CA Attorney General Bonta Files Request To Reinstate His Own Legislation Banning Private Prisons

California Attorney General Rob Bonta filed an en banc (full bench) Appeals Court rehearing on Wednesday against the Court’s ruling last month that struck down California’s ban on private prisons.

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For the last several years, California has been in a fight with the federal governments and private prison operators over private prisons in California, with a specific focus on U.S. Immigration and Customs Enforcement (ICE) detention centers.

In 2019, California passed the then-Assemblyman Rob Bonta authored AB 32, which set to phase out all private prisons in the state by 2028. ICE and private prison operator Geo Group immediately opposed the plan and sued the state, as it superseded federal law and federal detention efforts. Citizens groups also opposed the plan due to the massive job loss that closing the prisons would bring.

While a District Court ruled in favor of California last year, a subsequent appeal to the 9th Circuit Court of Appeals found in favor of ICE and the Geo Group.

“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,” said Judge Kenneth Lee in the Appellate Court’s majority 2-1 ruling.

While a victory for the federal government, Bonta and the state challenged the Appellate ruling, noting in a statement that there were conflicts with precedent established by the U.S. Supreme Court and the Ninth Circuit, that federal law did not preempt AB 32,  that AB 32 did not discriminate against federal contractors in favor of state and local contractors, and that the law was there to protect state sovereign interests.

An en banc request to rehear the case against for-profit prisons

Both Attorney General Bonta and Governor Gavin Newsom commented on the en banc request of United States of America v. Gavin Newsom on Wednesday shortly after filing.

“As the lead author of AB 32 in the Assembly, I’m proud to be able to now defend the law on behalf of the people of California as Attorney General,” said Bonta. “The record is clear: For-profit, private prisons and detention facilities that treat people like commodities pose an unacceptable risk to the health and welfare of Californians. AB 32 puts people over profits. It is a law of general applicability that recognizes the federal government’s own documented concerns over these facilities. California will continue to press forward to ensure the dignity and rights of everyone in our state are protected. We respectfully ask the Ninth Circuit to let us make our case.”

Newsom added in the statement that “For too long private prisons have turned a profit at the expense of Californians. This practice does not reflect the values of our state and disproportionately impacts minority and low-income communities. Private prisons do not prioritize the well-being and rehabilitation of those in custody. I am proud that California is leading the effort to eliminate for-profit prisons as we continue to advance best practices to improve public safety throughout our state.”

While ICE and the Geo Group did not comment on the en banc request on Wednesday, many prison employees and prison experts noted that the Appellate ruling would likely hold.

“This is a last ditch effort to remove needed prison facilities just because some people don’t like them,” said Dominic Birch, a former employee at a for-profit prison in California, told the Globe on Wednesday. “It’s not a case for employment either, although that is important. Really, these prisons and centers are still needed not only because of the illegal immigration issues that still pervade us, but also as a way for each state to do their own fair share. We can’t put the burden of this on Texas and other border states. California has a large illegal immigrant population, so it makes sense that they are here.”

Law experts also noted that the Appellate ruling would most likely stand as well.

“They made their call, and backed it up with facts,” added Julie Schuman, an immigration lawyer in LA County. “The bottom line is that the for-profit prisons will stay. It was rejected, and the state is having a real hard time coming to terms with that.”

The court’s decision on the request is expected to be made soon.