California tried and failed to ban for-profit ICE detention centers. What does that mean for other states?

WASHINGTON, D.C. — California’s landmark ban on private prisons and immigrant detention facilities saw its fate sealed when a federal court officially repealed the 2020 law.

In a win for private prison contractors, a final judgment in May declared Assembly Bill 32 unconstitutional as applied to private detention contracts for U.S. Immigration and Customs Enforcement and other federal agencies, though the ban remains in place for private prisons in the state.

The ban was enacted amid mounting reports of unsafe conditions and health violations at detention facilities, including moldy food, overuse of solitary confinement and dangerous delays in medical care. Following a 2020 investigation by The Times into violence against detainees at California’s privately run federal immigration detention centers, the newspaper sued the Department of Homeland Security for records of abuse nationwide.

After taking stock of California’s lost court battle, advocates and lawmakers in other states have altered proposed legislation that would apply restrictions on immigrant detention in hopes that scaled-back measures will face fewer political hurdles.

“AB 32 was introduced at the height of the Trump era, when there was an attempt to aggressively expand immigration detention through private corporations,” said Jackie Gonzalez, policy director of Immigrant Defense Advocates, who advised legislators drafting the bill. “We pushed really hard.”

The news comes as detention facility operators face an increase in numbers of detained immigrants with May’s expiration of pandemic-era border restrictions under Title 42. Nearly 30,000 immigrants were detained as of June 4, according to the Transactional Records Access Clearinghouse, a nonpartisan research center at Syracuse University, up 40% from a month prior. DHS cleared detention space ahead of Title 42’s expiration.

Concerns over conditions in detention facilities have continued to grow. On May 17, an 8-year-old girl died in Border Patrol custody in Texas after a nurse practitioner allegedly denied her mother’s requests for an ambulance or hospital visit.

People in ICE detention are not serving time for crimes but are held while an immigration judge decides if they should be deported. Detention levels peaked at more than 55,000 under the Trump administration and dropped in 2021, amid the pandemic, to a low of 13,000.

After Gov. Gavin Newsom signed AB 32 in October 2019, the Trump administration rushed to preempt the law before it could take effect.

AB 32 would have prohibited new contracts and phased out existing private detention facilities by 2028. But days before it could take effect on Jan. 1, 2020, ICE established new contracts of up to 15 years, totaling nearly $6.5 billion, with three private prison companies that already operated private detention centers in the state: the GEO Group, CoreCivic and Management &Training Corp. The new contracts also added three facilities, nearly doubling immigrant detention capacity in California to about 7,200 beds.

Just after taking office, President Joe Biden signed an executive order phasing out federal use of private prisons. But the order didn’t cover immigration detention.

Then, to the surprise of immigrant advocates, the Biden administration picked up where Trump officials left off on the lawsuit against California’s private prison ban. Last year, the 9th Circuit Court of Appeals ruled that the ban violated the U.S. Constitution’s supremacy clause, which precludes states from interfering with the enforcement of federal laws.

California’s private prison ban was an attempt to push state powers as far as they could go, given existing laws that already limited the state’s involvement in immigrant detention.

Other states are still catching up.