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. 

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.

AB 32 Ruling May Change Immigrant Detention Forever

A federal court in San Diego is set to rule on a case involving the use of private detention facilities, with broad implications for immigrants in detention in California and perhaps nationwide. 

The suit initiated by the GEO Group Inc., one of the largest private prison companies in the world, was brought against the state of California when it passed AB 32, a groundbreaking bill that banned the operation of all private detention facilities within its border, including private civil detention facilities used by the federal government to house immigrants. GEO was joined in the suit by the federal government, with both parties claiming that AB 32 is an unconstitutional overreach by the state of California, and asked the court to invalidate the law and also declare current contracts in place for facilities as valid and immune from challenge.

The law prohibits private operators from signing any new contracts after January 1, 2020. Advocates allege that ICE and private prison companies colluded to sign 15-year contracts weeks before the ban was set to take effect in an effort to skirt the law. The contracts have drawn criticism, including an oversight letter signed by more than 20 congressional representatives. 

During the first hearing in the case, U.S. District Judge Janis Sammartino issued a tentative ruling in favor of the state of California and appeared inclined to largely uphold the law. She referred to the lawsuit as “fascinating and complex” and noted that more than 100 members of the public had called in to listen to the hearing. 

A finding that AB 32 is constitutional would serve as a severe blow to the private prison industry, which operates multiple facilities in the state of California, including four out of the five immigrant detention facilities in the state. 

A finding that a ban of this sort is constitutional may have even broader implications for the future of immigrant detention nationwide, as more than half of all immigrants in ICE custody are held in private facilities.

As Jordan Wells, an attorney with the American Civil Liberties Union of Southern California, told the LA Times. “The ruling is as much about ICE’s private prison enterprise across the country as it is about the ban on it here in California,” he said. “Because if California can do it, then other states can as well.”

Immigrant Legal Defense (ILD) and Immigrant Defense Advocates (IDA) had submitted an Amicus Brief to the court ahead of this hearing and were invited by the Judge to present on the case. The brief, which was filed in March of this year, centers on the GEO Group’s documented history of undue influence and bad-faith dealings in the state of California.

Jackie Gonzalez, attorney for Immigrant Defense Advocates, represented both parties before the court. The following is an excerpt from her court presentation; you can read the full statement here.

It is directly against the public interest to allow private corporations to enter into sham contracts with local governments in order to circumvent federal and state laws all while evading oversight and transparency.

By circumventing the contracting laws that they are supposed to follow, GEO and the federal government have undermined the federal contracting process. Because GEO and the federal government have thus far refused to release any information about the formation of these contracts the public cannot be sure that there are not improper motives, illicit financial incentives or other malfeasance that contravene the public interest – and there is ample evidence to suggest that all of these things have occurred.

That is why we are here today and why we filed our brief. To show the court that GEO appears before you with unclean hands, and to point out just how many instances of inequitable conduct have been documented – even without the opportunity to conduct meaningful discovery on this matter.

...

I would like to leave you with one last thought: AB 32 was an expression of our State’s priorities, which value people over profits. We ask that you do not reward the bad faith conduct of a private corporation that subverts the rule of law, our democratic institutions and most importantly human life in its pursuit for profit.

A written ruling on the case is expected in the coming weeks.