DOWNTOWN S.D. PRIVATE PRISON TO STAY OPEN DESPITE BIDEN ORDER

Facility operator looking for way to work around president’s mandate

A 770-bed federal detention center in downtown San Diego was supposed to close next week, the result of an executive order by President Joe Biden for the federal criminal justice system to gradually sever ties with for-profit, private prisons.

But the Western Region Detention Facility has now been given a six-month reprieve — and negotiations are apparently under way with a town 250 miles away to keep the facility open for much longer in a work-around to the executive order.

The GEO Group, which operates the San Diego facility in the old county jail, on Tuesday announced the six-month extension to its two-year contract with the U.S. Marshals Service, which was set to expire Sept. 30. The announcement does not give a reason for the extension. Neither the Marshals Service nor The GEO Group, which is based in Florida, responded to questions Tuesday.

The facility houses mostly pretrial defendants charged with federal crimes.

Privately operated facilities have been on notice since January, when the executive order prohibited the Justice Department from renewing any contracts with private prison companies as a step toward decreasing incarceration levels and prioritizing rehabilitation. The executive order also notes 2016 findings by the DOJ’s Office of Inspector General that privately operated detention facilities “do not maintain the same levels of safety and security.”

But some detention centers are hoping to stay open by using local governments as intermediaries in the contracting process.

For the San Diego facility, that middleman may be the city of McFarland, a small — population 16,000 — cash-strapped municipality located in Kern County.

In August, according to a City Council agenda, McFarland’s city attorney recommended the city pursue negotiations to enter into an intergovernmental operating contract with the Marshals Service. The city would then subcontract the services to The GEO Group.

For its efforts, McFarland would be paid a $500,000 administrative fee, which the city manager notes “could generate new revenue for the city,” according to public records. It was not clear who would pay the fee. McFarland’s acting city manager, who is also the police chief, did not return a voicemail seeking comment.

On Tuesday, California’s three affiliates of the American Civil Liberties Union sent a letter to the White House urging the Biden administration “to defeat these blatant efforts to strip the Executive Order of any meaningful impact.”

“Rather than permit GEO to use the next six months to cement the fate of the Executive Order as a dead letter, the Administration should use this opportunity to wind down GEO’s involvement at WRDF entirely,” the letter states.

While the ACLU sees a McFarland-type deal as violating the president’s executive order, GEO says “various alternative contracting structures” would allow the Western Region facility to stay open in compliance with the order.

“Whether they can or cannot seems to be an open question,”

ACLU senior staff attorney Bardis Vakili said in an interview.

A similar deal has already kept Marshals Service detainees in place at one private facility, the ACLU notes. In March, the Marshals Service was given a 90-day extension on its contract with CoreCivic, another private prison company, to house federal detainees at the Northeast Ohio Correctional Center — which also houses state and county inmates. In May, the Marshals contracted operations with Mahoning County in Ohio, which subcontracted with CoreCivic.

Vakili said handing operations over to a city as far away as McFarland, with no ties to San Diego, presents an accountability issue.

“If the city or county of San Diego decides to operate a facility in its neck of the woods, the people who elected those folks can then go to the ballot box to say if they are satisfied or dissatisfied,” Vakili said. “But a town 250 miles north makes a decision, and our voters don’t get to hold them accountable? That creates a very dangerous precedent.”

In its announcement Tuesday, GEO argued it was best positioned to continue as the facility’s operator and that closing the detention center completely would cause federal pre-trial detainees to be incarcerated farther away from court, attorneys and family in San Diego.

San Diego has two other federal detention facilities: Otay Mesa Detention Center is run by CoreCivic and is also subject to the executive order, while the Metropolitan Correctional Facility in downtown San Diego is operated by the government’s own U.S. Bureau of Prisons.

All three facilities have been criticized for their handling of the COVID-19 pandemic and accused of failing to implement stringent preventative measures, including cleaning protocols, masks and social distancing. Bed space has been limited to some degree to reduce crowding, and the federal court has worked with prosecutors and defense attorneys to reduce pre-trial and postconviction incarceration in certain low-level, non-violent cases.

Separate from the executive order, a San Diego federal judge in October largely upheld a California law that bans the use of private prisons for civil immigration detention, but her ruling also carved out an exception allowing such facilities to continue to house Marshals detainees. The ruling is under appeal.