Will California’s Ban on For-Profit Immigration Detention and Prisons Survive Biden Opposition?

After complaining of pain over the course of a year, a 44-year-old man bled to death while detained by U.S. Immigration and Customs Enforcement at a facility near Adelanto, California. He hadn’t been seen by a doctor until a month before he died at a hospital, with “widespread” signs of cancer.

A gay man reported enduring sexual harassment by guards, including during showers, at an ICE detention center near San Diego, which has one of the highest numbers of sexual assault complaints in the country.

And at an ICE facility near Bakersfield, an asylum seeker suffered a miscarriage after falling on her stomach while shackled at her feet and hands. She didn’t receive any gynecological or mental health care after she lost her baby, she said.

The incidents all happened at immigration detention centers run by for-profit companies, according to court records submitted by supporters of a recent California law that aims to phase out the use of privately operated prisons and immigration detention facilities across the state.

President Biden has pledged to end for-profit detention in the U.S., arguing that businesses should not profit from people’s suffering. But his administration has fought the California law in court, pursuing a legal challenge filed by the Trump administration days after the law, Assembly Bill 32, went into effect last year.

Nearly all ICE detainees in California are jailed at facilities run by three prison companies: the GEO Group, CoreCivic, and Management & Training Corporation.

The GEO Group has also sued to invalidate the state law. GEO estimates it could lose more than $4 billion in capital investment and future revenue under AB 32, which outlaws the operation of private detention facilities in California after their current contracts expire.

If the first-of-its-kind California ban survives in court, it could be a model that transforms the private prison and immigration detention business in other states as well, said California Attorney General Rob Bonta.

“This is a case with a lot of national significance,” said Bonta, who authored AB 32 as a state assemblymember.

“It was always the hope that others would replicate what California has done and also ban for-profit private prisons and detention centers, which are inhumane, unjust, unsafe, unfair, and which allow for literally Wall Street-owned corporations to profiteer on the backs of people,” he added.

California argues that privately run facilities pose an “unacceptable danger” to detainees and that the state has the right to protect the safety and well-being of its residents.

Last fall, a district judge in San Diego largely upheld AB 32, with an exception for the U.S. Marshals Service.

The GEO Group and the U.S. Department of Justice appealed U.S. District Judge Janis Sammartino’s ruling, stating that AB 32 cripples the federal government’s authority to house federal inmates and immigrant detainees in California.

“The Supreme Court, this court and other courts have held that restrictions on the government's ability to carry out its operations using contractors are impermissible when they are far less intrusive than this case,” U.S. Department of Justice attorney Mark Stern told a three-judge panel at the 9th U.S. Circuit Court of Appeals in Pasadena last month.

A few days after the hearing, Southern California Rep. Norma Torres, D-Pomona, and two dozen other members of Congress urged U.S. Attorney General Merrick Garland to abandon the legal challenge against AB 32.

Continuing the appeal puts the U.S. Department of Justice “in the way of President Biden’s stated goal to ensure that the federal government does not use private facilities for incarceration,” the lawmakers wrote in their letter.

“It’s important for me to stand in support of the California law and the wishes of our state,” Torres told KQED. “They should immediately drop this lawsuit ... Biden very much campaigned against this very issue.”

At a rally in Georgia to celebrate his first 100 days in office, Biden reiterated his campaign pledge after protesters interrupted his speech screaming, “End detention now! End detention now!”

“There should be no private prisons, period,” Biden told the crowd. “That's what they're talking about — private detention centers. They should not exist. And we are working to close all of them.”

“ICE is continually reviewing its detention requirements and exploring options that afford the agency the operational flexibility needed to house the full range of individuals that may be in the agency’s custody,” said an ICE spokesperson in a statement.

The White House and the U.S. Department of Justice did not return requests for comment.

Since Gov. Gavin Newsom signed AB 32 into law in the fall of 2019, ICE’s capacity to detain immigrants at privately run facilities has increased in California by about 45% to nearly 7,200 beds.

That’s because, in the less than three months before the law went into effect, ICE issued a solicitation for several “turnkey” facilities and awarded contracts to for-profit companies totaling $6.5 billion. The contracts also extend for as long as 15 years, much longer than typical immigration detention agreements.

Then-Sen. Kamala Harris and other members of Congress wrote to the agency questioning whether those contracts violated federal procurement laws, which are designed to protect taxpayer dollars by promoting competition among potential vendors.

Vice President Harris’ office did not return requests for comment for this story.