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Will California’s Ban on For-Profit Immigration Detention and Prisons Survive Biden Legal Challeng

After complaining of pain over the course of a year, a 44-year-old man bled to death while detained by U.S. Immigration and Customs Enforcement at a facility near Adelanto, Calif. He hadn’t been seen by a doctor until a month before he died at a hospital, with “widespread” signs of cancer.

A gay man reported enduring sexual harassment by guards, including during showers, at an ICE detention center near San Diego, which has one of the highest numbers of sexual assault complaints in the country.

And at an ICE facility near Bakersfield, an asylum seeker suffered a miscarriage after falling on her stomach while shackled at her feet and hands. She didn’t receive any gynecological or mental health care after she lost her baby, she said.

The incidents all happened at immigration detention centers run by for-profit companies, according to court records submitted by supporters of a recent California law that aims to phase out the use of privately operated prisons and immigration detention facilities across the state.

President Joe Biden has pledged to end for-profit detention in the U.S., arguing that businesses should not profit from people’s suffering. But his administration has fought the California law in court, pursuing a legal challenge filed by the Trump administration days after the law, known as AB 32, went into effect last year.

Nearly all ICE detainees in California are jailed at facilities run by three prison companies: the GEO Group, CoreCivic, and Management & Training Corporation.

The GEO Group has also sued to invalidate the state law. GEO estimates it could lose more than $4 billion in capital investment and future revenue under AB 32, which outlaws the operation of private detention facilities in California after their current contracts expire.

If the first-of-its-kind California ban survives in court, it could be a model that transforms the private prison and immigration detention business in other states as well, said California Attorney General Rob Bonta.

“This is a case with a lot of national significance,” said Bonta, who authored AB 32 as a state assemblyman.

“It was always the hope that others would replicate what California has done and also ban for-profit private prisons and detention centers, which are inhumane, unjust, unsafe, unfair, and which allow for literally Wall Street-owned corporations to profiteer on the backs of people,” he added.

California argues that privately-run facilities pose an “unacceptable danger” to detainees and that the state has the right to protect the safety and wellbeing of its residents.

Last fall, a district judge in San Diego largely upheld AB 32, with an exception for the U.S. Marshal Service.

The GEO Group and the U.S. Department of Justice appealed U.S. District Judge Janis Sammartino’s ruling, stating that AB 32 cripples the federal government’s authority to house federal inmates and immigrant detainees in California.

“The Supreme Court, this court and other courts have held that restrictions on the government’s ability to carry out its operations using contractors are impermissible when they are far less intrusive than this case,” U.S. Department of Justice attorney Mark Stern told a three-judge panel at the 9th circuit court of appeals in Pasadena last month.

A few days after the hearing, Southern California Congresswoman Norma Torres (D-Pomona) and two dozen other members of Congress urged U.S. Attorney General Merrick Garland to abandon the legal challenge against AB 32.

Continuing the appeal puts the U.S. Department of Justice “in the way of President Biden’s stated goal to ensure that the federal government does not use private facilities for incarceration,” the lawmakers wrote in their letter.

“It’s important for me to stand in support of the California law and the wishes of our state,” Torres told KQED. “They should immediately drop this lawsuit…Biden very much campaigned against this very issue.”

At a rally in Georgia to celebrate his first 100 days in office, Biden reiterated his campaign pledge after protesters interrupted his speech screaming, “End detention now! End detention now!”

“There should be no private prisons, period,” Biden told the crowd. “That’s what they’re talking about — private detention centers. They should not exist. And we are working to close all of them.”

The president has ordered the U.S. Department of Justice to phase out its use of private prisons for criminal offenders, but he left out for-profit immigration detention centers, which account for roughly 80% of ICE’s detention beds.

Meanwhile, the Biden administration has requested Congress appropriate $1.8 billion for ICE to keep 32,500 detention beds nationwide, just 4% fewer than what was enacted last year under President Donald Trump.

“This ensures apprehended noncitizens subject to removal from the United States are held in safe and secure facilities pending their immigration proceedings,” said the budget summary by the Department of Homeland Security, which oversees ICE.

As of July 8, ICE detained more than 27,200 people nationwide, nearly double the number locked up when Biden took office. More than four out of five of those immigrants do not have a criminal conviction, according to the most recent agency figures.

Biden’s seeming lack of action so far to dismantle the private immigration detention system worries AB 32 supporters like Jackie Gonzalez, who directs policy for Immigrant Defense Advocates in Sacramento.

“He has the opportunity to reverse course. But thus far, his behavior has been a betrayal for the immigrant community,” said Gonzalez, whose organization pushed for the passage of AB 32. “His decision to side with private prison companies by continuing to pursue Trump’s litigation against the state of California, and failing to make good on his campaign promises is something that no one is going to forget.”

Congresswoman Torres and state Attorney General Bonta said it’s still early in the president’s tenure. They hope the Biden administration will work with California on this issue and consider more alternatives — such as case management programs and ankle monitors — to jailing immigrants for the civil violation of not having valid immigration papers.

“These are civil cases, and folks don’t need to be detained at all,” said Bonta. “They can come to all of their hearings and go through whatever process is part of their individualized case without being detained and without taxpayers wasting resources on locking people up in cages.”

Immigration authorities contend that the use of private contractors provides ICE needed flexibility to increase or decrease detention space, as the population of detainees can fluctuate greatly.

During the COVID-19 pandemic, the number of people immigration authorities jailed dropped significantly, as ICE officials and immigration judges ordered the release of thousands of people nationwide, in part because of the high risk of virus transmission at detention centers.

In August 2019, the Trump administration locked up more than 55,000 immigrants nationwide on any given day, an all-time high. But that number fell to about 15,000 at the end of Trump’s term.

“ICE is continually reviewing its detention requirements and exploring options that afford the agency the operational flexibility needed to house the full range of individuals that may be in the agency’s custody,” said an ICE spokesperson in a statement.

The White House and the U.S. Department of Justice did not return requests for comment.

Since Gov. Gavin Newsom signed AB 32 into law in the fall of 2019, ICE’s capacity to detain immigrants at privately-run facilities has increased in California by about 45% to nearly 7,200 beds.

That’s because, in the less than three months before the law went into effect, ICE issued a solicitation for several “turnkey” facilities and awarded contracts with for-profit companies totaling $6.5 billion. The contracts also extend for as long as 15 years, much longer than typical immigration detention agreements.

Then-Sen. Kamala Harris and other members of Congress wrote to the agency questioning whether those contracts violated federal procurement laws, which are designed to protect taxpayer dollars by promoting competition among potential vendors.

Vice President Harris’ office did not return requests for comment for this story.

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