AB-32: California's "holy war" against contractor detention facilities

In August 2016, the Office of the Inspector General (Department of Justice) published a Review of the Federal Bureau of Prisons’ Monitoring of Contract Prisons, which examined conditions at prisons managed by private companies with contracts from the federal government. The document stated that the contract prisons reported a 28 percent higher average of inmate-on-inmate assaults, compared to Bureau of Prisons institutions.

The OIG also claimed to have found that in most key areas, contract prisons incurred more safety and security incidents per capita than comparable BOP institutions.

That same month, Deputy Attorney General Sally Yates sent a memorandum to the Acting Director of the Federal Bureau of Prisons, directing that as each contract with a privately-operated prison reached the end of its term, the BOP should either decline to renew that contract or substantially reduce its scope.

Yates explained: They simply do not provide the same level of correctional services, programs, and resources; they do not save substantially on costs; and as noted in a recent report by the Department's Office of lnspector General, they do not maintain the same level of safety and security.

Yates’ memo did not apply to state prisons, in which the vast majority of the incarcerated in America are housed, nor did it officially apply to U.S. Immigration and Customs Enforcement (ICE) and U.S. Marshals Service detainees, who are not under the purview of the federal Bureau of Prisons.

Jeff Sessions' reverse-course

Following the inauguration of President Donald Trump, there was an immediate reverse-course. In February of 2017, then-Attorney General Jeff Sessions sent another memorandum to the Acting Director of the Federal Bureau of Prisons, rescinding the memorandum sent by Sally Yates half a year earlier. In reference to the move made by the Obama administration, Jeff Sessions wrote The memorandum changed long-standing policy and practice, and impaired the Bureau's ability to meet the future needs of the federal correction system.

Please note the emphasis on the practical need for physical detention facilities to exist. Gary E. Mead, a former associate director of the U.S. Marshal Service, has pointed out that private prisons came about in the first place because federal and state governments were unable or unwilling to fund new prison construction, in order to keep pace with increasing inmate populations.

California Assembly Bill 32

There exists a belief among socialists or those leaning towards socialism that there is something inherently immoral about allowing people to profit from running prisons. Moreover, they suspect that the profit motive creates a demand to fill prison space, not to mention the potential corrupting influence of private competition for government contracts to operate prison facilities.

In his January 7, 2019 inaugural address, California Governor Gavin Newsom proudly declared:

In our home, we believe in justice for all. We will defend the progress we’ve made to reform our criminal justice system. We will continue the fight against over-incarceration and over-crowding in our prisons. And we will end the outrage that is private prisons in the state of California once and for all.

In 2017 a measure to accomplish exactly that was pushed by Assemblyman Rob Bonta, a Democrat who represents Oakland, Alameda and San Leandro. The bill was vetoed by then-Governor Jerry Brown, who said the state needed to maintain maximum flexibility in the short term in order to comply with a cap on the total number of state prison inmates, set by a panel of federal judges in 2009.

Assemblyman Rob Bonta introduced a similar bill in 2019, and this time it became law. Assembly Bill 32, signed by Governor Gavin Newsom on October 11, will prevent California from entering into or renewing contracts with private prison companies after January 1, 2020, and will phase out all such facilities by 2028. The ban covers the four ICE detention centers in California, all of which contract out management to private operators.

Compliance with AB-32 could cost more than $100 million a year, according to California Senate Appropriations Committee findings. This fiscal year, the average cost per inmate in a California state prison is nearly $85,000, while for a private prison the cost is only about $31,000 per inmate.

Reduced capacity for detained aliens is a likely result

On November 9, the Los Angeles Times published a report packaged as a “shocking exposé”: ICE may circumvent California’s ban on private immigrant detention centers. Immigration and Customs Enforcement officials have accelerated the contract renewal process for four ICE detention centers in California, in order to beat the year-end deadline imposed by AB-32.

The following text is from the Los Angeles Times article:

An ICE spokesman previously said that the agency would continue detaining immigrants in California as usual and would simply transfer them to facilities out of state.

Hamid Yazdan Panah, an immigration lawyer in the Bay Area, said it would be logistically difficult and expensive for ICE to transfer every immigrant detained in California to other states. He thinks the solicitation illustrates the agency’s realization that AB 32 will limit the number of people it can detain.

It's likely that AB-32 will cause a reduction in the total amount of detention capacity for illegal aliens detained by ICE. There exists no reason to doubt that opponents of contract immigrant detention facilities ultimately aim to eliminate ICE detention centers.

The decent residents of California who oppose these pro-disorder measures should hope they won't extend one day to violent criminals in state prisons — although they probably will. See, for example, California lawmakers move to cap prison time for felons.

Update: GEO Group files lawsuit arguing CA violated the Supremacy Clause

The GEO Group, based in Boca Raton, Florida, runs the Adelanto ICE Processing Center in San Bernardino County and the Mesa Verde ICE Processing Center near Bakersfield. According the LA Times article, the Adelanto facility is the second-largest adult detention center in the U.S.

On December 30, the GEO Group sued California in federal court, arguing that Assembly Bill 32 violates the Supremacy Clause of the U.S. Constitution. The Supremacy Clause establishes that the Constitution and federal laws constitute the "supreme law of the land", and thus take priority over state laws.

The plaintiffs asked the court to prevent AB-32 from taking effect. Governor Gavin Newsom and Attorney General Xavier Becerra were named in the lawsuit, which was filed in the Southern District of California..

Update 2: U.S. Department of Justice sues California over AB-2

On February 24, the Trump administration sued California, claiming that AB-32 is unconstitutional, discriminates against the federal government and obstructs its ability to carry out necessary operations.

In a 17-page lawsuit filed in the Southern District of California, the Trump administration asked a judge to bar California from enforcing AB-32 against the federal government and its private prison contractors. Like the GEO Group, the U.S. Department of Justice argues that AB-32 is pre-empted by federal law, under the Supremacy Clause of the U.S. Constitution.

To prove the law would prevent the federal government from operating normally — which is of course the whole purpose of the legislation — the DoJ points to the 44,000 immigrants detained in fiscal year 2019, who would ultimately need to be relocated to neighboring states under AB-32.

Disclaimer: Information on this website is not legal advice.