A private detention company based in Florida is suing the State of California for signing into law Assembly Bill 32 that ends contracts with for-profit prisons. Newport Beach law firm Newmeyer and Dillion are representing the GEO Group that operates 130 detention facilities throughout the United States. The new law signed by Governor Gavin Newsom in October makes California responsible for incarcerating all its prisoners in state-run facilities and forces all four ICE detention centers to be phased out and closed by 2028.
The GEO Group claims California’s law banning private prisons interferes with the federal government by blocking the U.S. government from detaining illegal immigrants in private facilities within the state. The state will have almost 6,000 fewer beds available for prisoners when one of the GEO Groups prisons are shuttered.
The lawsuit, filed in the Southern District of California claims, “This transparent attempt by the State to shut down the Federal Government’s detention efforts within California’s borders is a direct assault on the supremacy of federal law, and it cannot stand.“
Gov. Newsom said in a statement, “During my inaugural address, I vowed to end private prisons, because they contribute to over-incarceration, including those that incarcerate California inmates and those that detain immigrants and asylum seekers. These for-profit prisons do not reflect our values.”
The lawsuit compares the banning of the U.S. government from contracting to private companies like the GEO Group for prisons to an 1816 legal case in Maryland. Maryland tried to tax a federal bank but the U.S. Supreme Court ruled that unconstitutional in McCulloch v. Maryland.
Attorney Michael McClellan with Newmeyer and Dillion wrote in the lawsuit, “Like the state of Maryland 200 years ago, the state of California seeks to subvert these principles, asserting the authority to regulate and undermine the United States government in the exercise of sovereign powers undoubtedly within the supreme sphere of federal action.”
The complaint quotes case Hancock v. Train 426 U.S. 167, 178 (1976), “Based on this bedrock precept—derived from the Supremacy Clause of the United States Constitution—it has been incontestable from McCulloch onward that “the activities of the Federal Government are free from regulation by any state.”
California is the first state to ban private prisons. Nationally, many states have relied on private prisons to alleviate overcrowding at state prisons. In September it was reported that California had 1,600 people incarcerated at three private facilities. Newsom and other critics say AB 32 was needed because the private prisons lacked oversight and are more motivated on detaining not rehabilitating its inmates.
A 2016 report by the U.S. Justice Department found the Federal Bureau of Prisons (BOP) was operating at 20-percent overcapacity and needed to use private prisons to meet congressional mandates on overcrowding. The report showed that private contract prisons, however, incurred more safety and security incidents per capita than comparable BOP institutions.
According to the report, “Contract prisons confiscated eight times as many contraband cell phones annually on average as the BOP institutions. Contract prisons also had higher rates of assaults, both by inmates on other inmates and by inmates on staff.”
The reported concluded, the BOP must improve its oversight of contract prisons to ensure that federal inmates’ rights and needs are not placed at risk when they are housed in contract prisons.
Assemblyman Rob Bonta (D-Oakland), said the bill is powerful. “We’ve all seen the horrific humanitarian crisis playing out along the border. No human being deserves to be held in the well-documented cruel conditions in these for-profit, private facilities. For that reason, AB 32 was expanded to cover civil detention facilities as well as prisons.”
Bonta was once a San Francisco deputy city attorney. Instead of working with private prison owners like the GEO Group to resolve the safety issues, his bill hinders the state’s ability to deal with overcrowding. Bonta tried to pass a similar bill that was vetoed by former Gov. Jerry Brown. Brown supported the private prisons and stated they provided corrections officials with the necessary flexibility to manage all 34 state prisons.
AB 32 passed the Assembly 65-11 and the Senate 33-6. Seven Assembly Republicans and five GOP senators cast “yes” votes, while Assemblyman James Ramos (D-Highland) went against his party to vote “no.”
The bill also includes the ban of private immigration detention facilities starting in 2028.
The federal government is not barred from building or operating its own facilities, but in September California congress members were very vocal against the federal government building a detention center for unaccompanied minors who entered the United States illegally.
Congressman Mark Takano (D-41), attacked President Donald Trump for the proposed facility that was made possible by Congressional members under the Homeland Security Act of 2002. This act was a directive by Congress to transfer the care and custody of minors to ORR from the former Immigration and Naturalization Service (INS) to move away from the adult detention model. In the Trafficking Victims Protection Reauthorization Act of 2008, which expanded and re-defined HHS’s statutory responsibilities, Congress again made directives that each child must “be promptly placed in the least restrictive setting that is in the best interest of the child,” subject to considerations of whether the child is a danger to self or others.
Those who oppose AB 32 include the California Sheriff’s Association, primarily on the principle of overcrowding. “Removing CDCR’s authority to contract with private prisons takes away a tool and increases the likelihood of releases of dangerous inmates from state prison and heightens pressure to have county jails take on more custodial capacity that would otherwise be housed in state prison.
However more than 60 immigrant and human rights groups support AB 32, including the California Labor Federation.
The complaint further states, “The government possesses the power to detain individuals suspected or convicted of federal crimes and immigration offenses. There is no question that the federal government has the authority to contract with private entities with expertise in the operation of detention facilities to carry out its detention responsibilities.”
McClellan is seeking in the lawsuit a court order declaring Assembly Bill 32 violates the Supremacy Clause of the U.S. Constitution and seeks a permanent injunction barring the state from enforcing the new law.
Facts on detention centers in California:
1. Immigration and Customs Enforcement (ICE) operates four detention centers in California, all four are run by for-profit companies.
2) The four detention centers for ICE have a total of 4,988 beds.
3) ICE has also entered into contracts to convert three facilities into detention center annexes to be run by GEO or one of its subsidiaries for an additional 2,150 beds.
4) The GEO group also has existing contracts with the U.S. Marshals Service to operate two detention centers for federal inmates for an additional 937 beds in San Diego County.
According to the GEO Group if the two prisons for federal inmates in San Diego are closed the U.S. Marshalls will have only one non-private facility to detain prisoners with the next closest one being 90-miles away in Orange County.