people, irrespective of whether they are in custody or civil detention,” said Bonta. “When we passed AB 32, we sent a clear message that putting an end to for-profit detention centers is key to achieving that goal. Prisons and detention centers shouldn’t be places of profit. We will continue the fight to ensure the dignities and rights of everyone in California are protected. While the road ahead may feel a little longer today, our work continues and we will keep pushing forward.”

Meanwhile, for-profit prisons and supporters of more immigration control in California hailed the ruling, calling it a strike back against Californian laws that go too far.

“They pushed against the federal government, and they pushed right back,” Dominic Birch, a former employee at a for-profit prison in California, told the Globe on Tuesday. “It’s good to see that the courts agreed at how much this went against the federal government and what they were doing. Hopefully California will think twice before trying something like this again.”

Barring any Supreme Court challenge, privately-run prisons in California will no longer be forced to phase out by 2028.