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.

As COVID Spreads, Advocates Demand Release of Immigrants in California Detention Facilities

The spread of COVID-19 in immigrant detention facilities has detainees, advocates, and elected officials demanding action by state and federal authorities. California is home to five detention facilities, which currently have the capacity to detain as many as 5,000 individuals daily, with thousands cycling through each year. 

Despite ICE’s claims that they would limit enforcement during this pandemic, attorneys continue to see individuals placed into detention at an alarming rate. Of those detained, an estimated 95% are held in facilities operated by for-profit corporations, with a track record of negligence, inhumanity, and placing their financial interests above the needs of detainees or staff. Advocates have maintained that these facilities are overseen by a rogue agency, ICE, and run by private operators who lack minimal standards of transparency or accountability.

Ongoing immigration detention not only further endangers those detained but also greatly adds to the current public health crisis. A nationwide study developed by the Nature Public Health Emergency Collection estimates that coronavirus outbreaks among a minimum of 65 ICE facilities (59%) would overwhelm ICU beds within a 10-mile radius. Outbreaks among a minimum of 8 ICE facilities (7%) would overwhelm local ICU beds within a 50-mile radius. 

What follows is an overview of what is known about the current status of COVID-19 and those detained at each of the five immigration detention facilities in California.

Adelanto Detention Facility – Detention Capacity: 1,940 (Operated by The GEO Group Inc), Adelanto, CA

The Adelanto Detention Facility, the largest and historically deadliest facility in the state, has maintained its notorious status with reports of abuse and horrific conditions faced by immigrants during the pandemic. Reports have emerged of COVID-19 infections in the facility, but due to ICE’s seeming obfuscation, it is unclear how many detained individuals or staff have contracted COVID-19. Advocates have alleged that ICE has secretly banned testing for COVID-19 inside the detention center and may be suppressing the truth as to the spread of the virus inside. 

Detainees inside the facility have alleged that GEO, the operator of the facility, has exposed them to hazardous chemicals. This includes having chemicals sprayed every 20-30 minutes in close proximity and, at times, directly at them.

Those who have been exposed say they have suffered health complications such as rashes, nosebleeds, breathing difficulties, headaches, and nausea, Reuters reported.

Otay Mesa Detention Facility - Detention Capacity: 1,230 (Owned and operated by CoreCivic), San Diego, CA

The Otay Mesa Detention Facility, which holds approximately 1,230 individuals, was the site of the largest outbreak of COVID-19 in the state and, at one point, was the largest outbreak in any ICE facility in the nation, with more than 160 individuals testing positive. Tragically, the facility was also the site of the first detainee COVID-19 death, with 57-year-old Carlos Escobar Mejia passing away from the illness in May. 

Employees of CoreCivic have gone on record with local news outlets citing inadequate health and safety conditions. Credible reports have emerged that CoreCivic has used violence and intimidation against detainees who have asked for basic supplies for medical safety and hygiene. In one particularly egregious case, CoreCivic attempted to require detainees in the facility to sign legal waivers before providing them with personal protective equipment. Detainees who protested this requirement were subsequently pepper sprayed.

Imperial Regional Detention Facility - Detention Capacity: 700 (Operated by the Management and Training Corp), Calexico, CA

The Imperial Regional Detention Facility is one of the state's largest and most remote detention facilities. The facility had its first positive COVID-19 case in May but has not yet reported increased numbers inside the facility. Imperial County itself has had one of the highest death rates for COVID-19, with only two hospitals serving the entire region.

The facility itself remains a virtual black hole for legal representation, with advocates and detainees noting the lack of legal resources and support for those detained inside the facility.

Mesa Verde Detention Facility - Detention Capacity: 400 (Operated by The GEO Group Inc), Bakersfield, CA

The Mesa Verde Detention Facility is currently the site of the most active outbreak of COVID-19 among all civil detention facilities in the country. Advocates believe there are currently over 50 cases of COVID-19 at the facility. This past week, dozens of individuals tested positive for COVID-19, with a federal judge noting ICE’s “deliberate indifference” to the threat posed by the pandemic and ordering mass testing of everyone inside the facility. 

This outbreak comes after months of advocacy by detained individuals highlighting the horrific conditions in the facility and the potential for COVID-19 outbreaks. According to individuals inside the facility, the exposure to COVID-19 is the direct result of recent transfers from individuals who were previously in the custody of the California Department of Corrections and Rehabilitation (“CDCR”), including individuals who had previously tested positive for COVID-19. The policy of facilitating transfers from CDCR into ICE custody is in direct contradiction to Centers for Disease and Control Prevention (“CDC”) guidance, yet it has continued during this pandemic despite a months-long campaign targeting Governor Newsom to end the voluntary practice. 

Yuba County Jail - ICE Detention Capacity: 210 (Operated by the Yuba County Sheriff's Office), Marysville, CA

The Yuba County Jail is the only non-private facility in the state that holds ICE detainees. The facility holds ICE detainees alongside those in county custody and presents an extremely high risk for COVID-19. The jail has been under a consent decree for over 41 years to improve conditions and disability access at the jail, and today, conditions today remain oppressive. 

Advocates have been told that detained individuals are on lockdown 19 hours a day and that there is at least one confirmed case of COVID-19 at this facility. The jail administrators have acknowledged not having enough masks or proper protective gear for those inside the facility despite being paid millions by ICE to house detainees. Detainees inside the facility have staged numerous actions and hunger strikes to shed light on the conditions they face. They have expressed an alarming lack of hygiene supplies, including soap. Detainees are confined in crowded and unsanitary conditions and are unable to maintain safe social distancing. The facility has historically been plagued by sanitation, cleanliness, and welfare issues. 

Conclusion 

There is a high probability that COVID-19 will soon be officially confirmed in every immigrant detention facility in California. It is not a question of if but when these facilities will be further infected and of how many people will suffer and possibly die. 

Detention facilities are structurally incapable of providing any meaningful form of social distancing, with multiple individuals confined to a single room or cell and often dozens of individuals living in a shared pod. ICE itself relies on a detention system in which individuals facing deportation or removal may be transferred between multiple facilities quickly and without oversight. The current structure and operations of these facilities within California enable the rapid spread of this deadly disease. Moreover, as deportations from detention centers continue, the US immigration detention system is directly contributing to the further spread of COVID-19, not just within our nation’s border but throughout the world.