COURT WEIGHS BAN ON PRIVATE DETENTION SITES

Outcome could affect future of for-profit prisons

Lawyers for a private prison company traded arguments with the state of California before the 9th Circuit Court of Appeals in Pasadena on Tuesday over a lawsuit challenging state legislation banning private, for-profit prisons and immigration detention centers.

Although no ruling has been made, the outcome of the case could affect the future of the private prison industry in several states beyond California.

California’s ban affects private facilities contracted by U.S. Immigration and Customs Enforcement to detain immigrants. About 25,000 people are currently being held in detention in the U.S. And though private prisons are responsible for less than 10 percent of the total U.S. prison and jail population, they hold nearly 80 percent of people in immigration detention.

The private prison ban would force the closure of seven privately run detention facilities and leave California with only one county jail that holds immigrants for deportation. ICE argued that the closures would force detainees to be transferred out of state, away from family and lawyers, while supporters of the law said ICE could instead use alternatives to detention, such as ankle monitors.

GEO Group, a Floridabased private prison corporation, brought its lawsuit days before Assembly Bill 32 took effect Jan. 1, 2020, alleging that the purpose of the bill is to “undermine and eliminate the congressionally funded and approved enforcement of federal criminal and immigration law.”

The Trump administration filed its own lawsuit with similar claims against the law, which prohibits new for-profit detention contracts and phases out current facilities by 2028.

In October 2020, a U.S. district judge in San Diego upheld the private prison ban, saying that the state has the right to regulate the conditions of confinement of any facility within its territory. But a 9th Circuit panel of judges voted 2-1 that California must exempt federal immigration detention centers from its ban on for-profit prisons.

On Tuesday, Michael Kirk, on behalf of GEO, and Mark Stern, representing the federal government, argued before the judges that Congress has the authority to utilize contracted private companies when necessary.

But the court pressed Kirk on why the use of private prisons is the only way in which the federal government could achieve its objective of arresting and detaining immigrants who come to the U.S. illegally.

Some legal analysts believe it’s possible that whichever way the 9th Circuit rules, the case could end up on the desk of the U.S. Supreme Court.