by Ed Lyon

California governor Gavin Newsom entered office in early 2019 vowing to end the use of private prisons – including those in which federal immigration authorities detain asylum seekers – because for-profit prisons “lead to over-incarceration” and “do not reflect our values.” For many years, California sent prisoners to privately-run facilities in other states.

The state legislature responded with Assembly Bill 32, which passed, was signed by Newsom and went into effect in January 2020, banning California from entering into any new contracts with private prison companies and beginning a countdown to end all such contracts in the state by 2028.

Florida-based private prison operator GEO Group, Inc., the nation’s largest for-profit prison firm with $2.33 billion in 2018 gross revenue, signed new contracts in December 2019 – just before the law took effect – with the federal Bureau of Prisons (BOP) for two facilities the company operates in California.

GEO also signed a new contract the same month with the U.S. Marshals Service for its 512-bed El Centro Service Processing Center until 2028, in addition to a contract already in place to run the 725-bed Western Region Detention Facility in San Diego for the Marshals until 2027.

Further, GEO Group has pushed back against any application of AB32 that includes the federal detention centers it operates in the state.

“In particular, we believe the restrictions to force a phase-out of federal detention facilities under private management run afoul of the U.S. Constitution’s Supremacy Clause,” the firm stated. “States cannot lawfully pass legislation mandating the closure of federal facilities that displease them on the basis of ideological differences.”

While the law targets the private companies operating detention centers and not the federal government itself, that distinction will have to be resolved in court.

Both GEO Group and its main competitor, Tennessee-based CoreCivic, with $1.733 billion in 2018 revenue, have numerous ways to continue operating in California under one of the new law’s several loopholes. As one glaring example, the law allows a private prison to remain in business if it provides “educational, vocational, medical, or other ancillary services to an inmate in the custody of, and under the direct supervision of, the Department of Corrections and Rehabilitation [CDCR] or a county sheriff or other law enforcement agency.”

The CDCR may also continue to lease privately-owned prisons so long as the state operates them – as is the case with CoreCivic’s California City Correctional Center. And the state can exempt itself from the law’s provisions if it deems a private prison contract necessary “to comply with the requirements of any court-ordered population cap.” California is currently under a federal court order to reduce its overall prison population to no more than 137.5 percent of the combined design capacity of its facilities.

GEO Group filed a lawsuit in January 2020, accusing the state of targeting federal detention centers and discriminating against the company. GEO operates seven of 10 privately managed federal detention centers in California with a combined total of nearly 11,000 beds, representing the majority of detention space available to Immigration and Customs Enforcement (ICE).

“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,” GEO argued in its complaint.

“Our tax dollars should not pay for immigrants’ suffering,” countered Dignity not Detention, a group of immigrant rights advocacy organizations critical of poor conditions, inadequate healthcare and documented safety violations in privately operated detention centers. “In court, GEO and its shocking track record of abuse and in-custody deaths will be exposed to the light of public scrutiny.”

Assemblyman Rob Bonta, the author of AB 32, tweeted that GEO Group’s lawsuit is “exactly what you’d expect” from “a collapsing industry in its final death throes – a desperate attempt [to] buy another year of survival [to] pad its corporate profits, despite a nation’s rejection [of] profiteering on the backs of humans/treating people as commodities.”

Immediately before the new law took effect, ICE inked four new contracts with private prison companies totaling $6.5 billion, doubling the agency’s capacity in California to nearly 7,200 beds. Two of those contracts, totaling $3.7 billion, were given to GEO Group to run immigration detention facilities for 5-to-15-year periods in Adelanto and Bakersfield, where the company’s existing contracts with ICE were set to expire in March 2020.

The new California law does not prohibit ICE from contracting for beds in county jails. Four counties canceled contracts with ICE in 2019, but the agency still leases beds in Orange County’s Theo Lacy Facility. ICE, the BOP and the U.S. Marshals Service are also not prohibited from building and operating their own detention centers.

“ICE has made the choice to contract with private corporations and not build their own facilities,” Bonta said. “They can’t subject us to corporations that cut corners and abuse and neglect people.” 

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Sources: latimes.com, kget.com, leginfr.legislature.ca.gov, nbcnews.com, publicradioeast.org, reuters.com, witnessla.com