California Passes AB 3228 Bill To Protect Immigrants in Detention
On Sunday, September 27th, California Governor Gavin Newsom signed AB 3228, a bill focused on accountability and human rights in private detention facilities, including those used to hold immigrants. The bill, authored by Assemblymember Rob Bonta (D-Oakland), is the first of its kind in the nation and requires all private detention operators to adhere to the standards of care in their facility’s contract for operations. The bill allows any individual harmed due to a breach of those standards to bring suit in state court against a private operator.
The bill not only covers private prisons but will apply to the five private immigrant detention facilities in the state of California, including the Mesa Verde, Adelanto, and Golden State detention facilities owned and operated by the GEO Group, as well as the Otay Mesa detention facility owned and operated by CoreCivic, and the Imperial detention facility operated by the Management and Training Corporation. With nearly 90% of the state’s detained population held in private facilities, the bill is set to have an impact on what many believe is a broken system of oversight and regulation.
To discuss the bill further and its impact, ILD sat down with Jackie Gonzalez, Policy Director for Immigrant Defense Advocates (IDA), who sponsored AB 3228.
ILD was proud to support AB 3228, and we congratulate IDA on the bill, which is now officially part of California's laws. Can you summarize the bill and its impact?
The bill provides a layer of accountability with respect to what takes place in private detention facilities in California, which includes both prisons and civil detention facilities. Study after study has shown that private prison companies place their profits over the health and safety of those in their custody. This bill says that the state of California fully expects private detention facilities to follow the standards of care they agree to in their contracts. It says that they can take that company to state court whenever someone is harmed based on a violation of these standards. We have seen time and again that these companies are solely motivated by profit, so the bill takes them to task and attempts to impose financial consequences for their behavior.
The bill is significant because it allows the state of California to ensure accountability and basic standards for immigrants being held in private detention facilities. California as a state cannot interfere in the execution of federal immigration laws, and it cannot stop the federal government from detaining individuals. However, there is a clear argument that if a private corporation contracting with the federal government violates the terms of its contract and causes harm, they are no longer acting as an extension of the federal government but simply as a private bad actor, and the state can and should be able to regulate them. In addition to that, the U.S. Ninth Circuit Court of Appeals has found that California has the right to regulate the conditions of confinement for individuals in our state, including those in immigrant detention facilities, so this bill builds upon that legal precedent in order to further protect the health and safety of anyone who is in a private detention facility.
While it is true that, arguably, individuals could already bring certain claims against these private companies before this bill is passed, the bill clarifies what standard of care should be relevant in any legal proceeding and paves the way for accountability when individuals seek justice.
Can you tell us about the genesis of this bill and why this was a priority for this year?
With support from ILD and other advocates, this bill was introduced by Assemblymember Rob Bonta, who we worked with last year on AB 32. It is a groundbreaking bill to eventually ban all private detention facilities in California. That bill passed and went into effect January 1, 2020. On the state side, California made its promise and closed nearly all its privately operated facilities, save for one women’s prison. The bill would have also resulted in the closure of multiple immigrant detention facilities this year, including Adelanto and Mesa Verde, but ICE and private prison corporations circumvented federal and state law and signed 15-year contracts days before the bill’s enactment in order to prolong the lifespan of those facilities. The legality of AB 32 and those contracts are currently in litigation, but while those issues were being settled, Assemblymember Bonta announced that he wanted to do a bill focused on the abhorrent conditions in facilities that remained open, as we all know that poor conditions in these facilities are a major and ongoing issue. We worked with him early in the year to try to think about how we could address the situation and the complete lack of accountability in these facilities.
For example, the Office of the Inspector General of the Department of Homeland Security has found that ICE itself, despite having a set of national standards of care that govern how individuals should be treated in detention, does nothing when these standards are violated. So, we tried to think about how we could tackle that issue in a way that would protect the rights of individuals in custody and create real consequences for these private corporations and their behavior.
This was before the COVID pandemic really took off, but once it did, the need for the bill and the egregiousness of the conditions in detention became more and more of a pressing issue – particularly as the largest outbreak of COVID-19 in any private immigrant detention facility, as well as the first COVID-19 related death in ICE custody, both happened at the Otay Mesa detention facility here in California. From there, we had an increased sense of urgency to make sure that California passed this bill this year, as people’s lives were literally on the line.
It seems like California continues to be on the front lines of fighting the Trump administration's inhumane policies on immigration. What is your take on that?
As a project that does state-level policy related to immigration detention, I am thankful that we are in a state that has a tradition of not only dissent but also lawmakers and elected officials who are motivated to push the envelope on what is possible. There are a lot of exciting policies that California has led the way on in the fight to protect the lives and dignity of immigrants, including SB 54, SB 29, AB 103, AB 32, and now AB 3228. As a state and as advocates, we are facing unprecedented times and challenges and must be willing to dream big and fight for our communities.
COVID-19 has fundamentally changed all of our lives; how has it affected the lives of immigrants in detention?
Immigration detention conditions and the lack of humanity within the detention system have always been horrifying. With COVID-19, it is worse than ever. As a detained individual, you are held in a facility, away from your family, by a corporation that gets paid for every day you are in there and makes money off of your labor, all while a pandemic begins to unfold. It is a nightmare scenario. I can’t imagine what it feels like to wait for the virus to enter the facility, knowing that there is no meaningful way to socially distance or to protect yourself. People are understandably terrified and begin to get really desperate. It is heartbreaking because the reality is that those people who are waiting for their day in immigration court do not need to be detained. There is no reason for them to be in detention, period.
What we saw here in California – and, in fact, across the country – is that retaliation and abuse have gone way up in these facilities simply for protesting the horrid conditions of confinement. We had a particularly egregious case in Otay Mesa where CoreCivic reportedly tried to get detainees to sign legal waivers before giving them proper protective gear, and after they protested, they were pepper sprayed by guards.
Another piece related to AB 3228 is that ICE has released a set of mandatory requirements that all detention facilities should abide by to protect against COVID-19 infection, including very specific requirements related to working with local public health authorities. Unfortunately, based on preliminary research, we have seen that this is simply not happening. These corporations are not making any real attempt to comply with these requirements. Many people don’t realize that a massive COVID-19 outbreak at these facilities affects not only staff and individuals inside but can actually result in local hospitals being overwhelmed, which can threaten the surrounding community's public health. So, there is a really strong argument that if we are going to protect public health effectively during this pandemic, it is incumbent on the state to tackle COVID-19 in all of these facilities.
As attorneys who have done detention work for many years, ILD attorneys have seen and heard horrific stories about immigrant detention from our clients over the years. However, the recent news about forced sterilizations is particularly terrifying and heartbreaking. Does this bill help stop similar types of abuses?
The reports I have seen to date about that tragic situation have been limited to Georgia, but they did take place in a private detention facility. If a similar situation were to take place here in California, it would be covered by this bill as a clear violation of detention standards. We hope AB 3228 can be a model for other states to follow in order to ensure accountability by these private operators.
There is so much abuse going on, and such a clear failure in terms of oversight that states should be motivated to pass this kind of legislation.
Your organization refers to itself as an abolitionist. What does that mean in the context of recent California bills related to detention?
Well, I think for us, abolition is both an ideology and a strategy, but we can summarize it with respect to our work and this bill by saying that we, along with ILD and other advocates, want to end immigrant detention. Period. The goal for AB 32 and AB 3228 is to end the practice of private detention and challenge people's fundamental assumptions about immigration detention and why it's even necessary.
Many organizations and people are working on abolition as a concept with respect to issues related to mass incarceration, and we hope to follow their example and work.
Some may view a bill like AB3228 as an attempt to improve the conditions within detention facilities, make them more tolerable, and thus prolong or make detention more acceptable. Others may think that by focusing on private detention, we are arguing that government-run detention facilities are better or preferable. That is not the case. We believe that AB 3228 will expose the reality that private detention facilities cannot comply with regulations or standardization. We believe it will expose the systematic failures of that industry as a whole and eventually lead to its demise in California. While we don’t believe that government-run detention facilities are better, the reality is that the profit motive that exists is driving mass incarceration in this country. It should be targeted and challenged as part of the broader movement going on in this country towards the end of detention for all.