AB 32 and the Future of Immigration Detention in California
On October 9th, a federal judge ruled that AB 32, a California law that bans the use of privately operated prisons and immigration detention facilities, is largely constitutional in a landmark decision with broad implications. The decision, issued by U.S. District Judge Janis Sammartino, found that AB 32 only regulates private prison operators and thus does not interfere with the federal government's operations. The ruling is a major blow to private prison corporations and Immigration and Customs Enforcement (ICE), both of whom sued California after Governor Gavin Newsom signed AB 32 into law in October of 2019.
AB 32 bans the use of all private detention facilities in the state and requires all facilities to close upon the completion of their contracts. At the time of the bill’s signing, multiple immigration detention facilities were slated to close in 2020 until ICE and private prison companies signed new contracts for the four private facilities in operation in the state. The contracts secured just weeks before the January 1 start date for the law were slammed by advocates and Congressional officials as an illicit scheme to circumvent the law.
Following the signing of those contracts, the GEO Group Inc., the second largest private prison corporation in the world, and ICE sued the state of California and asked a federal court to strike down AB 32 as unlawful. GEO also asked the court to find that the contracts they signed with the federal government were valid. The contracts at issue were reported to be five-year contracts, with two additional five-year options totaling fifteen years and valued in the billions of dollars. GEO specifically asked the court to deem the full fifteen-year terms of the various contracts as valid under AB 32 despite the bill not allowing for contract extensions.
In anticipation of the hearing, Immigrant Legal Defense (ILD) and Immigrant Defense Advocates (IDA) filed an amicus brief with the court, which underscored the GEO Group’s history of bad faith behavior in the state of California and specifically challenged the validity of the contracts signed in December 2019, urging the court not to uphold them as valid.
In a 75-page decision, Judge Sammartino noted that California has the right to regulate conditions of confinement and protect the health and safety of individuals in detention, writing, “The regulation of health and safety matters is primarily, and historically, a matter of local concern” and noted AB 32 “appears to be a regulation ensuring the health and welfare of inmates and detainees within California’s borders.”
With respect to the contracts at issue, Sammartino appears to have agreed with arguments raised by ILD and IDA in their brief, arguing that her court did not have jurisdiction to decide the fate of the contracts. “The Court continues to harbor some doubts—although styled as a claim against the State of California, GEO’s fourth cause of action, at heart, seeks a “declaration of contract rights against the government,” over which the Court would lack jurisdiction.”
Despite her noted reservation, Sammartino took up the issue and denied GEO’s request to find the additional five-year options in the contracts as valid under AB 32. “It appears unlikely that GEO will succeed in arguing that the options are not such extensions,” she wrote.
In her final decision, Sammartino did exempt the application of AB 32 to facilities operated by the U.S. Marshals Service, finding that the law would serve as an obstacle to the federal government in their capacity to contract with private operators to detain prisoners in federal custody. Sammartino pointed to explicit statutory language authorizing the U.S. Marshals to pursue such contracts as a basis for her ruling, noting that no equivalent Congressional authority exists concerning ICE’s power to detain individuals in civil immigration detention.
Advocates and organizers celebrated the legal victory as a major win for those who have fought to pass AB 32 and worked to close detention facilities in the state. Jackie Gonzalez, Policy Director for Immigrant Defense Advocates, told the Desert Sun, “This bill is part of a broader strategy to end all forms of unnecessary detention. We feel vindicated by the court upholding California’s authority to protect the health and welfare of detained individuals, who for far too long have been subjected to horrid abuses by these corporations.”
The Future of Detention in California and Beyond
The ruling is the latest chapter in an ongoing battle between advocates and private prison corporations in California over what a state can and cannot do with respect to the regulation of private detention facilities. Over the years, California has passed notable pieces of legislation to curb immigrant detention and protect those detained, including SB 29, which prevents local states and counties from contracting with ICE, and AB 103, which allows the Attorney General to inspect detention facilities. Each of these bills has faced legal challenges as part of a tug-of-war over the detention of immigrants.
AB 32 preceded a push by ICE and private prison corporations to expand private bed space in the state after multiple California counties decided to end their contracts with ICE to house immigrants in local jails. Advocates have long argued that closing detention facilities and eliminating bed space could serve as a deterrent to ICE enforcement and detention.
After AB 32 was signed into law, many lauded it as “a model for the nation”, while ICE and GEO moved quickly to undercut its viability, lest other states follow suit. However, with this month's ruling, GEO and ICE received a double blow, not only losing in their bid to strike down AB 32 but facing the prospect that the fifteen-year contracts that they tried so hard to secure may now face serious legal jeopardy.
The ruling by Judge Sammartino will almost certainly be appealed, and while the main focus will be the constitutionality of AB 32, the validity of the contracts in question is no small matter. Under the current ruling, the California Attorney General may choose to enforce AB 32 against private facilities after the completion of the first five-year term of the contracts. This could result in a scenario in which ICE will be forced to shut down five out of the six detention facilities in the state by 2025.
To further complicate matters, Democratic presidential nominee Joe Biden has gone on record saying his administration will “make clear that the federal government should not use private facilities for any detention, including detention of undocumented immigrants.” As a result, the future of these facilities may be at issue even sooner than five years, particularly given the scrutiny of the contracts received last fall by elected officials at the federal level. The solicitation of the contracts was the subject of a congressional letter signed by U.S. Representative Zoe Lofgren (D-CA), Representative Jerrold Nadler (D-NY), and Senator Kamala D. Harris (D-CA), among others, which challenged the legality and manner of the federal procurement process.
Putting California aside, the ruling also allows the bill to stand as a model for other states, meaning that even if Trump remains in office, the potential exists for other states to pass legislation designed to close both private prisons and civil detention facilities. The arguments in favor of this type of state action are further bolstered by the COVID-19 pandemic and the failure of ICE and private operators to protect the health and safety of those in detention.
While advocates, organizers, and detainees continue their fight against private operators and ICE, one thing is for certain: California is not only the front line for the fight to end private detention but stands as a north star for other states to follow.