January 25, 2020; Los Angeles Times
Less than a month after a California law banning private prisons, Assembly Bill 32 (AB 32), went into effect, the Trump Administration has followed the example of private prison operator GEO Group in suing California to ban implementation.
AB 32 prohibits new private prison facilities in California and requires existing facilities to be phased out by 2028. As reported by the Los Angeles Times, the lawsuit contends that while “California, of course, is free to decide it will no longer use private detention facilities for its state prisoners and detainees…it cannot dictate that choice for the federal government, especially in a manner that discriminates against the federal government and those with whom it contracts.”
NPQ covered the initial response to AB 32 in December, speculating that it was just the start of the battle over the law, which appears to be the case. As discussed then, the legal questions at play only partially get at the public policy debate over private prisons. It’s very possible that California will ultimately lose. But that does not decide the fate of private prisons; California’s law is just one facet of an intense, growing advocacy push to end their use.
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As NPQ’s Ruth McCambridge previously warned, California’s law was always likely to be only the opening volley of a very long fight over private prisons, because the interests defending private prisons make up an extremely powerful, and secretive, lobby. Two weeks before AB 32 went into effect, ICE signed six new contracts for new prison facilities in California, just avoiding the start of the ban, totaling $6.5 billion.
The emphasis on these type of contracts in the government’s lawsuit is striking, especially considering how closely the claims mirror a suit brought last month by GEO Group. GEO Group is one of the companies currently operating private prison facilities in California. Both suits claim that AB 32 violates the federal supremacy clause (Article VI, paragraph 2) of the US Constitution by interfering with the rights of federal agencies to decide how they will house prisoners and detainees without interference by state governments. The federal government’s lawsuit also contends that the law will prevent US Immigration and Customs Enforcement (ICE) from enforcing immigration laws, because 96 percent of detention centers in California are privately operated, requiring ICE to move detainees out of state.
Luckily, immigration activists, criminal justice reform advocates, and prison abolitionists are continuing to step up to play David to the Goliath of the GEO Group et al. Activists and advocates have doggedly pushed for transparency around abuses at private prisons, documented horrifying human rights violations, and continued to build the case that private prisons one of the biggest failures of the US justice system. And the work is having an effect. Nevada and Colorado have both introduced bills to ban private prisons. Major banking partners are divesting from private prisons. All remaining Democratic presidential candidates are on the record supporting banning or ending the use of private prisons. In this light, the recent lawsuits start to look like a defensive response, a recognition that change is coming.—Ellen Davis