by Matt Clarke

On January 24, 2020, the United States Department of Justice (DOJ) filed a complaint in California federal court challenging the application to the federal government of a new state law — Assembly Bill 32 (A.B. 32) — which phases out all privately-operated prisons and jails inside state borders, including federal detention facilities.

Signed by Gov. Gavin Newsom in October 2019, A.B. 32 bars any entity with a prison, jail or detention facility in the state from signing or extending a contract for its operation with a private firm after January 1, 2020. It also prohibits the California Department of Correction and Rehabilitation (CDCR) from entering into any new contract to house prisoners outside of the state in privately operated detention facilities. However, the law allows exemptions necessary to comply with a court-ordered population cap.

According to the DOJ complaint, five of eight exceptions provided for in A.B. 32 apply only to California’s contracts and not to those entered into by the U.S. government. They cover facilities that:

• provide services to a juvenile pursuant to a state juvenile court order;

• provide mental health evaluation or treatment to a person under a state court commitment order;

• are state-licensed residential care facilities;

• are used for medical quarantine or isolation;

• are used to temporarily detain a person arrested by a merchant, private security guard or other person pursuant to state law.

The three exceptions that might apply to the federal government are for facilities that:

• provide educational, vocational, medical or other ancillary services to prisoners;

• are disciplinary detention facilities at schools; or

• are privately owned facilities leased and operated by a law enforcement agency.

The U.S. enumerated its private-detention facility needs by agency, beginning with the U.S. Marshals Service (USMS), which houses over 21,000 – about 34 percent – of some 62,000 prisoners in private detention facilities, including approximately 1,100 of its 5,000 prisoners in California.

Next came the Bureau of Prisons (BOP), which houses 25,000 of its 175,000 prisoners in private prisons, including 2,200 of 16,000 prisoners held in California, and also privately contracts for operation of 10 Residential Reentry Centers that house, supervise and provide reentry programming to about 900 prisoners.

Finally, there is Immigration and Customs Enforcement (ICE), which does not construct or operate its own facilities, due to significant fluctuations in the number of detainees it houses. However, the agency said it housed an average population of 50,000 detainees in fiscal year 2019.

As for USMS prisoners, the federal government argued that relocating them to neighboring states posed a hardship because those facilities would become overcrowded and defense consultations and court appearances would require frequent transportation to and from California

As for the BOP, the U.S. maintained that the application of A.B. 32 would severely diminish its ability to provide reentry services and community placement that the agency is required to expand under the First Step Act.

The federal authorities alleged that applying A.B. 32 would severely hamper ICE operations because it contracts for 5,000 bunks in four private detention facilities in California, and it has contracted with Florida-based GEO Group to house an additional 2,150 detainees in the state starting in August 2020.

A lawsuit filed on December 27, 2019, by GEO Group to stop the state from applying the new law claims it will affect 10 privately managed immigrant detention facilities with 10,925 beds — from which detainees will need to be relocated at the cost of “significant taxpayer dollars,” the DOJ suit adds, citing changes the law requires in transportation of prisoners that would overwhelm the current transportation system, create security risks, and isolate prisoners or detainees from their families. GEO says A.B. 32 would cost it $4 billion in lost revenue.

“As a service provider to the government, our only mission is to deliver top-rated services to those entrusted to our care as they go through immigration proceedings,” a GEO Group spokesperson insisted, adding that the company takes no role in passing immigration laws nor does it take a position on immigration policy.

DOJ’s suit alleges that the law is “a direct assault on the supremacy of federal law” and adds that “A.B. 32 has both the purpose and effect of hampering the Federal Government’s ability to house individuals in its custody.”

DOJ’s argument rests on the “Supremacy Clause” in Article V of the U.S. Constitution, which maintains that federal laws “shall be the supreme Law of the Land.” Congress has provided that federal prisoners may be placed in “‘any available penal or correctional facility’ . . . without regard to what entity operates the prison.” 18 U.S.C § 4013(c). USMS is authorized to contract for “support from private detention entities.” Likewise, the Department of Homeland Security is authorized to house ICE detainees in facilities it leases or builds.

“We’ve all seen the horrific humanitarian crisis playing out along our border,” said Assemblyman Rob Bonita of Oakland, who authored A.B. 32. “No human being deserves to be held in the well-documented cruel conditions in these for-profit, private facilities. For that reason, A.B. 32 was expanded to cover civil detention facilities as well as prisons.”

DOJ also claims the state law is a violation of intergovernmental immunity because of exemptions that apply only to California. It has requested declaratory and injunctive relief. See: United States v. Newsom, USDC (S.D. Cal.), Case No. 3:20-cv-00154-MMA-AHG.

On the same day the California suit was filed, DOJ also sued New Jersey and King County, Washington – which includes Seattle – for allegedly making it harder for ICE to arrest and deport people.

The suit in New Jersey challenges a directive from the state’s attorney general - New Jersey Attorney General Law Enforcement Directive 2018-6 – which bars state law enforcement agencies from sharing prisoner status and release date information with ICE and to “promptly notify a detained individual, in writing and in a language the individual can understand” if an immigration detainment request comes from ICE for a state prisoner.

In Washington, under King County Executive Order PFC-7-1-EO, local authorities have banned ICE from using King County International Airport to deport detainees or transport them between detention facilities, forcing them instead to use the airport in Yakima, 150 miles away.

The three legal challenges mark the most robust pushback yet from federal authorities against so-called “sanctuary city” laws designed to protect immigrants from arrest and detention by ICE.

Donald Mann, president of Negative Population Growth, a controversial conservative nonprofit that promotes the idea the U.S. is already overpopulated, said that “letting such an insane policy exist in hundreds of jurisdictions throughout our nation—and potentially spread to more—will only lead to America’s population increasing to unsustainable levels.” NPG believes a sustainable U.S. population is about half current levels, and the organization advocates for strict limits on immigration to help achieve that result. 

Additional sources: lawandcrime.com, jurist.org, latimes.com, timesofsandiego.com, wonkette.com and Cal. Pen. Code §§ 9501, 9505(a).

David Reutter contributed reporting to this story.

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